(Fwd) Re: Proposed Religious Freedom Amendment

[Rodney Smith]

Michael Stokes Paulsen partially misreads my objection to the Istook
amendment.  I do believe that, as written, the Istook amendment presents
serious establishment questions, because it seemingly prefers religion
over some broader category of expression.  I would not go as far as
Michael does, however.  I would broaden the category of expression only
to matters of conscience and not to all expression.  I realize, as I
argued in the piece I wrote for the BYU law review regarding the
Istook and Hatch amendments, that conscience must be defined (a problem
that has occupied some time on this list in the past).

Without going into detail, I will offer a few comments regarding the
definitional enterprise.  As I argued in my prior piece, Istook and
Hatch should use the statutory rather than the amendment form.  A
statute is more likely to pass and become law.  Additionally, and I
we need to establish a dialogue between the courts, the legislature,
and the executive in liquidating a definition over time.

I am currently (but slowly, given that I have agreed to serve as the
next dean at the University of Arkansas at Little Rock) working on a
piece that sets out the reasons why conscience merits a higher level
of protection than expression generally.  Knowing the reasons why
conscience is deserving of protection and added accommodation should
help in the definition rendering process.

rod smith
capital university