Religion-only accommodation question

[Douglas Laycock]

I agree that there is generally no constitutional right to harm others.  The problem with stopping at that formulation is that we now live in a society where zoning authorities in upscale suburbs believe that I can be "harmed" by my neighbors choice of the wrong off-white paint.  If there is no limit on our conception of what counts as harm, then no enforceable constitutional right remains; it is only a matter of conceptualizing harm in the right way.
 
The work of the compelling interest test is to separate serious harms from incidental contact.  By itself, the compelling interest test is not enough.  There is also implicitly at work, and it needs to be made more explicit, understandings of private space or domains of control.  If I come into your space or your property, there may be a compelling interest in preventing even a very modest harm.  If you claim to be harmed by what I do in my own space or on my own property, the threshold of cognizable harm will be much higher.  
 
Marci keeps using the example of sexual abuse, but absolutely no one has claimed a free exercise right to sexual abuse.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Hamilton02 at aol.com
Sent: Wed 4/6/2005 8:42 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Religion-only accommodation question



	I completely disagree on how much John Stuart Mill adds to the discussion.  His views are part and parcel of a great deal of American law, including tort, criminal, and regulatory law, and they are equally relevant in the Free Exercise context.  As to what question is on the table-- I don't think there is any constitutional right to engage in any conduct that can harm another person, religiously motivated or not.  Some believers may believe that their conduct should be immune from the law because they hold "rights" to engage in that conduct regardless of harm, but they are misinformed on the history of free exercise principles in the United States and insufficiently in tune with the harm religious entities are capable of rendering.

I understand that there are plenty who disagree with Smith.  I'm not one of them, largely because I have documented so many victims of religious entities, who have not received justice in the United States solely because those oppressing them are religious.  
 
Marci
 
 

	

 
 

	But the question on the table is whether there ARE rights to engage in certain religious conduct.  It is interesting that you should cite Locke.  His brand of "toleration" left out some people, Catholics and Jews, for example.  His brand of toleration left Anglicans in charge, left laws on the books that hampered Nonconformity, and thus gave Nonconformity nothing more than legislative grace.  I hope that we could move a bit beyond his pinched view of toleration.  Jefferson and Mill don't add much to the discussion that is particularly helpful.

	 

 
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