I'm extremely heartened that my inquiry about the
measure of harm to others in Religion Clause doctrine has spawned such
a rich and interesting thread (or two). I'm still absorbing many of the
posts -- they're coming too fast and furious! -- but I think it's fair to say
this has been among
On Mar 15, 2005, at 2:47 PM, James Maule wrote:
Though I am proposing a shift away from marriage as a civil right (and
its replacement with something else), I am not proposing a shift away
from marriage as a religious ceremony. To the contrary, to the extent
states get involved defining "marriage"
I have always found the animating principle of Justice
O’Connor’s endorsement test –that endorsements are bad
because they create political insiders and outsiders – very attractive.
The problem is that she lacks the courage of her convictions. For
example, an intellectually honest applica
Certainly social reform is coming, but it's already taking a certain form. The
movement toward same-sex unions is pretty clearly proceeding down the track of
expanding our conception of government marriage, rather than removing the
government from marriage. Such a dramatic shift in the object
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
I know I'm falling behind in this thread, but let me do my best to catch up.
I think these are better examples than your first group, Eugene. I could
probably distinguish some of them -- but let me see if I can jump over the
trees and look at the forest instead.
I think there are at least two a
Title: Message
Well, I'd love to hear what others would
think. Peyote has been the outlier in the drug cases -- as I understand
it, as to marijuana and other drugs the overwhelming judgment of the lower
courts has been that denying an exemption would pass strict scrutiny. (A
few courts
I agree that it was only one of the problems -- but I think it
was an important one. I've argued that elsewhere extensively, and don't
want to rehash it here. But consider another unhypothetical scenario.
In Washington v. Glucksberg, the Court concluded that bans on
assisted suic
A terrific essay in the New Republic:
http://www.tnr.com/doc.mhtml?i=20050321&s=diarist032105
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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
I'd say that the problem of "deciding as a constitutional matter which harms
to others are real harms" was only one problem of the Lochner cases. At
least two other problems were present there that are not present for free
exercise exemption cases:
(1) The asserted constitutional right in the Lo
Title: RE: Rights of clergy regarding same-sex
marriage?
In response to the original posting by Jean Dudley, US scholars
may be interested in some recent developments elsewhere.
Here are some edited snippets from a forthcoming book (by myself
and Ian Leigh (Durham University, UK)):
CANADA
Rece
My understanding is that marriage was strictly civil until some time in the middle ages. For a long time after the organization of the church, in Europe, couples married themselves with an oral commitment, the verbum. The church took no role. Later the custom arose of having a priest present to
Eugene, you took the route I didn't expect, which is to say that the
suppression of the mass by a no-alcohol law would not be constitutionally
troubling under our most common intuitions about religious freedom. I
strongly suspect that most courts following the Sherbert/Yoder approach
would disagre
With respect, that does
not answer the question. Would it have been acceptable, normatively, not
descriptively, for there not to have been an exemption?
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]
Sent: Monday, March 14, 2005 4:15
PM
To: religionlaw@l
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 Ca
On Tuesday, March 15, 2005, at 04:44 PM, James Maule wrote:
What major social reform effectuated through legal change was NOT a
political non-starter when it first was proposed?
"Never doubt that the work of a small group of thoughtful, committed
citizens can change the world. Indeed, it’s the on
Title: Message
I support sacramental wine exemptions as a
policy matter, but I don't think they'd be constitutionally mandated even under
strict scrutiny. Alcohol contributes to the deaths of 100,000 people a
year, including about 15,000 innocent bystanders. I'm not an expert on
Prohib
Ah, there's the rub (those darn specifics). But let me give it a try.
Alan's example, as I understand it, assumes that the religious activity in
the public street is no more disruptive than a school pep rally at the same
location. The religious activity is not thought to violate any law
independ
What major social reform effectuated through legal change was NOT a
political non-starter when it first was proposed?
>>> [EMAIL PROTECTED] 3/15/2005 3:12:30 PM >>>
I recently moderated a student-faculty discussion on same-sex marriage
here at St. John's, and when I floated the idea that the te
Given the parenthetical concession ("admittedly have low level expressive
implications"), I wonder whether there is *any* example one could come up with
that wouldn't be covered by the Free Speech Clause by itself. (I suppose
ritual animal slaughter is apossibility, but -- assuming a parallel a
But Eugene's position is also unattractive, I would suggest, because it
asserts that "we should be free to practice our religion as long as it does
not harm others, and the government determines what is a harm to others,
without any constitutional review of that determination by the courts." I
thi
Alan and Greg may be right as to this example, but might I hear
a bit more details about it? What exactly would the religious activity
be, what law would it violate, what sorts of harms would it cause?
Also, if this is typical of the sort of exemption that's being
solicited, isn't that mor
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 chur
If the state can marry NO ONE, then same sex couples are no worse off
than other people; they can still be married by the clergy. Of course
they might have trouble finding clergy in some faiths to marry them, but
that is a different issue.
Paul Finkelman
--
Alan's final example (which I leave set out below) does a much better job
than did my prior examples of raising the question whether free speech and
free exercise should be treated as the same (or at least nearly the same)
when the burdens occasioned by their exercise are identical.
If the private
I am not sure who the "we" is-- Jews got along fine without state
sanctified marriage for centuries; in most of Western Europe up until I
suppose in the 17th century in some places and in the age of Napoleon
for owthers, marriages were entirely in the hands of the clergy, as was
divorce insome
They could still get married; they would
go to a church or synagogue for that. And for the nonreligious, Corliss
Lamont wrote a secular marriage ceremonoy for the secular humanists; once
marriage is privatized, there is nothing to stop secular groups from offering a
secular version of m
I recently moderated a student-faculty discussion on same-sex marriage
here at St. John's, and when I floated the idea that the tension
might dissipate if government would recognize civil unions and get out of the
marriage business, leaving it to religious communities, the student resist
I was pushing precisely this position on this list about a year ago, and
didn't get many takers. I wrote it as an op ed and couldn't place it.
Maybe the idea's time is beginning to come.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (pho
Paul, et al:
I know others have written about this, but at what point did we come to view
marriage as only or primarily a religious action or institution? Surely lots
of cultures have had marriages which were not religious (?) And don't many
people today want their
marriage to be recognized b
Though I am proposing a shift away from marriage as a civil right (and
its replacement with something else), I am not proposing a shift away
from marriage as a religious ceremony. To the contrary, to the extent
states get involved defining "marriage" it cheapens that sacrament as it
stands within c
See my responses below
Eugene writes
I think this is a great explanation for why pure self-expression
isn't an adequate defense for free speech claims, and it's one reason
that the Court has accepted some exceptions from free speech protection
even when the speaker is deriving self-express
James makes a good point, and should be taken a step further; have the
governemtn get out of the marriage business. Let religious institutions
perform marriage and have the government regulate civil unions for all
people; civil unions are contracts that cover property, child support
and rearin
I again appreciate Alan's remarks, but I'm not sure that they
fully deal with the argument.
(1) I assume Alan would conclude that there's no free exercise
clause right to block even the entrance to a hardware store. (Imagine
that someone believes the store sells some environmenta
I'm not saying that this is because of the original meaning,
though I think the original meaning as to the Free Exercise Clause
supports my position. I think that a reading of the Free Exercise
Clause that gives me the right to inflict harms on you, for no other
reason than that I think my
Eugene, let me respond to your three examples in this post. Then I'll
continue discussing the issues I raised in a second post.
I would allow the abridgement of free exercise rights in all three of
Eugene's examples -- for the reasons described below.
1. (A) Larry Flynt inflicts emotional d
On Mar 15, 2005, at 1:02 PM, James Maule wrote:
Civil birth registration and baptisms/christenings are separate. So,
too, are death registrations and funerals/memorial services. Why not
separation of marriage and whatever one wants to call state sanctioning
of pairing?
Jim Maule
Three words: "Sepa
Eugene:
You suggested that we don't know the meaning of the free speech clause, and the
result is that we should read it very broadly, to protect even "speech-related"
harm to others. (And would that judgment ultimately be made by...judges?) But
because we think we
know more about the meaning
See the attached paragraph from Brady v. Dean,
173 Vt 542,790 A2d 428, a challenge to Vermont’s
civil union statute.
The three town clerks raised a separate claim, asserting that theirobligation under the civil union law to either issue a civil union licenseor to appoint an assistant to do
There is a VAST difference in status and relationship to the state between justices of the peace and ministers. As things are, no minister can be required to perform any marriage. E.g., between those of different faiths; between those with whom the minister has no relationship; for any other reas
Civil birth registration and baptisms/christenings are separate. So,
too, are death registrations and funerals/memorial services. Why not
separation of marriage and whatever one wants to call state sanctioning
of pairing?
Jim Maule
>>> [EMAIL PROTECTED] 3/15/2005 12:41:07 PM >>>
I've heard (and m
The Texas Family Code provides, in relevant part:
2.202. Persons Authorized to Conduct Ceremony
(a) The following persons are authorized to conduct a marriage
ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is
I've heard (and made) the related argument that, although the government is
very unlikely actually to force ministers to perform same-sex marriages, the
government may well force ministers to choose between performing same-sex
marriages and being stripped of the government function of licensing
Title: Message
I continue to think that conducting a marriage
ceremony, religious or secular, is constitutionally protected free speech (so
long as there is no risk of fraud, which is to say that it's clear to everyone
involved, and to those who are likely to hear of the marriage, that th
Title: Re: Institutional Capacity to Manage Exemptions
Of
course, some EC challenges are well grounded, some are not. The well
grounded should prevail, the poorly grounded should not.
My
point is that it is (at least) difficult to defend Smith on a
judicial-deference-to-legislatures basis
On Mar 15, 2005, at 9:56 AM, Paul Finkelman wrote:
I wonder if the reverse argument has more power. That is: if a
church declares that the sacrament of marriage is available to *any*
couple willing to accept it, does the minister of that church have a
free exercise right *to perform* that mar
The Petruska case, which Marci refers to below, models precisely
what I said in my earlier posts about the ministerial exception. Ms.
Petruska was employed as a Chaplain at a Catholic university, and
the court agreed with the defendants that her post entailed
ministerial (though not "priestly"
I wonder if the reverse argument has more power. That is: if a church declares
that the sacrament of marriage is available to *any* couple willing to accept
it, does the minister of that church have a free exercise right *to perform*
that marriage ceremony?
--
Paul Finkelman
Chapman Distin
The right to marry doesn't include the right to a church wedding. Pastors, rabbis and other religious leaders who may perform marriages now have relatively wide latitude to say for whom they will or won't perform the ceremony.
The couple may get married in a civil ceremony at the courthouse, or
I'm of the mind that the recent decision from Judge Robert Kramer in
California regarding gay marriage in that state is another step in the
march towards the eventual breaking down of the societal prohibition on
same-sex marriage. One of the arguments I've heard against it is that
the "guvmint
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