Solomon Amendment -- Religious Discrimination
Bob Sheridan
bobsheridan at earthlink.net
Sat Mar 11 10:18:19 PST 2006
Thinking further about it, the whole Constitution can be viewed as a
protection of conscience to the extent possible while still having an
organized society that requires a few rules to hold it together and
allow it to function. The division of power among branches, the Bill of
Rights, including particularly the Fifth Amendment right against
self-incrimination, the adversarial system of criminal justice (see
Culombe v. Conn., 1961), the First Amendment expression and religious
freedoms, can all be viewed as subsets of freedom of conscience. I
guess that was too general a concept for the Framers who indulged in
other generalities such as due process and property, and the second set
of Framers, post Civil War, re: equality w/o further definition.
Salem is such an interesting model of haywire that it seems a shame it's
relegated to the notion that once there were these very superstitious
people. Those people were more like us than we are.
rs
daviwag at regent.edu wrote:
> 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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