Professor Ellis' response, if I understand it correctly, is that he does understand that religious people will be seriously harmed by being forcibly assimilated -- but he doesn't seem to think that's much of a problem. Thus, he is not one of the persons to whom I alluded in my comment (at least with regard to religious people, I don't know his position on gay rights or whether he believes it is acceptable to cause gay persons serious harm by forcibly assimilating them too) -- who acts as if religious people do not exist or can easily give up their faith.
In his earlier post that I responded to, Professor Ellis suggested that the only justification for exempting religious practices from general laws subject to some standard of review was that "the majority of Americans are religious, favor such exemptions, and have a right to get what they want." I would describe the justification of protecting people from suffering the kind of serious harm that results from the forced assimilation of either gay persons or religious persons as qualitatively different from the justification of giving the majority what they want.
Alan Brownstein UC Davis
PS (I discuss this general issue in my article "Justifying Free Exercise Rights", 1 University of St. Thomas Law Journal 504 (2003))
Professor Ellis wrote,
Marci, By across-the-board exemptions, I mean exemptions from all laws or a large category of laws that are given to certain persons/groups, unless the government can convince a judge that in any given situation the exemption should not be given because it can pass some sort of test, such as the strict scrutiny test. My original question was, Why should religious persons/groups, and they alone, be given such exemptions? So far as I can tell, no one who has responded to this question has given a credible or prima facie answer. Prof. Newsome cited the First Amendment itself, but as Eugene said in response, its meaning is not self-evident. Thus, I ask again, Why should it be interpreted as a guarantee of across-the-board exemptions? All that Doug and a few others did was to argue that if religious persons/groups are not given such exemptions, they will be harmed in some, presumably serious ways, e.g., they will be assimilated to some degree into the larger society. This, however, goes without saying. Of course, they will be harmed and/or assimilated. Religious persons/groups, however, are not the only persons/groups in society who will be harmed or assimilated if they are forced to obey valid, secular laws. Thus, I repeat, Why should religious persons/groups alone be given such special treatment by the government? Prof. Scarberry said that religion was special but did not explain in what sense it was special. Prof. Brownstein said that religious persons/groups should get across-the-board exemptions because persons, like you and me (?), who are opposed to such exemptions are comparable to gay-bashers, i.e., they are out to eliminate religion from society. Mercy! I will not dignify that with a response. Although you, Marci, are an opponent of across-the-board religion-based exemptions, even you say (below), "Religion is a given part of human existence, and deserves to be given as much latitude as possible." Surely, however, your conclusion does not follow from your premise. I am, therefore, still waiting for an answer to my question.
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