Free Ex/Guns

[Patrick J. Schiltz]

Alan Gunn is exactly right.  This past summer, I read a couple hundred
appellate opinions on employment decisions by religious organizations.  One
of the most striking features of those opinions is the extent to which
judges assume that governmental regulation -- even of religious
organizations -- is the norm and freedom from governmental regulation is
the exception.  Again and again, courts made indignant statements to the
effect that "churches are not above the law" -- which, of course, entirely
begs the question of what the law *is*.  Religious freedom is not
disappearing because of conscious hostility to religion; it is disappearing
because of unconscious acquiescence to the regulatory state.

Pat Schiltz
Notre Dame


>In message Fri, 23 Jan 1998 10:27:58 -0600,
>  Sanford Levinson <SLEVINSON at MAIL.LAW.UTEXAS.EDU>  writes (in part):
>> I would not argue that religious freedom
>> is more secure today *because* we have moved closer to a welfare-regulatory
>> state; maybe it's "in spite" of that.  But I strongly suspect that the
>> factors that lead a particular society to be (in)tolerant of religious
>> "deviants" have relatively little to do with the factors that lead it to be
>> relentlessly market-oriented or social democratic in terms of economic
>> organization.
>
>   This may be true--I suspect that it is. But it's only part (and probably,
>today, a small part) of the story. A society that generally does not try to
>regulate peoples's behavior will find it relatively easy to refrain from
>regulating most religiously motivated behavior. A society that regulates
>private behavior extensively will find it difficult, maybe impossible, to
>stop doing that in the case of behavior inspired by religion. At the very
>least, there will be difficult questions of where to draw the line, as in
>Pat Schiltz's example of the purported distinction between clergy and
>teachers in religious schools. Also, the more a society becomes used to the
>idea that it is in the public interest to control many kinds of behavior,
>the harder it will be to say that this interest is not important enough to
>justify an examption for religions. Thirty years ago, who would have
>taken seriously the idea that the federal government might prevent a
>church from having only male clergy? Is it likely that thirty years from now
>any church in this country will be allowed to have only male clergy and
>remain tax exempt?  Attitudes about freedom are at least as important as
>attitudes about religion, when the issue is freedom of religion.
>
><<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<
>Alan Gunn
>Notre Dame Law School
>
>
****************************************************************
Patrick J. Schiltz
Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Phone: (219) 631-8654
Fax: (219) 631-4197
E-Mail: schiltz.2 at nd.edu
****************************************************************