Eugene: Are you grounding your analysis here of speech and religion in the text of the First Amendment? It seems to my untutored eye that it is precisely "exercise" of religion that is protected, no? Is there any reason to think that exercise of religion might not be harmful? I guess my question is whether you see the harm done by religion as unprotected because of some constitutional reason (such as, it amounts to establishment)? Why would the religious motivation be treated any differently than an anti-religious motivation, or a commitment to Millian liberalism, or the will to power? If the protection for speech's harm, is that speech is good for democracy, cannot one make the same argument about much, if not all, religious exercise?
(I'm not defending the principle that there is a right to harm, only looking for consistency.) Thanks, Richard Dougherty "Volokh, Eugene" wrote (in part): > 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%20Specific%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. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
