Religion-only accommodation question

[Hamilton02 at aol.com]

In the cases I have been referencing, the argument was not that there is a  
free exercise right to sexual abuse, because they involved church coverups, not 
 the sexual abuse by itself.  The argument has been, rather, that there is a  
free exercise right (1) to be legally unreachable, unaccountable, immune,  
autonomous (pick your word) if a case touches on employment issues  (the most 
novel formulation is the LA Archdiocese's "Formation privilege"); (2)  to keep 
secret files secret regardless of the tortious or criminal behavior that  might 
be in those files, because they involve clergy; and (3) to keep child  abuse 
secret.  California courts in particular (because they have been  faced with 
so many cases as a result of the one-year window abolishing the  statute of 
limitations) have rejected such claims.  Other courts are in the  process of 
moving in that direction, but there are plenty of existing  jurisdictions that 
treat the First Amendment as a shield from legal liability in  clergy abuse 
cases, e.g., Missouri and Wisconsin.
 
In any event, clergy abuse is not the only example that I have raised --  
medical neglect and physical abuse of children are also relevant issues.   As are 
the conflicts that arise between ambitious religious building projects in  
residential neighborhoods; fair housing laws and religious apartment owners who  
do not want to rent to unmarried couples or single parents; and inmate 
demands  and prison security.  
 
While Doug says that he prefers the compelling interest test in part  because 
it distinguishes between harms,  the compelling interest test (and  esp the 
least restrictive means test) puts the law's thumb heavily on the side  of the 
religious conduct, which in turn trivializes the harms on the other  side.  
There is also a double devaluation of harm flowing from  the religious conduct 
under the compelling interest test, because the court  lacks the ability to 
aggregate all of the social harm generated by a given  action. A judge has one 
set of facts before him, and legitimate courts  limit their determinations to 
those facts.  Under the Smith approach,  legislators institutionally are not 
only better equipped to make those  determinations, but they also are capable of 
placing all of the social  interests (including the value of religious liberty 
and an objective evaluation  of the aggregation of harm generated by the 
religious conduct) on the scale, and  make a judgment under a much larger horizon. 
   
 
 
Marci
 
In a message dated 4/9/2005 12:21:42 P.M. Eastern Standard Time,  
DLaycock at law.utexas.edu writes:

Marci keeps using the example of sexual abuse, but  absolutely no one has 
claimed a free exercise right to sexual  abuse.



 
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