"Mormon Student, Justice, ACLU Join Up"

[Paul Finkelman]

Isn't it possible to argue that government service (the military) and
community service are fundamentally "different" then just wanting to go
off and spread your faith? You might argue that "selling" the faith is
no different than "selling" any other product and the university can say
we do not allow this.  If the student wanted to go work in religiously 
based hospital that would be educational "community service" but
preaching door-to-door is no different than selling knives or magazine
subscriptions door-to-door.  There is no "educational value" to it, and
no "community service" to it.  I do not mean to offend anyone by these
analogies, but rather to argue that community service and military
service (a form of community service) are really different than the work
of the missionary.  What does the school say to the student who says, "I
want to take four years off to go study at the feet of my 'holyman' or
'holywoman,' but make sure you save my place in the class and have my
scholarship ready when I return.  Or the student who says, I need to
drop out and sell things door-to-door to get some money, but hold my
place in the class and my scholarship, because if you don't, you are
"establishing" the Mormons who are selling their religion door-to-door,
but their place in the class and their scholarhip will be waiting for
them.

Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> laycockd at umich.edu 08/30/07 11:00 AM >>>


  Even Sandy has the instinct to distinguish religious obligation
from all other religious motivations, however strong.  That's a
mistake, and leads to a wholly unworkable rule and absurd results. On
remand in Witters v. Wash,. Dept. of Services for the Blind, the
Supreme Court of Washington said that becoming a minister is not an
exercise of religion, because it is not mandatory. Obviously not
mandatory, because most people never do it. And there is a Second
Circuit case in 1980 or thereabouts, Brandon v. some school board,
that says that Christian prayer is not an exercise of religion
because it is not mandatory at any particular time. But Muslim prayer
at the five required times per day would be an exercise of religion.

  In the case at hand, given that the U grants leaves of absence for
community service and military service, it's not clear that the
requested solicitude for Mormon missions is so "special."

  Quoting Sanford Levinson <SLevinson at law.utexas.edu>:

> Doesn't the question boil down to whether the school can put ANY
> restraints on the desire to take a couple of years off?  If,
argendo,
> it can, then I don't understand why the Mormon gets special
> solicitude, given that it's not an obligation, as distinguished
from
> Sherbert.  Whether the school's policy is wise is a separate
question.
>
> Sandy
>

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