Religion-only accommodation question
Hamilton02 at aol.com
Hamilton02 at aol.com
Sun Apr 10 15:00:47 PDT 2005
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.
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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