When life begins and the Establishment Clause
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Apr 19 11:31:41 PDT 2007
That might be fine, depending on what one means by "offense to
others." The question is what role the Establishment Clause can play in
such a test, given that the proposal turns on whether legislation is
based solely on offense ot others, whether that offense stems from
religious concerns or not.
> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us]
> Sent: Thursday, April 19, 2007 11:26 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: When life begins and the Establishment Clause
>
> 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