I'm not grounding it on the text, which gets us fairly little
here. I'm generally persuaded by Justice Scalia's original meaning
argument in City of Boerne v. Flores as to free exercise; as to the
original meaning of free speech, I think that's basically unknown and
likely unknowable.
I should say, by the way, that my argument is *not* that
religiously motivated conduct or speech should be treated worse than the
nonreligiously motivated conduct or speech; I think the Free Exercise
Clause bars such discrimination against religious motivation. I think
Lukumi is right, and Locke v. Davey is wrong. Rather, my argument is
that the Free Exercise Clause ought not be read as allowing people to do
things that harm others simply because they feel a religious obligation
to do those things.
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Richard Dougherty
> Sent: Monday, March 14, 2005 2:35 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Free Exercise, Free Speech, and harm to others
>
>
> 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%20Proh
> > ib
> > 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.
> >
>
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