dlaycock at MAIL.LAW.UTEXAS.EDU
Tue Aug 4 17:48:24 PDT 1998
Eugene asks about a woman who wants an abortion because God wants
her to fulfill her potential.
Keep in mind that the answer doesn't matter, because in a world
without Roe v. Wade, protecting the baby would be a compelling interest.
That is not just a dodge, because the abortion example puts maximum stakes
on the hard question about motive; in cases with no compelling interest, the
stakes will be lower (I did not say insignificant).
On the question of motive, if I'm the judge and I find her sincere
in attributing this decision to God, then I would find her covered. But
frankly, her story sounds fishy, at least without more than Eugene has
provided. And I'm in the tail of the distribution in terms of sympathy to
religious liberty claims. If I am troubled by this case, it is a safe bet
that most judges would find her primary motivating to be fulfilling her
potential, and that is secular.
As to Gillette, I'm not sure they used the phrase compelling
interest, but there is plainly that kind of talk in the part of the opinion
rejecting constitutional challenges to the statutory exemption as they had
just interpreted it. But in the statutory interpretation part of the
opinion, and in lower-court conscientious objection cases and in cases about
beliefs at the border of religious and secular, courts talk about the real
focus of disagreement between the dissenter and the government. Questions
about God and about what He/She wants are not entrusted to government. But
questions about public policy in this world are entrusted to government.
When God says in general terms to do good, and leaves it to humans to decide
what is good, the courts have seen no reason to take that decision away from
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
dlaycock at mail.law.utexas.edu
More information about the Religionlaw