Recent Threads

[Steven Jamar]

Well, we do use compulsion in criminal law, and we have many other
distinctions that are hard to use.  Mere difficulty or philosophical or
psychological critiques are not enough to make a concept not useful in the
law.  That it is not as hard-edged or clear as we might like  would make
most law invalid.

Also, does one look at the inward experience of the person, the sociological
pressures, the religious doctrine?  All can be a form of compulsion, and we
might come to different conclusions about  their value in religious freedom
cases.

I think some rough calculus of mandatory/optional,
compulsion/suggestion/silent, choice/no choice, genuine/fraudulent can be
useful in distinguishing those things we will support from those we will
not.

Steve


On 9/6/07, waddi at umich.edu <waddi at umich.edu> wrote:
>
> 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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> >
>
>
>
>
>
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>



-- 
Prof. Steven Jamar
Howard University School of Law
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