NonChristians Never Win
Fred Gedicks
gedicksf at LAWGATE.BYU.EDU
Thu Feb 24 09:46:55 PST 2000
For whatever it's worth, I offer the following from my book, The Rhetoric of Church and State at page 116, which was written in early 1993 but which I think still accurately captures the generally point intended by "nonChrisitans never win" (he says modestly):
"Courts are not themsevles immune from majoritarian bias. No Jewish, Muslim, or Native American plaintiff has ever prevailed on a free exercise claim before the Supreme Court. Fundamentalist Christians and sects outside so-called mainline Protestantism have had only mixed success in seeking exemptions. Of course, the fact that these groups were compelled to seek judicial relief underscores the point that legislatures tend not to create exemptions for adherents to unusual or idiosyncratic religions."
Self promotionally yours,
Fred Gedicks
>>> LISTSERV at listserv.ucla.edu 02/24/00 01:00AM >>>
There are 2 messages totalling 204 lines in this issue.
Topics of the day:
1. FW: Religious objection to subpoena
2. "Non-Christians Never Win"
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Date: Wed, 23 Feb 2000 14:46:08 -0800
From: Sean Gates <GatesSP at MTO.COM>
Subject: FW: Religious objection to subpoena
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If what we are concerned about is that the "majority" or "mainstream"
religion or religious beliefs receive preferential judicial treatment, I
don't think you can count the Jehovah's Witnesses as "Christian." Whether
they are "Christian" from a theological or biblical point of view is
irrelevant. The fact is that they are not viewed as "mainstream" Christian.
Thus, non-Christians often win.
Sean Gates
Munger, Tolles & Olson LLP
-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Wednesday, February 23, 2000 2:16 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Religious objection to subpoena
Here's why I disagree with Steve: To begin with, I assume he is
saying that non-Christians rarely win free exercise claims *because they are
non-Christians* (otherwise, the claim may be literally true, but entirely
beside the point, like a claim that non-Christians rarely win the lottery).
But the existence of this one case doesn't even show *correlation*
between non-Christianity and not winning free exercise claims, much less
*causation*: It doesn't even show that non-Christians' success rate is any
lower than that of Christians, much less show that the lower rate (if there
is one) comes from the fact that the claimants were non-Christians.
As to "non-Christians never win" being hyperbole, it seems to me a
mistake to use such serious charges -- charges that strongly hint at
religious bigotry -- as mere hyperbole.
Finally, I wouldn't count Seventh Day Adventists or Jehovah's
Witnesses as non-Christians, but based on my very limited knowledge of
Santerians, it seems to me hard to call them anything other than
"non-Christians" for purposes of the claim to which I'm reacting. Certainly
to the extent the claim rests on a claimed bias in favor of Christianity or
the "normal" or the "mainstream," it's hard to see Santerians as fitting any
of those categories. (Note, of course, that Lukumi is only a counterexample
as to those instances of the claim made after 1993; the first instance of
the claim, which I believe was made in 1990, isn't subject to this attack.)
-----Original Message-----
From: Steven D. Jamar [SMTP:sjamar at LAW.HOWARD.EDU]
Sent: Wednesday, February 23, 2000 4:44 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Religious objection to subpoena
Hmm. More evidence for how non-Christians *rarely* win free
exercise claims? Her claims are very typical of Buddhist and Hindu
religious orders - though often such strictures are very individualized as
well. The S.Ct. and US free exercise jurisprudence generally are
inhospitable to claims with such individualized aspects as well as claims
based on nature, i.e., claims not based on things that don't look or sound
"normal" - read Christian mainstream.
This point I think would be more interesting to explore than the
more narrow debunking you suggested earlier.
BTW, when I have heard the "non-Christians never win" it was clearly
hyperbole meant to emphasize the point being made that the entire system is
biased against religions which are structured very differently.
Finally, I don't think it right to exclude Santeria or Seventh Day
Adventists or Jehovah's Witnesses from the Christian cases. Who decides
what is in or out of Christian? From whose perspective?
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<TITLE>RE: Religious objection to subpoena</TITLE>
<META content='"MSHTML 4.72.3612.1706"' name=GENERATOR>
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<BODY>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial size=3>If
what we are concerned about is that the "majority" or
"mainstream" religion or religious beliefs receive preferential
judicial treatment, I don't think you can count the Jehovah's Witnesses as
"Christian." Whether they are "Christian" from a
theological or biblical point of view is irrelevant. The fact is that they
are not viewed as "mainstream" Christian. </FONT></SPAN></DIV>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial
size=3></FONT></SPAN> </DIV>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial size=3>Thus,
non-Christians often win.</FONT></SPAN></DIV>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial
size=3></FONT></SPAN> </DIV>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial size=3>Sean
Gates</FONT></SPAN></DIV>
<DIV><SPAN class=580343522-23022000><FONT color=#0000ff face=Arial
size=3></FONT></SPAN><SPAN class=580343522-23022000><FONT color=#0000ff
face=Arial size=3>Munger, Tolles & Olson LLP</FONT></SPAN></DIV>
<BLOCKQUOTE>
<DIV class=OutlookMessageHeader><FONT face="Times New Roman"
size=2>-----Original Message-----<BR><B>From:</B> Volokh, Eugene
[mailto:VOLOKH at mail.law.ucla.edu]<BR><B>Sent:</B> Wednesday, February 23,
2000 2:16 PM<BR><B>To:</B> RELIGIONLAW at listserv.ucla.edu<BR><B>Subject:</B>
Re: Religious objection to subpoena<BR><BR></FONT></DIV>
<P> <FONT color=#000080
face=Arial>Here's why I disagree with Steve: To begin with, I assume
he is saying that non-Christians rarely win free exercise claims *because
they are non-Christians* (otherwise, the claim may be literally true, but
entirely beside the point, like a claim that non-Christians rarely win the
lottery).</FONT></P>
<P> <FONT color=#000080
face=Arial>But the existence of this one case doesn't even show
*correlation* between non-Christianity and not winning free exercise claims,
much less *causation*: It doesn't even show that non-Christians'
success rate is any lower than that of Christians, much less show that the
lower rate (if there is one) comes from the fact that the claimants were
non-Christians.</FONT></P>
<P> <FONT color=#000080
face=Arial>As to "non-Christians never win" being hyperbole, it
seems to me a mistake to use such serious charges -- charges that strongly
hint at religious bigotry -- as mere hyperbole.</FONT></P>
<P> <FONT color=#000080
face=Arial>Finally, I wouldn't count Seventh Day Adventists or Jehovah's
Witnesses as non-Christians, but based on my very limited knowledge of
Santerians, it seems to me hard to call them anything other than
"non-Christians" for purposes of the claim to which I'm
reacting. Certainly to the extent the claim rests on a claimed bias in
favor of Christianity or the "normal" or the
"mainstream," it's hard to see Santerians as fitting any of those
categories. (Note, of course, that Lukumi is only a counterexample as
to those instances of the claim made after 1993; the first instance of the
claim, which I believe was made in 1990, isn't subject to this
attack.)</FONT></P>
<UL>
<P><FONT face=Arial size=1>-----Original Message-----</FONT>
<BR><B><FONT face=Arial size=1>From: </FONT></B> <FONT
face=Arial size=1>Steven D. Jamar [SMTP:sjamar at LAW.HOWARD.EDU]</FONT>
<BR><B><FONT face=Arial size=1>Sent: </FONT></B> <FONT
face=Arial size=1>Wednesday, February 23, 2000 4:44 AM</FONT>
<BR><B><FONT face=Arial size=1>To: </FONT></B>
<FONT face=Arial size=1>RELIGIONLAW at listserv.ucla.edu</FONT>
<BR><B><FONT face=Arial
size=1>Subject: </FONT></B>
<FONT face=Arial size=1>Re: Religious objection to subpoena</FONT> </P>
<P><FONT face=Arial>Hmm. More evidence for how non-Christians
*rarely* win free exercise claims? Her claims are very typical of
Buddhist and Hindu religious orders - though often such strictures are
very individualized as well. The S.Ct. and US free exercise
jurisprudence generally are inhospitable to claims with such
individualized aspects as well as claims based on nature, i.e., claims
not based on things that don't look or sound "normal" - read
Christian mainstream. </FONT></P>
<P><FONT face=Arial>This point I think would be more interesting to
explore than the more narrow debunking you suggested earlier.
</FONT></P>
<P><FONT face=Arial>BTW, when I have heard the "non-Christians
never win" it was clearly hyperbole meant to emphasize the point
being made that the entire system is biased against religions which are
structured very differently. </FONT></P>
<P><FONT face=Arial>Finally, I don't think it right to exclude Santeria
or Seventh Day Adventists or Jehovah's Witnesses from the Christian
cases. Who decides what is in or out of Christian? From
whose perspective? </FONT></P><BR></UL></BLOCKQUOTE></BODY></HTML>
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Date: Wed, 23 Feb 2000 20:25:10 EST
From: MSternAJC at AOL.COM
Subject: Re: "Non-Christians Never Win"
Does anybody believe that if Sherbert had been an orthodox Jew she would have
lost the case her Seventh Day Adventist double won?
Professor LIpson makes the additional error of treating the law as if it
were only decided in the Supreme Court.And what do we do with ACLU &
Allegheny County(an Establishment Clause case to be sure) in which the Court
banned a creche but allowed a menorah to be erected?Only in America!
MArc Stern
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End of RELIGIONLAW Digest - 23 Feb 2000 (#2000-47)
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