A Concrete Example

[Hamilton02 at aol.com]

I agree with virtually everything Greg says.  (Of course there are  bigots 
in government as there are inappropriate actors among religious  groups...My 
baseline is the Framers' Calvinist baseline that all humans are  fallible.) 
  I would take one exception, though, and that is to the  use of the term 
"minority" to describe religious liberty issues. 
 
 The term "minority" has force in our culture because of its  entrenched 
use in the race context.  It is, therefore, a loaded term that I  think has no 
place in religious liberty discussions in the United  States. Religious 
entities that seek what the law prevents use it for  political purposes and I 
think academics need to be more circumspect.
 
 Religious lines do not break down along majority/minority  categories.  
First, there is no majority religion in the United States and  increasing 
diversity in even the most remote regions (see Diana Eck's work,  which is 
extremely eye-opening).  Second, so-called minority religious  groups like the 
Native American Church have not done badly in the  legislative process and, 
therefore, also are not necessarily politically  ineffective.  Look at the 
effectiveness of the Christian Scientists in  getting medical neglect 
exemptions that pave the way for groups like the  Followers of Christ to let dozens 
of children die of easily treatable  ailments.  When Oregon realized that it 
could not prosecute the  Followers of Christ for 3 child deaths in a very 
short period of time due  to the CS supported exemptions, Oregon considered 
eliminating the exemptions  altogether.  The CS had sufficient political 
capitol to kill the move  against the exemption on the civil side and even an 
aspect of it on the criminal  side.  And that is after autopsies of dozens of 
children proving their  practices of letting children die who could have been 
easily saved.   That is true political power and it is being exercised by a 
so-called  "minority" religion that, by the way, is decreasing in numbers  
annually. Third, I've seen folks describe even Catholics as a "minority"  
religion, which implies that the RCC is both politically ineffective and  
powerless.  Nothing could be farther from the truth.  While the RCC  does not 
have a majority of Americans as believers, it is the largest religion  and 
exercises more political power than anyone has been able to fully document  
yet.  
 
Part of what is going on here is a failure of the political scientists  and 
sociologists in studying religion and, in particular, the less  attractive 
sides of religion in the United States.
 
Marci
 
 
In a message dated 6/24/2009 2:30:58 P.M. Eastern Daylight Time,  
GCSISK at stthomas.edu writes:

 
From:  religionlaw-bounces at lists.ucla.edu 
[mailto:religionlaw-bounces at lists.ucla.edu]  On Behalf Of Sisk, Gregory  C.
Sent: Wednesday, June 24,  2009 1:20 PM
To: 'Law &  Religion issues for Law Academics'
Subject: RE: A Concrete  Example
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 quite 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 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 
busy 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 
objectively 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 believer is from a minority, the  bureaucrat may 
not need be concerned about any majoritarian public outcry  resulting from 
his or her 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  Francisco.  
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 throughout 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_ 
(http://personal2.stthomas.edu/GCSISK/sisk.html)  
Publications:  _http://ssrn.com/author=44545_ 
(http://ssrn.com/author=44545) 
 





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