Religion as evidence
egaffney at PLUTO.PEPPERDINE.EDU
Thu Dec 4 09:17:00 PST 1997
My reply is limited to Eugene's third hypo:
(3) "I conclude Smythe is lying. It's a close case, but at
trial the FEHC lawyer asked Smythe whether she believed that renting
to unmarried couples was immoral, and that all good people should
refuse to do so. Smythe said no. Then the FEHC lawyer elicited
evidence that the religious denomination to which Smythe belongs to,
and to whose tenets she claims to generally subscribe, believes the
contrary. Though Smythe testified that she doesn't actually
hold this belief, her membership in this religious denomination is
relevant evidence that points to the contrary, and that thus weighs
in favor of finding that her actions were indeed based on the
prospective tenants' marital status."
1. *Welch* is not weird, so much as difficult to reconcile with *Thomas v.
Review Board* and *Hernandez v. IRC,* and the line of church autonomy cases
that restrain the hand of civil courts in church disputes. In Thomas the
Gov atty did pretty much what the Gov atty in Eugene's hypo # 3 did: he
ferreted out a Jehovah's Witness who believed that it is OK to make
armaments, to show that pacifism musn't be very important to JWs. Even
though CJ Burger had invented the centrality doctrine in *Wisconsin v.
Yoder,* I think he saw the danger in it, and threw cold water on it in
*Thomas*: "Cts are not arbiters of scriptural interpretation" and all that.
Similarly the *Hernandez* Ct was reluctant to characterize which items of
faith are really really important to folks like Johhnie Travolta and whazzis
name Hernandez. This is not exactly the same as the claim in Eugene's hypo
that the religious community to which Smythe belongs and whose tenets Smythe
generally holds, believes to the contrary. But it's close enough for me to
conclude that the relevant testimony in the case is what Smythe herself
holds. A pretty outrageous example of going down the other path was related
to me by the atty representing Simcha Goldman. When the case was under
submission before the DC Cir., Ab Mikva volunteered to his colleagues on the
Ct that not wearing a yarmulke isn't a very big deal for lots of Jews.
Well, yes. For lots of Jews like Ab, but not for lots of Jews like Simcha.
There is a difference, and it can be sorted out by asking whose free
exercise rts are burdened, Simcha's or Ab's, Ms. Smythe's or her fellow
religionist's? Cheers, Ed Gaffney
Those who think this to be a weird hypo might want to check out
(among other cases) State v. Welch, 709 S.W.2d 905 (Mo. App. 1986),
holding that evidence that defendant belonged to the anti-black Aryan
Nations Church was admissible to help show that defendant had a
motive to assault a black victim.
(Some on this list may recall a discussion we had a while back
about religious-behavior-as-evidence in Shahar v. Bowers; but I think
this example raises the question more crisply.)
"What makes a samurai Eugene Volokh
step down from his high horse? UCLA Law School
A few bad quarters." 405 Hilgard Ave.
W. Warriner, 101 Corporate Haiku no. 94 L.A., CA 90095
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