RE: Institutional Capacity to Manage Exemptions
To follow up on Doug's point, one of the problem's I have with Marci's arguments about judicial exemptions and legislative accommodations is that it sometimes appears as if Marci views religious groups seeking legislative accommodations or constitutionally mandated exemptions as self interested actors concerned only with their own well being while she views legislative and administrative bodies as principled seekers and defenders of the public good. Many of us see legislative and administrative decisions differently. These are often political responses to various self interested constituencies -- some of whose goals conflict with those of particular religious communities. Religious groups have learned to play that game because it is the only game in town -- and some have gotten pretty good at it. But not all religious groups have sufficient political capital in every community in which they live to protect their interests. Moreover, in many cases, there is no reason to think that a religious accommodation protecting a religious group's ability to practice its faith is less related to the public good than a decision to reject the accommodation in order to further the interests of other constituencies with conflicting interests. When fundamental rights are at stake, I, and others, are less inclined to accept this kind of political interest balancing without some judicial supervision. To use RLUIPA as an example, in the land use regulation process, in many disputes, there are often specific groups whose personal interests conflict with the development needs of a religious congregation. The resulting land use decision will often reflect a political evaluation of the competing interest groups more than it does a principled promotion of the public good. In the prison context, in California, an association representing state correctional officers is a major political player that often opposes religious accommodations in prisons. Government attention to this association's demands on many issues is at least as likely to be politically motivated as principled. I have a very close acquaintance who has spent 30 years working in local government in California. He describes local government this way. When a citizen seeks a discretionary decision from local government, he or she is treated very much like someone going to the local bank and asking for money. The bank typically wants to know two things. Have you deposited money in the bank that you can withdraw from your account? (What have you given to the bank?) Or, alternatively, if we give you money (a loan), what will you do in the future for us (like paying back the loan with interest)? And in considering the latter inquiry, they will examine the customer's credit rating. What have you done for institutions that have loaned you money in the past? Politicians operate pretty much the same way. If you want them to decide an issue in your favor, they want to know what you have done politically that has benefited them -- then you can draw on the political capital you have developed in your account. Or, alternatively, they want to know what you can do in the future that will be politically helpful -- and a proven track record of delivering political goods is very helpful in establishing your political credit. I don't say that legislative and administrative bodies never act for the public good. Sometimes they do. But it is also the case that religious groups seeking accommodations often are willing to take into account the needs of third parties and will support a compromise that promotes the broader interests of the community. These issues are rarely entirely black and white. Alan Brownstein UC Davis At 10:03 PM 3/7/2005 -0600, you wrote: Content-class: urn:content-classes:message Content-Type: multipart/alternative; boundary=_=_NextPart_001_01C52393.C070ECAC Small religions can get exemptions if they somehow get on the legislative agenda; the if is large. Even reviled religions can get exemptions if they are large enough to have political clout; the Catholic vote in 1919 was critical in big northeastern states with large Congressional delegations and lots of electoral votes. A small and reviled religion cannot get an exemption from a legislature, and generally cannot even get equal treatment from a legislature in a single issue vote. Everyone now says Lukumi was a clear case of discrimination. But in the Congress that passed RFRA unanimously and 97-3, Steve Solarz could not get a single office to even talk to him about an amicus brief in Lukumi. Politics also works the other way. No one could get permission to withhold medical care from children from a court under the compelling interest test. But the Christian Scientists got all these exemptions from legislatures on sheer politics, and a number of legislators have enacted vaccination exemptions. Judicial decisions on exemptions are
Decision in AJC v. Corp. National Community Service
Dear all, The DC Court of Appeals has reversed the district court's decision in this case, which involves a constitutional challenge to, among other things, the participation in Americorps of volunteers with Notre Dame's Alliance for Catholic Education program. (Disclosure: I consulted with lawyers defending the constitutionality of ACE volunteers' participation). Here is a link to the decision: http://pacer.cadc.uscourts.gov/docs/common/opinions/200503/04-5317a.pdf Here is a link to an excellent and thorough discussion of the case, and the district-court decision, by Chip Lupu and Bob Tuttle: http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=29 Best wishes, Rick Garnett ___ 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.
RE: Institutional Capacity to Manage Exemptions
I am going to respond to this off list. There is a serious disagreement regarding the relevant facts, and I will have that discussion privately. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Monday, March 07, 2005 10:49 PM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions I couldn't agree more, Mike, that the facts determinative here, but I strongly disagree with your characterization of the facts. Not every accommodation should be granted, indeed, many should not. Since I don't know what the Pagans requested, I don't know how to judge the denials. It is nonsense to assume that every accommodation denied is evidence of discrimination. It may just show common sense on the part of the legislature. The fact the Episcopalians helped the Catholics achieve their goal hardly undermines my point that even reviled or small groups have succeeded. There are many instances where religious groups have helped others to obtain exemptions. The Baptists and the Presbyterians have gone to the mat for the Catholic Church to obtain exemptions from child-abuse reporting statutes in numerous states. The Presbyterian Church, along with the Catholic, was behind a Colorado bill that would have immunized churches' finances completely in clergy abuse cases. The bill only narrowly was defeated. Of course the faith-healing exemptions came from the Christian Scientists, but don't get maudlin on me. They were kick-started by two powerful CS, Haldeman and Ehrlichman in the Nixon Administration, who instituted a regulation that required states to enact such exemptions in order to receive federal medical funding. It's not just hard work; it's the exercise of raw political power. Over 30 states capitulated. When children's groups finally figured out what was going on, they were able to start fighting such exemptions, but with so many states, it was extremely difficult and children remain at risk in numerous states. This is one of those exemptions where the denial makes perfect policy sense to me, though it is not constitutionally required. The Native American Church was hardly pushed around when drug counselors who agreed not to use illegal drugs as part of their job were denied unemployment compensation. The NAC had already obtained exemptions in certain states, as the Court pointed out in Smith, and continued to the point where states where they are present have such exemptions. Where is the injustice here? Please provide examples of small (all religions are minorities) religions with claims for exemptions that were denied and that denial was inconsistent with the public good. Marci I really didnt want to get into this, but, Marci, you are wrong with respect to some critical facts. I am not going to address the first paragraph (or the third and the fourth, for that matter,) even though I entirely disagree with your position. I am more concerned, however, with some of your claims in the second paragraph. There are small groups with cohesive messages, like the Pagans, that have not obtained exemptions or accommodations. Quite the contrary, they routinely get stomped on. See Barner-Barrys book on the subject. Second, I have an article coming out in a few weeks that, by looking closely at the legal and other materials available to me covering the years leading up to National Prohibition, establishes that Catholics did not get the exemption for the use of sacramental wine during National Prohibition the motive force for the exemption was the appeasement of Episcopalians. (And I would hope that one day Catholics and Episcopalians would bring themselves to sit down and have an honest and frank discussion about the exemption and how it came to be. For it is true that Catholics have routinely taken the credit for the exemption, and the facts dont bear Catholics out.) And there is no credible argument that anti-Catholicism did not high in the land in the period, say, 1910-1930. Early twentieth-century anti-Catholicism is a fact. On the child abuse matter, I find your reference to Baptists and Presbyterians providing backup support interesting. But why isnt the reverse the truth, that the Protestants were deeply involved in the subject and that there was a resulting interest convergence, just as was the case with National Prohibition? Your use of the term faith healing groups masks the important fact that the real group in interest was the Christian Scientists. A student in my church-state seminar last year, wrote a paper on how Christian Scientists were able to obtain these exemptions. The answer is hard work, lots of money, and an ethnic identity with the law makers. The native American Church finally got justice in Oregon, no thanks to the Courts, however. I dont know what to make of a claim that even though a group got pushed around unnecessarily so that because the finally got what they should have gotten earlier that things are
Re: Protestants and non-Protestants
On Tuesday, March 8, 2005, at 08:01 AM, Brad Pardee wrote: In the end, if the government prohibits what my faith commands or commands what my faith prohibits, does it really make a difference whether the government was openly hostile or simply didn't care? To you? Apparently not. To the law and the broader community -- absolutely. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar I have nothing new to teach the world. Truth and nonviolence are as old as the hills. Gandhi ___ 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.
RE: Protestants and non-Protestants
Of course I think prohibiting free exercise out of indifference is as harmful as prohibiting free exercise out of hostility. But that is not the point of this post. Whatever the merits of the distinction between hostility and indifference, the distinction is fuzzy in the real world. There are many cases of hostile indifference -- I didn't know I was interfering with your religious when I wrote this regulation, but now that I know, I don't care and I refuse to think about the problem. These religious people should modernize instead of living in the past and always whining for an exception. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of Steven Jamar Sent: Tue 3/8/2005 4:00 PM To: Law Religion issues for Law Academics Subject: Re: Protestants and non-Protestants On Tuesday, March 8, 2005, at 08:01 AM, Brad Pardee wrote: In the end, if the government prohibits what my faith commands or commands what my faith prohibits, does it really make a difference whether the government was openly hostile or simply didn't care? To you? Apparently not. To the law and the broader community -- absolutely. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar I have nothing new to teach the world. Truth and nonviolence are as old as the hills. Gandhi winmail.dat___ 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.
Lawgivers
Perhaps the opinion writer went ape. (Popular culture reference). At 01:17 PM 3/7/05 -0800, you wrote: Is anyone else slightly amused by the Justices' references, with regard to the Supreme Court frieze, to Chief Justice Marshall as a law giver? Cf. U.S. Const. Art. I, sec. 1. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Marty Lederman [mailto:[EMAIL PROTECTED]] Sent: Friday, March 04, 2005 2:24 PM To: Law Religion issues for Law Academics Subject: Re: Van Orden Transcript And here's the McCreary County transcript: http://wid.ap.org/documents/scotus/050302mccrearycounty.pdf - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Friday, March 04, 2005 4:55 PM Subject: Van Orden Transcript http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html Transcript(s) in Ten Commandments Cases 03:45 PM | Marty Lederman | Comments (1) | TrackBack (0) The Associated Press has posted an earlier-than usual transcript of Wednesday's oral argument in the Texas Ten Commandments case. We're still checking to see whether the transcript in the Kentucky case, McCreary County, is also available. ___ 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. ___ 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. No virus found in this incoming message. Checked by AVG Anti-Virus. Version: 7.0.308 / Virus Database: 266.6.3 - Release Date: 3/7/05 No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.0.308 / Virus Database: 266.6.3 - Release Date: 3/7/05 ___ 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.
