"Mormon Student, Justice, ACLU Join Up"

Marty Lederman marty.lederman at comcast.net
Thu Aug 30 08:42:06 PDT 2007


Of course I agree with Doug that part of the impulse to protect only mandatory aspects of religion is a desire to limit exemptions.  And part of it is also based on the misunderstanding he identifies -- the bias in favor of traditional "thou shalt" notions of religious commitments and precepts.

But that's not the whole story.  For many people, the only reason religious exemptions make sense at all -- the only reason they're constitutionally permissible, let alone possibly mandatory in some cases -- is because of the notion that people should not be put to a choice between complying with the civil commands of the law and the eternal commands of a "higher power."  That it's cruel and unfair for the state to ask individuals to make that choice, unless absolutely necessary.

But if there is a "choice" -- if the desire or commitment to deviate from the law in question is "merely" motivated, however strongly, by religious beliefs and precepts -- it not only opens the door for exemptions much wider, but it also becomes much more difficult to justify privileging religiously motivated conduct from non-religiously motivated commitments and ethical precepts held with the same degree of conviction.  At that point, why is religion distinguishable from secularly motivated "strong" belief systems that point in the direction of legal noncompliance?

This is, of course, the difficult question that Eisgruber and Sager have recently examined.  And I should add that I'm not saying anything that Doug hasn't already himself written much more powerfully and persuasively than I ever could, in his wonderful Religious Liberty as Liberty piece.  That's why Doug ends up in that piece concluding that the Constitution -- the Free Exercise Clause -- must be construed to include conduct motivated by strongly held secular convictions as included within the ambit of the "free exercise of religion."  I agree with him on that score.  But if that notion wer to take hold, then the exemptions would be blasted really wide, which is why this solution has never been very appealing to government officials, legislators and judges, with the singular and important exception of conscientious objection, where it simply would have been untenable to exempt religious objectors while insisting that secular pacifists go off to kill and be killed.  
  ----- Original Message ----- 
  From: Douglas Laycock 
  To: religionlaw at lists.ucla.edu 
  Sent: Thursday, August 30, 2007 9:11 AM
  Subject: Re: "Mormon Student, Justice, ACLU Join Up"


  Right. This should be an easy case if the government has the facts right.

  The intuition to protect only mandatory aspects of religion is enormously widespread, flowing I think partly from a desire to get rid of these cases, and partly from a fundamental misunderstanding of religion as involving only compliance with rules. Of course compliance with rules is often religiously important, and looms larger in some faiths than in others, but I can't think of any religion that consists solely of compliance with rules.

  Quoting "Vance R. Koven" <vrkoven at gmail.com>:

  > More to the point, I would think, is that neither military nor community
  > service is required, either (well, maybe community service when part of a
  > criminal sentence). Since there are clearly secular exemptions to the rule,
  > it can't be said to be a neutral rule of general application. Smith
  > therefore doesn't apply, and Sherbert does, right?
  >
  > Vance
  >
  > --
  > Vance R. Koven
  > Boston, MA USA
  > vrkoven at world.std.com
  >
  > On 8/30/07, Ed Darrell <edarrell at sbcglobal.net> wrote:
  >>
  >> No, the mission is not required, in the same sense that, if elected, a
  >> cardinal may turn down the papacy, or Mother Teresa can return from the dead
  >> and refuse canonization -- well, maybe not that serious.  Only someone who
  >> is not a member of the church and doesn't have to face years of questions in
  >> elders' quorums, queries from potential spouses' parents, and the general
  >> disapproval of everyone a person knows, would think it's a voluntary sort of
  >> thing that is optional, and no big deal.
  >>
  >> People are encouraged to breathe, but it's not required . . .
  >>
  >> Ed Darrell
  >> Dallas
  >>
  >> *Brad Pardee <bp51414 at alltel.net>* wrote:
  >>
  >> I found this line particularly interesting:
  >>
  >> "The state's request to dismiss Haws' lawsuit notes that Mormon missions
  >> are
  >> encouraged, not required. Haws was 'under no compulsion to choose between
  >> the tenets of his religion and continued receipt of the PROMISE
  >> scholarship,' the motion reads."
  >>
  >> As I've read the posts here over time, it has seemed like the question is
  >> often finding the balance between the free exercise clause and the
  >> establishment clause. To my layman's eye, though, it would seem, though,
  >> that in this case, the state is potentially managing to run afoul of both
  >> clauses. It sounds like the student is making a free exercise claim when
  >> he
  >> talks about being forced to choose between his religion and his
  >> scholarship.
  >> However, if the state is making pronouncements that distinguish between
  >> what
  >> a religion encourages and what a religion requires, could a case be made
  >> that this qualifies as excessive entanglement?
  >>
  >> Brad Pardee
  >>
  >> ----- Original Message -----
  >> From: "Volokh, Eugene"
  >> To: "Law & Religion issues for Law Academics"
  >> Sent: Thursday, August 30, 2007 1:28 AM
  >> Subject: "Mormon Student, Justice, ACLU Join Up"
  >>
  >>
  >> > Any thoughts on this?
  >> >
  >> >
  >> >
  >> http://www.foxnews.com/wires/2007Aug25/0,4670,ReligionLawsuitScholarship,00.html
  >> >
  >> > The Justice Department is joining the American Civil Liberties Union in
  >> > backing a student who lost his state-funded merit-based scholarship
  >> > because he left college to serve a two-year church mission.
  >> >
  >> > The department's Civil Rights Division filed a friend-of-the-court brief
  >> > Friday in U.S. District Court in Charleston on behalf of David Haws, a
  >> > student at West Virginia University.
  >> >
  >> > Haws, a Mormon, is suing a state scholarship board, alleging it violated
  >> > his First Amendment right to freely exercise his religion. His attorney
  >> > argues that by denying Haws' request for a leave of absence, the board
  >> > forced him to choose between his religion and his scholarship through a
  >> > state program, known as PROMISE.
  >> >
  >> > The Justice Department noted that the PROMISE Board grants deferments
  >> > for military and community service, and that by denying a deferral for
  >> > religious purposes, the board was placing a lower value on religious
  >> > deferments....
  >> > _______________________________________________
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  Douglas Laycock
  Yale Kamisar Collegiate Professor of Law
  University of Michigan Law School
  625 S. State St.
  Ann Arbor, MI  48109-1215
    734-647-9713



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