Solomon Amendment -- Religious Discrimination
daviwag at regent.edu
daviwag at regent.edu
Sat Mar 11 09:06:01 PST 2006
For sure: I don't read Yoder the way Bork does. Though the way it's written
sets it up for that critique, I prefer to see it as an application of Meyer
and Pierce, rather than as a case about religion, since non-religious
parents have parental rights too.
I'm always interested in the Salem witch trials, having played Rev. Parris
in a school production of THE CRUCIBLE (well, I WANTED to play Proctor, but
I didn't have much pull); and also having ties to a small divinity college
in New Haven called Jail, or something similar. :)
Btw, our university's theatre department put on a gripping production of THE
C. just last fall.
DMW
> -----Original Message-----
> From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
> Sent: Saturday, March 11, 2006 11:51 AM
> To: daviwag at regent.edu
> Cc: 'Jonathan Miller'; CONLAWPROF at lists.ucla.edu
> Subject: Re: Solomon Amendment -- Religious Discrimination
>
> Now that you've clarified the question, thank you, it doesn't
> seem to me that the Framers, or the Court in Yoder, were
> favoring Quaker, or Amish, religious beliefs so much as
> recognizing that in the case of Quakers, conscience was a
> matter that ought not be regulated by government.
> Can't Yoder be properly read as protecting the right of any
> religious parent to raise children in their religion?
>
> Regarding "conscience" as an important and traditionally
> protected interest, this: some time ago I had occasion to
> study the Salem, 1692 witchcraft accusation outbreak in as
> much depth as I could at the time.
> Increase Mather, president of a small divinity college in
> Cambridge called Hahvahd, or something similar, and the
> father of Cotton, the boy-wonder of the witch-finding clergy,
> wrote a book in reaction to the accusations called "A Case of
> Conscience."
>
> If memory serves, he was protesting the use of spectral
> evidence in the witch prosecutions. Spectral evidence (or
> ghost-evidence) was evidence that only the accuser was able
> to see, such as "a little yellow-bird"
> perched on the minister's shoulder. Such graphic detail
> persuaded magistrates and jurors that she indeed saw what she
> claimed.
>
> Increase Mather and others reasoned that The Devil, being a
> tricky devil, may have fooled the accusers into accusing
> innocent neighbors instead of his allies in mischief making,
> the REAL witches.
>
> This courageous book, which was comparable to Edward R.
> Murrow's taking on Sen. Joseph McCarthy's red-baiting
> campaign, along with Thomas Brattle's letter proclaiming that
> "innocent blood has been shed," helped to cause the general
> population to come to their senses.
>
> The capper, of course, was that the new governor found his
> wife accused after she expressed sympathy for the many hanged
> and imprisoned women who'd led legally blameless lives before
> the outbreak. He shut down the special courts set up to
> handle all the cases.
>
> Going back to the point about 'conscience,' when a religious
> person in the Puritan community advised the congregation that
> he, and I suppose she, could not go along with a measure on
> grounds of conscience, every effort was made to exempt the
> objector in the interest of not making him do something to
> violate his conscience.
>
> Conscientious objection, and objectors, to military service,
> continue to be respected today, in law, and I believe, public
> sentiment.
>
> The Framers would certainly have been respectful of
> conscience, and no doubt the Court in Yoder; hence an
> alternative thesis to Bork's.
> Raising ones family in ones faith certainly seems to
> implicate conscience, don't you think?
>
> rs
>
> daviwag at regent.edu wrote:
> > Meaning, the text of the relevant constitutional clause
> (e.g. "oath or
> > affirmation," b/c Quakers didn't take oaths), which accommodated
> > Quakers w/o mentioning their denomination by name.
> >
> > Assuming that the Quakers were the only denomination in the
> Founding
> > era that eschewed oaths, and that what we have here is a text that
> > accommodates Quakers w/o mentioning them, does this make
> Quakerism the
> > established church of the United States?
> >
> > I believe Judge Bork once said (perhaps only rhetorically)
> that Yoder
> > made the Old Order Amish the established church of the
> United States. Did it?
> >
> >
> >
> >> -----Original Message-----
> >> From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
> >> Sent: Friday, March 10, 2006 11:33 PM
> >> To: daviwag at regent.edu
> >> Cc: 'Jonathan Miller'; CONLAWPROF at lists.ucla.edu
> >> Subject: Re: Solomon Amendment -- Religious Discrimination
> >>
> >>
> >>
> >> daviwag at regent.edu wrote:
> >>
> >> "...textually Quaker-specific...)
> >>
> >> Beg pardon, but I hadn't realized that the Quakers had a text,
> >> actually; of course I'm not familiar with Quakers very much, but
> >> would like to know what text they admire.
> >>
> >> rs
> >>
> >>
> >>
> >>> Yes, for all that need it. It doesn't single out Quakerism
> >>>
> >> or anyone
> >>
> >>> else. It draws on a long tradition of Quaker-based (but
> >>>
> >> not textually
> >>
> >>> Quaker-specific) exceptions, e.g. to oath requirements.
> >>>
> >>> On the current Court, only Stevens thinks legislative
> >>>
> >> accommodation of
> >>
> >>> religion violates the Establishment Clause. The Court
> experimented
> >>> with that position in Thornton v. Caldor, but it seems to
> >>>
> >> me that's a
> >>
> >>> precedent more teed up for overruling than likely to drive future
> >>> decisions.
> >>>
> >>> I'd also reference the dicta in Smith that positively encourage
> >>> legislatures to enact religious exemptions. Come to that, RFRA
> >>> applies to the Solomon Amendment, being federal, so it
> >>>
> >> seems to me the
> >>
> >>> close question is whether the exemption for
> >>>
> >> pacifist-oriented schools
> >>
> >>> might be /required/.
> >>>
> >>>
> >>> David M. Wagner
> >>> Regent University School of Law
> >>>
> >>>
> >>>
> >>>
> >> --------------------------------------------------------------
> >> ----------
> >>
> >>> *From:* Jonathan Miller [mailto:jmiller at swlaw.edu]
> >>> *Sent:* Friday, March 10, 2006 5:11 PM
> >>> *To:* daviwag at regent.edu
> >>> *Cc:* CONLAWPROF at lists.ucla.edu
> >>> *Subject:* Re: Solomon Amendment -- Religious Discrimination
> >>>
> >>> No, Presiding Bishop v. Amos does not settle it. That
> >>>
> >> statute offered an exemption for all religions. Here we just have
> >> one for some.
> >>
> >>>
> >>> daviwag at regent.edu wrote:
> >>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>> -----Original Message-----
> >>>>> From: conlawprof-bounces at lists.ucla.edu
> >>>>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> >>>>> Jonathan Miller
> >>>>> Sent: Friday, March 10, 2006 3:49 PM
> >>>>> To: CONLAWPROF at lists.ucla.edu
> >>>>> Subject: Solomon Amendment -- Religious Discrimination
> >>>>>
> >>>>> I just finished reading Rumsfeld v. FAIR and am puzzled by
> >>>>> Chief Justice Roberts' passing reference to the statutory
> >>>>> exception for institutions with "a longstanding policy of
> >>>>> pacifism based on historical religious
> affiliation." 10 USC
> >>>>> 983(c)(2). Isn't this clearly discrimination among
> >>>>> religions?
> >>>>>
> >>>>>
> >>>> Didn't Corporation of the Presiding Bishop v. Amos
> settle this?
> >>>>
> >>>>
> >>>> David M. Wagner
> >>>> Regent University School of Law
> >>>>
> >>>>
> >>>>
> >>>>
> >>>>
> >>>
> >>
> ---------------------------------------------------------------------
> >> -
> >>
> >>> --
> >>>
> >>> _______________________________________________
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> >
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> >
>
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