A Concrete Example

[Christopher Lund]

Yes, and I think also maybe I'm just using the phrase "religious liberty" differently than other people.  Maybe my point would have better expressed if I used the phrase "religious exemptions" rather than "religious liberty" throughout my original post.
 
Obviously "religious exemptions" and "religious liberty" are strongly linked.  The first word in each phrase is the same.  And so, really, is the second.  In these regulatory cases, liberties are exactly what exemptions are; a person with an exemption from a law has the liberty not to obey it.
 
Of course, if we are going to equate "religious exemptions" with "religious liberty," then religious liberty is not always good.  I'll concede that straight away.  If, say, accommodating my religious liberty means burdening third parties (i.e., the doctrine of Thornton v. Caldor) or creating incentives for them to convert (i.e., Seeger and Welsh) * then religious liberty can be quite bad.  
 
I take that to be a major point of those who criticize religious exemptions * religious liberty, in the context of regulatory exemptions, can be a deeply bad thing.  And I don't mean that as slander; I mean that as an impartial description of their position.  I take it that Professor Jamar would put it another way and say they just "value religious liberty differently."  And I have no quarrel with that phrasing; I certainly didn't mean to impugn anyone, to suggest that they weren't trying to serve the general good, or to call anyone names.
 
Best,
Chris
 
 
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 

>>> laycockd at umich.edu 6/24/2009 10:17 AM >>>


Well, as RFRA's sponsor said at the time, religious liberty is very popular in the abstract, but not very popular in application.  These government agents often place zero value on the plaintiff's religious liberty, and that is all that matters.  And I think that is what Chris meant.
Quoting Steven Jamar <stevenjamar at gmail.com>:

> I don't think I agree with this.  I think they all value religious liberty a
> great deal, but view the religious as separate from the government in every
> way.  And they are not sensitive to the range of religious experience and
> don't have the imagination or desire to understand the religious experience
> of the other.
> It is not that they don't value religious liberty in the abstract (they
> would not want an established church; they would not want their freedom to
> believe and act in their religious traditions), but they don't understand
> others.  And don't want to make the effort to understand.
>
> So the accommodation/exception claim falls on deaf ears not because they
> don't value religious liberty, but because they don't see it or value it in
> the way it is being asserted.
>
> This may be a distinction without much difference in result, but I think it
> important to understand that unless we can connect our liberty arguments to
> what they do value, we will not be able to reach them.
>
> We all have this attribute.  Marci's take is quite different from mine in
> many ways, but I think we can understand each other because we value the
> idea and think about the idea of religious liberty.  But few people have the
> time or inclination or training to do this sort of thinking and evaluating.
>
> But they do value liberty.
>
> Steve
>
>
> On Tue, Jun 23, 2009 at 9:03 PM, Douglas Laycock <laycockd at umich.edu> wrote:
>
>> I think Chris is exactly right that some significant number of government
>> actors place zero value on religious liberty.  Some others seem to place
>> affirmative value on saying no exceptions and making people who want
>> exceptions conform to the rules.
>>
>> Given either of these situations, if you want some value placed on
>> religious liberty, then overriding instructions, judicially enforceable, are
>> the only solution.
>>
>>
>> --
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social Justice
> (IIPSJ) Inc.
>

 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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