chaplains/fetuses

[Peter Yu]

First, let me say that I never intended to impugn the quality of  any of the
academic participants in the Council's conference.  They are first-rate.  I
fear I began this debate with a less than diplomatic tilt.

Having said that, I feel I should respond to Nicholas Miller's defense of
his conference.  His distinction between whether rfras are a good idea or
bad idea and their effects simply does not hold water.  Their impacts speak
to both constitutionality but perhaps more importantly to policy.  The
lineup thus far is more likely to minimize the real impacts of such
legislation than a lineup that is composed of those who are fans and
opponents of rfras in general. This seems to me to be a political fact.

Moreover, I doubt that solely legal academics are capable of fully exploring
the impacts of rfras/rlpa.  Nicholas's gathering does not include any of the
groups that truly understand such impact, like the ACLU, the Amer. Assn. of
Pediatrics, CHILD Inc., National League of Cities (or any of the other other
groups whose letters are posted on my website).

It was my experience when I testified at the hearings in June before the
House and the Senate committees that RFRA/RLPA's proponents represented to
Congress that such laws have much less impact on a wide variety of concerns
than they really do.  Moreover, their proponents tend to downplay the fact
that such legislation empowers fringe religions as much as mainstream ones.
The Aryan Brotherhood gets the same legal weapon to trump laws for the
general welfare as do Presbyterians.  So do the Satanists, Luciferians, and
Wiccans. Marc Stern testified for the record before the House that religions
do not discriminate when we all know that the Chrtistian Legal Society (and
others) are in this ballgame because they *want* to trump the
anti-discrimination laws and that discrimination is the raison d'etre for
many of the prison religions.

As I said before, this conference *is* a step in the right direction,
because we have proponents of such legislation addressing the impact of it.
There was a time, as recently as June, when such proponents were content to
paper over such impacts.  I worry, however, that such a one-sided
conference, timed as it is with the likely reintroduction of RLPA by both
Houses in Jan/Feb, will lead members of Congress to believe that full
inquiry has been achieved.

One can hope perhaps that even a one-sided discussion will lead the
Coalition for the Free Exercise of Religion (through their legal academic
advisors) to persuade Sen. Hatch and Rep. Canady to hold hearings on RLPA's
likely impact (or any of the state legislatures to do the same).  This seems
to me to be the responsibile thing to do regardless of one's support or
dissent from the rfra/rlpa formulation.  To date, the Coalition has not
urged such hearings and therefore Hatch and Canady have not been inclined to
investigate these avenues of concern.

Marci Hamilton


Marci A. Hamilton
Professor of Law
Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY   10003
(212) 790-0215
(212) 790-0205 (fax)
hamilton02 at aol.com
www.marcihamilton.com