Re: Vaccine objectors
Hi all, Without getting deeply mired myself (right now) in the normative implications here, it might still be worth noting that: 1. Exemptions from vaccination requirements only become a serious public health issue when they increase to the point of threatening herd immunity. That is to say, we can -- from a public health perspective -- tolerate some exemptions, but not too many. 2. According to some studies, states that allow personal in addition to religious exemptions, and states that grant exemptions easily, have (not a surprise) a higher rate of non-vaccinators than states that limit exemptions to religious motives or put more hurdles (documentation, etc.) in the way of folks seeking exemptions. See, e.g., http://www.ncbi.nlm.nih.gov/pubmed/17032989 3. It might even be possible, though I don't have any numbers to support this, that limiting exemptions to genuine religious objectors, and defining religion in any of the standard ways, would produce a rate of non-vaccination low enough not to pose a major public health risk. (That still leaves, of course, the question of risk to the individual unvaccinated child. But even that risk might be considerably reduced if herd immunity is in place.) That is to say, vaccination might be one of those contexts in which society has a solid compelling interest in enforcing a rule overall but not necessarily a compelling interest in enforcing that rule on genuinely religious objectors. (That was, for better or worse, Burger's argument in _Yoder_). The obvious challenge here is to the religion is not special view. If leveling up produces distinctly bad results (of a sort not produced by more limited religious exemptions), should that be a reason to level down and eliminate all exemptions? That is to say, should religious objectors lose rights they might otherwise have if too many non-religious folks want to get on the bandwagon? And even for the rest of us, who do think that religion is special, the intrusion of these sorts of facts creates a quandary. What if, for example, one part of the country has a number of religious objectors below the herd immunity threshold and another part of the country has a number above the threshold? How should law respond? As I said, I'm just asking the question here, not trying to answer it. Perry ___ 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: Vaccine objectors
Marty, I agree with # 1, except in states that might have a particularly robust state free exercise doctrine. I also agree with # 2. The issue with respect to # 3, though, is this: What if it turns out that an exemption regime limited to actual religious objections (and not personal ones) did not produce serious third-party burdens because the number of kids left unvaccinated would not be enough to compromise herd immunity? Such a regime would, I believe, be constitutional. But it does raise at least a question for folks who (a) argue that religion is not special, (b) it is generally unfair to limit exemption regimes to folks with religious motives, and (c) the best remedy to such unfairness should generally be to level up to include deep non-religious beliefs rather than level down to eliminate exemptions entirely. Perry On 02/01/2015 10:38 pm, Marty Lederman wrote: I'm a bit confused as to which question Perry and Sandy (and Doug?) are discussing. To break it down a bit for clarification: 1. It would be perfectly constitutional for the state to require everyone to be vaccinated; a fortiori, vaccination can be made a condition of attending school. That's basically what the Second Circuit case is about; and of course it's correct. 2. It would also be perfectly constitutional for the state to exempt any children whose parents have a personal objection to immunization, religious or otherwise. The only question as to those exemption laws is one of policy -- and I'd hope that recent events cause state legislatures to seriously consider repealing such exemptions. 3. But if a state chooses to exempt people only for religious reasons, that raises not only a policy question (which is the one I intended to raise in starting this thread -- should other states follow MS and WV in refusing to grant even religious exemptions?), but also a serious Establishment Clause question, in light of the third-party burdens (those borne by the children who are not immunized as well as the children who are made more susceptible to disease). I haven't checked in a while, but I believe no court has ever held such religious exemptions unconstitutional except where they discriminate among religions. I am inclined to say that they are unconstitutional even where not discriminatory; but the case law does not, as far as I know, yet support that view. ___ 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: Vaccine objectors
Sandy, Normatively, I do think that when the risk to the health of a child is grave and imminent, the state can and should intervene and require treatment. Perry On 02/01/2015 11:31 pm, Levinson, Sanford V wrote: I'm still not certain what Perry's position is re the Jehovah's Witness children, where the adverse consequences are internalized to the child. sandy ___ 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: science professor lecture
Hi all, I agree with others that this issue gets complicated by the professor's own academic freedom and the related question of whether the views expressed in his lecture should be ascribed to the state. Putting all that aside, though, the lecture is clearly dubious as a matter of quasi-constitutional ethics. A few years ago, I reacted, in a letter to editor published in _Academe_, to a similar bit of overreaching by a science professor. See http://www.jstor.org/stable/40253040 By the way, that letter of mine raises an ancillary question: It does seem to me that, however much we might respect the science professor's academic freedom, there would be a real constitutional problem if he penalized students who, while willing and able to demonstrate their mastery over the scientific content of the class, explicitly disagreed with him about the underlying Truth value of that science. Take care. Perry On Sep 28, 2014, at 5:24 PM, Marc Stern ste...@ajc.org [1] wrote: Today's NY Times Review section has an article by a professor of evolutionary biology at a public university describing a lecture he gives annually explaining how that body of science has undermined central claims of religious traditions. Is it constitutional for him to give this lecture? Would it be constitutional for a professor of theology at the same university to offer a rebuttal in religious terms? Marc Links: -- [1] mailto:ste...@ajc.org ___ 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: Attenuation
Steve Jamar wrote: [1] How about owning stock in companies that make and sell contraceptives? They had to sign a contract to do that. [2] The distance between doing the improper thing -- selling, paying for, using contraceptives -- and buying general health insurance with coverages mandated by the government is attenuated sufficiently for me. However, I understand how one can rhetorically manipulate these matters as Prof. Dane (and I) have done. And that is fully fair game and 5 justices agreed with one rethorical approach and 4 did not. 5 thought religion under RFRA should trump the other values (as a matter of statutory interpretation); 4 did not. Point 1 simply confirms that we all draw have to draw lines of causation and moral responsibility somewhere, and those different lines will be embedded in a variety of discourses and grounded in a variety of different assumptions. As to point 2, I don't think that 5 justices agreed with Hobby Lobby's conclusions about causation and moral responsibility. They simply, and correctly, accepted them as religious views. It's as if Hobby Lobby had just said, for religious reasons, we can't sign a document that alludes to 'Plan B, Ella, or intrauterine devices.' It's just something about those words. ___ 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.
Attenuation
Steve Jamar writes: I do not reject the legitimacy nor the religiousity of the plaintiff's beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor legitimacy of the beliefs. With all due respect, though, I have always found the attenuation claim the least convincing of the arguments against Hobby Lobby's position. As the majority opinion suggests, and as many of us have been saying for a long time, Hobby Lobby needs to be understood as putting on the table two distinct religious claims: (1) Certain forms of contraception should not be used. (2) Hobby Lobby and/or its owners are religiously prohibited from signing insurance contracts that cover those same forms of contraception. Of course, Hobby Lobby has religious reasons taking it from claim (1) to claim (2). But it's not the business of the secular state to second-guess the quality of that reasoning. In fact, as far as the secular state is concerned, claim (1) should be essentially irrelevant. All that really counts is claim (2). Imagine an observant Jewish prison inmate who asks for kosher food. The prison administration tells him, We're happy to give you kosher food. We'll also be sure not to give you meat meals and dairy meals within however many hours of each other you think is religiously significant. But we can't give you separate (or disposable) plates for your meat and dairy meals. That would just be too expensive or complicated for us to do. The prisoner responds, That's not good enough, I'm afraid. As a matter of Jewish law, hot foot transfers its 'taste' to plates, which in turn transfer the 'taste' to other food served on those plates, even if the plates are thoroughly washed between uses. So I need separate or disposable plates. (There are more technicalities that I won't get into.) The prison administration replies, That's just silly. No 'taste' gets transferred. We understand that you have religious reasons for not eating meat and dairy food together, and we'll grant you that accommodation, but this argument you're making about plates and such is just too attenuated. I suspect that most courts, and most of us, would reject this defense of attenuation. (This has nothing to do with arguments over compelling interest, less restrictive means, etc.) Jewish law's conclusion [that (1) a ban on mixing dairy and meat foods entails (2) a ban on using the same dishes for dairy and meat foods] might be wacky from a secular or scientific point of view, but it's not up to the secular state to second-guess that view. Indeed, all the secular state needs to know is that the prisoner has a religious need not to eat meat and dairy meals from the same plates. If the prisoner is to lose, it will not be because his claim is too attenuated. I think the hangup in the Hobby Lobby context is this: We all appreciate that Jewish law and other system of religious ritual law often conceptualize the world in wacky-seeming ways very different from ordinary reasoning. The separate-plates rule is the least of it. (I say all this with all due respect; I guide some of my life by those wacky conceptualizations.) Hobby Lobby, on the other hand, seems to be using a form of argument (complicity with evil) that has a much clearer secular analogue. But that's deceptive. Hobby Lobby is using religious reasoning, not secular reasoning. That doesn't mean it should win at the end of the day. But it does mean that's it objection to signing certain health insurance contracts shouldn't just be dismissed as too attenuated. More to the point, we really should -- as an analytic and doctrinal matter -- just ignore Hobby Lobby's underlying objection to certain contraceptives; all that should matter is that it objects for religious reasons to signing the damn contracts. Perry -- * Perry Dane Professor of Law Rutgers University School of Law * ___ 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.
Contraception mandate
Hi all, I've posted a short essay -- half of a projected exchanged -- that tries to speak sanely about the contraceptive mandate debate. The piece offers a doctrinal analysis, but also explores how the debate -- and in particular the overblown claims by both sides -- suggest some imperfectly articulated undercurrents in the current American conversation about religion and the law. See http://ssrn.com/abstract=2296635 Comments would, of course, be welcome. Perry * Perry Dane Professor of Law Rutgers University School of Law d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: http://www.ssrn.com/author=48596 Academia.edu page: rutgers.academia.edu/PerryDane * ___ 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.
Saint Stanislaus Kostka Church in St. Louis
Hi all, Some years ago, Saint Stanislaus Kostka Church, a Roman Catholic parish church in St. Louis, got into a dispute with the Catholic bishop in St. Louis. the Bishop tried to assert his authority over Saint Stanislaus, and when the folks running the church refused, the declared them to be in schism. The fight ended up in the courts. Saint Stanislaus, however, had an advantage that virtually no other Catholic parish has -- (secular) title to its own property, a vestige of a once-common 19th century form of organization for Catholic churches. Last March, a trial judge in St. Louis ruled, remarkably, against the Bishop and in favor of the local parish. The two sides have now settled: Saint Stanislaus keeps its building and assets, but agrees not to represent itself as affiliated with the Roman Catholic Church. See http://ncronline.org/news/faith-parish/st-louis-archdiocese-gives-fight-control-breakaway-parish Does anyone on this list happen to have a copy of the original March 2012 opinion (apparently in the neighborhood of 50 pages long) by Judge Hettenbach? I assume he relied on a neutral principles of law analysis, but I'd love to see the actual opinion. It doesn't seem to be available on either Lexis or Westlaw, and as best as I can tell the Missouri judicial web sites only post appellate opinions. Feel free to reply privately. And apologies if this has been discussed previously on the list. Thanks. Perry ___ 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.
Circumcision
Marty, This is sensible. Obviously, these categories bleed into each other (no pun intended). Perry From: Marty Lederman lederman.ma...@gmail.com Date: Wed, 11 Jul 2012 16:49:33 -0400 Perry: very helpful. Would you add this as a third category?: if the state demonstrates that many (most) adult men regret their parents' decision to circumcise. It's if and when that ever happens -- not before -- that this will seem like a difficult question. ___ 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.
Circumcision
My answers here should also be informed by Marty's sensible third category of likely regret. But I'll limit myself to the two categories I tried to outline in my earlier post. (1) Tattooing: I don't like tattoos. I actually often find myself physically repulsed by them. My own religion forbids them. But if parents had a serious religious reason for tattooing their underage child (note that I'm limiting myself here to religious reasons), I would not want the state to intervene unless the tattooing were of a sort that involved severe pain or was likely to have genuinely harmful long-term physical, psychological, or sociological consequences for the child. (2) Sterliziation: The state could reasonably conclude that forcibly sterilizing a child produces the grave harm of eliminating that child's ability to make future reproductive choices. Here, the issue of competent consent is inextricably tied up with the procedure. Adults who have themselves sterilized are making a reproductive choice; children who are sterilized without their consent are deprived of all future such choices. (3) Pregnancy: It does seem to me that society could reasonably conclude that pregnancy by a 14-year-old is developmentally inappropriate for both physical and psychological reasons. To be sure, we should respect the kid's autonomous rights in this context, at least to the extent of, for example, not allowing either the state or the kid's parents to force her to have an abortion. But, as Eugene emphasizes, that doesn't mean that we do or should excuse the culpable role that others might play in getting the kid pregnant. Obviously, one of the issues in all these comparisons is my sense that circumcision is not as big a deal as some would suggest. Apart from its religious significance for many folks, it does seem to have serious health benefits, including but limited to helping to prevent HIV infection, which is why there's a major campaign in parts of Africa to have as many men as possible sterilized. Moreover, it clearly does not eliminate sexual sensitivity or gratification, or even reduce it to the extent that millions upon millions of circumcised men are heard lamenting their fate. Indeed, the jury is out as to whether it has any real effect on sexual sensitivity or gratification at all. And even if it did lead to some small reduction in sheer physical sensitivity, that would strike me as only dubiously relevant: it assumes that the quality of sex is tied in a purely linear way to the quantity of a particular physical stimulus. Add to all this the point I made earlier: To the extent that the act of circumcision itself is potentially disturbing or physically complicated for the one being circumcised, that's much more true for adults than for eight-day-year-old baby boys. Let me, though, throw out a hypothetical of my own. Say that baby is born with a very large and very visible and, by most lights, unsightly mole on his or her face. The mole poses no health risk to the child. But it is very ugly. The doctors tell the parents that they can remove the mole completely with very little risk to the child. Having the mole removed as an adult would be possible, but somewhat more complicated. In any event, if the procedure were put off, the child would grow up with the mole still on his or her face. The parents decide to have the mole removed (1) for aesthetic reasons and/or (2) because they're concerned that the sense of social identity or psychological health of the child will be impaired if they do not have the mole removed. Should the state intervene in this decision? Should it be entitled to? Would these parents' aesthetic and psychological concerns be more worthy of respect than the religious motives of parents who have their baby boys circumcised? Should it matter that the aesthetic judgment of the mole is culture-specific, or that in some other cultures such a mole would actually be thought to be a mark of great beauty? If a response to this hypo is that circumcision is different from mole-removal because it cuts off a sexually sensitive part of the body, then I can tweak the hypo slightly to assume the mole removal (1) will have a minimal negative consequence such as, say, ever-so-slightly blunting the kid's sense of smell, and (2) it will also have some positive medical consequences, such as reducing the risk of certain sorts of infections, and I can further assume that the parents, taking into account these facts in addition to their aesthetic and psychological concerns, still go ahead with asking the doctors to remove the mole. I'm not sure these tweaks change the equation very much. If, though, the answer is that circumcision is different simply because moles are defects while foreskins are natural parts of the male human body, that reaction would strike me as just physically essentialist. What if the aformentioned mole weren't all that rare, but actually appeared on 5% of babies, but almost all parents in a given culture
Circumcision
Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc. I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious. 2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even consenting adults don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for religious reasons -- to be the sort of dire act that requires its intervention. A doctor who, at a patient's request, cut off a patient's arm for no good medical reason would likely be charged with a crime or at least stripped of his or her license, and the patient would very likely be institutionalized. No such consequence would follow for an adult circumcision procedure. Put another way, when the Supreme Court in the Paris Adult Theatre case gave us its litany of acts that can be criminalized even among consenting adults -- prostitution, suicide, voluntary self-mutilation, brutalizing 'bare fist' prize fights, and duels -- it clearly did not have adult circumcision in mind as a form of self-mutilation. It seems to me that, in the light of the special role that parents play in the upbringing of their children, the state should bear an added burden when it tries to limit the right of parents to make a decision for their child that it would not keep them from making for themselves themselves. That burden can, I think, be met in at least two circumstances: (1) when the state is trying to prevent an unquestionably grave harm, physical or psychological, to the child, and (2) when the state is making a demonstrably reasonable judgemnt that certain acts are not developmentally appropriate for children even apart from the lack (or for that matter the presence) of consent. The first category clearly doesn't apply here, particularly since even the purely medical evidence about the pros and cons of circumicision remains complicated and controversial. The second category would cover everything from child labor to sexual abuse and so on. But circumcision (need i say more?) is actually more developmentally appropriate for an eight-day old baby than for an adult. Take care. Perry ___ 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.
Is a patient who believes Jesus would save [me] competent to refuse life-saving medical treatment?
As a general matter, it's always seemed to me that determinations of mental competence with respect to a specific judgment should not be based solely on the rationality of that specific judgment, but should look instead to the entirety of a person's mental state. Even putting that view to one side, though, the crucial question in this case, I think, is not whether J.M. believes in miracles, even to a degree that the rest of us would find over-optimistic, but whether she understands, as a matter of pure fact, that a miracle would be necessary to save her life. I'm also bothered by the focus on the inconsistency and unorthodoxy of her views. If the case is viewed through the lens of religious liberty, it should be clear that protected religious commitments need be neither consistent nor orthodox. And if the case is simply viewed under the rubric of patient autonomy, it seems odd that irrational decisions unsupported by medical evidence would be protected, but confidence in miracles (however unreasonable, inconsistent, or unorthodox that confidence is) would not be. Finally, as to consistency: Even a non-religious person with no faith in miracles might well distinguish between blood transfusions and resuscitation, which are one-time life-saving procedures, and dialysis, which involves an indefinite course of often enervating, dispiriting, treatment. The point in that non-religious case would not be that the person wanted to die, but that he or she was willing to undergo some procedures but not others, in order to live. In the case of J.M., it might be that she thinks that God wants her to look to doctors to save her life through transfusions, resuscitation, etc., but would intervene miraculously to avoid her having to suffer the torment of dialysis. This is not a judgment I would make, but I'm not J.M. Take care. Perry From: Volokh, Eugene vol...@law.ucla.edu Date: Thu, 15 Jul 2010 14:58:50 -0700 From In re Matter of J.M. (N.J. Super. Ct.), http://www.judiciary.state.nj.us/decisions/BER_P_036_10.pdf, just released earlier this month (for some interesting reader comments, see http://volokh.com/2010/07/15/is-a-patient-who-believes-jesus-would-save-me-competent-to-refuse-life-saving-medical-treatment/#comments): A patient has capacity to consent to medical treatment if she can reasonably understand her condition, the effect of the proposed treatment, and the risks of both undergoing and refusing the treatment. In re Conroy, 98 N.J. 321, 382 (1985). Of the three psychiatrists who testified, two of them determined J.M. lacked capacity to refuse dialysis. Dr. Psemar indicated J.M. does not acknowledge the risk of refusing dialysis. She demonstrated anxiety, depression, and an inability to problem-solve. Dr. Dealwis testified J.M. did not believe she would die if not treated, and therefore, was not making a reasoned decision to choose death over dialysis. They both believed that because she did not understand the likely consequences of refusing treatment, she lacked capacity to make decisions about her health. The dissenting psychiatrist, Dr. Scham, acknowledged that he is not an expert in competency evaluations and only does five to six of them every year. He said J.M.s mental status is clear and she has adequate judgment, but he also acknowledged her views were inconsistent in that she accepted blood transfusions and resuscitation, but not dialysis. Dr. Scham believed that J.M. understood she would die without dialysis, yet he also testified J.M. stated God would save her. When J.M. herself testified, she asserted that she would not die without dialysis because Jesus would save her A competent patient is able to choose his course of treatment even if his medical decision may seem irrational or unsupported by medical evidence. [Footnote: New Jersey courts have ruled that a patient found to be competent and aware of the consequences of her decision may exercise her right to refuse treatment for any reason, including when treatment violates the tenets of her religion. Further, guardians of incompetent patients must consider the tenets of a patients religion when determining the proper course of treatment. J.M.s refusal of treatment was not premised upon an established tenet of her religion precluding certain medical procedures, as evidenced by her consent to all other medical treatment and her pastors attempt to convince her to undergo dialysis. As a result, her belief that God would save her does not preclude her from being found incompetent, nor does the appointed guardian need to act on that professed belief.] If a patient is unable to understand the consequences of the decision, however, that patient is unable to give informed consent and is therefore incapacitated. The Court found, by clear and convincing evidence, that J.M. does not have the capacity to make a decision regarding dialysis. She had no long-lasting psychiatric disability, but rather demonstrated a lack of understanding of
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter wrote: Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Let's tease out the issues here. It's possible that denying coverage for contraceptives violates the PDA because of its consequences for the risk of unwanted pregnancy, a risk whose effect is uniquely borne by women. If that's true, though, it shouldn't matter who is using the contraceptives, men or women. Let's call this the PDA argument. But, as I understand it, the EEOC didn't make the PDA argument, at least as such. Instead, it wrote that By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives? Let's call this the straightforward argument. This was the argument to which I was responding. The consequences of the two arguments are obviously very different. For example, the straightforward argument would apply, but the PDA argument would not, if an employer denied coverage for some other type of treatment that was directed only at women, such as, say, post-menopausal hormone therapy. Conversely, the PDA argument would apply, but the straightforward argument would not, if (counterfactually) there were equally-available prescription contraceptive pills for both men and women, and an employer denied coverage for both types of contraceptives. I've already suggested why the straightforward argument doesn't impress me -- it penalizes Belmont Abbey for institutional decisions made by someone else, and it doesn't give an honest account of the best description of what Belmont Abbey is doing. The PDA argument strikes me as stronger in principle, but I'm not sure (though this is far from the area of my expertise) that the text or policy of the PDA can support the weight of it. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter also argues that Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion because an individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment This is essentially the old argument that money is fungible. But there are two problems here. First, law and practice are full of instances in which this sort of argument doesn't govern. Cf. much of establishment clause doctrine. Or consider the fact that my school will not reimburse me out of state funds for buying alcohol at business meals, but has no problem if I use part of my salary to buy alcohol at such meals, and even (I am told) has no problem reimbursing me out of gift funds. More to the point: Belmont Abbey clearly thinks that there is a religiously significant difference between directly and indirectly paying for contraception. And our doctrine of religious liberty strongly insists that we not second-guess such judgments, as long as they are sincere. Michael's argument sort of reminds me of someone telling an observant Jew that it must be OK to turn on an electric light on the Sabbath because, after all, that's not work. Lots of religious beliefs and doctrines follow forms of logic, and make fine distinctions, that don't necessarily convince outsiders. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Religious exemptions and undue preference for religion
Eugene, I wonder if you're reading the court's footnote too broadly. When the court says that granting an exception to Cornerstone (or perhaps all parochial schools) based on the theory that the free exercise claims elevate Cornerstone (or all parochial schools) to a higher status than secular nonpublic schools-would be equally unacceptable under federal law, it might simply mean that such an exception would be unacceptable as a requirement of free exercise doctrine, not that it would be unconstitutional if required by a legislature. Even if the court did mean more than that, note that what Cornerstone is asking for is far removed from any sort of paradigmatic religion-based exemption. Whatever burden the government is imposing on free exercise here is quintessentially indirect. Moreover, while I'm no great friend of the burden-benefit distinction, there surely are some free exercise claims, particularly when they involve alleged right to benefits rather than defenses against burdens, that are not only off the tracks on free exercise grounds but jump the tracks, so to speak, to the point of raising establishment clause concerns. For example, it seems to me that if Mrs. Sherbert's religion not only forbade work on Saturdays but any work at all, and also forbade contributing to the unemployment insurance fund, her claim to unemployment benefits would, had it been accepted by the State, actually have raised the specter of an unconstitutional religious preference. And I say this as someone who believes in a vigorous free exercise clause and continues to lament Smith and City of Boerne. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Early Massachusetts Statute
My educated guess is that this statute was only intended to apply to Indians who lived in, or visited, the colonists' settlements. If so, it was probably not much more severe (though probably less defensible) than the restrictions the colonists placed on themselves. I'm even more fascinated, though, by one tidbit in the statute: the reference to banning only outward worship. This confirms the degree to which the Puritans had, at least in their relations with the Indians, internalized the relatively new ideology that defended religious coercion, not as a means to assure individual salvation, but simply as a tool for guaranteeing social order, political cohesion, protection of others from temptation, etc. Some have argued that this focus on the state's interest in outward worship rather than individual salvation contained, if ironically, the seeds of modern conceptions of religious liberty. Consider, in this connection, Elizabeth I's famous statement that she had no desire to make windows into men's souls. For Elizabeth herself, this statement was entirely consistent with her oppression of the outward practice of Catholic worship. Historically, though, it began the slow process of detaching religious commitment from the jurisdiction of the state. (It also began the more normatively complicated process of treating religious faith as merely private.) I've also found really interesting here Janet Halley, Equivocation and the Legal Conflict Over Religious Identity In Early Modern England, 3 Yale J.L. Human. 33 (1991), which discusses, among other things, the Church Papists of Elizabeth England: Catholics who complied with the law requiring attendance at Anglican services, and understood such attendance as a (practical or even possibly commendable) act of outward social duty rather than a violation of their Catholic principles. Another query: How would the Indians have understood the import and implications of this statute (assuming it was actually enforced), particularly given the fact, emphasized by historians of the period, that very few New England Indians, at least in the 17th century, actually converted to Christianity. (Indeed, the evidence suggests that in the early years of the New England colonies, significantly more whites assimilated into native culture and society, than the other way around. That, in fact, might confirm that the statute had more to do with controlling whites than controlling Indians.) Doug Laycock wrote: Just ran across a 1633 statute that made it a criminal offense for Indians to worship their False Gods. I haven't tracked it to an original source, but James Bradley Thayer has it in a footnote (attached), so I assume it's reliable. The statute applied in any part of our jurisdiction; I don't know if that meant all the territory claimed by Massachusetts Bay colony, or only white towns and farms. It seems likely that practical enforcement capacity was limited to areas of white settlement, so maybe this is not quite as stunningly outrageous as it appeared on first reading. Still, it's pretty remarkable. Maybe they were no longer dependent on the Indians to feed them by this time. *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Early Massachusetts Statute
My educated guess is that this statute was only intended to apply to Indians who lived in, or visited, the colonists' settlements. If so, it was probably not much more severe (though probably less defensible) than the restrictions the colonists placed on themselves. I'm even more fascinated, though, by one tidbit in the statute: the reference to banning only outward worship. This confirms the degree to which the Puritans had, at least in their relations with the Indians, internalized the relatively new ideology that defended religious coercion, not as a means to assure individual salvation, but simply as a tool for guaranteeing social order, political cohesion, protection of others from temptation, etc. Some have argued that this focus on the state's interest in outward worship rather than individual salvation contained, if ironically, the seeds of modern conceptions of religious liberty. Consider, in this connection, Elizabeth I's famous statement that she had no desire to make windows into men's souls. For Elizabeth herself, this statement was entirely consistent with her oppression of the outward practice of Catholic worship. Historically, though, it began the slow process of detaching religious commitment from the jurisdiction of the state. (It also began the more normatively complicated process of treating religious faith as merely private.) I've also found really interesting here Janet Halley, Equivocation and the Legal Conflict Over Religious Identity In Early Modern England, 3 Yale J.L. Human. 33 (1991), which discusses, among other things, the Church Papists of Elizabeth England: Catholics who complied with the law requiring attendance at Anglican services, and understood such attendance as a (practical or even possibly commendable) act of outward social duty rather than a violation of their Catholic principles. Another query: How would the Indians have understood the import and implications of this statute (assuming it was actually enforced), particularly given the fact, emphasized by historians of the period, that very few New England Indians, at least in the 17th century, actually converted to Christianity. (Indeed, the evidence suggests that in the early years of the New England colonies, significantly more whites assimilated into native culture and society, than the other way around. That, in fact, might confirm that the statute had more to do with controlling whites than controlling Indians.) Doug Laycock wrote: Just ran across a 1633 statute that made it a criminal offense for Indians to worship their False Gods. I haven't tracked it to an original source, but James Bradley Thayer has it in a footnote (attached), so I assume it's reliable. The statute applied in any part of our jurisdiction; I don't know if that meant all the territory claimed by Massachusetts Bay colony, or only white towns and farms. It seems likely that practical enforcement capacity was limited to areas of white settlement, so maybe this is not quite as stunningly outrageous as it appeared on first reading. Still, it's pretty remarkable. Maybe they were no longer dependent on the Indians to feed them by this time. *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Religious attitudes towards self-defense, deadly and otherwise
Eugene, I can't, offhand, help you with precise theological sources, but you might be interested in an internal debate that occurred at Calvin College, the very intellectually and religiously serious Dutch Reformed college in Michigan, when the school administration decided (after the Virginia Tech tragedy) to issue guns to some members of the college security force. A group of students got very upset over the decision, claiming it was unchristian, and the administration produced a Theological Explanation for the Use of Force Policy. For some account, see, e.g. http://www.calvin.edu/news/2007-08/use-of-force.htm http://www.crcna.org/news.cfm?newsid=530 http://clubs.calvin.edu/chimes/article.php?id=3713 http://blog.mlive.com/grpress/2008/05/calvin_board_oks_gun_policy_fo.html I haven't been able to find the explanation theological document that the college administration drafted in defense of its policy. Hope this helps. Perry Eugene Volokh wrote: I'm looking for good sources that discuss religious attitudes towards self-defense or defense of others, deadly and otherwise; in particular, I'm looking to see whether there are religious groups that (1) take the view that deadly force is always bad, even in self-defense or defense of others, but nondeadly force (including pepper spray, stun guns, and other devices that are extremely unlikely to kill) is permissible, or (2) take the view that given the choice between nondeadly force and deadly force, one should always use nondeadly force, unless the nondeadly force is very likely to fail (e.g., all one has for nondeadly force is fists vs. an attacker's knife). *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
A Holy Secular Institution
Hi all, For anyone interested, I've posted my upcoming Emory Law Journal article, A Holy Secular Instituition, dealing with the intersection of the religious and secular dimensions of marriage, with particular reference to the same-sex marriage debate, on SSRN. To read the abstract or download the article, go to http://ssrn.com/abstract=1293946 The article might be of some use, in particular, because, as I emphasize, its goal is less to score points for one side or the other in the marriage debate than to try to illuminate the playing field. Take care. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, N.J. 08102 [EMAIL PROTECTED] Bio: www.camlaw.rutgers.edu/bio/925 SSRN author page: www.ssrn.com/author=48596 Work:(856) 225-6004 Fax: (856) 969-7924 Home:(610) 896-5702 *** ___ 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.
Religious exemptions for the non-religious
Doug Laycock writes that the willingness to treat atheism as a religion is very encouraging. I agree that, for certain purposes, including rights of _expression_, religious views and anti-religious views need to be treated equally. On the other hand, it has always seemed to me that to extend the idea of religion-based exemptions beyond the realm of specifically religious norms conflicting with secular law would, in effect, create a universal libertarian presumption that no law can be applied against a dissenting individual unless that law is supported by a compelling governmental interest. And that sort of universal libertarian presumption just strikes me as implausible and inconsistent with our constitutional and legal structure. Doug is right that some opponents of religion-based exemptions make something like the following argument: 1. We can't exempt only believers, because that would discriminate against nonbelievers. 2. But we can't exempt nonbelievers, because nonbelief is not a religion. 3. Therefore, we can't exempt anybody. But I think that we should be equally concerned about the following argument: 1. We can't exempt non-believers, because that would create a universal libertarian presumption in the law, which is implausible. 2. But we can't exempt only believers, because that would discriminate against nonbelievers. 3. Therefore, we can't exempt anybody. In both cases, the flaw in the reasoning (which Doug agrees is a flaw) is the notion that we can't exempt only believers. Of course we can exempt only believers, and there are good, normatively compelling, reasons to do so. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ www.ssrn.com/author=48596 *** ___ 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.
Missouri declares Christianity its official religion.
A not-very-analytic observation on a Friday afternoon: I happened to read these posts on the Missouri resolution at about the same time as I was taking a look at a remarkable document called the Flushing Remonstrance, written in 1657, in which the leaders and citizens of Town of Flushing told Governor Stuyvesant of the then-Dutch colony of New Amsterdam (later, of course, New York) that they would not cooperate with his oppressive measures against the Quakers. The document is often called the first formal statement of religious liberty in the American colonies, and some treat it as one of the direct precursors to the First Amendment. Unsurprisingly, its argument for religious liberty is, in large measure, a religious argument. It strikes me, for what it's worth, that the Missouri resolution not only contradicts the Constitution (whether it violates it is a more complicated question having to do with the status of such legislative expressions of opinion), it also, in the saddest possible way, violates the law of love, peace, and liberty referred to in the Flushing Remonstrance. Moreover, with all its talk of majority rights, the Missouri resolution is really more a statement of identity politics by an angry faction than a genuine defense of either religious values in general or even Christianity in particular. I am also reminded here of Bob Cover's discussion of commitment. The authors of the Flushing Remonstrance knew that Stuyvesant would end up arresting them, which he did. I am not proposing, of course, that anyone actually test the mettle of the Missouri legislators by arresting them, but I wonder how many of them would have the courage of their convictions if that were the likely outcome of their little legal-literary exercise. Perry ___ 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.
The Flushing Remonstrance
Hi all, I forgot to include a link to the text of said Flushing Remonstrance: http://www.nyym.org/flushing/remons.html Perry ___ 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.
Religious marriages and the state
Hi all, Does anyone know of any cases, apart from People v. Greenleaf in New York, in which a clergyperson was prosecuted for officiating at a same-sex marriage? Thanks. Perry ___ 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.
Lemon test not applicable in prisons?
Fascinating! I do think that the Lemon test is tempered in the prison context, but not by virtue of Turner v. Safley. Rather, it seems to me that, to the extent that prisons (and, to a lesser extent, the armed forces) are closed off from free access to the religious element of civil society, the government can justifiably try, to some extent, to import or reproduce or sponsor a religious element into the prison, even if that requires more direct financial support and entanglement than could be justified in other contexts. Put another way, prisons and similar settings present contexts in which the government might be justified in recognizing a positive (as in the distinction between positive and negative freedoms) free exercise interest that mitigates, at least partially, against establishment clause concerns. The decision that Scott quoted is problematic in two respects. First, it wrongly relies on statist penological interests, rather than individual free exercise interests, as the counterweight to the establishment clause. This could very easily lead to a very different set of results. Second, the analysis in Turner is framed in terms of a balance (albeit one with a thumb on the scale) between the prison's interests and the liberty of an individual. For example, one of the considerations in the Turner calculus is whether there are alternative means of exercising the right that remain open to prison inmates. And another consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates. If the establishment clause is understood, however, as protecting structural values rather than individual rights, then the whole Turner analysis would have to be substantially recast before it could make sense as a way of measuring whether the state impermissibly crossed a tempered wall of separation (forgive the mixed metaphor). It's still fascinating, though. Perry ___ 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.
Davey--Let's Focus on Denominational Equality
The line that Marty is drawing is perfectly sensible, and enforceable in a public school context. The problem, though, is that religious traditions and institutions often do, and are perfectly entitled to, re-configure these sorts of categories according to their own best lights. For example, most of the Bible and Jewish History courses, and many, many, other courses, taught in the Rabbinical program at the Jewish Theological Seminary, which ordains Conservative Rabbis, could easily be taught in a public university's Judaic Studies program. That is largely because the Conservative movement embraces the academic historical-critical method in studying such topics. For that matter, even the education at more traditional yeshivas, which is generally averse to historical-critical inquiry, might still be transposable to a public educational setting, in that it largely focuses on the internal, logical, analysis of Talmudic and other Jewish legal texts. Yet, in a larger sense, both JTS and traditional yeshivas are clearly engaged in a devotional enterprise, not to mention the fact that they are training clergy. (A further complication is that, in Jewish thought, learning and study are themselves devotional acts.) All this is not to say either that the Washington restriction is incoherent or that Davey is wrong. I'm only suggesting that they pose difficulties, and that those difficulties arise in part from the many ways that religious traditions draw their own lines between scholarly inquiry and devotional study. Perry Marty Lederman writes: The test in Washington is whether the required courses for the major involve instruction aimed at inculcating religious belief in the doctrine of a particular religion -- or disbelief. Are they devotional in nature or designed to induce religious faith or promote a particular religious truth? If so, they're ineligible. Or, perhaps more to the point: Could the courses be taught by a *public* university in Washington? *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Drawing lines among religons
I want to suggest a broader issue if I could, arising out of the Davey discussion. It seems to me that there is an American legal instinct not to let theological differences among religious traditions play too large a role in leading to different legal results, even if those different results could be justified on objective, secular, grounds. Or, to put it another way, our law often bases a particular legal rule on a paradigm case drawn from one religious traditions, and then tends to extend the application of that rule to other faiths, even if their beliefs or practices don't, strictly speaking, fit the original paradigm. Some examples, important and less so: (1) The strict clergy-penitent privilege makes the most sense for those religious traditions that have a strong notion of a specific sacrament of confession, and an absolute seal of confidentiality surrounding that confession. Yet it is applied to all faiths. (If the paradigm case for the privilege were rabbis, for example, rather than Catholic priests, it would probably be less stringent.) (2) If we applied the broader principles of the modern law of charities to the status of churches, it seems fairly clear that many, but not all, would qualify as genuine public benefit institutions. Yet the assumption is that, barring outright fraud and the like, all churches qualify. (Notice the difficulty that the opinions in Walz had in explaining why. Notice also that English law is much less sentimental in this regard: it famously holds that while orders of nuns that do educational or other work in the community can qualify as beneficiaries of a valid charitable trust, orders of purely contemplative nuns cannot.) (3) Still on the topic of the law of charities: our justification for allowing a charitable deduction for contributions to churches is based on the paradigm of congregants putting money in the basket, and seems, technically speaking, not to fit easily into religions with compulsory tithes, pew rents, High Holiday tickets, etc. Yet all these practices qualify for the deduction. (Hernandez was an effort to draw some sort of line here, but its practical consequence has been nil. Indeed, the IRS ended up settling with the Scientologists.) (4) One of my favorite small examples: the parsonage provision in the tax code, whose effect is to treat all clergy as if, like Catholic priests, they were required to live in church-provided rectories. Now, it does seem to me that this instinct makes a good deal of sense for the American dispensation governing the relation of religion and the state. But it is still difficult. In a sense, the choice often comes down to whether we should (a) draw lines among religions, or (b) treat all religions alike, but in the process draw, secularly-speaking weakly-justified lines between religious and non-religious phenomena. Thus, for example, the effect of the parsonage exemption is to give many Jewish and Protestant clergy an arguably arbitrary tax preference compared to non-clergy. On the other hand, the effect of repealing the parsonage exemption would be to give Catholic clergy an objectively justifiable but still discomforting tax preference compared to their Jewish and Catholic colleagues based on the particular ecclesiology and institutional set-up of their respective faiths. This is a real dilemma, and I've never found a totally easy way out if it. (I happen to think that there's a fair amount of intractability in this religion-and-law business. But maybe that's just the post-modernist in me.) I also think that this instinct I'm talking about exists below the constitutional surface (though that does not make it any less interesting). But it does raise the usual constitutional questions: When is drawing lines among religions forbidden? (I.e., to what extent does Larson, etc., apply beyond the more blatant cases of religious discrimination and gerrymandering.) When, if ever, is refusing to draw lines among religions forbidden? Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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
Unconstitutional statutory religion-based exemptions
Marty, Thanks. Thornton, however, did not involve a statutory directive to government to accommodate the religious needs of certain individuals, but rather a statutory duty imposed on one set of private parties to accommodate the religious needs of another set of private parties. And Texas Monthly was a tax case. (There is, of course, language in both cases that might be relevant to the narrower issue I'm pursuing.) The Christian Science case is more directly on point, though, as you say, it involves a pretty extreme case. My question then, as refined, is this: Outside of the most blatant denominational preferences, are there good examples of statutory religion-based exemptions, defined in the narrow way I have in mind, being struck down? Thanks again. Perry ___ 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.
Unconstitutional statutory religion-based exemptions
Allen, Great. Thanks. Perry ___ 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.
Florida voucher case
Note that this opinion did not turn on any church-state issues, but rather on the court's holding that the voucher program fostered plural, nonuniform systems of education and thus violated the provision in the Florida constitution requiring the State to provide a uniform, efficient, safe, secure, and high quality system of free public schools... This is all still very interesting, though, particularly since there's a decent argument that the U.S. Supreme Court's aid cases, particularly the earlier ones, were also in some, if only implicit, sense as much about defending the public school system as they were about drawing a line between church and state. Those words plural and uniform also have deep resonance here. Though vouchers, etc., do (maybe for the better) challenge the privileged status of the public school system, those of us who are relatively strict separationists would still tend to believe that, in the long run, they threaten to flatten genuine pluralism by drawing religious schools more tightly into the bosom of state regulatory control. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Steve Jamar writes: Maybe they teach science differently now than when I went to school and when my boys (now ages 19 and 22) went to school, but science was inherently taught as conditional and subject to testing and change. There are things that are known facts, but there is a lot that is still unexplained -- the true nature of light, for example, and why gravity is such a weak force compared to the others, and a whole host of things in biology and geology. [snip] If the point is to teach the limits of our understanding, that can be and in my experience was and is taught. There are lots of questions still to which the answer is we don't know. There is an important difference between fallibility, contingency, and modesty _within_ scientific inquiry and modesty _about_ the scientific enterprise itself. All good scientists accept the former. Many, but far from all, accept the latter. Some scientists and philosophers -- folks like Richard Dawkins and Daniel Dennett most vocally lately -- argue that the conclusions of science, such as evolution, shred any possible basis for belief in God. Would it be constitutional for this sort of Dawkins/Dennett claim to be one of the propositions officially taught as a part of a science curriculum? I assume not. Would it be constitutional to tell students that there are no truths that are unamentable, in principle, to scientific study and verification? I assume not. (I'm not saying that these sorts of thing couldn't be discussed in public school classrooms.) All that some of us are arguing, then, is that it would be constitutional simply to advise students that the methodological naturalism built into scientific inquiry (and which properly excludes the teaching of intelligent design theory as a subject _within_ science) should not be taken for an official commitment to the ontological naturalism of folks like Dawkins and Dennett. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Steve Jamar writes: Maybe they teach science differently now than when I went to school and when my boys (now ages 19 and 22) went to school, but science was inherently taught as conditional and subject to testing and change. There are things that are known facts, but there is a lot that is still unexplained -- the true nature of light, for example, and why gravity is such a weak force compared to the others, and a whole host of things in biology and geology. [snip] If the point is to teach the limits of our understanding, that can be and in my experience was and is taught. There are lots of questions still to which the answer is we don't know. There is an important difference between fallibility, contingency, and modesty _within_ scientific inquiry and modesty _about_ the scientific enterprise itself. All good scientists accept the former. Many, but far from all, accept the latter. Some scientists and philosophers -- folks like Richard Dawkins and Daniel Dennett most vocally lately -- argue that the conclusions of science, such as evolution, shred any possible basis for belief in God. Would it be constitutional for this sort of Dawkins/Dennett claim to be one of the propositions officially taught as a part of a science curriculum? I assume not. Would it be constitutional to tell students that there are no truths that are unamentable, in principle, to scientific study and verification? I assume not. (I'm not saying that these sorts of thing couldn't be discussed in public school classrooms.) All that some of us are arguing, then, is that it would be constitutional simply to advise students that the methodological naturalism built into scientific inquiry (and which properly excludes the teaching of intelligent design theory as a subject _within_ science) should not be taken for an official commitment to the ontological naturalism of folks like Dawkins and Dennett. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Ed Darrell writes: No, urethra design is not beside the point at all. Is there an intelligent design explanation for that design? There is an evolutionary explanation (though not wholly satisfactory to many). How could such a thing have happened, according to intelligent design theory? The absence of any possible answer to that question points to the lack of science behind ID. That is the whole issue. I agree that ID is not a scientific theory. I also believe that the Dover decision was correct. That said, though, one needs to be fair here. The claim of intelligent design theory is not that NO features of the biological world can be explained by evolution through natural selection. Nor is it, as I said before, that the biological world is, according to one or another criterion, well-designed. It is, rather, that there are certain features of the biological world (irreducible complexity and all that) that point to at least those features having been designed by an intelligence. It is therefore consistent with at least the bare bones of ID theory that the designer was evil, or a practical joker, or a child-god who designed us as part of the heavenly equivalent of a kindergarten art project. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Ed Brayton writes: Actually, this depends on which ID advocate you're talking to at the time and that fact points up the lack of a coherent ID model. This is fair enough, in a sense. Yes, to be sure, there are different versions of ID, just as there are different versions of most schools of thought. But the fact that a theory has different versions that do not cohere with each other does not mean that the theory, as a general approach, is not coherent. It's also worth adding that, outside the range of what is usually labeled as ID theory, are a whole set of other views, which are self-consciously religious/theological or meta-empirical rather than faux scientific, that posit that an intelligent God in some sense guides or stands behind or sustains or pushes or pulls or is otherwise involved in the process that science, within its own perfectly appropriate naturalistic methodological limitations, describes to us as evolution through random mutation and natural selection. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Brad writes: Perry wrote on 12/21/2005 01:54:14 PM: It is therefore consistent with at least the bare bones of ID theory that the designer was evil, or a practical joker, or a child-god who designed us as part of the heavenly equivalent of a kindergarten art project. Or that an omniscient God who knows more than we do had a reason for creating us this way that is no more apparent to us than it is apparent to a 3 year old why he can't play with a lit candle. Yes. And that is part of what makes Intelligent Design Theory so theologically and religiously unsatisfactory: For the sake of trying to play in the arena of science, an effort at which it fails, much of the ID movement invokes a designer who is simply an abstract placeholder rather than the One Who Loves, and who evokes love and worship from his or her creation. There is a deeper point lurking here about the very strange terms on which the contemporary culture wars are being fought. But I'll let that pass. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Brad writes: Perry wrote on 12/21/2005 01:54:14 PM: It is therefore consistent with at least the bare bones of ID theory that the designer was evil, or a practical joker, or a child-god who designed us as part of the heavenly equivalent of a kindergarten art project. Or that an omniscient God who knows more than we do had a reason for creating us this way that is no more apparent to us than it is apparent to a 3 year old why he can't play with a lit candle. Yes. And that is part of what makes Intelligent Design Theory so theologically and religiously unsatisfactory: For the sake of trying to play in the arena of science, an effort at which it fails, much of the ID movement invokes a designer who is simply an abstract placeholder rather than the One Who Loves, and who evokes love and worship from his or her creation. There is a deeper point lurking here about the very strange terms on which the contemporary culture wars are being fought. But I'll let that pass. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case
For what it's worth, there is a good argument for limiting the term Doctor to physicians (including, by the way, physicians without a doctorate such as British physicians with only an undergraduate medical degree), and referring to all non-physician Ph.D.'s as Mr. or Professor or the like. This is, for example, the traditional practice at Yale. In fact, there's a certain nice reverse snobbery to this usage. That said, all I can add is the following entirely facetious observation: Here we are contemplating whether a particular phenomenon (the use of the terms Dr. and Prof.) is (a) essentially random, (b) the mechanical product of underlying variables such as the self-description of the witnesses, the practice of the attorneys, etc., (c) an unconscious tic, or (d) dare I say it, the result of the judge's intelligent design. Escher would be proud. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Dover Case Questions
Alan Brownstein writes: So - suppose someone drafted a statement disclaiming scientific overreaching as in 1. In the absence of some external force which is not bound by the laws of science, the evidence that we CAN test tells us that evolution is what happened. If there was a supernatural actor in the process, however, then all bets are off because science cannot test the supernatural. And then added to it a statement building on Mark's comment - that 2. In its current form, or state of development, ID does not provide a framework for identifying testable hypothesis - and as such can not be recognized as science. Is that a statement list members think school boards can constitutionally, and should, as a matter of policy, endorse? I do think that it might be salutary and just plain correct to append to all science classes (and for that matter social science classes that proceed from a presumption of methodological naturalism) the sort of disclaimer I suggested earlier. But I worry that attaching such a disclaimer specifically to the teaching of evolution improperly privileges one particular religious point of view over others. The trick is to attend to the legitimate concern that science education would inadvertently promote an ideology of scientism, while also avoiding the official promotion of religion. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Hmmm, Atheist Law Center, Eh?
Hi, In one sense, John Lofton's notion of operational atheism has much more to it than meets the eye. Consider, for example, the views of Radical Orthodox Christian theologians (e.g., John Milbank) and some other important post-liberal contemporary Christian thinkers (e.g., Stanley Hauerwas) who tend to take the view that much of modernity, including the underpinnings of our social science, the basis of our economic system, and the assumptions of our political theory, are profoundly at odds with the world-view of the Bible. If you're looking for an uncompromising, religiously-inspired, critique of the operational assumptions of our government and society, this is it. Significantly, though, these thinkers are _not_ sympathetic to the so-called religious right. To the contrary, they tend to find much of the religious right agenda to be either beside the point or perniciously Constantinian. Moreover, to the extent that they have public policy views (though they dislike the term), they tend to focus on issues such as justice for the poor (and skepticism about capitalism) or, in Hauerwas's case, an uncompromising opposition to war. So, at the end of the day, Ed Brayton is also profoundly right to point out that staunch religious believers can end up taking what might, in crude shorthand, be called the ACLU position on many of the issues that divide us, while proud atheists (including many neoconservatives) can easily take what might loosely be called the anti-ACLU position. The interesting question, though, is why this is, at least in popular discourse, so little noticed and appreciated. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
The institution of marriage
Alan Brownstein writes: In order to answer Mark's question, we have to decide whether there is a constitutional dimension to the cultural capital associated with marriage (accepting Perry's analysis for the moment). Let me pose a hypothetical question. Are religious individuals entitled to a vote on the question of what constitutes a religion for cultural capital purposes? A group calls itself a religion. Members of other faiths are willing extend to them the same statutory accommodations available to other faiths, but balk at the law referring to this group's beliefs as a religion. This is an interesting hypothetical, but not entirely apposite, it seems to me, for at least two reasons. First, marriage differs from religion, in that (1) it is an institution, and not only a word, (2) there is a long and complicated history, going back at least a thousand years, of both contestation and intertwining between the religious/spiritual and civil/secular aspects/identities of marriage, and (3) perhaps most important, while we might imagine a world in which the various meanings of marriage could be kept hermetically sealed off from each other, that is not our world, at least right now. Indeed, the civil state has been as insistent as many religious folk are on refusing to erect a wall between religious and civil marriage. (In many states, for example, it is simply not possible for a heterosexual, otherwise qualified, couple even to try to enter into a merely religious wedding: chances are that the wedding will be given civil effect, regardless of the lack of a marriage license. And, at least in Utah, a merely religious marriage can subject one to a bigamy prosecution.) In this sense, marriage is radically different from words such as religion, and, for that matter, from other cultural institutions such as, say, the definition of adulthood. As I point out in my Oxford article, we do manage, without any difficulty, to wall off the secular legal idea that the age is majority is 18 from, for example, the Jewish idea that a boy becomes a bar mtizvah at age 13 and a girl becomes a bat mitzvah at age 12. But marriage, for all sorts of reasons, is just different. Second, it's worth emphasizing that something like my argument about religious capital can have a constitutional dimension without necessarily implying a hard constitutional entitlement.(Oddly enough, if there is anything like an entitlement argument here, it might well be on the other side of the equation, in favor of recognizing a right to full-fledged same-sex marriage, in that, for certain religious traditions (primarily Protestant, as opposed to Catholic or Jewish or Hindu, etc.), it is theologically difficult to conceive of a genuine rather than metaphorical religious marriage apart from an underlying civil institution.) Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
The institution of marriage
Ed Brayton wrote: I fail to see how the institution of marriage can be destroyed without having any actual marriage damaged in any conceivable way. It's not going to do anything to any marriage that I'm aware of. No one I know is going to leave their spouse if gay marriage is legalized, or stop loving their kids, or choose not to get married. If anyone's marriage is fragile enough that it can damaged by the prospect of people they don't know being allowed to get married, there wasn't any hope for that marriage in the first place. And without destroying any particular marriage, how is the institution of marriage to be destroyed? I've never seen a logical causal argument made here to support this kind of rhetoric; I suspect I never will. I don't oppose same-sex marriage. But I do understand the argument that same-sex marriage would threaten the institution of marriage, particularly as that institution is understood in many (though, of course, not all) religious traditions. The issue is not whether any given marriage will be damaged, but rather whether the cultural meaning of the institution -- the set of purposes, expectations, and even cosmic meanings -- that are ascribed to it will shift in a way that will unavoidably spill over beyond the merely secular realm to religious communities as well. I think it's useful to think of the institution of marriage as being, at least in part, a piece of cultural capital in whose meaning various communities invest, and whose value as a bearer of meaning risks being appropriated, so to speak, when the state radically changes the rules. Consider two analogies: (1) Why do many American Indians object to the use of Indian names and mascots by sports teams, even when the names and mascots are not inherently offensive or insulting? One reason is that the appropriation of names and symbols such as Braves inevitably alters and dilutes the meaning of such names and symbols among Native Americans themselves. (2) Or consider the pyrrhic victory argument in Establishment Clause debates; that is to say, the argument (which I tend to support in lots of contexts) that governmental sponsorship of religious symbols such as creches or religious practices such as prayers threatens to debase and trivialize the genuine religious meaning of those symbols or practices. That is to say, creches and prayers, as pieces of religious capital and bearers of meaning, are altered, even in their private use, by their public misuse. Now, of course, to understand the argument that same-sex marriage would threaten the institution of marriage as it is understood in many religious traditions is not to support that argument. If nothing else, filling in that argument would require a really detailed and careful account of the complicated relationship between marriage as a piece of religious capital and marriage as a civil institution. In any event, I don't think that religious objectors to same-sex marriage are entitled to any sort of veto in the contest over the meaning of marriage. But we should at least be willing to acknowledge that there is something genuine at issue here. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
The institution of marriage
Mark Scarberry writes: I appreciate Perry's thoughtful comments. Near the end he says, I don't think that religious objectors to same-sex marriage are entitled to any sort of veto in the contest over the meaning of marriage. If they aren't entitled to a veto, are they nevertheless (anagrammatically speaking) entitled to a vote? To put it another way, if their interests are legitimate, are they entitled to put those interests forward and see whether the democratic process results in protection of those interests? For what it's worth, I do think that religious folk are legitimate stakeholders in the debate over same-sex marriage. That gives them both a vote and a voice. On the other hand, I don't think that this necessarily means that only the democratic process should resolve this debate. Sometimes the Constitution overrides even legitimate voices. (Do I think there's a constitutional right to same-sex marriage? I'm still struggling with that question. But I certainly don't think that the question is out of bounds, or that courts that decide in favor of such a right are crossing some fundamental red line.) On the third hand (there's usually a third hand), I also think that the legitimate religious stake in the definition of marriage renders both coherent (see my essay, The Intersecting Worlds of Religious and Secular Marriage, in Law and Religion: Current Legal Issues, Vol. 4, at 385 (Richard O'Dair Andrew Lewis, eds., Oxford University Press 2001)) and normatively very tempting a compromise solution such as Vermont-style (i.e., including all the secular legal incidents of marriage) civil unions. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
