Religion Clauses question
Francis Beckwith
francis.beckwith at mac.com
Wed Jun 2 16:13:27 PDT 2004
Robin:
I actually don't disagree with you in principle. But what I was doing was
just speculating on what sort of tactic could be used to say that an
apparent neutral law really did target a religion.
Frank
On 6/2/04 10:50 AM, "Robin Charlow" <LAWRDC at Mail1.Hofstra.edu> wrote:
> I know we've had related discussions on this list before. To reiterate
> what others then said, I don't see why we should construe such an
> anti-homosexual view as "only" (necessarily) religious. Even if it is
> often or usually based on religious motivation, a law that targets such
> a view is not presumptively targeting religion. I suppose it's possible
> in a given set of facts that such a law might have been aimed at
> religion, but why should we presume so in the usual case? According to
> this notion, would you assume a criminal prohibition of murder is a law
> that targets religion? Not that we have to accept his view, but I doubt
> this is what Scalia meant in Smith when he spoke of laws targeting
> religion.
>
> Robin Charlow
> Hofstra University School of Law
> Hempstead, New York 11549
> email: lawrdc at hofstra.edu
> phone (516) 463-5166
>
>>>> francis.beckwith at mac.com 6/1/2004 8:21:32 PM >>>
> Nathan:
>
> Since so many intellectuals--including Supreme Court justices--affirm
> that
> religion deals with issues of spirituality and moral virtue especially
> sexual ethics, it seems to me that any law meant to target an area that
> has
> been traditionally the domain of theology could be construed as not
> facially
> neutral at all. A law, for example, that forbade meetings on Sundays
> in
> buildings owned by 501c3 organizations could be construed as targeting
> religion even if facially neutral. Since it is only religious
> beliefs, or
> rich philosophical views of the human person that are religious is
> quality,
> that morally forbid homosexual acts between consenting adults, it is
> not
> unreasonable to argue that such an anti-discrimination law is
> partially
> motivated by an intent to expunge those religious understandings from
> the
> public square.
>
> To employ the rhetoric of liberalism, one could say that religion is
> so
> personal, and one's views of sexual morality so deeply connected to
> one's
> view of the universe and human life, that it is beyond the competence
> of
> government, especially courts, to instruct employers, landlords, etc.
> on how
> to conduct their business concerning prospective employees on such
> delicate
> matters. Capitalism, like copulation, is an act between consenting
> adults.
>
> Frank
>
>
> On 6/1/04 3:41 PM, "Nathan Oman" <noman at mail.netoriginals.com> wrote:
>
>> Steve,
>>
>> I don't understand how your claim that extending anti-discrimination
> laws to
>> cover priests and pastors can be squared with the holding in
> Employment
>> Division v. Smith. It seems to me that such a law would be facially
> neutral
>> and would not be singling out religion for any special disability.
> Of course,
>> it is always possible for the Supreme Court to carve out a
> minister/pastor
>> exception to Smith, but unless I am mistaken about the current shape
> of the
>> doctrine no such limitation on the Smith neutrality position exists.
>>
>> Nate Oman
>>
>> ---------- Original Message ----------------------------------
>> From: Steven Jamar <sjamar at law.howard.edu>
>> Reply-To: Law & Religion issues for Law Academics
> <religionlaw at lists.ucla.edu>
>> Date: Tue, 1 Jun 2004 15:51:52 -0400
>>
>>> Priests can be just men, right? Mormons can and do exclude blacks
> from
>>> the upper ranks of the church hierarchy.
>>>
>>> Every anti-discrimination law that I have heard of exempts either
>>> religious organizations or certain religious offices (priests,
>>> ministers, certain other religious officials) from the reach of the
> law.
>>>
>>> Nonetheless, assuming that a law as unlikely as that posited were to
> be
>>> passed, I think a free exercise claim might well work to limit its
>>> effect to janitors and others not directly involved in the direct
>>> pastoral work. (along the same lines as the distinctions are made
> now
>>> in statutes). That is, I think the constitution may limit the reach
> of
>>> such a law.
>>>
>>> As to the latter, I think you would be into free exercise problems
>>> there as well -- ministers can refuse to marry people on any or no
>>> grounds now. I can't imagine that changing. Of course I would hope
> to
>>> never see the issue arise as a constitutional issue. I would hope
> that
>>> legislators would respect the bounds well enough that it would
> not.
>>> But dumber things are done by our elected officials regularly.
> Like
>>> yanking the tax exempt status of a Unitarian Universalist church in
>>> Texas because of a lack of mandated belief in god meant that it was
> not
>>> a proper religion.
>>>
>>> Steve
>>>
>>>
>>> On Tuesday, June 1, 2004, at 02:07 PM, Volokh, Eugene wrote:
>>>
>>>> An interesting question from a Weblog,
>>>> http://southernappeal.blogspot.com/
>>>> 2004_05_30_southernappeal_archive.htm
>>>> l#108591655546056564; any thoughts about it?
>>>>
>>>>
>>>> [Begin quote]
>>>>
>>>> . . . . Suppose that same-sex marriage (SSM) gets codified into
> law
>>>> (in MA or somewhere else) and the legislature, for whatever
> reason,
>>>> decides that sexual orientation ought to have protected status
> under
>>>> its
>>>> civil rights laws (like race, sex, religion, etc.) Suppose further
> that
>>>> the legislature decides that prejudice against homosexuals is
>>>> widespread
>>>> and that something needs to be done beyond the enforcement of
>>>> anti-discrimination statutes (that come along with the civil
> rights
>>>> laws). In particular, they decide to pass two laws:
>>>>
>>>> (1) Any group, organization, etc. that has tax-exempt status shall
> not
>>>> discriminate against homosexuals in hiring, promotion, etc. So a
> church
>>>> that refused to hire a gay pastor could lose! its property tax
>>>> exemption, for example.
>>>>
>>>> (2) Any religious organization that conducts marriages must be
> willing
>>>> to conduct SSMs or its ministers will lose the ability to marry
> civilly
>>>> as well as religiously. A church that refuses to conduct SSMs
> could
>>>> still conduct weddings, but the couples wouldn't be married in the
> eyes
>>>> of the state unless they had a civil ceremony as well.
>>>>
>>>> So my question: is there any constitutional bar to either (1) or
> (2)? I
>>>> don't mean to say that either law is likely politically or even
> that
>>>> those who favor SSMs are in favor of either (though there are
> enough
>>>> feminist legal scholars running around who would like to yank the
>>>> Catholic Church's tax-exempt status because of their male-only
>>>> priesthood to make me think that some scholars would certainly
> advocate
>>>> them). I'm just interested in what the law might say about the
> matter.
>>>>
>>>> [End quote]
>>>> _______________________________________________
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>>>>
>>> --
>>> Prof. Steven D. Jamar vox:
>>> 202-806-8017
>>> Howard University School of Law fax:
>>> 202-806-8428
>>> 2900 Van Ness Street NW
>>> mailto:sjamar at law.howard.edu
>>> Washington, DC 20008
>>> http://www.law.howard.edu/faculty/pages/jamar
>>>
>>> "Years ago my mother used to say to me... 'In this world Elwood'
> ...
>>> She always used to call me Elwood... 'In this world Elwood, you must
> be
>>> Oh So Smart, or Oh So Pleasant.' Well for years I was smart -- I
>>> recommend pleasant. You may quote me." --Elwood P. Dowd
>>>
>>> - Mary Chase, "Harvey", 1950
>>>
>>> _______________________________________________
>>> To post, send message to Religionlaw at lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see
>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>>
>>
>> --
>> Nathan Oman
>>
>> http://www.tutissima.com
>> http://www.timesandseasons.org
>> --
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
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>>
>
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