Zelman, discretionary accommodations and the distinctive natu re of religion

[Volokh, Eugene]

        Hmm -- why exactly do you want to argue for such accommodations?  It
seems to me that virtually all religious accommodations schemes are fairer
and not materially less workable if they also apply to equally deeply held
philosophical beliefs.  And such equal treatment also avoids the potential
practical and constitutional problems of (1) having to sort through whether
a deeply held philosophical belief is really "religious" or not, and (2)
creating a subtle pressure for people to characterize their philosophical
beliefs as religious in order to take advantage of the accommodation.

        In a few instances, extending religious exemptions to secular
philosophies may pose serious problems -- the one situation I've found so
far is with the clergy-penitent privilege.  But even there the problems seem
to be applicable to idiosyncratic religious beliefs (e.g., "I sincerely
believe that my father / my closest friend is God's choice as my
confidential spiritual adviser") and not just to secular philosophical
objections.

        Now perhaps one thinks that the text or original meaning demands
special treatment for religion -- though I'm not sure that this is right,
since I think the text and original meaning may reasonably be seen as
generally demanding equal treatment.  But I read Alan's argument as going
beyond that.  What I'm missing is what beyond that should require religious
people to be treated differently -- better or worse -- than nonreligious
people who may have equally strongly held philosophical beliefs.

        Eugene

Alan Brownstein writes:

> If that is the controlling framework (whether
> one agrees with it or not), one may ask if it is still
> possible from either a doctrinal or normative basis to
> continue to argue for discretionary religious accommodations
> that are not equally available to secular believers and institutions.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/religionlaw/attachments/20020628/f292762e/attachment.htm