Supernatural Crimes

[Marie A. Failinger]

I like the "jurisdictional" solution for Free Exercise cases, because it
fits with the "limited government" principle as well as acknowledging the
limits of human competence to make judgments about how the world works and
mete punishments for certain kinds of activity (as with other non-tangible
harms like emotional distress). (I wonder, however, if an atheist would
argue, under the Establishment Clause, that this implicitly acknowledges
the jurisdiction of "Another" who cannot be acknowledged by the
government?)  But would it mean that a court, looking at an accommodation
request under Free Exercise, would have to say, "look, religious things
are not in my jurisdiction so I can't even consider them as reasons to
change how the law is applied."

 On Thu, 18 Dec 1997, Jim Maule wrote:
> The court certainly must have jurisdiction to determine that it does
> not have jurisdiction. Hence, the court can determine that because
> the issue of causation is a question of whether there is spiritual
> causation, it has no jurisdiction. The Hmong woman is exculpated
> because the court does not have jurisdiction to hear the
> prosecution's argument and attempt to prove that what the Hmong woman
> was doing *could* cause harm (or did in fact cause harm), unless the
> prosecution was going to rely on non-spiritual or non-religious
> evidence.



Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu