Religion-only accommodation question
apicarello at becketfund.org
Tue Apr 12 14:33:41 PDT 2005
Marci says the following:
"Smith is pro-exemption when the legislative process is operating not as a cipher, but in its appointed mode as a deliberative entity. Given the underlying political theory of Smith, it is my view that exemptions that are blind handouts to religious entities without considering of the resulting harm are on shaky ground. Was the purpose to lift an actual burden on an actual practice (and to do no more) or was it to simply give the religious lobbyist what is requested. Those exemptions granted following due deliberation and actual consideration of the public good are legitimate."
Somehow, then, legislatures are paragons of deliberation about the public good when religious people or institutions seek exceptions under the First Amendment through the courts, but then "ciphers" offering "blind handouts" when they would legislate accommodations of religious exercise for all.
And I am unaware of any language in Smith (I'd even settle for the "underlying political theory") that could possibly support this distinction. Is there a test in Smith, both principled in theory and administrable in practice (again, I'd settle for any test at all), that alows courts to distinguish between these "cipher" legislatures and "common good" legislatures?
As I've said before, the unifying theme of this "reading" of Smith is *not* that legislatures deserve deference, but that religious litigants should lose.
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu]On Behalf Of Hamilton02 at aol.com
Sent: Sunday, April 10, 2005 4:03 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Religion-only accommodation question
Michael-- I appreciate your thoughtful responses and questions. My responses are interlineated. On the Protestant empire question, we will have to agree to disagree. It is my view that it has been deconstructed, in the Derrida sense, for a good while.
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.
It is music to my ears to hear a religion clause scholar say that children's issues trump. As a policy matter, that is my view as well. As a doctrinal matter, it means to me that Yoder was wrongly decided. The effect on the children took no part in the reasoning of the opinion. I wonder if you agree with that. I did not name Christian Scientists, because there are many faith-healing groups in the country, of which they are only the most apparent. The small faith-healing groups can be the most dangerous to children, in no small part because they stay out of the glare of the public spotlight. Group in Oregon let 3 children die 1997-98 of preventable illnesses; investigators then discovered a cemetery with 78 children's graves, roughly 22 deaths could have been prevented. Other groups believe in only feeding lettuce to a baby, or insist on nursing with no supplement even when the mother's milk is inadequate to support the baby, on and on. Of course, the Lundmann case involved a Christian Science mother who permitted her son to die of diabetes. What is at stake is the lives of children in the 32 states that have civil and/or criminal exemptions for medical neglect.
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 analogical reasoning.
Mill's No-Harm principle does not impress you, as you've said before, but I think it is the soundest approach to these issues. It's a variation on the theory that you can believe everything you like and do what you like right up to the end of your fist, when it approaches my nose.
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.
Smith is pro-exemption when the legislative process is operating not as a cipher, but in its appointed mode as a deliberative entity. Given the underlying political theory of Smith, it is my view that exemptions that are blind handouts to religious entities without considering of the resulting harm are on shaky ground. Was the purpose to lift an actual burden on an actual practice (and to do no more) or was it to simply give the religious lobbyist what is requested. Those exemptions granted following due deliberation and actual consideration of the public good are legitimate. I may not agree with them as a policy matter when they place children's well-being beneath adult's, but that is a policy and not a doctrinal judgment.
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