The quid pro quo theory
sjamar at law.howard.edu
Thu Jun 10 06:07:40 PDT 2004
Sorry, but I don't see any of this as demonstrable or even as really
very relevant to the interpretation of or to a consideration of the
value of the religion clauses.
1. Free exercise is a valuable thing regardless of a law insuring it
which affects various groups differently. The different impacts could
well have a lot more to do with the content of the religion than the
content of the guarantee of freedom to do it. Some beliefs and
practices are simply going to be less likely to be affected by state
actions, and therefore less likely to need protection from those state
actions. To say one group "benefits" more than another seems to me to
be worse than irrelevant -- it seems to be missing the essential point
and seems to be likely to stir up trouble. Equality-thinking gone
nuts. Or govt-focused thinking gone way too far. Or even construing
an insuring provision as a grant.
2. Non-establishment similarly affects various groups in various ways.
But the only way to say one group benefits more is to posit that there
is a normal group against which one can or should measure.
3. How can one compare religious freedom in one state against another,
except in some very crude ways, or except by a priori defining one's
values into the equation? Does Italy not have religious freedom? Are
non-Christian religions harmed by Swiss law (at least pre-reform law)?
Simply non-starters for me.
Gathering info and discussing things in context is one thing. Positing
general theories strikes me as beyond sensible. But I still have those
old practice roots which have not fully withered away despite two
decades in academia.
Prof. Steven D. Jamar vox:
Howard University School of Law fax:
2900 Van Ness Street NW
mailto:sjamar at law.howard.edu
Washington, DC 20008
"Rarely do we find men who willingly engage in hard, solid thinking.
There is an almost universal quest for easy answers and half-baked
solutions. Nothing pains some people more than having to think."
- Martin Luther King Jr., "Strength to Love", 1963
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