abortion referral regs

[Volokh, Eugene]

	I'm not at all wild about Wallace and Edwards, but at least they
purported to look at whether there was no credible secular justification
for the law.  When exemptions from generally applicable laws, there is
an eminently credible secular justification -- both to accommodate all
objectors, and (even if the exemption were religion-only, which this one
isn't) to advance people's ability to practice their religion, cf.
Corporation of Presiding Bishop v. Amos (holding that the purpose of
exempting objectors is an acceptble secular purpose).  That's why even
Estate of Thornton v. Caldor, which struck down a religion-specific
accommodation, rested on the supposedly religion-benefiting effect, not
the supposedly religious purpose.

	Of course, if one asks not just whether there is a credible
secular justification, but whether the backers of the law were
overwhelmingly religious, then one would reach a different result.  But
that is precisely the sort of inquiry that strikes me as outrageously
discriminatory against religious citizens, because it denies them the
ability to enact precisely the same laws that secular citizens would be
free to enact.

	Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
> Sent: Thursday, December 04, 2008 10:02 AM
> To: Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
> 
> In Wallace v. Jafree and Edwards v. Aguillard, the Court 
> invalidated laws that did not on their face grant preferences 
> to religious groups or viewpoints, that could have been 
> supported by nonbelievers, and that were vigorously defended 
> as having secular justifications.  The Court concluded that 
> the secular justifications advanced in defense of these laws 
> were not credible, and that the true motive for the laws was 
> to please a religious constitutency seeking to influence 
> public policy for religious reasons.  One can object to 
> making legislative motivation the test for constitutionality, 
> but it is plainly the route the Court has taken.  The pretty 
> clear implication is that sometimes lobbying by religious 
> groups pursuing public policy objectives for religious 
> reasons will produce an Establishment Clause violation -- 
> especially where there is no credible evidence of secular 
> support for the same policy.
>  
> Larry Rosenthal
> Chapman University School of Law
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Thu 12/4/2008 9:25 AM
> To: conlawprof at lists.ucla.edu
> Subject: RE: abortion referral regs
> 
> 
> 
> 
>         The argument that was being made earlier isn't just 
> that religious institutions can't get special benefits for 
> them -- it's that laws that don't discriminate based on 
> religion are made unconstitutional by the fact that religious 
> people are their dominant backers.  That sort of theory of 
> second-class citizenship for religious voters strikes me as 
> entirely wrong, neither supported by history (since of course 
> American history is chock full of movements in which 
> religious organizations tried to implement their religious 
> views, on slavery, temperance, civil rights, wars, and more, 
> into law) nor by morality.
> 
>         Eugene
>        
> Larry Rosenthal writes:
> 
> > On at least some accounts, the original understanding of the 
> > Establishment Clause was that it would prevent religious 
> factions from 
> > using their political power to shape public policy to 
> religious ends.  
> > On this account -- which I readily acknowledge is far from 
> uncontested 
> > -- it would follow that if the impetus to permit some health care 
> > providers to deviate form professional norms has a 
> religious and not a 
> > secular basis, reflected in part by evidence that there is 
> little if 
> > any assent to a deviation from professional norms among 
> secular health 
> > care providers, then a genuine Establishment Clause problem 
> could be 
> > present.
> > 
> > At least in some particulars, I thought it was uncontroversial that 
> > the Establishment Clause disables religious factions from 
> exercising 
> > influence in the political arena.  Isn't that the basis for 
> the rule 
> > forbidding direct government financial aid to religion, even though 
> > secular institutions (e.g. GM) are quite free to seek such 
> financial 
> > aid through the political process?
> > 
> > Larry Rosenthal
> > Chapman University School of Law
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