RE: Institutional Capacity to Manage Exemptions

[Anthony Picarello]

Title: Re: Institutional Capacity to Manage Exemptions

Of course, some EC challenges are well grounded, some are not.  The well grounded should prevail, the poorly grounded should not.

 

My point is that it is (at least) difficult to defend Smith on a judicial-deference-to-legislatures basis, while simultaneously urging the opposite of judicial deference on the EC &/or separation-of-powers side.  A more plausible explanation for that position is a more generalized disfavor of religious accommodations, whether judicial or legislative.

 

And the position I'm criticizing is not generally that of the ACLU, which tends to oppose both Smith and the reading of the EC reflected in Cutter.

 

-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Steven Jamar
Sent: Monday, March 14, 2005 5:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Institutional Capacity to Manage Exemptions

I take it that challenges are improper even if well grounded? Not all challenges, of course, prevail (Rosenberger).

On Monday, March 14, 2005, at 04:53 PM, Anthony Picarello wrote:

Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment Clause challenges to their hard-won legislative accommodations:  as "blind giveaways" if they are too broad (Cutter), as "denominational preferences" if too tailored (Kiryas Joel).  They may also face separation of powers challenges on the (ironic) theory that in providing accommodations, the legislature is usurping the role of judiciary.

In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants.

Hostility by whom toward whom? The ACLU and other groups defend religious people's rights as well as the rights of others, including in schools when teachers, principals or school boards utterly ban religious _expression_

--

Prof. Steven D. Jamar vox: 202-806-8017

Howard University School of Law fax: 202-806-8428

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