Religion-only accommodation question
mnewsom at law.howard.edu
Fri Apr 8 16:16:33 PDT 2005
1. Collectively evangelical Protestantism is the majority
religion in the United States. My justification for treating
pan-Protestantism as a religion is set out in my Protestant Empire
piece, and I will not rehearse it here. The "power" test does not
advance the analysis, in my view, for it tends to overlook what I think
are relevant theological considerations in understanding religious
liberty in the United States.
2. It is not helpful to lump together all three categories. But
even if it were, I would like to know more about what you refer to as an
"orchestrated shield." But you will find no defense in these quarters
of insulating religious organizations from liability, at least as a
general proposition. The child sexual abuse cases are easy, as far as I
am concerned. I am pro-child, period. To the extent that the second
category involves adults, I worry about the possibility that some of the
plaintiffs deliberately decided to opt for faith healing. I also worry
about the empirical track-record of faith healing. I cannot accept the
argument that Christian Scientists are a bunch of nut-cases who need the
state to protect them from their religious impulses. That does not seem
to accord with the social reality of Christian Scientists. It seems to
me, therefore, that any categorical claims that faith-healers have
harmed adults are perhaps unwarranted. While I cannot defend physical
abuse, I would need to know a great deal more about the facts in the
cases before I could say that I understood fully what was at stake here.
3. There is a large difference, when thinking about the meaning,
nature, and parameters of religious liberty, between harm inflicted ON
religion and harm inflicted BY religion. Each has to be analyzed on its
own terms. There is no symmetry, and there is no sound basis for
4. I don't understand how Smith prescribes that exemptions NOT
be granted. I thought that the case left it up to the legislatures to
decide whether or not to grant religiously-based exemptions.
From: Hamilton02 at aol.com [mailto:Hamilton02 at aol.com]
Sent: Friday, April 08, 2005 11:15 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Religion-only accommodation question
Labeling religions "majoritarian" and "minority" is both bootstrapping
and inaccurate. There is no majority religion in the United States.
For your purposes, I would think the better classification would be
politically powerful and politically powerless.
Religions have been responsible for a great deal of harm in world
history, including now. I am not at all referring to the harm
engendered between faiths, but rather the actual harm inflicted on third
parties by religious entities, where the religious entities employ the
First Amendment and/or general religious liberty principles to insulate
themselves from responsibility to the common good. Land use is part of
it, but not the largest or most important part. The most significant
victims of religious entities in my world view are the thousands upon
thousands of children who have suffered (1) childhood sexual abuse by
trusted clergy, (2) permanent disability or death through
faith-healing, and (3) physical abuse. The law has been orchestrated as
a shield around these entities (through expansive readings of the First
Amendment or legislative accommodation that fails to take into account
the needs of the child). These are harms that are worldwide, and not
even close to being eradicated. Had the law been applied to religious
entities as Smith prescribes and had legislators acted as filters rather
than ciphers, there would be many fewer victims.
Of course majoritiarian religion has harmed minority religions.
On this precise point reasonable people cannot disagree. Where we part
company is over your claim that religions, generally, majoritarian or
otherwise, harm people.
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