Religious speech, it seems to me, should be no more and no less
protected by the Free Speech Clause than other speech. Thus, the
interesting questions (including the ones we've been discussing on
related threads) arise when there's a claim of religious accommodation
for conduct, or for speech that causes harm through its noncommunicative
components.
So my pairs of examples do compare the Free Speech Clause
treatment of speech (speech that causes harm through what it
communicates) against the Free Exercise Clause treatment of conduct (or
speech that causes harm through its noncommunicative impact). But
that's the comparison, I take it, that Brad and Marc were urging; if
they had simply been demanding protection for religious speech, they
would be getting it, see Widmar, Lamb's Chapel, etc.
Jim Maule writes:
> Is the distinction between your hypothetical pairings one of
> free speech versus free exercise or one of words versus
> conduct? (Flynt writes, Glynt yells; the NAACP publishes,
> Operation Rescue blocks; Schenck writes/publishes, Penck blocks).
>
> If Glynt, Operation Rescue or Penck were to write/publish
> would there be a difference in the analysis? Assume that the
> writing was based on, and reflected, sincerely held religious
> beliefs. Does free speech subsume free exercise if the
> exercise is that of writing/speaking/publishing? Does free
> exercise not include free speech with respect to religious
> beliefs? Are the two concomitant with respect to religious
> expression? I'm not convinced that the overlap is symmetrical
> or concomitant, and I wonder if concluding that the overlap
> IS concomitant effectively makes one of the freedoms
> subservient to the other.
>
> Nor do I think that a blanket conclusion requiring a higher
> level of proof of harm for free exercise than for free speech
> is necessary or wise. I also think that there is a freedom of
> religious expression that draws on both freedoms and that may
> need to be tested differently than either free speech or free
> exercise.
>
> Jim Maule
> Villanova University School of Law
>
> >>> [EMAIL PROTECTED] 3/14/2005 12:59:04 PM >>>
> Brad's and Marc's posts raise an excellent question:
> If free speech means that people have the constitutional
> right to impose burdens on others, why shouldn't free
> exercise operate the same way? The same can be said of other
> rights, incidentally: For instance, the Compulsory Process
> Clause right gives criminal defendants very substantial
> powers to constrain others' liberty. (I set aside here the
> permissible scope of legislative accommodations, and focusing
> on what's constitutionally
> compelled.)
>
> I think that free speech and free exercise *are*
> different this way, and let me briefly try to explain why.
> I'll begin with some hypotheticals that I think help
> illustrate this, and then offer a broader theoretical
> explanation. (The following is borrowed from my A Common-Law
> Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999),
> http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the
> hypos, which consist of pairs of claims, one free speech and
> one religious
> freedom:
>
> 1. (A) Larry Flynt inflicts emotional distress on
> Jerry Falwell by publishing his vitriolic "ad parody" in
> Hustler Magazine; when sued under the IIED tort, Flynt raises
> his free speech rights as a defense. (B) Mary Glynt
> inflicts emotional distress on Jerry Falwell by standing
> outside his window at night with a bullhorn; when sued under
> the IIED tort, Glynt raises her free exercise rights as a
> defense -- she claims (assume that the claim is sincere) that
> she feels a religious obligation to remonstrate this way with
> heretics (and she considers Falwell to be one).
>
> 2. (A) The NAACP interferes with Claiborne Hardware's
> business relations by publicizing the names of its visitors,
> and urging people to boycott Claiborne; when sued under the
> interference with business advantage tort, it raises its free
> speech rights as a defense. (B) Operation Rescue interferes
> with an abortion clinic's business relations by blocking the
> entrance to the clinic; when sued under the same tort, it
> raises its (or its members') free exercise rights as a
> defense -- it claims (assume that the claim is sincere) that
> its members feel a religious obligation to protect fetuses this way.
>
> 3. (A) A modern-day Schenck tries to interfere with
> the war effort by publishing books, leaflets, and Web sites
> urging people to vandalize munitions manufacturers; when
> prosecuted for counseling illegal conduct, he raises his free
> speech rights as a defense. (B) His religiously pacifist
> cousin Penck tries to interfere with the war effort by
> blocking the entrance to a military contractor's building;
> when prosecuted for trepassing, he claims (assume that the claim is
> sincere) that he feels a religious obligation to fight the
> war this way.
>
> Under standard free speech doctrine, the free speech
> claimants in each of these cases would have a good Free
> Speech Clause defense, *even though* their speech causes harm
> to others. But do people on this list think that the
> religious freedom claimants in each of these cases should
> likewise prevail with their Free Exercise Clause defenses?
>
> The government interests -- and the private interests
> that the government is protecting -- in all the cases, it
> seems to me, are quite similar. The speech and the religious
> conduct jeopardizes those interests (perhaps not identically,
> but to similar degrees). But while the government is barred
> from restricting the speech when the content of the speech
> causes harm to others, the government may (and I think
> should) restrict the religious conduct when that causes harm
> to others.
>
> If I'm right, then this suggests that we can't just
> casually equate free speech and free exercise claims
> (perhaps, for instance, because the Court was correct to
> conclude in Smith that the Free Exercise Clause right is a
> nondiscrimination right, or perhaps because both Smith and
> Sherbert were wrong and the proper test for exemptions from
> generally applicable laws is less than strict scrutiny though
> not rational basis). And here's my thinking as to why this is so:
>
> The Free Speech Clause and other rights *are* rights to
> inflict certain kinds of harm on others in certain ways (for
> instance, through the communicative impact of speech); we
> think that for various reasons, the government ought not be
> allowed to interfere with this harm, perhaps because speech
> is so valuable to democratic self-government, or because we
> suspect the government will abuse its regulatory powers.
> Likewise, as I argue at
> http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specifi
> c%20Prohib
>
> itions%20on%20Government, in a few contexts (for instance,
> discrimination in hiring clergy, or religious frauds), the
> Free Exercise Clause also allows religious people or
> institutions to inflict what the law might otherwise treat as
> harm to others.
>
> But we ought not read the Free Exercise Clause as
> generally licensing religious objectors to inflict harm on
> others (or even to do so subject to a possible strict
> scrutiny trump). As I argue, my relationship with my God may
> be important to me, but it can't by itself be a
> constitutionally sufficient justification for my harming you,
> even slightly (for instance, by intentionally inflicting
> emotional distress on you in secular ways, blocking access to
> your property, or slightly
> vandalizing your commercial building). From your perspective and the
> legal system's perspective (even if not from my own), my God
> is my God, not yours, and the Constitution doesn't give those
> acting in His name sovereignty over your legally recognized
> rights and interests.
>
> The trouble with such a broad religious freedom claim
> to do whatever you please so long as you don't harm others is
> not that private contract, property, and tort law rights, or
> private interests in being free from criminal vandalism
> (consider the rights and interests implicated in the three
> examples I note above) somehow outweigh religious freedom
> rights: How could we justify such a conclusion?
> Even
> if one somehow determines that such private rights are as
> important as religious freedom rights, I see no way to
> explain why they are more important, which would be required
> to show such an outweighing.
>
> Rather, the reason why a general exemption regime can't
> override these rights must be that any religious freedom
> right that's solely grounded in the religious motivation for
> one's actions simply can't extend to actions that impair
> others' rights or impose improper externalities on others.
> Whether your countervailing right is a right to life, to
> bodily integrity, or to something perhaps somewhat less
> important, such as property or freedom from emotional
> distress, if it is indeed a right then the religiosity of my
> motivation can't justify violating it.
>
> This, I think, is reflected in some of the most
> eloquent claims for religious tolerance, which focus on the
> right to do what one's religion commands or urges *so long as
> it doesn't harm others*. Jefferson's defense of religious
> freedom, for instance, was justified by the argument that
> someone's "say[ing] there are twenty gods, or no God . . .
> neither picks my pocket nor breaks my leg." Madison wrote
> that religion should be "immun[e] . . . from civil
> jurisdiction, in every case where it does not trespass on
> private rights or the public peace." Similarly, Michael
> McConnell argues that we should be "free to practice our
> religions so long as we do not injure others." That *is* an
> appealing sort of claim (though I think that it's ultimately
> not judicially administrable, as a constitutional matter).
> But the claim that we should generally be free to practice
> our religions *even when* we injure others is not.
>
> But in any event, I'm curious: Even if people disagree
> with this theoretical explanation, what do they think about
> the three specific examples I give above?
>
> Eugene
>
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern
> Sent: Monday, March 14, 2005 6:50 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Harm to Others as a Factor in Accommodation Doctrine
>
>
> Vindication of constitutional rights often entails shifting
> burdens form one party to another. A public figure defamed
> without malice has to suffer damage to reputation in the
> furtherance of creating a vigorous marketplace of ideas. The
> interests of a fetus'father in the birth of his child yield
> to the superior right of a mother not to be compelled to
> carry to term. One could multiply still further such
> examples. For those who believe accommodation can never
> entail any burdens on third parties, I wonder if they could
> explain why the constitutional right (or
> interest) is in free exercise of religion qualitatively
> different than these other examples.
>
> Marc Stern
>
>
>
>
> --------------------------------------------------------------
> ----------
> --------
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> [EMAIL PROTECTED]
> Sent: Monday, March 14, 2005 9:39 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Harm to Others as a Factor in Accommodation Doctrine
>
>
>
> The state courts are actually not uniform on this -- except for race.
> I
> could not find a church that was permitted to discriminate
> according to race, even if the discrimination was religiously
> motivated. The ministerial exception is being argued in many
> clergy abuse cases as a general right to control all aspects
> of the clergy-religious institution employment relationship.
>
>
>
> Marci
>
>
>
> The general right of churches to insist that their employees
> share the church's religious beliefs cannot be used to
> circumvent the other prohibitions of title VII.
>
>
>
>
> Bard Pardee wrote:
>
> Doesn't that render the Free Exercise clause powerless as a
> guarantor of religious freedom? Suppose, for instance, we
> were talking about freedom of speech instead of the free
> exercise of religion. I can't imagine that the legislature
> would be able to outlaw any type of speech they wanted to as
> long as it was in a neutral and generally applicable law, and
> that people would have to lobby the legislature for an
> accomodation to be able to have the freedom of speech they
> thought the Constitution already provided. Rather, the
> legislature would need to be able to justify to the court why
> the outlawing of a type of speech was not an unconstitutional
> infringement on an explicitly Constitutionally protected
> freedom. Why would the Free Exercise clause have less weight
> and power to protect than the Free Speech clause? Tell me
> what I'm missing in your understanding of what the Free
> Exercise clause actually protects.
>
> Marc Stern wrotes:
>
> Vindication of constitutional rights often entails shifting
> burdens form one party to another. A public figure defamed
> without malice has to suffer damage to reputation in the
> furtherance of creating a vigorous marketplace of ideas. The
> interests of a fetus'father in the birth of his child yield
> to the superior right of a mother not to be compelled to
> carry to term. One could multiply still further such
> examples. For those who believe accommodation can never
> entail any burdens on third parties, I wonder if they could
> explain why the constitutional right (or
> interest) is in free exercise of religion qualitatively
> different than these other examples.
>
> _______________________________________________
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