aebrownstein at UCDAVIS.EDU
Fri Nov 30 14:02:14 PST 2001
Is anyone aware of (or has anyone written) a published piece suggesting
that we should consider the minority status of a religion in establishment
clause cases, particularly in cases where religious practices are exempted
from neutral laws of general applicability. (e.g. we don't have to worry
about Quakers unfairly or unreasonably using their political power to
advantage themselves when we exempt religious pacifists from conscription
laws.) There is some language in Scalia's dissent in Kiryas Joel
supporting this approach (although it seems surprising to have Scalia adopt
a political process approach to establishment clause issues considering his
rejection of such an analysis in equal protection cases).
I have taken this position in a couple of articles, but in a rare show of
modesty (and in the hope that I can find a more reputable source) I would
like to be able to cite someone other than myself.
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