RFRA substantial burden analysis

Sanford Levinson SLevinson at law.utexas.edu
Tue Feb 14 12:22:26 PST 2012

It think it is an "essentially contested concept" what constitutes "a church."  One can certainly argue that it is constituted (only) by those members who accept the enunciated doctrines of the Church as promulgated by those whom the church authorizes to articulate them.  Catholicism is simply not the equivalent of Protestantism.  I have read stories that Pope Benedict has adopted a deliberate strategy of reducing the size of the Church to reflect only those deemed "the faithful" by culling out "cafeteria Catholics" (the equivalent in the eyes of Orthodox Jews of most Conservative and Reform Jews, let alone "secular Jews" like myself.  If the Catholic Church did not have a variety of spillover effects--"externalities"--on those who don't share the faith, I would think it none of my business to praise or condemn the Pope.  The problem, of course, is precisely the externalities, and that is the issue that plagues almost all serious discussion of the notion of "religious liberty" or, for that matter, freedom of expression more broadly.  In Ronald Dworkin's terms, how indifferent are we willing to be to "social costs" in order to demonstrate that we "take rights seriously"?  


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
Sent: Tuesday, February 14, 2012 2:05 PM
To: forwarding for fcross
Cc: Conlawprof at lists.ucla.edu
Subject: Re: RFRA substantial burden analysis

"There is no Church separate from the individuals who make it up.  The Church is simply the means through which they express their religion"

Given that the facts show that a supermajority of members of the Catholic Church are pro-contraception, this statement is simply a false statement of fact.
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