RE: Harm to Others as a Factor in Accommodation Doctrine

[Sisk, Gregory C.]

I hope I don't unduly belabor the matter, and those who think I do can hit
the delete button and rest assured I won't prolong it in future messages
(absent some unexpected expression of demand).  As Michael Newsom well
explains, the rule of celibacy for Catholic priests is a rule of discipline
that has never been universal in time or place for the Catholic Church,
while the determination that priests must be male is doctrine grounded in
tradition and scripture.  The Church's teaching about Men and Women and the
unique gifts that each brings to life is far more complex and nuanced than
can be captured in the simple observation that all priests are male,
although some unfortunately are quick to cite that as a nutshell description
of the Church and its attitude toward women.  Moreover, the reservation of
priestly ordination to men primarily is a reflection of humility on the part
of the Church, which observes that all of the apostles who stood at the
beginning of the apostolic succession were male and that God has not
revealed to the Church any basis for presuming on its own to depart from
Christ's example.  Again, the question of ordination, and its meaning for
equality of the genders, raises matters of Catholic Church teaching and
theology beyond what most of the members of list undoubtedly wish to explore
on a list reserved to law and religion.

I also would add that, contrary to a suggestion made on this list, the
dispensation for former Episcopal (and, for that matter, Lutheran) clergy
who were married before conversion to Catholicism involved no bending of the
rules as such because their situation was not comparable to other Catholic
priests of the Latin Order and because their treatment is fully in accord
with that for Catholic priests of the Eastern Rite.  Catholic priests of the
Latin Rite, which account for the vast majority of the Catholic priesthood,
especially in the United States, knowingly take an oath of celibacy upon
their ordination.  By contrast, former Episcopal and Lutheran clergy who
were married during their ordained lives in their prior denomination did not
take such an oath.  Thus expecting them to abandon their spouses in order to
continue ordained ministry in full communion with Rome would be
inappropriate and unfair.  When they converted to the Catholic Church and
sought to have their prior ordination renewed in a manner that the Catholic
Church regards as genuinely in line with apostolic succession, the Church
generously has accepted that those who were married cannot take the same
oath of celibacy.  However, former Episcopal and Lutheran clergy who were
not married indeed are required to take that oath, and married Catholic
priests whose spouses die before them are not permitted to remarry.

In addition, this understanding for converting clergy is similar to that for
priests of the Eastern Rite, that is, the Byzantine Catholic Church.  The
Eastern Rite is present primarily in that part of the world in which the
Orthodox Church prevails, and thus Byzantine Catholics follow many of the
same religious customs as the Orthodox Church.  However, Eastern Rite
Catholics have maintained communion with Rome and accept the Pope as head of
the Church.  Men who married before ordination may become priests in the
Eastern Rite of the Catholic Church (at least in those nations where the
Latin Rite does not prevail), although men who were not married before
ordination may not marry and those whose spouses precede them in death may
not remarry.  In the Eastern Rite, all bishops are selected from among the
monks, who do take an oath of celibacy.  Thus, throughout the world, in all
rites and all circumstances, bishops in the Catholic Church are celibate and
married only to God.

Because celibacy is a disciplinary rule rather than a doctrine, the argument
is made from time to time from certain quarters that it should be changed to
accommodate to cultural trends or the difficulty in recruiting sufficient
numbers of priests.  The opposing argument is not only one of tradition but
that, especially today, the powerful message of celibacy is a needed
antidote to the sex-obsessed society in which we live.  It also spares the
Catholic Church the scandal that various denominations have experienced of
divorce among the clergy, including notorious cases of serial divorces.
Interestingly, polls of Catholic priests finds that the older generation are
somewhat more likely to support a rollback of celibacy, while younger
priests ordained during the papacy of John Paul II accept the discipline of
celibacy as an integral part of their vocation.

Greg Sisk


-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 15, 2005 6:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harm to Others as a Factor in Accommodation Doctrine

Actually, there is a considerable difference between, for want of a better
term, the squabbling and accommodati

RE: Harm to Others as a Factor in Accommodation Doctrine

[Newsom Michael]

Actually, there is a considerable difference between, for want of a better 
term, the squabbling and accommodation between Catholics and Anglicans and the 
permissible gender of priests.  The differences are rooted both in Scripture 
and in the Magisterium of the Catholic Church.  (This explanation, if 
necessary, will have to take place off list.)

For what it is worth, in Orthodoxy (and in the first 1000 years or so of 
Catholicism) priests -- male priests, that is -- could be married.  Although, 
as I best understand it, the rule was that the marriage had to take place 
before ordination.  Put differently, no ordained priest could marry.  Also, 
there was -- and is -- a rule in both Orthodoxy and Catholicism that bishops 
could not be married.  

Neither Church has ever formally accepted women priests, married or not.  

The rule in Western Christianity regarding married priests was, at first, a 
rule of discipline.  Thus quite different than the rule against women priests.  
Pope John Paul II has sought, perhaps successfully (I leave the question to 
canon lawyers) to change the rule of discipline to a rule of doctrine (with, of 
course, the exception for married Anglican priests who become Catholics).   

-Original Message-
From: Jean Dudley [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 14, 2005 8:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Harm to Others as a Factor in Accommodation Doctrine

Marci said:

> I would disagree, because any woman who wants to be a priest is 
> clearly at odds with heavily document ecclesiology in the Church that 
> forbids them becoming a priest.  Their views, therefore, cut them out 
> of the picture before you even get to gender.

As a side note, the Episcopal church in America ordains female priests. 
  Not "ministers", but priests.  Doctrinally, the two churches are very 
close, with the exception of the doctrine that the Pope is the 
spiritual head of the church.  In fact, the Catholic church accepts the 
ordination of male priests by the Episcopal church, insofar as to allow 
married male priests to convert and retain their ordination.  This has 
been under-publicized, but there are many former Episcopal priests 
serving as Catholic priests who are married.  They are not required to 
follow the rule of celibacy.

Many priests converted due to increasing disaffection with the 
Episcopal church's liberal policy of ordaining homosexuals and 
lesbians.

Presumably they would have to acknowledge the pope's authority, which 
was the original issue that forced the schism under Henry VIII.

I'm not sure what bearing this has on the discussion, but it seems that 
if the Catholic Church can bend the rule of celibacy for male priests, 
surely they can bend the rules about women lacking that wee bit of 
proud flesh, but who uphold the authority of the pope and are willing 
to abide by the rule of celibacy.

Jean Dudley
http://jeansvoice.blogspot.com

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Re: Harm to Others as a Factor in Accommodation Doctrine

[Richard Dougherty]

Though this isn't a theology list, a clarification is in order; the Catholic 
Church does not recognize the validity of Episcopalian ordinations.  They were 
rejected by the Church as early as 1554, and definitively in 1896.  
Episcopalian ministers who convert
to Catholicism must be ordained as Catholic priests.

I presume the last statement was an attempt at humor, but I'm afraid succeeds 
only in being offensive.

Richard Dougherty

Jean Dudley wrote:

> Marci said:
>
> > I would disagree, because any woman who wants to be a priest is
> > clearly at odds with heavily document ecclesiology in the Church that
> > forbids them becoming a priest.  Their views, therefore, cut them out
> > of the picture before you even get to gender.
>
> As a side note, the Episcopal church in America ordains female priests.
>   Not "ministers", but priests.  Doctrinally, the two churches are very
> close, with the exception of the doctrine that the Pope is the
> spiritual head of the church.  In fact, the Catholic church accepts the
> ordination of male priests by the Episcopal church, insofar as to allow
> married male priests to convert and retain their ordination.  This has
> been under-publicized, but there are many former Episcopal priests
> serving as Catholic priests who are married.  They are not required to
> follow the rule of celibacy.
>
> Many priests converted due to increasing disaffection with the
> Episcopal church's liberal policy of ordaining homosexuals and
> lesbians.
>
> Presumably they would have to acknowledge the pope's authority, which
> was the original issue that forced the schism under Henry VIII.
>
> I'm not sure what bearing this has on the discussion, but it seems that
> if the Catholic Church can bend the rule of celibacy for male priests,
> surely they can bend the rules about women lacking that wee bit of
> proud flesh, but who uphold the authority of the pope and are willing
> to abide by the rule of celibacy.

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Re: Harm to Others as a Factor in Accommodation Doctrine

[Jean Dudley]

Marci said:
I would disagree, because any woman who wants to be a priest is 
clearly at odds with heavily document ecclesiology in the Church that 
forbids them becoming a priest.  Their views, therefore, cut them out 
of the picture before you even get to gender.
As a side note, the Episcopal church in America ordains female priests. 
 Not "ministers", but priests.  Doctrinally, the two churches are very 
close, with the exception of the doctrine that the Pope is the 
spiritual head of the church.  In fact, the Catholic church accepts the 
ordination of male priests by the Episcopal church, insofar as to allow 
married male priests to convert and retain their ordination.  This has 
been under-publicized, but there are many former Episcopal priests 
serving as Catholic priests who are married.  They are not required to 
follow the rule of celibacy.

Many priests converted due to increasing disaffection with the 
Episcopal church's liberal policy of ordaining homosexuals and 
lesbians.

Presumably they would have to acknowledge the pope's authority, which 
was the original issue that forced the schism under Henry VIII.

I'm not sure what bearing this has on the discussion, but it seems that 
if the Catholic Church can bend the rule of celibacy for male priests, 
surely they can bend the rules about women lacking that wee bit of 
proud flesh, but who uphold the authority of the pope and are willing 
to abide by the rule of celibacy.

Jean Dudley
http://jeansvoice.blogspot.com
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RE: Harm to Others as a Factor in Accommodation Doctrine

[Douglas Laycock]

What Elvig appears to hold is that if the remedy does not interfere with the 
church's selection of its own clergy, the ministerial exception is not 
implicated.  It certainly does not hold that a pastor can be reinstated if she 
was discharged because of her sex, or her complaints about sexual harassment, 
and not because of some religious belief on the part of the church.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]
Sent: Mon 3/14/2005 1:01 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Harm to Others as a Factor in Accommodation Doctrine


Mark-- Elvig does not gainsay my point that if an abusive or discriminatory 
practice is not motivated by a sincere religious belief, the claim can go 
forward in the courts.  So the ministerial exception is not some blanket 
protection for anything that happens between clergy and religious institution.
 
Marci
 
 
In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, [EMAIL 
PROTECTED] writes:

With regard to Marci's point on the ministerial exception having no 
bite in
the Ninth Circuit where the claim is for sexual harassment, I think she
overstates the case. The most recent Ninth Circuit case on the issue 
(Elvig)
severely limits the remedies that an allegedly sexually harassed 
minister
can seek

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

Mark-- Elvig does not gainsay my point that if an abusive or discriminatory 
practice is not motivated by a sincere religious belief, the claim can go 
forward in the courts.  So the ministerial exception is not some blanket 
protection for anything that happens between clergy and religious 
institution.
 
Marci
 
 
In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
With 
  regard to Marci's point on the ministerial exception having no bite inthe 
  Ninth Circuit where the claim is for sexual harassment, I think 
  sheoverstates the case. The most recent Ninth Circuit case on the issue 
  (Elvig)severely limits the remedies that an allegedly sexually harassed 
  ministercan seek

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

This is rather far afield, actually.  These are questions of what 
evidence can be adduced in court.  Penitent-minister communications are 
generally not fair game and have been excluded, unless the penitent waives the 
privilege.  Patient-doctor privileges essentially get the same 
treatment.
 
if the first 
  is fair game (penitent-minister), why not the second (patient-doctor), if in 
  both cases the goal is to prosecute child abusers? 
 

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

With respect to religious speech, there is no difference.  When it 
comes to conduct, though, it is fairly obvious that conduct must be capable of 
greater regulation than speech, because of its greater potential for harm.  
This is a principle that has a distinguished pedigree, Locke, Jefferson, Mill, 
etc. etc.
 
Marci
 
In a message dated 3/14/2005 10:22:00 A.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:
Why 
  would the Free Exercise clause have less weight and power to protect than the 
  Free Speech clause?  

 
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RE: Harm to Others as a Factor in Accommodation Doctrine

[Scarberry, Mark]

I see a larger role than Marci does for constitutionally mandated and
judicially enforced free exercise exemptions, but there is a problem with
Brad's argument. A law that prohibited a certain kind of speech *as speech*
would not be neutral and generally applicable; it would target speech the
same way the City of Hialea targeted the Santeria religious ritual in the
Lukumi case. Cf. O'Brien and other symbolic speech cases in which regulation
of conduct is usually upheld despite the effect on the symbolic speech.

With regard to Marci's point on the ministerial exception having no bite in
the Ninth Circuit where the claim is for sexual harassment, I think she
overstates the case. The most recent Ninth Circuit case on the issue (Elvig)
severely limits the remedies that an allegedly sexually harassed minister
can seek. In a suit for sexual harassment and for retaliation for making a
claim of sexual harassment, the plaintiff's recovery cannot include
reinstatement, lost wages, recovery for damage to reputation caused by an
allegedly retaliatory firing, or an order requiring the church to give the
plaintiff access to its process by which ministers find new positions. The
court also held that retaliatory employment decisions (e.g., firing,
demotion, change in duties) were not actionable, though retaliatory "verbal
abuse and intimidation" would be (if such speech were not religiously
mandated), with possible recovery for emotional distress and damage to
reputation. (I think the court had in mind a situation in which verbal abuse
and intimidation might happen in front of others in the church, with
resulting possible damage to the plaintiff's reputation.) I think the
plaintiff is left with the possibility of recovering only for emotional
distress associated with the alleged harassment, and for emotional distress
(and possible damage to reputation) associated with the alleged retaliation.

Mark S. Scarberry
Pepperdine Univ. School of Law


-Original Message-
From: Brad Pardee
To: Law & Religion issues for Law Academics
Sent: 3/14/2005 7:18 AM
Subject: Re: Harm to Others as a Factor in Accommodation Doctrine

Doesn't that render the Free Exercise clause powerless as a guarantor of
religious freedom?  Suppose, for instance, we were talking about freedom
of speech instead of the free exercise of religion.  I can't imagine
that the legislature would be able to outlaw any type of speech they
wanted to as long as it was in a neutral and generally applicable law,
and that people would have to lobby the legislature for an accomodation
to be able to have the freedom of speech they thought the Constitution
already provided.  Rather, the legislature would need to be able to
justify to the court why the outlawing of a type of speech was not an
unconstitutional infringement on an explicitly Constitutionally
protected freedom.  Why would the Free Exercise clause have less weight
and power to protect than the Free Speech clause?  Tell me what I'm
missing in your understanding of what the Free Exercise clause actually
protects.
 
Brad
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Francis Beckwith]

Title: Re: Harm to Others as a Factor in Accommodation Doctrine



Although Marci’s point is well-taken, I think another way to understand Marc’s (BTW, how cute is that, “Marci and Marc”?) point is to change Marci’s counter-example from church’s protecting pedophiles under the free exercise clause to abortion clinics protecting pedophiles under the right to privacy.  Recently, an attorney general (I forgot what state) tried to acquire the medical records of underage girls who underwent abortions in order to try to investigate whether their pregnancies were the result of relations with adult men.  Many folks opposed this acquisition on the grounds that it violated the girls’ right to privacy.  Imagine, however, if the teenage boys molested by priests were seeing them under the cloak of penitent-minister confidentiality.  So, we have a pretty good analogy here: penitent-minister, patient-doctor.  Here’s what Marc may be suggesting (if I am wrong, Marc, please correct me): if the first is fair game (penitent-minister), why not the second (patient-doctor), if in both cases the goal is to prosecute child abusers?  

Frank


On 3/14/05 8:52 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote:

 
Just for the record-- I never said never can there be any burden on third parties, rather that that burden should be assessed by the legislature.  There are arenas where the burden may never be tolerable, though, e.g., there are few burdens on children's health or safety that can be justified.
 
There is a broad sprectrum, of course.  Exemptions for peyote and religious headgear in the military create de minimis burdens on third parties.  Exemptions that permit churches to hide pedophiles from unsuspecting parents and children are enormous burdens.
 
Marci
 
For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples.
 

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Re: Harm to Others as a Factor in Accommodation Doctrine

[Brad Pardee]

Doesn't that render the Free Exercise clause powerless as a guarantor 
of religious freedom?  Suppose, for instance, we were talking about freedom 
of speech instead of the free exercise of religion.  I can't 
imagine that the legislature would be able to outlaw any type of speech 
they wanted to as long as it was in a neutral and generally applicable law, and 
that people would have to lobby the legislature for an accomodation to be able 
to have the freedom of speech they thought the Constitution already 
provided.  Rather, the legislature would need to be able to justify to the 
court why the outlawing of a type of speech was not an unconstitutional 
infringement on an explicitly Constitutionally protected freedom.  Why 
would the Free Exercise clause have less weight and power to protect than the 
Free Speech clause?  Tell me what I'm missing in your understanding of what 
the Free Exercise clause actually protects.
 
Brad

  The answer would be that those religious groups would lobby and obtain 
  what they want.  Just because the courts don't provide something does not 
  mean religious entities throw up their hands and quit.  Quite to the 
  contrary. 
   
  Marci
   
  So my 
question would be, if Title VII had not included the exemption, what 
would prevent the Church from being required to comply with 
anti-discrimination laws in the employment of priests if her position 
prevailed?  It seems like the logical conclusion would be that 
women wishing to serve as priests would be harmed, so the Church would 
be required to assimilate, regardless of its understanding of God's 
requirements.Brad
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

 
Just for the record-- I never said never can there be any burden on third 
parties, rather that that burden should be assessed by the legislature.  
There are arenas where the burden may never be tolerable, though, 
e.g., there are few burdens on children's health or safety that can be 
justified.
 
There is a broad sprectrum, of course.  Exemptions for peyote 
and religious headgear in the military create de minimis burdens on third 
parties.  Exemptions that permit churches to hide pedophiles from 
unsuspecting parents and children are enormous burdens.
 
Marci
 
For those who believe accommodation can never entail any burdens 
  on third parties, I wonder if they could explain why the constitutional right 
  (or interest) is in free exercise of religion qualitatively different than 
  these other examples.

 
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RE: Harm to Others as a Factor in Accommodation Doctrine

[Marc Stern]

Vindication of constitutional rights often
entails shifting burdens form one party to another. A public figure defamed
without malice has to suffer damage to reputation in the furtherance of
creating a vigorous marketplace of ideas. The interests of a fetus‘father
in the birth of his child yield to the superior right of a mother not to be compelled
to carry to term. One could multiply still further such examples. For those who
believe accommodation can never entail any burdens on third parties, I wonder
if they could explain why the constitutional right (or interest) is in free
exercise of religion qualitatively different than these other examples.

Marc Stern

 









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Monday, March 14, 2005 9:39
AM
To: religionlaw@lists.ucla.edu
Subject: Re: Harm to Others as a
Factor in Accommodation Doctrine



 



The state courts are actually not uniform
on this -- except for race.  I could not find a church that was permitted
to discriminate according to race, even if the discrimination was religiously
motivated.  The ministerial exception is being argued in many clergy abuse
cases as a general right to control all aspects of the clergy-religious
institution employment relationship.





 





Marci





 





The general right of churches to insist
that their employees share the church's religious beliefs cannot be used to
circumvent the other prohibitions of title VII.  





 








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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

The state courts are actually not uniform on this -- except for race.  
I could not find a church that was permitted to discriminate according to race, 
even if the discrimination was religiously motivated.  The ministerial 
exception is being argued in many clergy abuse cases as a general right to 
control all aspects of the clergy-religious institution employment 
relationship.
 
Marci
 
The general 
  right of churches to insist that their employees share the church's religious 
  beliefs cannot be used to circumvent the other prohibitions of title 
  VII.  

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Marty Lederman]

The caselaw and legislative history are fairly clear -- and uniform, as far 
as I know -- in holding to the contrary.  The general right of 
churches to insist that their employees share the church's religious beliefs 
cannot be used to circumvent the other prohibitions of title VII.  For 
example, if the church has a tenet prohibiting pre-marital pregnancy, or 
prohibiting lawsuits against the church, such a tenet will not excuse the church 
from engaging in discrimination based on pregnancy, and will not justify 
employment sanctions against those who sue the church.  In our October 12, 
2000 OLC Opinion on religious discrimination by recipients of "charitable 
choice" funds, we included a fairly extensive discussion of the cases up through 
2000 (pages 30-32).  The authorities include, e.g., Senator Williams's 
statement at 118 Cong. Rec. 7167 (1972); and the following cases:
 
Cline, 206 F3d at 658; Bollard, 196 F.3d at 945; 
Boyd, 88 F3d at 413-14; Demarco, 4 F3d at 173; Freemont 
Christian Sch., 781 F2d at 1364-67; Rayburn, 772 F2d at 1166-67; 
Pacific Press, 676 F2d at 1276-77; Mississippi College, 626 
F2d at 484; McClure, 460 F2d at 558; Ganzy, 995 F. Supp. at 
348-49, 359-60; Vigars, 805 F. Supp. at 806-08; and Dolter, 
483 F. Supp. at 269-70.

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Monday, March 14, 2005 8:09 
AM
  Subject: Re: Harm to Others as a Factor 
  in Accommodation Doctrine
  
  
\
  I would disagree, because any woman who wants to be a priest is clearly 
  at odds with heavily document ecclesiology in the Church that forbids them 
  becoming a priest.  Their views, therefore, cut them out of the picture 
  before you even get to gender.
   
  Marci
  
Actually, as to the Catholic Church and women (priests), the title 
VII exemption does not address the problem at all, as I tried to 
explain in a post yesterday.  In order to permit the Church 
to limit the priesthood to men, it's necessary to turn to the First 
Amendment.

  - Original Message - 

  
   
  
  

  ___To post, send 
  message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change 
  options, or get password, see 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

  \
I would disagree, because any woman who wants to be a priest is clearly at 
odds with heavily document ecclesiology in the Church that forbids them becoming 
a priest.  Their views, therefore, cut them out of the picture before you 
even get to gender.
 
Marci

  Actually, as to the Catholic Church and women (priests), the title VII 
  exemption does not address the problem at all, as I tried to 
  explain in a post yesterday.  In order to permit the Church to 
  limit the priesthood to men, it's necessary to turn to the First 
  Amendment.
  
- Original Message - 
  

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

My view of accommodation arises from the institutional competencies of the 
legislative and judicial branches.  This is not a pragmatic view, but 
rather one based on the enumerated powers and constitutional limitations on 
each branch. The judicial branch lacks the power and investigatory 
powers to determine whether a law that is neutral and generally applicable 
is consistent with the public good.  For such laws, strict scrutiny places 
the court in a position of free-wheeling power to assess public interest 
according to the court's view of the world (which can hardly be reliable if she 
is an honorable judge, because she is not in contact with constituents, not 
working through public positions on issues that may well appear before the 
court, and only considering those laws and issues coming to the court at the 
parties' behest, not hers).  So any doctrine that makes a court into a 
mini-legislature is at cross-purposes with the enumerated powers.
 
I would measure the harm that a court can discern according to how well the 
accommodation fits the practice (not according to agreement on public policy 
goals).  If the accommodation fits the practice perfectly, then 
the accommodation is legitimate (even if wrongheaded).  If there are 
unacceptable levels of harm, the victims need to go to the legislature to 
educate the legislators.  That is what is happening all over the country 
with clergy abuse survivors.  It is extremely difficult to get legislators 
to listen to any entity that is arguing against religious entities, because the 
religious entities have such entree to the legislators, but they are slowly 
making progress a legislators are becoming educated about the intense harm 
done by religious entities to them. 
 
That does not mean I would never invoke strict scrutiny of legislation by a 
court.  When the law is such that it appears to have discriminatory 
purpose, because it is not neutral and generally applicable, strict scrutiny is 
completely appropriate.  The legislature has lost the justification for 
deference by working outside the neutral and generally applicable rubric, and 
the court must determine whether the discrimination exists.  (Note 
that the Court is not determining whether the public policy is good, but rather 
whether the legislature has enacted a law that exceeds constitutional 
purposes.)  This is how strict scrutiny works in other rights arenas, 
including the Equal Protection Clause and the Free Speech Clause.  In 
neither of those arenas do the courts get the power to prowl around neutral, 
generally applicable legislative determinations to see if the policy enacted 
fits their view of proper policy (best example again is Yoder).  Rather, 
the courts are deferential until the legislature acts in a way that demands 
closer scrutiny of the purposes behind the law.  (by purposes, I don't mean 
motivation).  If they don't get that power in the speech context, they 
should not get that power in the religious conduct context, because it 
is manifest that religious conduct can cause much more harm than religious 
speech in the vast majority of circumstances.
 
 
Marci
 
 
Marci,my 
  comment was responding to Marty's and Tom Berg's earlier post, about harm 
  to third parties being part of the criteria courts employ in determing 
  whether an accommodation the legislature has granted should be struck down 
  on Establishment Clause grounds. Several federal and state court decisions 
  suggest this, but they are typically unclear about what constitutes 
  suffcient harm or the kind of harm that violates the Establishment Clause. 
  I don't know if you have a position on this, but I would be curious to 
  know your thoughts. As your earlier response to Tom's post suggested, I 
  don't think you are arguing that legislative discretion should control 
  this Establishment Clause question -- but that means that we need to 
  address the amount and kind of harm caused by an accommodation that would 
  render it invalid.Also, I understand that you believe as a matter of 
  constitutional principle that determining whether religious exemptions or 
  accommodations should be granted is exclusively the province of the 
  legislature. I don't know whether you believe that principle is supported 
  by a pragmatic evaluation of how legislatures deal with these issues in 
  fact. But it would seem to me that it would be useful to know the cost or 
  burden on religious liberty that your position entails. If legislatures do 
  grant accommodations when third parties are not being harmed, that cost is 
  lower than it would be if legislatures often deny exemptions even when 
  relatively trivial state interests are at issue. That kind of pragmatic 
  analysis, however, requires some understanding of what kinds of harms to 
  third parties justify abridging religious liberty.Similarly, 
  although I recognize that the normative or political question of whether 
  an accommodation is jus

Re: Harm to Others as a Factor in Accommodation Doctrine

[Steven Jamar]

Not exactly, I think.  The law allows sex to be BFOQ.  Of course the BFOQ comes from the religious beliefs which in turn are what is protected by the First Amendment.  Other BFOQs based on sex include things like restroom attendants and roles in operas and plays and movies -- though Elizabethan theatre could, I suppose, be used to call the arts into question.

Steve

On Monday, March 14, 2005, at 07:49  AM, Marty Lederman wrote:

Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday.  In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment.

-- 
Prof. Steven D. Jamar   vox:  202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"Whenever you find yourself on the side of the majority, it is time to pause and reflect."

Mark Twain
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

The answer would be that those religious groups would lobby and obtain what 
they want.  Just because the courts don't provide something does not mean 
religious entities throw up their hands and quit.  Quite to the contrary. 

 
Marci
 
So my question 
  would be, if Title VII had not included the exemption, what would prevent 
  the Church from being required to comply with anti-discrimination laws in 
  the employment of priests if her position prevailed?  It seems like 
  the logical conclusion would be that women wishing to serve as priests 
  would be harmed, so the Church would be required to assimilate, regardless 
  of its understanding of God's 
requirements.Brad

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Marty Lederman]

Actually, as to the Catholic Church and women (priests), the title VII 
exemption does not address the problem at all, as I tried to 
explain in a post yesterday.  In order to permit the Church to 
limit the priesthood to men, it's necessary to turn to the First 
Amendment.

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Monday, March 14, 2005 7:45 
AM
  Subject: Re: Harm to Others as a Factor 
  in Accommodation Doctrine
  
  There is a structural check on discrimination in the neutral, generally 
  applicable rule.  If the law is tailored to only burden a religious 
  entity's religious practices and not other identical secular practices, it is 
  unconstitutional per Lukumi.  If the legislature, though, is willing to 
  burden everyone who engages in the conduct with the law, they are in all 
  likelihood are regulating the conduct as harmful conduct, not religious 
  conduct in particular.
   
  This makes sense of the Sherbert and unemployment cases as Smith 
  explained them.  They are problematic, because govt was willing to make 
  an exception to its rule (meaning that the rule against conduct did not need 
  to be absolute) and therefore when the state refused the same exemption for 
  religious reasons, the state has triggered concern about discriminatory 
  conduct and deserves to be subjected to strict scrutiny.
   
  On the same reasoning, Yoder was wrongly decided, which is my view.  
  
   
  By the way, in this era, in my experience, you will have to look long and 
  hard for a legislator that is not eager to grant even the most troubling 
  exemptions, e.g., exemptions for clergy from having to report known child 
  abuse.  The balance at rest at this point in history is not on the side 
  of the public good, but rather the religious entity.
   
  As to the Catholic Church and women, the Title VII exemption for 
  religious belief goes a long way to take care of that problem.  Where the 
  church is not choosing clergy, though, I think it is perfectly legitimate for 
  the govt to decide whether to permit discrimination or not.
   
  Marci
  
As 
I read this, I found myself wondering what the point is of having 
constitutionally protected free exercise if the exercise is only free when 
the legislature decides it is.  The scenario you describe seems to be 
one where the legislature is free to demand or prohibit any conduct they 
like, and to the religious adherent who is unable to comply without 
violating the tenets of their faith is simply out of luck unless they can 
get the legislature to exempt them.  The legislature can then, out of 
either hostility or indifference, simply say, "We're not singling you 
out.  Everybody has to do it."
 
Using your theory as I am understanding it, would you say that the 
Catholic Church is required, by anti-discrimination laws, to hire women 
as priests unless the anti-discrimination law was to specifically exempt the 
Church?  That certainly is a neutral, generally applicable law, and 
women who want to be priests could certainly claim that they would be 
harmed by an accomodation to allow the Church to only have men as 
priests.  And yet, if the Church is required by law to violate what it 
understands to be the constraints placed upon it by God, how does that 
equate with the free exercise of religion?
 
  
   
  
  

  ___To post, send 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

In some jurisdictions, the ministerial exemption is not quite as broad as 
Marty describes it.  It has been held that when the religious entity's 
conduct is not religiously motivated, e.g., sexual harrassment of a seminarian 
(Bollard, 9th Cir), the ministerial exception has no bite.
 
Marci
 
The exemption that permits the Church to ignore all of the 
  limitations of title VII for the priesthood is, instead, the so-called 
  "ministerial" exemption.  That exemption differs from the statutory 
  exemption in at least three ways:  (1)  Notwithstanding some early 
  judicial language to the contrary, it is a constitutional exemption, 
  not a statutory exemption.  (That is to say, Jean Dudley's question about 
  the need for constitutional exemptions in this context remains relevant 
  to this thread.)   (2) It's broader than the statutory 
  exemption in one important sense -- namely, that it applies to each 
  type of proscribed discrimination in title VII.  (3)  On the other 
  hand, it's narrower than the statutory exemption in another sense -- namely, 
  that it applies only to a limited number of positions that are "ministerial" 
  in nature (and thus probably does not at all protect some organizations that 
  do make some use of the statutory exemption).

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

There is a structural check on discrimination in the neutral, generally 
applicable rule.  If the law is tailored to only burden a religious 
entity's religious practices and not other identical secular practices, it is 
unconstitutional per Lukumi.  If the legislature, though, is willing to 
burden everyone who engages in the conduct with the law, they are in all 
likelihood are regulating the conduct as harmful conduct, not religious conduct 
in particular.
 
This makes sense of the Sherbert and unemployment cases as Smith explained 
them.  They are problematic, because govt was willing to make an exception 
to its rule (meaning that the rule against conduct did not need to be absolute) 
and therefore when the state refused the same exemption for religious reasons, 
the state has triggered concern about discriminatory conduct and deserves to be 
subjected to strict scrutiny.
 
On the same reasoning, Yoder was wrongly decided, which is my view.  

 
By the way, in this era, in my experience, you will have to look long and 
hard for a legislator that is not eager to grant even the most troubling 
exemptions, e.g., exemptions for clergy from having to report known child 
abuse.  The balance at rest at this point in history is not on the side of 
the public good, but rather the religious entity.
 
As to the Catholic Church and women, the Title VII exemption for religious 
belief goes a long way to take care of that problem.  Where the church is 
not choosing clergy, though, I think it is perfectly legitimate for the govt to 
decide whether to permit discrimination or not.
 
Marci

  As I 
  read this, I found myself wondering what the point is of having 
  constitutionally protected free exercise if the exercise is only free when the 
  legislature decides it is.  The scenario you describe seems to be one 
  where the legislature is free to demand or prohibit any conduct they like, and 
  to the religious adherent who is unable to comply without violating the tenets 
  of their faith is simply out of luck unless they can get the legislature to 
  exempt them.  The legislature can then, out of either hostility or 
  indifference, simply say, "We're not singling you out.  Everybody has to 
  do it."
   
  Using your theory as I am understanding it, would you say that the 
  Catholic Church is required, by anti-discrimination laws, to hire women 
  as priests unless the anti-discrimination law was to specifically exempt the 
  Church?  That certainly is a neutral, generally applicable law, and women 
  who want to be priests could certainly claim that they would be harmed by 
  an accomodation to allow the Church to only have men as priests.  
  And yet, if the Church is required by law to violate what it understands to be 
  the constraints placed upon it by God, how does that equate with the free 
  exercise of religion?
   

 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Alan Brownstein]

Marci,my comment was responding to Marty's and Tom Berg's earlier post, 
about harm to third parties being part of the criteria courts employ in 
determing whether an accommodation the legislature has granted should be 
struck down on Establishment Clause grounds. Several federal and state 
court decisions suggest this, but they are typically unclear about what 
constitutes suffcient harm or the kind of harm that violates the 
Establishment Clause. I don't know if you have a position on this, but I 
would be curious to know your thoughts. As your earlier response to Tom's 
post suggested, I don't think you are arguing that legislative discretion 
should control this Establishment Clause question -- but that means that 
we need to address the amount and kind of harm caused by an accommodation 
that would render it invalid.

Also, I understand that you believe as a matter of constitutional 
principle that determining whether religious exemptions or accommodations 
should be granted is exclusively the province of the legislature. I don't 
know whether you believe that principle is supported by a pragmatic 
evaluation of how legislatures deal with these issues in fact. But it 
would seem to me that it would be useful to know the cost or burden on 
religious liberty that your position entails. If legislatures do grant 
accommodations when third parties are not being harmed, that cost is 
lower than it would be if legislatures often deny exemptions even when 
relatively trivial state interests are at issue. That kind of pragmatic 
analysis, however, requires some understanding of what kinds of harms to 
third parties justify abridging religious liberty.

Similarly, although I recognize that the normative or political question 
of whether an accommodation is justified is analytically different than 
the question of whether an exemption is constitutionally required, there 
is some utility in discussing the former issue as a backdrop to 
understanding the latter. For example, a person may strongly believe that 
the equal protection clause does not require rigorous review of laws that 
discriminate against the disabled, but be equally committed to the 
enactment of federal and state legislation to protect the civil rights of 
the disabled.

In many of your posts on this list, you cite religious accommodations 
that are inappropriate and/or unconstitutional because of the harm that 
they cause to third parties or the public good. Again, I am curious to 
know what legislatively determined religious accommodations you recognize 
as legitimate and support -- which is basically asking how you define 
harm to third parties and the public good.

Alan Brownstein
UC Davis



Marci wrote

> We actually don't have to figure out "harm to third parties."  That,  
in my 
> view, is the job of the legislatures.  I say in my book, though,  that 
in this 
> era, legislatures have been knee-jerk providers of religious  
accommodations 
> without asking whether someone could be harmed by the law.   It boggles 
the 
> mind to think that Congress could have considered RFRA for 3  years, 
which was 
> going to potentially hobble every law in the country, without  asking 
whether 
> someone might get hurt if many laws were suspended as applied to  
religious 
> entities.  Religious entities should have latitude like any other  
groups to lobby 
> to their advantage, but legislators are supposed to ask the hard  
questions 
> (even when society is not asking them).
>  
> Marci 
>  
>  
>  
> 
> we would first  have to figure out how to define 
> what constitutes "harm to third parties"  -- which is no easy 
undertaking 
> 
> 
> 
> 
> ---1110634583
> Content-Type: text/html; charset="US-ASCII"
> Content-Transfer-Encoding: quoted-printable
> 
> 
> 
> 
> 
>  Arial"=20
> bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7> e_document=20
> face=3DArial color=3D#00 size=3D2>
> To clarify my earlier postings before I had to run my kids around 
to 14=
> =20
> different activities--
> I did not mean "forced accommodation" in the sense Doug 
interpreted=20
> it.  I meant that there are times when neutral, generally applicable la=
> ws=20
> require assimilation.  Only when an accommodation is enacted by a=20
> legislature for the purpose of lifting a burden on religion and only 
when th=
> at=20
> accommodation does not harm others is assimilation permissibly 
avoided. >
>  
> I did not mean to say, Ellis, that across-the-board exemptions are 
ever=
> =20
> good ideas.  Mandatory exemptions were clearly not required when the Fi=
> rst=20
> Amendment was drafted or ratified, and is not a credible approach. =20
> Permissive legislative accommodation, though, is valuable in a world wh=
> ere=20
> religious belief is an avoidable element of human existence.
>  
> We actually don't have to figure out "harm to third parties."  Tha=
> t,=20
> in my view, is the job of the legislatures.  I say in my book, tho=
> ugh

Re: Harm to Others as a Factor in Accommodation Doctrine

[Brad Pardee]

I agree that the Free Exercise clause requirea an exemption, regardless of 
whether or not Title VII provided for one.  However, Marci's position, as I 
understood her to explain it, is that there would be no exemption under the 
Free Exercise clause for a neutral, generally applicable law unless the 
legislation creates the exemption.  So my question would be, if Title VII 
had not included the exemption, what would prevent the Church from being 
required to comply with anti-discrimination laws in the employment of 
priests if her position prevailed?  It seems like the logical conclusion 
would be that women wishing to serve as priests would be harmed, so the 
Church would be required to assimilate, regardless of its understanding of 
God's requirements.

Brad
- Original Message - 
From: "Steven Jamar" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
Sent: Sunday, March 13, 2005 1:13 PM
Subject: Re: Harm to Others as a Factor in Accommodation Doctrine


There is, of course, an exemption for religious positions in religious 
organizations in Title VII and it would be required in any event under the 
Free Exercise clause. 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Marty Lederman]

A clarification:  The title VII statutory 
exemption "merely" permits churches and other religious organizations to 
hire coreligionists -- that is to say, it's a limited exception to the statute's 
ban on religious discrimination.  That exemption does not 
give the Catholic Church any exemption from the prohibition on sex 
discrimination (or pregnancy discrimination, or retaliation for filing title VII 
complaints, etc.), even for the position of priest.  The exemption 
that permits the Church to ignore all of the limitations of title VII for the 
priesthood is, instead, the so-called "ministerial" exemption.  That 
exemption differs from the statutory exemption in at least three ways:  
(1)  Notwithstanding some early judicial language to the contrary, it 
is a constitutional exemption, not a statutory exemption.  (That 
is to say, Jean Dudley's question about the need for constitutional 
exemptions in this context remains relevant to this thread.)  
 (2) It's broader than the statutory exemption in one important 
sense -- namely, that it applies to each type of proscribed 
discrimination in title VII.  (3)  On the other hand, it's narrower 
than the statutory exemption in another sense -- namely, that it applies only to 
a limited number of positions that are "ministerial" in nature (and thus 
probably does not at all protect some organizations that do make some use of the 
statutory exemption).
 
 
- Original Message - 
From: "Steven Jamar" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
<religionlaw@lists.ucla.edu>
Sent: Sunday, March 13, 2005 2:13 PM
Subject: Re: Harm to Others as a Factor in 
Accommodation Doctrine
> The term "hire" refers to any position in which one is employed, 
> regardless of how one got there or the motivation for doing so.> 
> There is, of course, an exemption for religious positions in religious 
> organizations in Title VII and it would be required in any event under 
> the Free Exercise clause.> > The all-or-nothing approach 
will never work in the freedom of religion > area nor in the Supreme 
Court nor should it.  The legislatures should > make exemptions 
according to balancing interests and policies and > resolving competing 
principles, as should the courts in interpreting > and applying the 
constitution.  This is absolutely typical.> > > On 
Sunday, March 13, 2005, at 12:27 PM, Jean Dudley wrote:>>>> 
Now, to tie this in with the current discussion, I'm not sure that the 
>> example cited applies because I think priesthood is a volunteer 
>> position.  Further, I'd say priesthood in the Catholic Church 
(or any >> other Christian demonination that uses the term) is a 
"calling", and >> not a profession.  I could be *way* wrong on 
that, and will bow to >> greater knowledge.>>>> 
Jean Dudley>> http://jeansvoice.blogspot.com>> Future Law Student. 
___>>> -- > 
Prof. Steven D. 
Jamar 
vox:  > 202-806-8017> Howard University School of 
Law 
fax:  202-806-8567> 2900 Van Ness Street 
NW   mailto:[EMAIL PROTECTED]> 
Washington, DC  20008> http://www.law.howard.edu/faculty/pages/jamar/> > 
___> 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 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Steven Jamar]

The term "hire" refers to any position in which one is employed, 
regardless of how one got there or the motivation for doing so.

There is, of course, an exemption for religious positions in religious 
organizations in Title VII and it would be required in any event under 
the Free Exercise clause.

The all-or-nothing approach will never work in the freedom of religion 
area nor in the Supreme Court nor should it.  The legislatures should 
make exemptions according to balancing interests and policies and 
resolving competing principles, as should the courts in interpreting 
and applying the constitution.  This is absolutely typical.

On Sunday, March 13, 2005, at 12:27 PM, Jean Dudley wrote:
Now, to tie this in with the current discussion, I'm not sure that the 
example cited applies because I think priesthood is a volunteer 
position.  Further, I'd say priesthood in the Catholic Church (or any 
other Christian demonination that uses the term) is a "calling", and 
not a profession.  I could be *way* wrong on that, and will bow to 
greater knowledge.

Jean Dudley
http://jeansvoice.blogspot.com
Future Law Student. ___
--
Prof. Steven D. Jamar vox:  
202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008
http://www.law.howard.edu/faculty/pages/jamar/

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Re: Harm to Others as a Factor in Accommodation Doctrine

[Jean Dudley]

On Mar 13, 2005, at 10:55 AM, Brad Pardee wrote:
...would you say that the Catholic Church is required, by 
anti-discrimination laws, to hire women as priests unless the 
anti-discrimination law was to specifically exempt the Church? 
It seems to me that the Catholic Church in America doesn't "hire" 
priests, any more than the US Military "hires" recruits.  I think 
there's an implication that the priesthood is a voluntary position.  
Compensation is not equal to similar jobs in the secular sector, in 
either case.

I think they recruit volunteers, train them, and provide some 
compensation, but not on the level of an at-will hiring.  While I am 
sure that it would please the Catholic Church to have a Rabbi offer his 
resume to be "hired", I'm not sure they would do so without making sure 
that there was a profound conversion experience first, and considerable 
re-training afterwards.  This is a position that is specific in nature, 
and no other religious leaders need apply.

Now, to tie this in with the current discussion, I'm not sure that the 
example cited applies because I think priesthood is a volunteer 
position.  Further, I'd say priesthood in the Catholic Church (or any 
other Christian demonination that uses the term) is a "calling", and 
not a profession.  I could be *way* wrong on that, and will bow to 
greater knowledge.

Jean Dudley
http://jeansvoice.blogspot.com
Future Law Student. 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Brad Pardee]

As I read this, I found myself wondering what the point is of having 
constitutionally protected free exercise if the exercise is only free when the 
legislature decides it is.  The scenario you describe seems to be one where 
the legislature is free to demand or prohibit any conduct they like, and to the 
religious adherent who is unable to comply without violating the tenets of their 
faith is simply out of luck unless they can get the legislature to exempt 
them.  The legislature can then, out of either hostility or indifference, 
simply say, "We're not singling you out.  Everybody has to do it."
 
Using your theory as I am understanding it, would you say that the 
Catholic Church is required, by anti-discrimination laws, to hire women as 
priests unless the anti-discrimination law was to specifically exempt the 
Church?  That certainly is a neutral, generally applicable law, and women 
who want to be priests could certainly claim that they would be harmed by 
an accomodation to allow the Church to only have men as priests.  And 
yet, if the Church is required by law to violate what it understands to be the 
constraints placed upon it by God, how does that equate with the free exercise 
of religion?
 
Am I missing something in terms of your understanding of accomodation and 
free exercise?
 
Brad Pardee  

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Saturday, March 12, 2005 7:36 
  AM
  Subject: Re: Harm to Others as a Factor 
  in Accommodation Doctrine
  
  To clarify my earlier postings before I had to run my kids around to 14 
  different activities--
  I did not mean "forced accommodation" in the sense Doug interpreted 
  it.  I meant that there are times when neutral, generally applicable laws 
  require assimilation.  Only when an accommodation is enacted by a 
  legislature for the purpose of lifting a burden on religion and only when that 
  accommodation does not harm others is assimilation permissibly avoided.
   
  I did not mean to say, Ellis, that across-the-board exemptions are ever 
  good ideas.  Mandatory exemptions were clearly not required when the 
  First Amendment was drafted or ratified, and is not a credible approach.  
  Permissive legislative accommodation, though, is valuable in a world 
  where religious belief is an avoidable element of human existence.
   
  We actually don't have to figure out "harm to third parties."  That, 
  in my view, is the job of the legislatures.  I say in my book, 
  though, that in this era, legislatures have been knee-jerk providers of 
  religious accommodations without asking whether someone could be harmed by the 
  law.  It boggles the mind to think that Congress could have considered 
  RFRA for 3 years, which was going to potentially hobble every law in the 
  country, without asking whether someone might get hurt if many laws were 
  suspended as applied to religious entities.  Religious entities should 
  have latitude like any other groups to lobby to their advantage, but 
  legislators are supposed to ask the hard questions (even when society is not 
  asking them).
   
  Marci 
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Re: Harm to Others as a Factor in Accommodation Doctrine

[Hamilton02]

To clarify my earlier postings before I had to run my kids around to 14 
different activities--
I did not mean "forced accommodation" in the sense Doug interpreted 
it.  I meant that there are times when neutral, generally applicable laws 
require assimilation.  Only when an accommodation is enacted by a 
legislature for the purpose of lifting a burden on religion and only when that 
accommodation does not harm others is assimilation permissibly avoided.
 
I did not mean to say, Ellis, that across-the-board exemptions are ever 
good ideas.  Mandatory exemptions were clearly not required when the First 
Amendment was drafted or ratified, and is not a credible approach.  
Permissive legislative accommodation, though, is valuable in a world where 
religious belief is an avoidable element of human existence.
 
We actually don't have to figure out "harm to third parties."  That, 
in my view, is the job of the legislatures.  I say in my book, though, 
that in this era, legislatures have been knee-jerk providers of religious 
accommodations without asking whether someone could be harmed by the law.  
It boggles the mind to think that Congress could have considered RFRA for 3 
years, which was going to potentially hobble every law in the country, without 
asking whether someone might get hurt if many laws were suspended as applied to 
religious entities.  Religious entities should have latitude like any other 
groups to lobby to their advantage, but legislators are supposed to ask the hard 
questions (even when society is not asking them).
 
Marci 
 
 
 
we would first 
  have to figure out how to define what constitutes "harm to third parties" 
  -- which is no easy undertaking 

 
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RE: Harm to Others as a Factor in Accommodation Doctrine

[Newsom Michael]

Isn't the question about the kind of cost or harm?  Some harm is not
protected, and some harm is.  Harm to minority religions, in the sense
that I describe in my article on Common School Religion, can be fairly
said to have constitutional sanction.  Note that the Court tends to
define the harm entitled to protection more narrowly that I did.  

-Original Message-
From: A.E. Brownstein [mailto:[EMAIL PROTECTED] 
Sent: Friday, March 11, 2005 1:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harm to Others as a Factor in Accommodation Doctrine

To answer Marty's question, we would first have to figure out how to
define 
what constitutes "harm to third parties" -- which is no easy undertaking

(although there are some easy and obvious examples).

In Texas Monthly, Justice Brennan suggested that the challenged tax 
exemption for religious periodicals burdened nonbeneficiaries by
increasing 
their tax bills. Does that constitute a constitutionally cognizable harm
to 
third parties? If it does, does this mean  that any exemption which
imposes 
costs on the general public harms third parties? (That might include
almost 
all exemptions -- since many accommodations require the state to incur 
administrative costs.) If it doesn't, does that mean that any exemption
as 
to which the costs are spread to the general public does not harm third 
parties?

What about the Catholic Charities case? Does exempting a religious 
institutional employer from the obligation to provide coverage for
medical 
contraceptives in their employees' health plan harm third parties? Would

the answer change if the state provided such coverage to employees of 
religious institutions at the state's own expense?

Even the Amos case isn't as obvious a case of harm to third parties as
it 
first appears. Religious institutions spend the money donated to them by

believers to further the religious beliefs and practices of their 
congregation and community. Those spending decisions are constrained by 
religious doctrine. But they certainly have market consequences. The
local 
caterer that specializes in pork chops and baby back ribs isn't going to

get a lot of contracts from my Synagogue. Is that a harm to third
parties? 
(I can rearrange this hypothetical to include an exemption, if
necessary.)

Can we look at other fundamental rights for guidance on this question?
If 
we protect freedom of speech and association, notwithstanding the fact
that 
the exercise of these rights imposes costs on third parties or the
general 
public, is that relevant to our understanding of the scope of free
exercise 
rights and the permissibility of religious accommodations. I am not 
suggesting that the jurisprudence of one right must necessarily parallel

the jurisprudence of other rights. But I think we can be informed in our

inquiry by looking at other rights, and differences in the jurisprudence
of 
different rights ought to be susceptible to explanation and
justification.

Alan Brownstein
UC Davis





At 08:43 AM 3/11/2005 -0500, you wrote:
>As usual, it appears that we will not be able to change one another's 
>minds w/r/t the question whether piecemeal legislative accommodations
are 
>superior to, or more constitutionally acceptable than, judicial 
>accommodations pursuant to a general statutory mandate.  (And we're 
>certainly not moving the conversation materially beyond where Chip and 
>Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and 
>others, left it several years ago.)
>
>So let me ask another question, prompted by Marci's suggestion that 
>accommodations that "harm others" are unconstitutional.  Surely, harm
to 
>other private parties has played a large role in accommodation 
>doctrine.  The general notion that the state should not require private

>party A to suffer in the furtherance of B's religious objectives or 
>beliefs is a compelling and recurrent theme, and it explains Thornton
and 
>Hardison, not to mention the important Harlan concurrence in Welsh and
the 
>Court's decisions to expand the military exemption beyond religious 
>objectors in that case and in Seeger.  And I agree with Marci that 
>religious exemptions to vaccination statutes, and to child welfarre
laws, 
>should generally be unconstitutional because of the serious harms they
cause.
>
>But then how to explain the two cases in which the Court has approved 
>accommodations -- Zorach and Amos?  We've recently discussed the
serious 
>harm to nonparticipating students in the release-time cases.  And in
Amos, 
>the respondent (Mr. Mayson) lost his job of 16 years because he failed
to 
>qualify for a temple recommend.  483 U.S. at 330.  No small harm to
third 
>parties.  Is there any way to make sense of this aspect of
accommodation 
>doctrine?  What role should harm to third p

Re: Harm to Others as a Factor in Accommodation Doctrine

[A.E. Brownstein]

To answer Marty's question, we would first have to figure out how to define 
what constitutes "harm to third parties" -- which is no easy undertaking 
(although there are some easy and obvious examples).

In Texas Monthly, Justice Brennan suggested that the challenged tax 
exemption for religious periodicals burdened nonbeneficiaries by increasing 
their tax bills. Does that constitute a constitutionally cognizable harm to 
third parties? If it does, does this mean  that any exemption which imposes 
costs on the general public harms third parties? (That might include almost 
all exemptions -- since many accommodations require the state to incur 
administrative costs.) If it doesn't, does that mean that any exemption as 
to which the costs are spread to the general public does not harm third 
parties?

What about the Catholic Charities case? Does exempting a religious 
institutional employer from the obligation to provide coverage for medical 
contraceptives in their employees' health plan harm third parties? Would 
the answer change if the state provided such coverage to employees of 
religious institutions at the state's own expense?

Even the Amos case isn't as obvious a case of harm to third parties as it 
first appears. Religious institutions spend the money donated to them by 
believers to further the religious beliefs and practices of their 
congregation and community. Those spending decisions are constrained by 
religious doctrine. But they certainly have market consequences. The local 
caterer that specializes in pork chops and baby back ribs isn't going to 
get a lot of contracts from my Synagogue. Is that a harm to third parties? 
(I can rearrange this hypothetical to include an exemption, if necessary.)

Can we look at other fundamental rights for guidance on this question? If 
we protect freedom of speech and association, notwithstanding the fact that 
the exercise of these rights imposes costs on third parties or the general 
public, is that relevant to our understanding of the scope of free exercise 
rights and the permissibility of religious accommodations. I am not 
suggesting that the jurisprudence of one right must necessarily parallel 
the jurisprudence of other rights. But I think we can be informed in our 
inquiry by looking at other rights, and differences in the jurisprudence of 
different rights ought to be susceptible to explanation and justification.

Alan Brownstein
UC Davis


At 08:43 AM 3/11/2005 -0500, you wrote:
As usual, it appears that we will not be able to change one another's 
minds w/r/t the question whether piecemeal legislative accommodations are 
superior to, or more constitutionally acceptable than, judicial 
accommodations pursuant to a general statutory mandate.  (And we're 
certainly not moving the conversation materially beyond where Chip and 
Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and 
others, left it several years ago.)

So let me ask another question, prompted by Marci's suggestion that 
accommodations that "harm others" are unconstitutional.  Surely, harm to 
other private parties has played a large role in accommodation 
doctrine.  The general notion that the state should not require private 
party A to suffer in the furtherance of B's religious objectives or 
beliefs is a compelling and recurrent theme, and it explains Thornton and 
Hardison, not to mention the important Harlan concurrence in Welsh and the 
Court's decisions to expand the military exemption beyond religious 
objectors in that case and in Seeger.  And I agree with Marci that 
religious exemptions to vaccination statutes, and to child welfarre laws, 
should generally be unconstitutional because of the serious harms they cause.

But then how to explain the two cases in which the Court has approved 
accommodations -- Zorach and Amos?  We've recently discussed the serious 
harm to nonparticipating students in the release-time cases.  And in Amos, 
the respondent (Mr. Mayson) lost his job of 16 years because he failed to 
qualify for a temple recommend.  483 U.S. at 330.  No small harm to third 
parties.  Is there any way to make sense of this aspect of accommodation 
doctrine?  What role should harm to third parties play in assessing a 
religious exemption?
- Original Message -
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: Friday, March 11, 2005 8:19 AM
Subject: Re: Institutional Capacity to Manage Exemptions

Ellis--- I'm not sure what you mean by across-the-board exemptions.  If 
laws like RFRA, they are illegitimate, but if they are tailored to 
particular practices, and the public good does not suffer from the 
exemption, I think they are crucial to the proper balance of liberty and 
order.  The one thing a society cannot do is wish away the intense power 
of religious belief in people's lives, whether that government is the 
Soviet Union when it tried unsuccessfully to destroy th

Re: Harm to Others as a Factor in Accommodation Doctrine

[Avi Schick]

In connection with the discussion between the interplay between First
Amendment rights and "harm to others," any thoughts on the recent action
by the New York City Board of Health to enjoin a mohel from performing
circumcisions, as he generally performs them?  The facts are these:

As part of the circumcision, the mohel orally suctions blood from the
wound.  There has been much debate among Jewish law decisors about
whether that is required practice, but it is certainly the normative
practice among Hasidic Jews.  Twin boys who were circumcised by this
mohel contracted herpes.  Tragically, one died.
If the mohel tests positive for herpes, this is an easy case.  But
presume he tests negative, but tests positive for herpes antibodies (as
do the vast majority of adult males)?  Is this enough to bar the mohel -
who has been practicing for forty years - from performing circumcisions?
 Is the City required to test the parents, hospital personnel and others
before taking action against the mohel?  Is the City required to
establish a nexus between testing positive for antibodies and
transmitting the virus?

This is obviously a complex case, but it probably comes down to who has
the burden of proof and what are the standards?  Any thoughts?

>>> [EMAIL PROTECTED] 03/11/05 8:43 AM >>>
As usual, it appears that we will not be able to change one another's
minds w/r/t the question whether piecemeal legislative accommodations
are superior to, or more constitutionally acceptable than, judicial
accommodations pursuant to a general statutory mandate.  (And we're
certainly not moving the conversation materially beyond where Chip and
Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and
others, left it several years ago.)

So let me ask another question, prompted by Marci's suggestion that
accommodations that "harm others" are unconstitutional.  Surely, harm to
other private parties has played a large role in accommodation doctrine.
 The general notion that the state should not require private party A to
suffer in the furtherance of B's religious objectives or beliefs is a
compelling and recurrent theme, and it explains Thornton and Hardison,
not to mention the important Harlan concurrence in Welsh and the Court's
decisions to expand the military exemption beyond religious objectors in
that case and in Seeger.  And I agree with Marci that religious
exemptions to vaccination statutes, and to child welfarre laws, should
generally be unconstitutional because of the serious harms they cause.

But then how to explain the two cases in which the Court has approved
accommodations -- Zorach and Amos?  We've recently discussed the serious
harm to nonparticipating students in the release-time cases.  And in
Amos, the respondent (Mr. Mayson) lost his job of 16 years because he
failed to qualify for a temple recommend.  483 U.S. at 330.  No small
harm to third parties.  Is there any way to make sense of this aspect of
accommodation doctrine?  What role should harm to third parties play in
assessing a religious exemption?
  - Original Message - 
  From: [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Friday, March 11, 2005 8:19 AM
  Subject: Re: Institutional Capacity to Manage Exemptions


  Ellis--- I'm not sure what you mean by across-the-board exemptions. 
If laws like RFRA, they are illegitimate, but if they are tailored to
particular practices, and the public good does not suffer from the
exemption, I think they are crucial to the proper balance of liberty and
order.  The one thing a society cannot do is wish away the intense power
of religious belief in people's lives, whether that government is the
Soviet Union when it tried unsuccessfully to destroy the Orthodox
Church, China now trying to suppress Falun Gong and Christianity, or our
country.  Religion is a given part of human existence, and deserves to
be given as much latitude as possible.  Thus, the question is not
whether, but where to draw the line on exemptions.  A mandatory
exemption system is inimical to the public good, especially those who
are most vulnerable.  But an exemption that harms others is contrary to
the scheme of ordered liberty the Constitution constructs.

  Marci

But why should they be granted across-the-board exemptions?  It
won't do to say that the First Amendment requires such, because that is
the issue.  Why should the First Amendment be interpreted to require
such?
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