Burying in pigskin

[Volokh, Eugene]

    Seems to me that our government might well contemplate such a thing.  By
many standards of morality, this is among the less troublesome things we can
do to people.  It doesn't involve any extra physical pain or injury to
anyone who's still alive.  It may seem odd to many to say "We may shoot
terrorists on the battlefield, but once they're dead, it's unconstitutional
for us not bury their bodies in ways that they and other like them would
find offensive."  And this is especially true if the government has a
credible claim that this will help deter future murder of innocents (though
I realize that this would doubtless be a hotly contested factual
prediction).

    Now perhaps this is still a sound position; maybe there are some things
that we shouldn't be able to do to a dead body, whatever the reasons, even
if it's OK to have made the body dead in the first place.  But it just seems
to me a more contested issue than the post below suggests.  It's far from
clear, for instance, that this behavior is unconstitutional "cruel," or
"shocks the conscience," or violates some fundamental unenumerated rights.

    The Free Exercise Clause is, I think, the strongest argument, for the
doctrinal reason that Marty identifies:  The government would be treating
people differently -- albeit posthumously -- based on their religious
beliefs.  And I don't think the posthumous nature of the treatment would
erase the Free Exercise Clause violation; for instance, a rule that Jews or
Catholics or Muslims couldn't be buried in a government-run cemetery would,
I take it, violate the Free Exercise Clause, even though the
discriminated-against person is dead.

    But is that the end of the story?  Would the government be able to
defend its position under strict scrutiny, for instance, and, if so, would
strict scrutiny be satisfied?  Or is there a per se prohibition here, either
under the Free Exercise Clause or the Establishment Clause -- and what would
the contours of this prohibition be?

    Eugene

-----Original Message-----
From: LoAndEd at AOL.COM [mailto:LoAndEd at AOL.COM]
Sent: Saturday, November 02, 2002 7:50 AM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Re: Burying in pigskin


Am I the only one who thinks this entire discussion, and the hypothetical,
is more than a bit grotesque?  If we ever get to the point where our
govenment contemplates such a thing, the least of our problems will be the
academic enterprise of identifying precisely which constituional provisions
would prohibit the practice.  For what it's worth on the merits, and wholly
apart from the Eighth and Ninth Amendments, substantive due process, etc.,
it seems fairly plain that this would violate the Free Exercise Clause.  The
government would be treating certain persons differently, and
disadvatageously, on the basis of their religious beliefs and practices.
That's impermissible.  Cf. Lukumi, McDaniel v. Paty, Torcaso, etc.

Marty L.

Eugene writes writes:




   I appreciate Kurt's point, and it's this sort of concern that prompted me
to first post about this.  But let me probe a bit more:  In the
hypothetical, is the government really punishing "the religious aspect" of
the crime?  It seems to me that the government is punishing the secular
aspect of the crime -- mass murder -- and trying to prevent the same sort of
secular harm in the future; it's just that it thinks that the most effective
way of achieving this particular goal is to do something that implicates a
particular religious belief of possible future terrorists, and thus more
effectively deters those terrorists.

        The curious thing here is that to the majority, and to those in
government, burial in pigskin does not have religious significance (as
opposed to, say, putting up the Ten Commandments or saying school prayers,
which is largely done precisely because those in power see those acts as
having religious significance).  It's neither sacred nor sacrilegious to
them.  They are simply trying to use what they know to be the religious
sentiments of others, in order to try to prevent "the secular aspect" of
future crimes by those others.  Does that make a difference?

        Eugene

Kurt Lash writes:







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