"Mormon Student, Justice, ACLU Join Up"

Susan Freiman susan.freiman.law.65 at aya.yale.edu
Thu Aug 30 23:53:31 PDT 2007


I'm having trouble understanding how "choice" is helpful. Ultimately, 
one chooses to believe in god or not.

Susan

Brownstein, Alan wrote:
>
> 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 <mailto: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
>     </horde/services/go.php?url=http%3A%2F%2Fwww.foxnews.com%2Fwires%2F2007Aug25%2F0%2C4670%2CReligionLawsuitScholarship%2C00.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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