Marci's post is inconsistent with what we know of the case. Facts matter and the facts in this case call into question whether this is a neutral and generally applicable rule. The University is telling Jen Keeton that she can't believe what she believes. She must reject the notion that her religious beliefs are true and applicable to persons others. It has said that this rejection of what she believes today must be "fundamental" and not "superficial."
This seems to be targeted at religious beliefs in a way that Smith did not contemplate. I rather doubt that this rule of relativity is applied across the board. I don't think that the university would order remediation for a person who believes that racism is immoral and announced her refusal to affirm affirm racist beliefs. I rather doubt that this rule of relativity is applied across the board. I don't think that the university would order remediation for a person who believes that racism is immoral and announced her refusal to affirm affirm racist beliefs. More than that, she seems to be subject to remediation because she has expressed her views outside of the counseling context. So we have free speech, free exercise and equal protectuion problems. Nothing in the facts suggests that she would recommend "homosexuality reorientation." Nothing in the ACA Code of Ethics requires counselors to hold any particular set of moral beliefs. Maybe the university documents and e-mails cited in the brief in support of her motion for a preliminary injunction were fabricated. Maybe other facts will put them in a different context. Perhaps the university can challenge Jen Keeton's statements that she can respect the dignity of her clients and would not impose her beliefs upon them. But from what I can see, this is an egregious case and unless one is prepared to say that the First Amendment simply does not apply to persons who subscribe to the view of homosexuality historically held by the Abrahamic faiths or to the expression of that view, the University ought to lose. Rick Esenberg Marquette University Law School ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Wednesday, July 28, 2010 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Augusta State University student sues school over requirementthat she und... First Amendment doctrine does not require such accommodation to neutral, generally applicable rules. That is why the public school hair length case had to be instituted under the Texas RFRA. In fact, Will's reasoning is an attack on all accreditation standards that might have some effect on a religious believer. Their very value, though, rests on their neutral, generally applicable quality. They are the "Good Housekeeping Seal of Approval" for the public. So how does one deal with such an accommodation and still protect the public from harm? Require the believer to have a sign in their offices and on their receipts (or require an oral recitation of this to each patient) that says: "If you are homosexual, the usual professional standards relevant to a homosexual patient will not be applied by this professional"? It would be cruel to permit a counselor to hang a sign that holds him or her out as someone who follows standards of care, but when a homosexual shows up, the advisor chooses to suggest "homosexuality re-orientation" because of life problems the person is facing. On the hair length issue, the list seemed to believe that it is a bad thing for a school to have a hair length limit, on the assumption I suppose that it is never important to impose such limits? What about those schools in the inner-city with problems with some students hiding contraband (drugs, weapons, etc) under the hair in order to bring into the school? (Classic practice of both students and prisoners, right?) Does anyone object to a hair-length limitation in those schools? On Doug's reasoning, it is still "oppression," right? Marci Doug Laycock wrote: Shameless plug: Why Voting With Your Feet Is No Substitute for Constitutional Rights, 32 Harv. J. L. & Pub. Pol'y 29 (2009). People move for all sorts of reasons, and they should not have to subordinate all those other reasons to a search for a jurisdiction that will not oppress them. In a message dated 7/28/2010 10:42:50 A.M. Eastern Daylight Time, willes...@yahoo.com writes: I think Marci misses the point of my example regarding medical schools and de-selection of certain groups. The point has to do with the way in which the standards are set and whether "conscientous objection" exemptions are necessary (or required) in order to not have an adverse impact upon religious believers. The Fifth Circuit held that an exemption was necessary for a Native American to wear long hair in school. It seems to me the only difference between that and the Augusta case is the so called "standard of the profession." The point I was making (perhaps inartfully) is that I don't believe government entities get a pass on First Amendment accomodation simply by reference to some "standard of the profession" set by a non-governmental entity. The test for accomodation may not be quite as rigorous in the context of professional degrees as it is for elementary or high schools, but I think accomodation is still relevant and necessary. It's easy to come up with examples on this point. If the American Medical Association says that to graduate from medical school, you must have performed an abortion, does that mean that a public medical school can impose that requirement on all its students without regard for their sincerly held religious beliefs that would not allow them to participate in an abortion, simply because that requirement is now part of the "standard of the profession"? As another example, if a national culinary society which sets the "standard of the profession" requires that any culinary student must cook and eat pork in order to receive a cooking degree, does the public school avoid any First Amendment concerns for observant Jews by simply referring to the standard of the profession as ground for an accomodation? It seems to me that the First Amendment requires more than the government "passing the buck" by referring to some external "standard of the profession." Will _______________________________________________ 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.
