Recent Threads

[waddi at umich.edu]

To bolster what my erstwhile professor (Doug Laycock) has said, the 
theological basis upon which a compelled/motivated distinction in FE 
claims would be based is unworkable.

Speaking from at least a Christian theological perspective, (I did my 
undergrad and masters in theology at Cambridge and Yale respectively), 
compulsion is far too difficult a theological category upon which to 
base a legal distinction.

To most Protestant theology, religiously COMPELLED outward behavior is 
distinctly minimal, if it exists at all.  There may be degrees of 
recommendation for outward behavior, but that which is properly 
considered as compelled may only exist in the interiority of the heart 
and mind.  Regardless, there will be infinite variety of opinion on the 
matter, frequently even within the minds of individual theologians.

Roman Catholic theology (at least the official kind from the hierarchy) 
has categorized various behaviors into different degrees of requirment 
in a manner which law can easily recognize.  In fact, the hierarchy has 
made this theology INTO law - canon law - but the average catholic in 
the pew has no knowledge or interest in the distinctions.

This variety and uncertainty will not provide a basis upon which a 
legal distinction can be reasonably based.  In any case, the use of 
such a basis would violate EC jurisprudence on denominational 
neutrality, as well as FE precedent on the right to deviate from one's 
own denomination and use individual beliefs as a basis for a claim (cf. 
Thomas v Review Bd., Seeger).

The only alternative seems to be some sort of imprecise and frankly 
superficial inquiry into the degree to which given conduct really is 
motivated by some religious impulse.  If it is merely related to 
religion, it is not enough; if it seems driven in a significant way, it 
is enough.  It may be intellectually unsatisfying, but it seems to work 
in the real world and there may be no alternative.

David Waddilove MA (hons. cantab.), MAR, JD

Law Clerk to the Hon Morris S Arnold,
8th Circuit Court of Appeals.
Adjunct Professor,
University of Arkansas at Little Rock Bowen School of Law.


Quoting Douglas Laycock <laycockd at umich.edu>:

> Some Christians proselytize; some don't.  Same with atheists.
>
> There is clearly a hostile secular reaction to evangelical activism and
> political influence; it is visible in our politics and in some of the
> resistance to free exercise claims, and it shows up statistically in a
> surge of people reporting no religion in surveys about religious
> belief.  It's not a reaction to the Christian Reconstructionists, who
> are numerically trivial.  But many of the folks having the reaction
> can't tell the difference between the conservative values voters and
> the Christian Reconstructionists.
>
> The mission is a central religious experience in Mormonism. What Fred
> Gedicks described is the social understanding of the faith.  The
> reality of any religion lies not in formal doctrine but in the social
> understanding, practices, and lived experience of its faithful.  That
> smart people on this list can doubt whether the Mormon mission is
> religious dramatically illustrates what is wrong with the
> compelled/motivated distinction.
>
> I agree -- and have testified -- that the religious motivation must be
> substantial or primary and not just lurking in the background
> somewhere.  That means the resulting line is one of degree and not a
> bright line.  But to say the Mormon mission is not distinguishable from
> any other reason for taking a year off is like saying that because 1
> isn't much different from 2, and 2 isn't much different from 3, and so
> on -- that 1 is indistinguishable from 100 or a hundred trillion or any
> other number.
>
> 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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