Although the issue of whether legislatures
or courts are better qualified or more likely to grant religion-based exemptions
is an interesting one, it is not the fundamental one, which is: Why should
religious persons/groups, and they alone, be given across-the-board
exemptions, whether by courts or legislatures, from valid, secular laws?
Of course, religious persons/groups, like other person/groups, should be able to
obtain from legislatures exemptions from specific laws that impose undue
hardships on them in some way or the other. But why should they be granted
across-the-board exemptions? It won't do to say that the First Amendment
requires such, because that is the issue. Why should the First Amendment
be interpreted to require such? I don't think members of this list-serv
have ever adequately answered this question.
Ellis M. West Political Science Department University of Richmond, VA
23173 804-289-8536 [EMAIL PROTECTED]
This is not responsive to Tom's
point. Why are the courts better than legislatures at balancing the
competing interests when the legislature is accused of going to far for
religion, but not when it is accused of not doing enough?
I would have the courts take a second look in both
cases, but if only the legislature is capable of balancing these interests,
then the courts should not take a second look in either case.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
512-471-6988 (fax)
From: [EMAIL PROTECTED] on
behalf of [EMAIL PROTECTED] Sent: Wed 3/9/2005 2:57
PM To: religionlaw@lists.ucla.edu Subject: Re:
Institutional Capacity to Manage Exemptions
By having
legislatures make the accommodation, I am not repealing the
Establishment Clause, which was the reason those cases came out the way they
did. The Smith decision is rather explicit that there is not an
unlimited right to accommodate. Where the accommodation is a bonus,
not narrowly tailored to lift the burden on the conduct, there would be
a strong EC argument.
Marci
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.”
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