Gov't Attorneys, Negotiation, Standing on Rights

[Rob Weinberg]

Perhaps I am missing the context of Ed's position. As one of a couple
government attorneys on the list (who as a group get a generalized bad rap)
I was interested in Ed and Marci's discussion, but refrained earlier,
discretion being the better part of valor. Mediation and negotiation by
government lawyers is a lot more prevalent than most might imagine.

I'm wondering what experiences Ed has had representing religious
organizations or individuals in opposition to the government that would
make him say what he does about the government's recalcitrance to
negotiate. Other than cases such as Babalu Aye, I'm unfamiliar with
sectarian discrimination or the hostility Ed seems to be alluding to.
Usually, the government is the defendant in cases where parties like the
ACLU allege the government has endorsed or *promoted* religion, but I get
the sense that Ed has been involved in cases where the government has been
hostile to a particular religion or religious practice, and generally
unwilling to negotiate. Ed, could you provide context?

As far as generalizations go, it is attractive to assume that government
lawyers are willing to negotiate less than their opponents, but my
experience is that is no more or less true than of lawyers generally. That
is, it's just a convenient generalization about the opposition. Contrary to
popular misconception, government lawyers do not have the time, resources
or manpower to go to the mat on every case and bully their opponents into
submission, particularly in the civil arena.

First amendment religion cases are often difficult to negotiate about
because the parties come at it in absolutist terms to begin with.
Challenged statutes or regulations are more difficult to negotiate than
unwritten informal practices, and require an act of the legislature to
modify. So, often, the act or reg is either defensible or it's not.

The politics of a negotiated settlement are often problematic too, for
obvious reasons. I wish that it were not so. True, government lawyers are
required to "do justice." But government lawyers also have an obligation to
defend the constitutionality of acts of their legislatures, sometimes by
offering limiting construction of the acts.

Another disincentive to negotiation is the spectre of attorneys fees in the
event of a settlement that is not seen in the ordinary contract or tort case.

I can tell you from the state's perspective that gov't lawyers who rejoice
over the defeat of RFRA do not do so out of hostility to religion at all.
Rather, it's a simple matter of states' rights and local control of their
own institutions without federal court interference that is the appealing
factor.

Ed (and Marci), can you provide this government lawyer a little context?

At 10:20 AM 1/20/98 PST, Ed Gaffney wrote:
>I think Marci misreads my earlier message.  What I urge clients to do is to
>be faithful to their religious commitments.  This does not preclude
>searching for alternative mechanisms of law enforcement that might resolve a
>conflict.  But my experience -- limited as it is -- is that government
>attorneys insist on the letter of their regulation and are not interested in
>avoiding conflict.  Unlike Marci, I see the defeat of RFRA as diminishing
>rather than enhancing the reasons why gov attys wld want to enter into
>meaningful negotiations along the lines she admires, that is reasonable and
>flexible.  Marci is right in saying that gov attys are generally not
>"recalcitrant idiots who have no respect for religion."  Our difference is
>one of perception.  I think of gov attys in some instances as putting a
>higher value on winning a case than is necessary or desirable in a republic
>that cherishes the exercise of religion.  In short, I think of the gov attys
>in these instances as rigid and inflexible, and Marci thinks of some
>religious communities as the ones who need to be counseled to avoid an
>"unreasonable" and "rigid" approach.  Justice Brennan's concurring opinion
>in the *Amos* case contains an interesting discussion on how the content of
>relgious faith is frequently misunderstood by outsiders, as in:  they are
>"unreasonable" and "rigid."   The *reason* for what may appear to outsiders
>to be *rigidity* on the part of religious adherents is that their
>understanding of their traditions does not allow them the freedom to abandon
>a conviction.  With John Garvey, I note that this is not a reason grounded
>in "autonomy," but in fidelity.  Ed Gaffney
******************
Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/