Religion-only accommodation question
mnewsom at law.howard.edu
Mon Apr 4 15:49:26 PDT 2005
The "rights of others" to which you refer are a product of the modern
state. Thus, for example, the modern state confers a whole set of "land
use rights" on homeowners.
I agree that there is good reason to worry about the competence of the
courts. But that doesn't mean that constitutional protections must go
by the boards. The courts have to do the best that they can with what
they have. (I must say that the courts have not been particularly
creative in developing ways in which they can better understand the
social dimension or reality of some of the cases that come before them.
But that is an entirely different discussion.)
I don't think that a different issue is presented when the issue is
religious speech. The relevant question concerns not that it is speech,
but that it is religious.
You are right, though when you say that wrapping religious conduct in
the mantle of religious speech does in fact reduce the possibility of
Your reference to "toleration" is telling. First, Madison sought to
distinguish between toleration and rights, preferring the former over
the latter. Second, if we reject Madison (I don't but others might),
are we to go back to the Act of Toleration and theories of tolerance of
the sort that Locke supposed? I hope not. (Having said that, I do think
that there is much in our history and experience which suggests that
toleration rather than rights is what is at stake in our church-state
law. If that is true, the apposition of modern-state-created "rights"
against whatever unique treatment religion deserves (you did not use the
term "rights" in connection with the claims made by religion, or members
of a religion) is, to say the least, lopsided and loaded, just like
From: Hamilton02 at aol.com [mailto:Hamilton02 at aol.com]
Sent: Friday, April 01, 2005 11:02 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Religion-only accommodation question
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.
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
is unique, that it has cultic and ethical dimensions, among
that there is textual warrant for this claim of uniqueness.
that, there is little doubt that some believe that the
the modern welfare-administrative state, a polity deeply
committed to a
broad and expansive understanding and exercise of the police
require that the claims of religion need to be reined in,
made to accommodate the needs of the modern state.
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