Religion-only accommodation question

[Hamilton02 at aol.com]

There is little question that religion deserves and in the Constitution  
requires unique treatment, and that religious liberty is a high value.  But  to 
then characterize the laws that come into conflict with religious conduct as  
enacted for the "needs of the modern state" is to avoid what is hardest in this  
arena.  Religious conduct does not come into conflict so much with the  
"modern state," as it does with the rights of others -- including many rights  that 
were not in existence at the time of the framing (racial equality, women's  
and children's rights).  So we are left with two legitimate claims, one on  
each side--  the religious landowner vs. the homeowner in a residential  
neighborhood, the faith-healing parent vs. the seriously ill child, the  religious 
organization intent on keeping its processes internal vs. the  whistleblower, or 
worse, the abused child.  And the only question,  therefore, is how to find 
the right balance between these legitimate and  conflicting principles.  I have 
yet to hear of any legal scheme or set of  principles that deals with this 
direct conflict as well as the system laid out  in Smith.   Smith hands the power 
to weigh these issues to the  legislature, which is far superior to any court 
in assessing the harm done to  each side in the weighing calculation, and in 
assessing the larger, general  good.  No court is so competent.
 
A different issue is presented when the issue is religious speech (and  
speech alone), because the balancing involves a balancing of viewpoints, not  
concrete burden and harm. 
 
By attempting to wrap religious conduct in the mantle of religious speech,  
the possibility of religious accommodation is actually reduced.  A  legislature 
may be willing to tolerate a certain quantum of harm when a  small number of 
religious believers engage in the proscribed  conduct  but  would not tolerate 
it if they were forced to expand  the accommodation to all actors (think 
peyote use).  Both "equal regard"  and the drive to equate religious conduct with 
religious speech in a bid to  obtain more power for religious conduct result 
in less accommodation, and more  power to the "modern state."  But Smith opens 
the door for accommodation of  religious conduct, when the level of harm 
generated by the accommodation is  tolerable.
 
Marci
 
 
In a message dated 4/1/2005 3:15:19 P.M. Eastern Standard Time,  
mnewsom at law.howard.edu writes:

I am not  sure why some commentators cannot accept the fact that religion
is unique,  that it has cultic and ethical dimensions, among others, and
that there is  textual warrant for this claim of uniqueness.  Having said
that, there  is little doubt that some believe that the imperatives of
the modern  welfare-administrative state, a polity deeply committed to a
broad and  expansive understanding and exercise of the police power,
require that the  claims of religion need to be reined in, restrained,
made to accommodate  the needs of the modern state.




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