I see a larger role than Marci does for constitutionally mandated and judicially enforced free exercise exemptions, but there is a problem with Brad's argument. A law that prohibited a certain kind of speech *as speech* would not be neutral and generally applicable; it would target speech the same way the City of Hialea targeted the Santeria religious ritual in the Lukumi case. Cf. O'Brien and other symbolic speech cases in which regulation of conduct is usually upheld despite the effect on the symbolic speech.
With regard to Marci's point on the ministerial exception having no bite in the Ninth Circuit where the claim is for sexual harassment, I think she overstates the case. The most recent Ninth Circuit case on the issue (Elvig) severely limits the remedies that an allegedly sexually harassed minister can seek. In a suit for sexual harassment and for retaliation for making a claim of sexual harassment, the plaintiff's recovery cannot include reinstatement, lost wages, recovery for damage to reputation caused by an allegedly retaliatory firing, or an order requiring the church to give the plaintiff access to its process by which ministers find new positions. The court also held that retaliatory employment decisions (e.g., firing, demotion, change in duties) were not actionable, though retaliatory "verbal abuse and intimidation" would be (if such speech were not religiously mandated), with possible recovery for emotional distress and damage to reputation. (I think the court had in mind a situation in which verbal abuse and intimidation might happen in front of others in the church, with resulting possible damage to the plaintiff's reputation.) I think the plaintiff is left with the possibility of recovering only for emotional distress associated with the alleged harassment, and for emotional distress (and possible damage to reputation) associated with the alleged retaliation. Mark S. Scarberry Pepperdine Univ. School of Law -----Original Message----- From: Brad Pardee To: Law & Religion issues for Law Academics Sent: 3/14/2005 7:18 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Brad _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
