"Mormon Student, Justice, ACLU Join Up"
Brownstein, Alan
aebrownstein at ucdavis.edu
Thu Aug 30 09:37:53 PDT 2007
Part, but certainly not all, of the response to Marty's thoughtful
comment has to do with the way we define obligation and choice.
Sometimes religiously motivated conduct involves a mixture of choice and
obligation. For example, conduct may be grounded on general rather than
specific "commands" - there is a discretionary element in how that
general command is interpreted and implemented, but that does not mean
the religious individual's decision is entirely free from obligation.
Also, some obligations arise out of relationships, rather than laws or
commands. By analogy, most of us who are married and/or have children
experience a powerful sense of duty and obligation to our spouses and
children that isn't reflected in any specific legal mandate. But the
lack of a formal command doesn't make those obligations any less
powerful - and we would experience considerable torment in being forced
to choose between those obligations and the requirements of civil law.
Religious obligations can also be relational rather than the subject of
specific, enumerated mandates.
A broader sense of obligation may reduce the scope of the problem of
legitimating exemptions that Marty describes.
Alan Brownstein
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 30, 2007 8:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: "Mormon Student, Justice, ACLU Join Up"
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 <mailto:laycockd at umich.edu>
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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>> _______________________________________________
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>> _______________________________________________
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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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