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Douglas Laycock dlaycock at MAIL.LAW.UTEXAS.EDU
Tue Feb 29 14:25:59 PST 2000


        Sorry; I was too cryptic.  I did not mean to say that hostility to either
religion or exemptions is universal or anything like it.  Fleshing the
points out a bit:

        There is lots of hostility to the religious right, partly based on
disagreement with their positions, partly based on a perception (fair or
unfair is irrelevant to this point) that they want to impose their values
on everybody else.    This hostility shows up in opinion polls; this part
is not just my perception.

        My perception is that the religious right's high profile political
activity has made them the most visible elements of the religious spectrum.
 So if you ask people about religion generically, some of them will think
mostly or primarily about the religious right and react negatively.  If you
propose legislation to benefit religion, or to benefit religious liberty,
some people will treat that as a bill for the religious right, or will
oppose it because they think the religious right is a prime beneficiary.
If you focus their attention on the difference, they aren't hostile to
religions they perceive as tolerant or non-threatening.  But if you ask
about religion generically, they think religious right, and so their
hostility to the specific affects the general.  This is impressionistic and
anecdotal; I don't have survey data.  I don't have any sense of what
proportion of people are making this mistake, except that it seems to be
enough to matter.

        One high profile anecdote:  when Jesse Ventura said religion was for the
weak minded, some commentator or apologist said he really meant the
religious right was weak minded, and that seemed to change people's
reaction from negative to neutral or even positive.

        On exemptions, the people who have thought about it are divided.
Certainly lots of intellectuals, and lots of bureaucrats with rules to
enforce, are viscerally opposed to exemptions.  These people are not a
majority or anything close to it, which is why Congress could pass RFRA.  I
did not mean to say anything about numbers, but only to say this movement
is now out there.  And my sense is that their vocal presence is new, and
mostly a post-Smith phenomenon.  Moreover, the political support for
exemptions is shallow, and extends mostly to religions legislators approve
of, which is why the Democrats abandoned the bill as soon as a few (mostly
marginal) civil rights claims became an issue.

At 10:56 AM 02/29/2000 -0500, you wrote:
>Douglas Laycock wrote:
>
>"And whether or not there is hostility to religion, there is hostility to
>exemptions. Religion is increasingly thought to be unimportant, nothing
>special, and therefore subject to override by any countervailing rule."
>
>How does this square with the fact that Congress nearly unanimously adopted
>RFRA in 1993 and the House passed RPLA in 1999?  Moreover, as I recall,
>even the dissenters in the House Judiciary Report on RPLA spoke in favor of
>religious exemptions in general; they just thought RPLA was problematic for
>other reasons (i.e. it did not protect other civil rights adequately; it
>was constitutionally dubious).  Plus, several states have enacted their own
>RFRAs, and numerous others have rejected Smith as a matter of state
>constitutional law.  Seems more like an embrace of exemptions than hostility.
>
>As for members of the religious right, they have taken very high-profile
>positions on hot-button political issues over the past 15 years and, not
>surprisingly, they have made enemies as a result.  However, I am not
>convinced that hostility towards the religious right has resulted in an
>increase in hostility  towards religious groups who have not sought out
>such attention in the political arena.
>
>- Jim Oleske
>Ohio State University College of Law
>
>P.S. I subscribe to the digest form of the list, so please accept my
>apologies if these points were already covered in earlier posts.
>


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu


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