Are you suggesting that such accommodations are always constitutional? I'm more than willing to agree that not every accommodation that gives a religious beneficiary some kind of attenuated competitive advantage violates the Constitution -- and I recognize that determining when an accommodation impermissibly crosses the line to favor religious speakers or speech may be difficult in close cases. Are you arguing that the line isn't crossed by the Leonard Law -- or are you arguing that there is no line and that the legislative accommodation of religious speakers is always valid, without regard to how significantly they discriminate in favor of the dissemination of religious messages and ideas?
Alan Brownstein UC Davis
At 03:46 PM 3/31/2005 -0500, you wrote:
I'm not persuaded that it matters or should matter. Virtually any religious accommodation (e.g., Amos, accommodations for religious peyote use, etc.) could be cast as providing a competitive advantage to the religious beneficiary of the accommodation versus someone who wants a similar accommodation for nonreligious reasons. It is sufficient for constitutionality that the state recognizes that an accommodation will lift a government burden on religious exercise. It doesn't need to do some sort of due diligence inquiry and simultaneously create exemptions for every group that has a nonreligious reason to request an exemption.
As for Texas Monthly and whatever precedential value it may have, the plurality opinion in that case distinguished the case before it from one involving "remov[al of] a significant state-imposed deterrent to the free exercise of religion." I think that absent the religious exemption in the Leonard Law, a good case could be made that the restrictions would impose a deterrent on the school's and parents' free exercise of religion.
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, March 31, 2005 3:02 PM To: Law & Religion issues for Law Academics Subject: RE: Religion-only accommodation question
Derek: Is your argument that religion-only accommodations (by which I mean exemptions from some law for all religious objectors -- so not denomination-specific exemptions -- but not for nonreligious objectors) are *never* unconstitutional, even if they give religious speakers a substantial competitive advantage over secular speakers? Or is it that they could be unconstitutional under some circumstances, but that the circumstances aren't present here?
It seems to me that this exemption does potentially give religious schools a substantial edge over secular schools, and thus lets them spread their religious ideologies more easily than secular schools can spread their secular ideologies. Am I mistaken on this factually, or do you think that this just doesn't matter?
Eugene
> -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Derek Gaubatz > Sent: Thursday, March 31, 2005 9:27 AM > To: Law & Religion issues for Law Academics > Subject: RE: Religion-only accommodation question > > > There may be good reasons to find the Leonard Law to violate > the free speech or association rights of private secular > schools, but it doesn't strike me that an Establishment > Clause violation is one of them. The argument seems to rest > on the same faulty assumption underlying the 6th Circuit's > hopefully soon to be discredited rationale in Cutter, i.e., > that accommodations that lift government-imposed burdens on > religious exercise must march in lockstep with accommodations > of other secular rights. > > Derek L. Gaubatz > Director of Litigation > The Becket Fund for Religious Liberty > 1350 Connecticut Avenue, NW, Suite 605 > Washington DC 20036 > 202 349-7208 (phone) > 202 955-0090 (fax) > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of A.E. > Brownstein > Sent: Thursday, March 31, 2005 11:57 AM > To: Law & Religion issues for Law Academics > Subject: Re: Religion-only accommodation question > > Yes. I have been arguing that the Leonard Law is > unconstitutional since it > was enacted. If it doesn't violate the Establishment Clause > under Texas > Monthly, it should be struck down as unconstitutional viewpoint > discrimination in favor of religion and a violation of the > Free Speech > Clause under Good News Club. There is also a fairly > persuasive argument > that all private schools are expressive associations under > Dale. If the Boy > Scouts have a freedom of association right to choose their > members based on > conduct outside of Scout activities, they surely have a free > speech and > freedom of association right to prohibit Scouts from speaking > in ways that > violate the Scouts' moral standards during Scout activities. > Why doesn't a > private school have a similar right to teach and demand > adherence to moral > standards by students participating in school activities? > > Alan Brownstein > UC Davis > > > > > > At 11:15 PM 3/30/2005 -0800, you wrote: > > California law essentially bars private high schools from > >discipling pupils for the content of their speech, unless the speech > >falls within an exception to First Amendment protection. The law, > >however, "does not apply to any [institution] that is > controlled by a > >religious organization, to the extent that the application of this > >section would not be consistent with the religious tenets of the > >organization." > > > > It strikes me that some parents would like to send > their kids > to > >a high school that has some kinds of civility codes (either because > they > >want their own children to be subject to such codes, or because they > >think their children's education would be better if the > children around > >them are subject to the codes). Under the California law, though, > >that's not an option, even if they send their kids to > private school -- > >unless they send their kids to a private religious school whose > >religious tenets require the imposition of such a speech code. It > seems > >to me quite possible that this would give such religious schools a > >legally enforced edge over secular schools: They can offer > parents an > >educational environment for their children that secular > schools cannot. > > > > Is the religious exemption therefore unconstitutional? > > > > Eugene _______________________________________________ > >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. > > _______________________________________________ > 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. > > _______________________________________________ > 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. > _______________________________________________ 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
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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_______________________________________________ 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.
