preferring religion in accommodations

[Berg, Thomas C.]

Marty: In the edited book of essays I did for Prometheus Books (The Free Exercise Clause: Its History and the Contemporary Debate--shameless plug), my choices overlap a lot with what you mention.  In addition to the Laycock and Garvey pieces from the JCLI volume, and Eisgruber/Sager, I have excerpts from:  (1) Alan Brownstein's review, "The Right Not to Be John Garvey," which argues that religion is an autonomy right but that religion is of special importance to people and deserves distinctive protection.  Alan's argument interacts very well with John's and Chris/Larry's.  (2) Also Mike Paulsen's "God is Great, Garvey is Good," which is in the same vein as Garvey's but, typically for Mike, interestingly and provocatively written.  And I'd now add parts of (3) Andy Koppelman's more recent piece on why the state can treat religious practice, on a very general level, as a distinctive good.  And (4) Michael McConnell's "The Problem of Singling Out Religion."



Tom



-----------------------------------------
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/>
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] on behalf of Marty Lederman [lederman.marty at gmail.com]
Sent: Wednesday, March 21, 2012 4:01 PM
To: Law & Religion issues for Law Academics
Subject: preferring religion in accommodations

Request for advice on what to assign my students.  The general topic for the session in question is why the state can or should grant exemptions on religious grounds but not on non-religious grounds held with the same degree of conviction . . . etc.

There are plenty of good sources arguing that the state should or must follow Welsh, and extend the exemption to "analogous" nonreligious objections (with much play in the joints, of course, on how to identify what's analogous) -- Doug's J. of Contemp. L. Issues piece; Sager & Eisgruber; etc.

But what are the best accounts of why the state can and should prefer religious claims?  Garvey in that same J. Contemp. L. Issues volume?  Something by Steve Smith, such as his 2005 Colorado piece?

Thanks in advance for any suggestions.