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I completely agree with Alan these issues are not black and white.
The question is the lesser of two evils in determining accommodation: the courts
or the legislature. I think it is very hard to argue the courts are better
suited to make such a determination than a legislature. That is not to say
legislatures always get it right. No governing system always gets it
right. But, on average, they are better at asking whether this particular
accommodation has victims who need to be taken into account before it is
granted. The victims of religious conduct (whether they are individual or
the general public good) are rarely at the table in a litigation.
You seem to make the point that in the arena of "fundamental rights," you
are inclined to presume that the public good is coincident with the
accommodation. I used to think that as well, but I do not now. There
is no fundamental right to engage in religious conduct, because conduct has the
inherent capacity to hurt others. But let's just assume that religious
conduct is a fundamental right; even so, there are often legitimate competing
fundamental rights, like a child's right not to die for his or her parent's
religious beliefs. This country must move beyond this easy equation of
accommodation and public good. They are wholly distinctive and any
accommodation granted without consideration of the public good holds the
potential to harm others.
We will have to agree to disagree on how land use decisions are made.
Given the fact that public hearings are always required, it is hardly a bank
teller scenario. There are always multiple concerns and multiple factors,
along with state and local land use law, not to mention sec. 1983. The
unfettered discretion that was attempted to be painted in the RLPA hearings
underlying RLUIPA does not square with my experience in this arena.
Marci
To follow up on
Doug's point, one of the problem's I have with Marci's
arguments about
judicial exemptions and legislative accommodations is that
it sometimes
appears as if Marci views religious groups seeking legislative
accommodations or constitutionally mandated exemptions as self interested
actors concerned only with their own well being while she views
legislative
and administrative bodies as principled seekers and defenders
of the public
good.
Many of us see legislative and administrative
decisions differently. These
are often political responses to various self
interested constituencies --
some of whose goals conflict with those of
particular religious
communities. Religious groups have learned to play
that game because it is
the only game in town -- and some have gotten
pretty good at it. But not
all religious groups have sufficient political
capital in every community
in which they live to protect their interests.
Moreover, in many cases,
there is no reason to think that a religious
accommodation protecting a
religious group's ability to practice its faith
is less related to the
public good than a decision to reject the
accommodation in order to further
the interests of other constituencies
with conflicting interests. When
fundamental rights are at stake, I, and
others, are less inclined to accept
this kind of political interest
balancing without some judicial supervision.
To use RLUIPA as an
example, in the land use regulation process, in many
disputes, there are
often specific groups whose personal interests conflict
with the
development needs of a religious congregation. The resulting land
use
decision will often reflect a political evaluation of the competing
interest groups more than it does a principled promotion of the public
good. In the prison context, in California, an association representing
state correctional officers is a major political player that often opposes
religious accommodations in prisons. Government attention to this
association's demands on many issues is at least as likely to be
politically motivated as principled.
I have a very close
acquaintance who has spent 30 years working in local
government in
California. He describes local government this way. When a
citizen seeks a
discretionary decision from local government, he or she is
treated very
much like someone going to the local bank and asking for
money. The bank
typically wants to know two things. Have you deposited
money in the bank
that you can withdraw from your account?
(What have you given to the bank?)
Or, alternatively, if we give you
money (a loan), what will you do
in the future for us (like paying back
the loan with interest)? And in
considering the latter inquiry, they will
examine the customer's credit
rating. What have you done for institutions
that have loaned you money in
the past? Politicians operate pretty much the
same way. If you want them
to decide an issue in your favor, they want to
know what you have done
politically that has benefited them -- then you can
draw on the political
capital you have developed in your account. Or,
alternatively, they want
to know what you can do in the future that will be
politically helpful --
and a proven track record of delivering political
goods is very helpful in
establishing your political credit.
I don't say that legislative and
administrative bodies never act for the
public good. Sometimes they do.
But it is also the case that religious
groups seeking accommodations often
are willing to take into account the
needs of third parties and will
support a compromise that promotes the
broader interests of the community.
These issues are rarely entirely black
and white.
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