Religious exemptions and undue preference for religion/Smith

[hamilton02 at aol.com]

Fair question.  I would not want to make the causation claim but it has been strongly correlative.  Perhaps the better word is synergistic.  
In concrete terms, Smith has been crucial in clergy abuse litigation to hammer home the point that churches are subject to the tort and criminal laws.   It also has been an aid in discussions with legislators who fear the political  backlash of clergy but want to do the right thing by children and child victims.
.    

Marci


Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Paul Horwitz <phorwitz at hotmail.com>

Date: Mon, 23 Mar 2009 08:56:15 
To: Marci Hamilton<hamilton02 at aol.com>; Law & Religion issues for LawAcademics<religionlaw at lists.ucla.edu>
Subject: RE: Religious exemptions and undue preference for religion/Smith



Do you mean that Smith as symbol has been important to child and disabled adult victims of church sexual abuse?  I guess I have two questions about this.  1) Those movements were becoming increasingly popular in the 1990s.  Do you think there's a causal relationship, or merely a correlative one?  2) I take it you're not saying that Smith as substance has been vital to those movements.  I'm not sure I see how that statement would be accurate.
Paul HorwitzUniversity of Alabama School of Law

> To: religionlaw at lists.ucla.edu
> Subject: Re: Religious exemptions and undue preference for religion/Smith
> From: hamilton02 at aol.com
> Date: Mon, 23 Mar 2009 13:24:35 +0000
> 
> Perry--  with respect to your last comment about Smith and Boerne, could you please point to illegal religious practices that you would want the free exercise clause to protect that are not protected under Smith?  I am interested in the actual impact of Smith.  I can tell you that Smith has been crucial in freeing child abuse and disabled adult abuse victims from church practices and control.  In other words, it has fueled a civil rights move for children and disabled adults, the most vulnerable in our society.  The more I have seen Smith in practice, the more convinced I have been of its fundamental soundness. 
>  I would welcome examples from others as well, of course.
> 
> Marci
> 
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Cardozo School of Law
> Sent from my Verizon Wireless BlackBerry
> 
> -----Original Message-----
> From: Perry Dane <dane at crab.rutgers.edu>
> 
> Date: Mon, 23 Mar 2009 00:17:59 
> To: <religionlaw at lists.ucla.edu>
> Subject: Religious exemptions and undue preference for religion
> 
> 
> Eugene,
> 
>          I wonder if you're reading the court's footnote too 
> broadly.  When the court says that "granting an exception to 
> Cornerstone (or perhaps all parochial schools) based on the theory 
> that the free exercise claims elevate Cornerstone (or all parochial 
> schools) to a higher status than secular nonpublic schools-would be 
> equally unacceptable under federal law," it might simply mean that 
> such an exception would be "unacceptable" as a requirement of free 
> exercise doctrine, not that it would be unconstitutional if required 
> by a legislature.
> 
>          Even if the court did mean more than that, note that what 
> Cornerstone is asking for is far removed from any sort of 
> paradigmatic religion-based exemption.  Whatever burden the 
> government is imposing on free exercise here is quintessentially 
> "indirect."  Moreover, while I'm no great friend of the 
> burden-benefit distinction, there surely are some free exercise 
> claims, particularly when they involve alleged right to benefits 
> rather than defenses against burdens, that are not only off the 
> tracks on free exercise grounds but jump the tracks, so to speak, to 
> the point of raising establishment clause concerns.  For example, it 
> seems to me that if Mrs. Sherbert's religion not only forbade work on 
> Saturdays but any work at all, and also forbade contributing to the 
> unemployment insurance fund, her claim to unemployment benefits 
> would, had it been accepted by the State, actually have raised the 
> specter of an unconstitutional religious preference.  And I say this 
> as someone who believes in a vigorous free exercise clause and 
> continues to lament Smith and City of Boerne.
> 
>                          Perry
> 
> 
> 
> *******************************************************
> Perry Dane
> Professor of Law
> 
> Rutgers University
> School of Law  -- Camden
> 217 North Fifth Street
> Camden, NJ 08102
> 
> dane at crab.rutgers.edu
> Bio: www.camlaw.rutgers.edu/bio/925/
> SSRN Author page: www.ssrn.com/author=48596
> 
> Work:   (856) 225-6004
> Fax:       (856) 969-7924
> Home:   (610) 896-5702
> *******************************************************
> 
> 
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