Re: Harm to Others as a Factor in Accommodation Doctrine

[Brad Pardee]

As I read this, I found myself wondering what the point is of having constitutionally protected free exercise if the exercise is only free when the legislature decides it is.  The scenario you describe seems to be one where the legislature is free to demand or prohibit any conduct they like, and to the religious adherent who is unable to comply without violating the tenets of their faith is simply out of luck unless they can get the legislature to exempt them.  The legislature can then, out of either hostility or indifference, simply say, "We're not singling you out.  Everybody has to do it."   Using your theory as I am understanding it, would you say that the Catholic Church is required, by anti-discrimination laws, to hire women as priests unless the anti-discrimination law was to specifically exempt the Church?  That certainly is a neutral, generally applicable law, and women who want to be priests could certainly claim that they would be harmed by an accomodation to allow the Church to only have men as priests.  And yet, if the Church is required by law to violate what it understands to be the constraints placed upon it by God, how does that equate with the free exercise of religion?   Am I missing something in terms of your understanding of accomodation and free exercise?   Brad Pardee  ----- Original Message ----- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Saturday, March 12, 2005 7:36 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine To clarify my earlier postings before I had to run my kids around to 14 different activities-- I did not mean "forced accommodation" in the sense Doug interpreted it.  I meant that there are times when neutral, generally applicable laws require assimilation.  Only when an accommodation is enacted by a legislature for the purpose of lifting a burden on religion and only when that accommodation does not harm others is assimilation permissibly avoided.   I did not mean to say, Ellis, that across-the-board exemptions are ever good ideas.  Mandatory exemptions were clearly not required when the First Amendment was drafted or ratified, and is not a credible approach.  Permissive legislative accommodation, though, is valuable in a world where religious belief is an avoidable element of human existence.   We actually don't have to figure out "harm to third parties."  That, in my view, is the job of the legislatures.  I say in my book, though, that in this era, legislatures have been knee-jerk providers of religious accommodations without asking whether someone could be harmed by the law.  It boggles the mind to think that Congress could have considered RFRA for 3 years, which was going to potentially hobble every law in the country, without asking whether someone might get hurt if many laws were suspended as applied to religious entities.  Religious entities should have latitude like any other groups to lobby to their advantage, but legislators are supposed to ask the hard questions (even when society is not asking them).   Marci

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