VOLOKH at mail.law.ucla.edu
Fri Oct 16 17:46:48 PDT 1998
I'm not sure the analogy from military burials really works.
Would the tradition of military chaplains, for instance -- who not only
give rather empty invocations but also lead religious services,
religiously counsel soldiers, perform various religious rites, and the
like -- allow the City of Los Angeles to hire a City Chaplain who would,
at government expense, lead religious services, religiously counsel
citizens, and perform various religious rites? I would think not; in
fact, I'd think that hiring such a general-purpose chaplain would be a
pretty core Establishment Clause violation, and it would not be
justified by the much narrower tradition of military chaplains. I'd
likewise say that a narrow tradition of religious burials in the
military doesn't justify the government generally providing religious
burials (in preference to secular ones) outside the military context.
But I do think that Mr. Clanton's point brings up a slightly
different question that might indeed shed light on this problem. Say
the coroner decided that the coroner's office should bury the fetuses
itself. Would the right analysis here be
(1) The coroner may not bury the fetuses at all, but *must*
treat them as medical waste;
(2) The coroner may bury the fetuses, but only in a secular
(3) The coroner may bury the fetuses in a religious funeral, so
long as it's "nondenominational"?
I ask this question because it's related to the question of what the
right answer is for the problem we initially faced:
(A) The coroner may only release the fetuses to groups that
promise nonreligious burial;
(B) The coroner may release the fetuses to all comers, but may
not require that they be buried with dignity (as opposed to being
treated as medical waste);
(C) The coroner may release the fetuses to all comers who
promise to bury the fetuses in a dignified funeral, whether religious or
(D) The coroner may give a preference to some buriers based on
their intention to bury the fetuses religiously.
My view would be 2/C. (This mirrors the conventional view of
higher education -- the government may only conduct secular higher
education, but if it provides an open-choice policy [as under the GI
Bill or Pell grants] it may fund religious educations equally with
secular ones; I take the same view about K-12 education, though I know
that's more controversial.) Does anyone on the list think the answer to
the first question is #1? If everyone agrees that the answer to the
first question is #2, then why isn't the answer to the second question
> -----Original Message-----
> From: Bradley S. Clanton [SMTP:bclanton at WRF.COM]
> Sent: Friday, October 16, 1998 3:17 PM
> To: RELIGIONLAW at LISTSERV.UCLA.EDU
> Subject: Re: fetuses, etc.
> You're right that the government has probably not been involved in
> many burials. But to the extent they have, you're also right that
> have likely been almost exclusively religious burials.
> Moreover, whether it is legal to have a secular burial, or whether the
> state can "prohibit" religious burials, is entirely irrelevant. Free
> exercise is not at issue. The question is whether it is an
> establishment of religion for the state to prefer religious burials.
> And I
> think it clearly is not.
> To: RELIGIONLAW @ LISTSERV.UCLA.EDU
> cc: (bcc: Brad Clanton/WRF)
> From: VOLOKH @ mail.law.ucla.edu @ SMTP
> Date: 10/16/98 02:41:48 PM MST
> Subject: Re: fetuses, etc.
> Forgive me, but is there really a long-standing American
> tradition of the *government* preferring religious burials over
> nonreligious ones?
> I had thought that it had always been perfectly legal to have
> secular burials. Surely a law *prohibiting* nonreligious burial would
> be unconstitutional as a coercion of religious practice, no? I'm also
> unaware of a solid tradition of other sorts of discrimination by the
> government against religious burials. I suppose that in the very few
> burials that the government runs -- which I take it would be
> overwhelmingly military burials -- there might be some preference for
> religious practice, though I'm not even sure of that (if an atheist
> died, I assume his family could ask for a nonreligious burial), and in
> any event this seems to be a pretty small aspect of American burial
> hardly a "long-standing American tradition [of government practice]
> favoring religious burials."
> > -----Original Message-----
> > From: Bradley S. Clanton [SMTP:bclanton at WRF.COM]
> > Sent: Friday, October 16, 1998 2:14 PM
> > To: RELIGIONLAW at LISTSERV.UCLA.EDU
> > Subject: Re: fetuses, etc.
> > I understand that legislative chaplains are constitutional based on
> > long
> > standing tradition endorsing such practices. My point is that there
> > is
> > precisely the same sort of long-standing American tradition favoring
> > religious burials of the dead. Our government is not "neutral" in
> > this
> > regard, nor has it ever been.
> > To: RELIGIONLAW @ LISTSERV.UCLA.EDU
> > cc: (bcc: Brad Clanton/WRF)
> > From: VOLOKH @ mail.law.ucla.edu @ SMTP
> > Date: 10/16/98 01:56:27 PM MST
> > Subject: Re: fetuses, etc.
> > Why would there be a constitutional problem here?
> > True,
> > the government will be discriminating against one form of disposal
> > 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).
> > 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
> > 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
> > 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
> > 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
> > 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
> > 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
> > > 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
> > > already
> > > 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
> > a
> > nonreligious burial violate the First Amendment? The
> > of
> > the
> > preference is not to "favor" religion, but to provide what
> > Americans have
> > traditionally understood to be a "proper" burial. What's
> > difference
> > between that preference and "preferring" to open Congress
> > an overtly
> > religious prayer, or "preferring" to pay military chaplains
> > perform
> > religious services, including funerals for dead soldiers?
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