One might ask, why should those who object
to the majority's views on religion alone be given across-the-board
exemptions from the majority's views taught to their children in public
schools? My third-grade daughter is subject to being taught about all sorts of
things that I might not like. (Not another unit on why we must protect all rain
forests ...)
I'm happy that there is an
Establishment Clause that has some bite. But then I also think the Free
Exercise Clause should have some bite. Religion is special; the state can't
do much to support it, and the state must provide some extra space for private
_expression_ of it.
Mark S. Scarberry
Pepperdine University School of Law
P.S. I'm not in favor of eradicating
rain forests, but I feel about them sort of the same way Mark Twain felt about
Michelangelo after Twain had been in Italy for a while.
-----Original Message-----
From: West, Ellis
[mailto:[EMAIL PROTECTED]
Sent: Wednesday, March 09, 2005
2:40 PM
To: Law &
Religion issues for Law Academics
Subject: RE: Institutional
Capacity to Manage Exemptions
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]
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On
Behalf Of Douglas Laycock
Sent: Wednesday, March 09, 2005
4:30 PM
To: Law & Religion issues for
Law Academics; religionlaw@lists.ucla.edu
Subject: RE: Institutional
Capacity to Manage Exemptions
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.
University
of Texas Law School
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.
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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