VOLOKH at mail.law.ucla.edu
Fri Oct 16 14:56:27 PDT 1998
Why would there be a constitutional problem here? True,
the government will be discriminating against one form of disposal but
in favor of another, but it seems to me quite constitutionally
unproblematic (unless the government discriminates between disposal
forms based on their religiosity).
Thus, I take it that a city might allow burial of
bodies, but not their disposal as medical waste (especially if the
bodies are claimed by someone other than the next-of-kin). Likewise, it
seems to me a city might allow certain forms of killing animals but
forbid others, even if the distinction is drawn on the grounds of
dignity rather than health or humaneness; I'm not sure I'd support such
a law, but I don't think it would be unconstitutional. Why would a law
that requires that fetuses be treated as something other than medical
waste -- whether they are buried religiously or not -- be any different?
I don't think the Estab Cl prohibits than, and neither does substantive
due process; as some others have pointed out, the Constitution has *not*
been interpreted as barring the government from operating on the view
that a fetus is human, only as barring the government from substantially
burdened the decision to abort the fetus.
On the other hand, I would balk at discrimination in
favor of religious disposal; I do think that the Estab Cl should
generally be read as prohibiting preferences for religion. I won't go
through that whole argument again here, but I do want to point out that
legislative chaplains and military chaplains have generally been treated
as exceptions to this general rule, the former on the grounds of long
specific historical practice, the latter on the grounds of ameliorating
the burdens imposed by the government on members of the military;
whether or not one finds these justifications persuasive, they are the
reasons the courts have generally given for upholding such chaplaincies
in the face of the general no-preference-for-religion rule.
Mark Rahdert writes:
> What if the government received a competing request from a
> pro-choice secular group who also promised to dispose of the fetuses
> in a
> legal manner, but one that treated the fetuses as medical waste?
> Could the
> government favor one request over the other? Some on the list have
> suggested the answer is yes, but I am not so sure ....
> Mark Rahdert
> Temple Law School
Brad Clanton writes:
Why would the government's preference of a religious burial over
nonreligious burial violate the First Amendment? The purpose of
preference is not to "favor" religion, but to provide what
traditionally understood to be a "proper" burial. What's the
between that preference and "preferring" to open Congress with
religious prayer, or "preferring" to pay military chaplains to
religious services, including funerals for dead soldiers?
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