Potentially Important California State Case

[Hamilton02 at aol.com]

Well, let me just say that I find Chip's and Bob's article on church autonomy 
posted today troubling.  It was part of a church autonomy conference at BYU 
earlier this month.  I will be posting my article for the conference on SSRN in 
the near future.  I don't think the issues are obscure or complex.  Rather, 
the public good is the only correct guiding principle in deciding whether 
generally applicable, neutral laws apply to religious institutional conduct, not 
whether religious groups should be shielded from the application of general 
laws.  Belief, and therefore internal structure, may be protected, a la Reynolds 
and Smith, but there is no reason to give religious institutions special 
treatment relieving them from obligations under general laws. There is no 
philosophical or theological or legal theory that supports shielding religious groups in 
this way.  It's all a hearkening back to the clergy privilege in England that 
rightfully was rejected eventually.  Children are seriously, and I mean 
seriously, at risk under any version of church autonomy.  Lipservice to children is 
not enough; the law must make it possible for them to be fully protected.  An 
overreading of the Court's religious institution cases led the Catholic 
Church to  believe it had a right to "autonomy" and therefore to some of its worst 
errors involving children in the last several decades.

I totally agree with Marty on vaccinations.  I also agree with Marty that the 
key with understanding RLUIPA is the assessment of harm on each side, and I 
find the assessments by the religious groups to be divorced from any 
consideration of the general public good.  I find it amusing, though, that Marty would 
say that when state and local interests are important, they will prevail.  The 
California RLUIPA bill that was killed proposed that many interests dear to 
the hearts of private homeowners can never be considered to be "compelling."  
The push by those defending RLUIPA is to say that NOTHING satisfies the 
compelling interest test but the very RARE land use law.  This is an attempt to 
takeover land use law for the benefit of religious groups, period. And I don't see 
the federal government's intervention in these cases muting that point at all.  
 I wish it were otherwise.

Marci


n a message dated 3/1/2004 7:16:45 PM Eastern Standard Time, 
marty.lederman at comcast.net writes:

> Well, I think I do agree with Marci on one thing:  Among the worst, least 
> defensible religious accommodations are "exemptions for clergy for child abuse 
> reporting and for medical neglect of children."  Indeed, I've posted several 
> times here that I think many religious exemptions from vaccination 
> requirements are unconstitutional.  Even here, however, the questions are often very 
> complex.  In the child-abuse setting, for example, see the questions examined 
> with care in the extremely detailed and thoughtful draft article to which 
> Chip Lupu linked earlier today.
>   
> Marci's principal point -- and it's one for which I have a great deal of 
> sympathy -- is that religious accommodations ought to be suspect if they impose 
> significant costs on other private parties.  I think the Court agrees with 
> this, too -- see, e.g., Caldor, Hardison and Walsh.  Indeed, it's difficult to 
> find anyone who doesn't agree with this.  Even Michael McConnell has written 
> that a release-time program such as that at issue in Zorach would be 
> unconstitutional if "the nonparticipating students were inflicted with 'an entirely 
> wasted hour of school.'"
>   
> The question on which Marci and her RLUIPA detractors primarily disagree is 
> whether and to what extent RLUIPA imposes significant costs on neighbors of 
> the religious properties.  In my view, this is best viewed not as a debate 
> about the constitutionality of RLUIPA itself, but instead as a dispute about its 
> case-specific application.  In cases where the state can demonstrate such 
> harmful effects, it will prevail under the RLUIPA test, particularly where the 
> state has been unwilling to impose those costs on others in the context of 
> exemptions for nonreligious properties.  If the state can't prove such harms, 
> or where it has been willing to permit such harms in nonreligious cases, the 
> exemption for the analogous religious use will be reasonable and 
> constitutional.       
>  
> >> ----- Original Message ----- 
>> 
> 

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