If, as Marci says, legislatures “are better [than courts] at asking whether this particular accommodation has victims who need to be taken into account before it is granted,” would that also mean that legislative accommodations should not be struck down by courts on the ground that they impose costs on third parties? In other words, Thornton v. Caldor (striking down the required day off for all religious worshipers) was wrongly decided, and likely Texas Monthly as well – and probably TWA v. Hardison too, since the Court there probably interpreted the Title VII religious-accommodation provision more narrowly than Congress intended, based on the Court’s concerns about the effect of accommodation on other employees. Moreover, under the “trust the political body more than the courts” view, Zorach was correctly decided; the school board is in the best position to weigh the interests of religious students and nonreligious students concerning the availability of release time. If the legislature is truly better at making these determinations, then courts also have to trust it when it choose to accommodate, even when there are arguable effects on third parties. But if courts strike down these legislative accommodations while never declaring any constitutional accommodations, then the principle is not “let the legislature decide,” but rather “religious claims should lose no matter who decides.”
----------------------- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: [EMAIL PROTECTED] -------------------------------------------------------
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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
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