Nevada district court applies Fraternal Order of Policev.Newark(3d Cir.), holds no-beard poli

hamilton02 at aol.com hamilton02 at aol.com
Wed Aug 13 16:55:45 PDT 2008


I  agree w Gene on this up to the pt he endorses state by state rfras. While I think state by state is preferable to federal, I do not think they are either good policy or sound constitutionally.  But I think there is another point here -- pushing these issues into the ct keeps legislators relatively uninformed about the actual impact of religiously motivated behavior and therefore unrealistically positive about the potential harm from such conduct.  That increases risk to the vulnerable (especially those with little power in the legislative process), particularly children.  I do not think the first amendment was intended to or should impede the protection of the vulnerable from harm. I realize that I have now traveled relatively far from the original post, but think the framework is important to explain why I do not view courts as good fora for determining the scope of accommodation. 
Marci 
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>

Date: Wed, 13 Aug 2008 10:09:42 
To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu>
Subject: RE: Nevada district court applies Fraternal Order of Police
	v.Newark(3d Cir.), holds no-beard poli


    I agree with Marci about the Free Exercise Clause, but of course
both Title VII and various jurisdiction-by-jurisdiction RFRAs (though
there is not one in Nevada) represent the political process itself
making a judgment that courts should draw the lines in the first
instance.

    I do think it makes a difference that statutory schemes such as
Title VII and RFRA are themselves revisable by the political process, so
courts draw the first line but the legislature may revise them -- much
as has long been the case with the making of common-law rules and
common-law defenses, as well as statutorily founded antitrust law,
post-Federal-Rules-of-Evidence privilege law, fair use law under the
Copyright Act, and the like.  That's why I support
jurisdiction-by-jurisdiction RFRAs even though I also support Smith
(http://www.law.ucla.edu/volokh/relfree.htm).  But I think it's helpful
not to generally condemn judicial decisionmaking as such as to religious
exemptions, only judicial decisionmaking that's final and unmodifiable
by the legislature.

    Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of 
> hamilton02 at aol.com
> Sent: Wednesday, August 13, 2008 10:04 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Nevada district court applies Fraternal Order of 
> Police v.Newark(3d Cir.), holds no-beard poli
> 
> I think the policy debate on this case illustrates why the 
> First Amendment and the courts have no business determining 
> accommodation.  The ease w which those outside of government 
> can judge that govt policy is necessarily wanting because it 
> may burden religious practice is impressive. 
> But the more interesting question is why the courts are 
> better at drawing these lines than the political process.
> Marci
> Sent from my Verizon Wireless BlackBerry
> 
> -----Original Message-----
> From: "Christopher Lund" <Lund at mc.edu>
> 
> Date: Wed, 13 Aug 2008 10:33:17
> To: <religionlaw at lists.ucla.edu>
> Subject: Re: Nevada district court applies Fraternal Order of 
> Police v.
>   Newark (3d Cir.), holds no-beard poli
> 
> 
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