RE: Request for a citation

[Volokh, Eugene]

Title: Message

Sorry, I should have made it clear -- I mean laws banning religious discrimination by private entities.

-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Monday, January 10, 2005 4:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: Request for a citation

Eugene --  Just curious:  Are you referring to laws banning private religious discrimination or public religious discrimination?  Certainly as to the latter -- and probably as to the former, as well -- I seriously doubt that they rest in significant part the empirical conclusion you mention about uncertainty of correlation.  I think, instead, that they are predicated upon two more fundamental ideas:

 

(i) the notion that one's access to important public Offices, or benefits, or goods, should not turn on one's beliefs about "ultimate" matters, such as the existence and nature of God, or of eternity, nor on the creed that one has chosen (or that one is born into), nor (generally) on one's practice of religious rituals . . . any more than access to such things should turn on one's race, or sex, even if there is a strong "empirical" correlation between persons described as such and some socially desirable behavior;

 

and

 

(ii) the warning from the fifth paragraph of the Memorial and Remonstrance that religion must not be employed as an "engine of Civil policy" -- at least in part because it would be an "unhallowed perversion of the means of salvation."  

 

With respect to both of these rationales, I assume that a very strong underlying principle is that the state's actions should not have a significant impact on a person's choice of faith, or "ultimate" beliefs.  (Obviously, this resonates strongly with Doug's notion of "substantive neutrality.")

 

These concerns are increasingly pressing these days when governments appear to be turning to "faith-based" providers, and schools, and prisons, not in order (or not solely) to facilitate private religious choice, but instead based upon the state's own conclusion (whether empirically or anecdotally based) that promoting religion will lead to behaviors the state has a secular reason for promoting.  (I think Vince Blasi has a good treatment of the Memorial and Remonstrance point in 87 Cornell L. Rev. at 793-798.)

 

I think the places to start looking to see whether I'm right about this would be historical studies of the Memorial & Remonstrance and, especially, of article VI.  I would be very surprised to learn that the Founders did not believe that there was a correlation between religion and socially valued behaviors.  I suspect that they opposed religious discrimination in spite of what they assumed to be a very strong correlation.  But others on the list undoubtedly know much more than I about that history.

 

  

----- Original Message -----

From: "Volokh, Eugene" <[EMAIL PROTECTED]>

To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>

Sent: Monday, January 10, 2005 6:28 PM

Subject: Request for a citation

In a forthcoming article, I make the following argument:  "In
principle, the correlation between theological belief and behavior may
sound plausible:  One could argue, for instance, that people who believe
that they'll be punished in Hell for evil behavior and rewarded in
Heaven for good behavior would be much better behaved than those who
lack such a belief.  But I think that laws banning religious
discrimination generally rest in part on the empirical conclusion that
these correlations, while plausible in theory, end up being very weak in
practice."

I'm sure I'm not the first person to make this argument, and I'd
like to give credit to those who have made the argument before me, in
more detail than I have.  Can anyone point me to such a source, please?
Please e-mail me off-list, at [EMAIL PROTECTED].

Also, I know that a similar argument had been made in favor of
abolishing the rule that only people who believe in a future state of
rewards and punishments may be allowed to testify under oath.  Can
anyone please point me to the classic case or treatise that may have
made that argument?  Many thanks,

Eugene
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.