Religion as evidence
VOLOKH at LAW.UCLA.EDU
Thu Dec 4 17:11:22 PST 1997
Indeed, Thomas properly holds that the ultimate question in
religious exemption cases is what the objector believes, not what is
the official doctrine of the faith.
On the other hand, when the question in, say, a housing
discrimination case, is precisely what was in the landlady's head --
did she refuse to rent to this unmarried couple because they were
unmarried, or did she do it for some other reason -- the official
doctrine of the faith seems quite relevant to determining what she
herself likely thought. Must an ALJ, on the strength of Thomas,
refuse to draw any inferences (however nondispositive) from her
stated religious affiliation to her personal beliefs?
Come to think of it, even in a Thomas-like situation, must a
judge considering whether the beliefs are *sincere* (rather than
whether, if sincere, they qualify for an exemption) refuse to draw
any inferences from the stated religious affiliation to one's
Ed Gaffney writes:
> 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
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