A Concrete Example

[Douglas Laycock]

I agree with Greg's comments, and have not meant to say anything contrary.  No one knows the exact distribution; the important point is that there are substantial numbers of officials who take religious liberty claims seriously, and there are substantial numbers who do not and will not.  There are also some who over protect religion or seek to promote it. 

I don't share Greg's optimism about Muslims in rural Georgia, but the big picture he describes is no doubt right. 

Quoting "Sisk, Gregory C." <GCSISK at stthomas.edu>:

> Actually, on the question of government responsiveness to religious 
> liberty, I think everyone is right - as contradictory as that might 
> sound at first..
>
> As one of those former government attorneys (in the Civil Division at 
> the Department of Justice), I quiet agree with Marci Hamilton that 
> government lawyers typically take religious liberty quite seriously.  
> My experience with government decision-makers, whose decisions were 
> the subject of my court work, is similar.  Indeed, as we know, many 
> religious liberty disputes that are resolved early and amicably, 
> although intervention by a lawyer for the religious claimant 
> sometimes is necessary to ensure that serious attention is paid.  
> Even when everyone is acting in good faith, the prospect of a RFRA or 
> parallel statutory claim may well serve to focus attention and make 
> sure that every voice, especially the minority voice, is heard.
>
> In addition, and I speak from personal experience here as well, Steve 
> Jamar thoughtfully explains that government decision-makers and 
> lawyers sometimes do not fully appreciate the religious perspective, 
> because it takes time (and, to use that word made famous recently, a 
> degree of empathy) that business decision-makers and litigators may 
> not have or be willing to devote to what appears to be a minor 
> dispute or idiosyncratic behavior.  Moreover, by the nature of their 
> role, government decision-makers and even more so government lawyers 
> tend to approach their work leaning in favor of collective and 
> uniform rules and government interests.  By contrast, judges by their 
> role, when so empowered by a statute like RFRA, are able to look more 
> objective and, yes, more empathetically, at the effect of a 
> government policy or program or rule on all actors.
>
> And, yes, Doug Laycock is also right in saying that some government 
> decisions may not care about religious liberty.  Even if Marci is 
> correct (and I think she is) that most government lawyers and 
> decision-makers act in good faith with an intention, even if not 
> always well informed, to take religious liberty seriously, there are 
> exceptions and there are regional and cultural differences.  And 
> those exceptions are especially likely to give rise to religious 
> liberty disputes.  In a Smith regime in which no reason or 
> justification need be offered for a uniform rule, the callous 
> bureaucratic minded government functionary need not be responsive to 
> religious liberty concerns and, if the religious believers is from a 
> minority, may not need be concerned about any majoritarian public 
> outcry from such insensitivity.  In addition, the responsiveness of a 
> political majority to the needs of a minority may shift from region 
> to region depending on who is in the majority, thus meaning, for 
> example, that a traditionalist Muslim or Christian probably need not 
> worry about government imposition in rural Georgia but may encounter 
> more serious obstacles in San Franciso.  If we believe that religious 
> liberty ought to be enjoyed by every American, whether or not she 
> lives in a community with a typically fair-minded government or not, 
> then RFRA serves to ensure the benefits of religious liberty more 
> equally across the country and through the mix of rural, suburban, 
> and metropolitan areas even within a single state.
>
> Greg Sisk
>
> Gregory Sisk
> Orestes A. Brownson Professor of Law
> University of St. Thomas School of Law (Minnesota)
> MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN  55403-2005
> 651-962-4923
> gcsisk at stthomas.edu
> http://personal2.stthomas.edu/GCSISK/sisk.html[1]
> Publications:  http://ssrn.com/author=44545[2]
>
>

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

Links:
------
[1] http://personal2.stthomas.edu/GCSISK/sisk.html
[2] http://ssrn.com/author=44545
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/religionlaw/attachments/20090624/33fd1519/attachment.htm>