Potentially Important California State Case

[Hamilton02 at aol.com]

> 
> Marci, I take it that you would have objected to the exemption in the 
> Volstead Act for the religious use of wine.  Can you defend that?  
> 

As I have stated many times, I think the peyote exemption is perfectly fine, 
and I don't see much difference here.  The religious use of wine in the 
amounts used for religious purposes can hardly be said to be a public health threat.



> 
> I do not think that “autonomy” was the cause of the horrible abuse of 
> thousands of children by Catholic priests and other religious.  The problem was 
> the failure of Bishops to put children ahead of priests.  And this has precious 
> little to nothing to do with exemptions from generally applicable laws.  

I deeply disagree.  The entire culture fostered the Catholic Church's culture 
of child abuse.  Prosecutors knew of cases but did not prosecute because the 
Church said it would take care of it itself.  Parents complained to priests 
and bishops, but not to prosecutors.  Many states did not require the reporting 
of child abuse by clergy, though they required the identical reporting by 
psychiatrists, social workers, and doctors.  The Church played on and perpetuated 
a culture of secrecy that rested on a concept of autonomy from the public 
good.  

Finally, the value of children till very recently has been quite low.  
Children don't vote, so when their interests were compromised in the legislative and 
executive process, there was little recourse.  That is thankfully changing.



> 
> 
> How do you know with such certainty what the “public good” is?  Is it, for 
> you, just a matter of what the majority in the legislature says?  If so, why 
> do we need a constitution with its messy antimajoritarian principles?  For 
> example, de jure racial discrimination might have been seen as in the public 
> good by a majority of Americans once upon a time.  So was the Court wrong in 
> Brown?   

The public good is an evolving concept.   Brown was correct, just like the 
Court's evolving free exercise jurisprudence, which is opening the door to more 
liberty for those who have been oppressed in the name of relgious "liberty."  
Primarily children.

  As a matter of institutional competence, the legislature is in a far better 
position to weigh and study the public good than a court that is limited to 
the facts produced by particular parties.  In a republican democracy, a 
legislature is not a majoritarian institution, but rather free to do what is right, 
regardless of what the people, the majority want.  The Framers rejected a right 
to instruct to give representatives the latitude to do what is in the public 
interest, which is never necessarily equal to what the public thinks it wants.

Regards, Marci
 
> 
> 
> 

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