"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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