"Mormon Student, Justice, ACLU Join Up"

Wed Sep 5 09:45:44 PDT 2007

While there is some persuasive force in this argument as a matter of first
analysis, I can see several objections. First, doesn't it conflict with the
law as it actually is? When there are secular exemptions, under the
Smith/Sherbert concatenation the denial of a religious exemption gets strict
scrutiny, which the secular exemptions effectively prevent it from passing.
Second, doesn't the argument prove too much, in the sense that the other
activities the state exempts from the continuous-student-status requirement
(military service and "community service") are also voluntary? And third,
wouldn't it involve courts too deeply in matters theological to have to
determine whether a particular practice was compelled by the student's
religion or was only peripheral (which also raises the question of whether
free exercise is effectively only available for religious bodies whose
doctrines and requirements can be reduced to something like a legal code,
rather than to individuals who may interpret their religious ideas)?

-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com

On 9/5/07, Paul Finkelman <pfink at albanylaw.edu> wrote:
>
> The "choice" issue, at least for me, is not about being a neo-atheist,
> since I am not one.  The issues here is seems is that the student does
> have "choice" to not do the mission.  As I understand it not all Mormons
> do; and no one has answered the question as to the timing of the
> mission. MUST he do it at a certain age.  If not, then there is a great
> deal of choice.  He can choose to go to college and then do the mission.
> He can choose to do the mission and then go to college.  I assume, for
> example, that Mormons attend West Point or the other service academies
> and that they do not leave school for a year to do a mission.
>
> Try this, suppose instead of being in regular university the student was
> at a service academy and therefore a member of the military -- which is
> a choice.  And then asks for a leave to go on a mission.   Suppose he is
> not a student but enlists at 17 or 18, serves until 19 and as he is
> about to be shipped to Iraq  says I need a leave for a year.  I don't
> think he gets it and I don't see how that would be a necessary
> accommodation of religious practice.
>
> I have never suggested people are "irrational" in their belief and I
> find David's suggestion that I have to be way over the top.
>
> 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
> >>> davideguinn at hotmail.com 09/05/07 9:41 AM >>>
> It does seem to me that one of the most compelling arguments in favor of
> religious freedom is the recognition that religious belief is not simply
> a matter of choice--like deciding whether or not to join a fraternity or
> sorority.  As Calvin and Paul suggested, it is a product of grace.  That
> does not mean that people of faith are irrational with respect to the
> theology that grows out of that belief, it does mean that faith touches
> something much deeper and more profound.
>
> That said, I think the evangelical fervor displayed by the neo-atheists
> (as E.J. Dionne so aptly labels them) demonstrates that this religious
> connection can attach to a materialist ideology as well as a
> transcendentalist one.  The mistake Harris and company make is in
> thinking that their choices are purely rational and that everyone should
> believe exactly as they do.  (Sounds like some religious fundamentalists
> to me.)
>
> In this sense, I think the issue does touch significantly on religion
> and law.
>
> David
>
>
> From: RJLipkin at aol.comDate: Wed, 5 Sep 2007 08:58:10 -0400Subject: Re:
> "Mormon Student, Justice, ACLU Join Up"To: religionlaw at lists.ucla.edu
>
>         I'd welcome an on-list discussion of this matter, with Eugene's
> permission of course.Bobby      Robert Justin LipkinProfessor of
> LawWidener University School of LawDelawareRatio Juris, Contributor:
> http://ratiojuris.blogspot.com/Essentially Contested America,
> Editor-In-Chief http://www.essentiallycontestedamerica.org/
>
>
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