When life begins and the Establishment Clause

Malla Pollack mpollack at ajsl.us
Thu Apr 19 11:26:14 PDT 2007


I do not want to selectively disadvantage religious persons (but I think the
Establishment Clause may be read that way). I want to kill all legislation
based soley on offense to others.  


That is the way to down-size government -- without hurting anyone.

Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, April 19, 2007 1:00 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: When life begins and the Establishment Clause

	The government routinely forces people to take actions (or not
to take actions) when many advocates of the law have religious reasons
with which the subjects of the law disagree.  Bans on prostitution,
discrimination, alcohol use, animal cruelty, cockfighting, and the like
all fit that mold.  Recall that anti-cockfighting laws may be aimed at
sending a symbolic message about animals, but they restrict the behavior
of humans.

	Now if the government's reason is symbolic, that might violate
some substantive right of the subject *regardless of whether the
supporters of the law support it for religious reasons*.  Or it might
not violate any substantive right of the subject, again regardless of
whether the supporters of the law support it for religious reasons.  

	But whether the motivation of the proponents of the restriction
-- whether a restriction aimed at symbolic goals or otherwise -- is
religious should not matter.  Banning people from enacting their
religious views into law but allowing people to enact comparable secular
philosophical views into law would itself relegate religious people who
hold their philosophical views for religious reasons to second-class
citizenship.

	Eugene

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us] 
> Sent: Thursday, April 19, 2007 10:21 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: When life begins and the Establishment Clause
> 
> Animals are not people under current law.  I am not now 
> challanging that -- though I do think the humans in general 
> are too species-centric.
> 
> Lets jump from abortion in general to the more interesting 
> theoretical point which is this case which for symbolic 
> reasons only insisted that the state had the right to insist 
> that adult women take a risk they did not wish to
> take.    
> 
> Why does the state have any right to do this? If (as I think) 
> the objection is religious, why isn't this forcing the woman 
> to take an action for religious reasons with which she disagrees?  
> 
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us 
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, April 19, 2007 12:11 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: When life begins and the Establishment Clause
> 
> 	The law must say that life begins somewhere -- it must 
> privilege one position over others.  
> 
> 	Conception is a logically plausible, but not logically 
> provable, place to draw the line.  It is endorsed by many 
> religious people and by many nonreligious people.  (Polls 
> reveal that many nonreligious people oppose abortion, though 
> it is true that a smaller percentage of nonreligious people 
> than of religious people opposes abortion.)
> 
> 	Viability is a logically plausible, but not logically 
> provable, place to draw the line.  It is endorsed by many 
> religious people and by many nonreligious people.
> 
> 	Birth is a logically plausible, but not logically 
> provable, place to draw the line.  It is endorsed by many 
> religious people and by many nonreligious people.
> 
> 	What about laws that restrict some forms of abortion, 
> but allow others, so that they don't save any fetal lives?  
> That strikes me as much the same as laws that restrict some 
> forms of animal killings, but allow others.  You can't kill 
> roosters at cockfights, but you can kill them in other ways; 
> in many places, I suspect, some of the allowed other ways 
> aren't even much less painful for roosters.  The underlying 
> judgment may be quasi-esthetic, or might be morally 
> perfectionist, but it's perfectly legitimate, whether your 
> opposition to cockfights stems from religious views, 
> spiritual views related to the dignity of animals, or 
> utilitarian views about what is likely to coarsen human 
> attitudes and thus lead to other harms to other animals (and 
> people).  This is routine stuff, with no Establishment Clause 
> problems to it.  The same, it seems to me, has to do with 
> various kinds of late-term abortions, which many people 
> oppose even for nonreligious reasons.
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Malla Pollack [mailto:mpollack at ajsl.us]
> > Sent: Thursday, April 19, 2007 9:57 AM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: When life begins and the Establishment Clause
> > 
> > The complex issues is whether any legitimate non religious 
> government 
> > interest underlies priviliging one of numerous possible 
> positions ie 
> > whether the government can refuse to allow individuals to 
> act on the 
> > basis of their own choice.
> > For example, not have a specific day on which all stores 
> must close is 
> > not a violation of the Establishment Clause because each 
> person makes 
> > their own choice whether to close on Friday (Islam), 
> Saturday (Seventh 
> > Day Adventist, Jew) or Sunday (most Christians).  However, 
> insisting 
> > that everyone close on Friday is insisting that every person act on 
> > the Islamic view.
> > 
> > In this case, the majority claims that the statute does not prevent 
> > any women from getting an abortion -- so any state interest in 
> > "potential life"
> > drops out.  Nevertheless, the state is allowed by the Court to ban 
> > something.  Using Joel Fineberg's terms, this is an "offense to 
> > others"
> > statute.  But any classic liberal (using that term in the 
> John Stuart 
> > Mill
> > sense) should have problems finding a legitimate government 
> interest 
> > in statutes which do not involve actual harm to others (or 
> perhaps to 
> > the actor herself).
> > 
> > My position (which I do not claim to be current supreme Court
> > doctrine) is that if the "offense to others" is an offense based on 
> > religious belief, state blocking of the offensive conduct is an 
> > Establishment of Relgion.
> > 
> > 
> > 
> > Malla Pollack
> > Professor, American Justice School of Law mpollack at ajsl.us 
> > 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> > 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> > Sent: Thursday, April 19, 2007 11:29 AM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: Re: When life begins and the Establishment Clause
> > 
> > 	I still don't quite grasp the Establishment Clause 
> here.  There are 
> > lots of topics on which different religions and different 
> ideologies 
> > differ -- abortion generally, post-viability abortion, 
> pacifism, race 
> > discrimination, religious discrimination, and in former days 
> > infanticide, slavery, alcohol prohibition, and more.  
> Different people 
> > have different views that strike me as either religious or 
> > quasi-religious about animal rights, about endangered 
> species, and the 
> > like.  Surely it can't be an Establishment Clause violation 
> simply to 
> > implement one or the other of these positions, despite the 
> fact that 
> > "insist[s] on forcing everyone to act as if they shared [a 
> particular] 
> > view."
> > 
> > 	One might say that the questions of when life begins 
> and ends are 
> > quintessentially religious, and therefore a law that implements a 
> > particular view on this violates the Establishment Clause.  But why 
> > then isn't banning abortion starting with viability -- the position 
> > Roe and Casey endorsed -- an Establishment Clause 
> violation?  That too 
> > takes a view on when life (or at least a constitutionally 
> protectable 
> > life
> > interest) begins.  Why isn't saying that life begins at birth an 
> > Establishment Clause violation?  (Would it become an Establishment 
> > Clause violation if some neo-pagans decided that the Roman view 
> > endorsing the exposure of infants, or at least some infants, were
> > proper?)  Why isn't saying that life ends at brain death, or heart 
> > failure, or anything else an Establishment Clause violation?
> > 
> > 	I'm trying to see what the claimed underlying 
> Establishment Clause 
> > principle here might be.
> > 
> > 	Eugene
> > 
> > 
> > Malla Pollack writes: 
> > 
> > The view doesn't violate anything. But government insistance on 
> > forcing everyone to act as if they shared that view is the 
> problem.  
> > Many, many people (and relgious groups) simply do not see a 
> "fetus" as 
> > a person.
> > Many also believe religously that one first duty is to save oneself 
> > and only then to take care of others. This is especially 
> clear in the 
> > partial birth abortion case -- as the dissent pointed out 
> -- the bill 
> > is claimed not to stop even one abortion -- but yet the 
> majortiy sees 
> > a strong government interest in signalling to the public that the 
> > government sees human life from conception.  The only groups I have 
> > heard make that claim do so on religious grounds.
> > 
> > The women who would be safer (according to her doctor) if 
> she used the 
> > banned proceedure is being told that her safety is less 
> important than 
> > the unborn non-human because someone else's religious 
> belief is being 
> > acted on by the government.
> > 
> > 
> > 
> > Malla Pollack
> > Professor, American Justice School of Law mpollack at ajsl.us 
> > 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> > 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> > Sent: Wednesday, April 18, 2007 8:26 PM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: When life begins and the Establishment Clause
> > 
> > 	A recent post suggested that taking the view that 
> abortion is killing 
> > violates the Establishment Clause.  Could someone who 
> shares that view 
> > flesh out a little bit about why this would be so?  In particular, 
> > would taking the view that post-viability abortion is killing or at 
> > least is morally wrong -- a view that Roe expressly allows
> > -- violate the Establishment Clause, too?  Would taking the 
> view that 
> > infanticide is killing violate the Establishment Clause?
> > 
> > 	Eugene
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe, 
> > unsubscribe, change options, or get password, see 
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > 
> > Please note that messages sent to this large list cannot be 
> viewed as 
> > private.  Anyone can subscribe to the list and read 
> messages that are 
> > posted; people can read the Web archives; and list members can 
> > (rightly or
> > wrongly) forward the messages to others.
> > 
> > 
> > 
> > 
> > --
> > No virus found in this incoming message.
> > Checked by AVG Free Edition.
> > Version: 7.5.446 / Virus Database: 269.5.2/766 - Release
> > Date: 4/18/2007
> > 7:39 AM
> > 
> > 
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe, 
> > unsubscribe, change options, or get password, see 
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> > 
> > Please note that messages sent to this large list cannot be 
> viewed as 
> > private.  Anyone can subscribe to the list and read 
> messages that are 
> > posted; people can read the Web archives; and list members can 
> > (rightly or
> > wrongly) forward the messages to others.
> > 
> > 
> > 
> > 
> > --
> > No virus found in this incoming message.
> > Checked by AVG Free Edition.
> > Version: 7.5.446 / Virus Database: 269.5.4/768 - Release
> > Date: 4/19/2007
> > 5:32 AM
> > 
> > 
> > 
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu To 
> subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> 
> Please note that messages sent to this large list cannot be 
> viewed as private.  Anyone can subscribe to the list and read 
> messages that are posted; people can read the Web archives; 
> and list members can (rightly or
> wrongly) forward the messages to others.
> 
> 
> 
> 
> --
> No virus found in this incoming message.
> Checked by AVG Free Edition.
> Version: 7.5.446 / Virus Database: 269.5.4/768 - Release 
> Date: 4/19/2007
> 5:32 AM
> 
> 
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.




-- 
No virus found in this incoming message.
Checked by AVG Free Edition.
Version: 7.5.446 / Virus Database: 269.5.4/768 - Release Date: 4/19/2007
5:32 AM




More information about the Conlawprof mailing list