Speeding Worshipers

[Pamela Ann Harris]

Doug Laycock says:
>
>         We all know that the person speeding because he's late
to church is not going to get off.  Even though there is a
literal sense in which his speeding is religiously motivated, we
all know intuitively that this is not the right or intended
connection between religion and conduct.

I think that the issue is harder than this.  Maybe my concerns
will be more apparent if we take out (or at least minimize) the
element of avoidable consequences:  My adherent is too old to
drive (or to walk very far) and takes a public bus to church.
The city cancels the bus route, and the adherent finds herself
without a way to attend services regularly.  Riding the bus was,
for her, religiously motivated, at least in the literal sense, as
it was a means to an obviously religious end.  Does that make her
bus ridership religious exercise, so that when the city burdens
it (as it clearly does when it cancels the bus route) it must
defend with a compelling interest at the margins -- some
compelling reason why it must cancel this particular route?

The reason I think this matters -- that we need a principle for
limiting what kinds of religiously motivated conduct rise to the
level of "religious exercise" -- is that there will likely be
cases where our intuitions diverge.  One current example:
Religiously motivated trespasses at abortion clinics.  My
intuition is that where the religious motivation is a general
religious belief that abortion is the wrongful taking of human
life, the connection between religion and conduct is not tight
enough to make the protest "religious exercise" -- there are, for
instance, alternative means of protesting abortion, so that the
conflict may not be "unavoidable."  But I expect that others on
this list would have very different intuitions.  So while we may
be able to rely on the intuitive good sense of judges in the
speeding case, I'm not confident this will see us through in all
cases.

I don't actually have a principle to offer here -- I'm struggling
with whether there might be a distinction between means to
religious ends and activities that themselves have religious or
ritual significance, but I see the problems with indeterminacy
here.  But I think that Marty's points are important ones, and
that defining religious exercise as any religiously motivated
activity opens up some very difficult questions.

Pam Harris
U.Penn.