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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