Of Phelps and Persecution

[Hamilton02 at aol.com]

Chris Lund has put the cart before the horse here.  Measuring the  neutrality 
of the law according to whether the organizations' assets are  exhausted is 
backward.  Strong impact of a neutral law does not prove by  itself that it is 
not neutral -- it just may prove that the religious  entity acted in ways that 
severely harm others.  It is simply a fact that  religious organizations -- 
just like businesses -- may cause such harm that  losing all of their assets 
even falls short of what they should owe society for  what they have done.  
Thus, the impact of the law may well prove  a lot more about the wrongdoing within 
the organization than the law's  neutrality.  It is not unconstitutional for 
a religious organization  to be put out of business by the operation of 
neutral, generally applicable laws  when the behavior has been as execrable as the 
behavior is here.
 
Now, if the tort law ONLY impacted religious organizations and no secular  
organizations (like the law banning sacrifice in Lukumi), there might be some  
argument about neutrality, but I have yet to see the tort law that is directed  
solely at or works only against religious organizations.
 
For what it's worth, the speech issue in my view is limited solely to place  
analysis.  Those arguing that there is something especially problematic in  
the delivery of this personal message against a family at this location are very 
 persuasive.  If this group wants to make these points on the apron in  front 
of the Supreme Court or other public place removed from the family's  
observance, they deserve protection, despite the ugliness of their  message.  Doing 
it in physical proximity of a mourning family observing  their religious 
obligations to their dead is a very different  matter.   The First Amendment does 
not guarantee anyone the optimal  location for speech, even when the speech is 
otherwise highly protected.
 
Marci
 
 
Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University

The  Hare Krishnas and Unification Churches faced similarly devastating  
verdicts because of IIED and invasion-of-privacy claims brought by private  
individuals who wanted their destruction, and that reflected how neutral and  
generally applicable tort rules could combine with jury discretion to be  
devastingly non-neutral.  If I'm remembering Doug Laycock's Remnants  piece right, all 
of Krishna's land holdings in the United States were put into  receivership to 
secure just one of the judgments.  


 



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