This is certainly a broader issue -- and its an interesting point. Three quick thoughts.
1. I think Perry overstates "the American legal instinct not to let theological differences play too large a role in leading to different legal results." See, e.g. Sunday closing laws, conscientious objector laws limited to those who oppose all wars, grooming requirements in institutions and for government employees etc. But he is certainly correct that in some cases we have generalized religious accommodations and extend benefits more broadly than necessary to achieve neutrality or equality among faiths. 2. There has always been some significant tension between the goal of avoiding discrimination among sects and the goal of equalizing treatment between religious and non-religious individuals and institutions. Until recently, during the modern period of religion clause doctrine (post World War II), avoiding sect discrimination was considered the more serious constitutional problem. That paradigm is changing. 3. The integration of different religious groups in American society (which resulted in part from the constitutional commitment to religious equality) created a kind ecumenical merging of certain sect specific religious values with popular normative beliefs. I think, for example, that the Catholic tradition of confidentiality between clergy and penitent in confession has influenced American beliefs about the importance of clergy-congregant confidentiality and those more generic beliefs, in turn, end up being expressed through law. Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Perry Dane Sent: Thursday, January 12, 2006 10:28 AM To: religionlaw@lists.ucla.edu Subject: Drawing lines among religons I want to suggest a broader issue if I could, arising out of the Davey discussion. It seems to me that there is an American legal instinct not to let theological differences among religious traditions play too large a role in leading to different legal results, even if those different results could be justified on objective, secular, grounds. Or, to put it another way, our law often bases a particular legal rule on a paradigm case drawn from one religious traditions, and then tends to extend the application of that rule to other faiths, even if their beliefs or practices don't, strictly speaking, fit the original paradigm. Some examples, important and less so: (1) The strict clergy-penitent privilege makes the most sense for those religious traditions that have a strong notion of a specific sacrament of confession, and an absolute seal of confidentiality surrounding that confession. Yet it is applied to all faiths. (If the paradigm case for the privilege were rabbis, for example, rather than Catholic priests, it would probably be less stringent.) (2) If we applied the broader principles of the modern law of charities to the status of churches, it seems fairly clear that many, but not all, would qualify as genuine "public benefit" institutions. Yet the assumption is that, barring outright fraud and the like, all churches qualify. (Notice the difficulty that the opinions in Walz had in explaining why. Notice also that English law is much less sentimental in this regard: it famously holds that while orders of nuns that do educational or other work in the community can qualify as beneficiaries of a valid charitable trust, orders of purely contemplative nuns cannot.) (3) Still on the topic of the law of charities: our justification for allowing a charitable deduction for "contributions" to churches is based on the paradigm of congregants putting money in the basket, and seems, technically speaking, not to fit easily into religions with compulsory tithes, pew rents, High Holiday tickets, etc. Yet all these practices qualify for the deduction. (Hernandez was an effort to draw some sort of line here, but its practical consequence has been nil. Indeed, the IRS ended up settling with the Scientologists.) (4) One of my favorite small examples: the parsonage provision in the tax code, whose effect is to treat all clergy as if, like Catholic priests, they were required to live in church-provided rectories. Now, it does seem to me that this "instinct" makes a good deal of sense for the American dispensation governing the relation of religion and the state. But it is still difficult. In a sense, the choice often comes down to whether we should (a) draw lines among religions, or (b) treat all religions alike, but in the process draw, secularly-speaking weakly-justified lines between religious and non-religious phenomena. Thus, for example, the effect of the parsonage exemption is to give many Jewish and Protestant clergy an arguably arbitrary tax preference compared to non-clergy. On the other hand, the effect of repealing the parsonage exemption would be to give Catholic clergy an objectively justifiable but still discomforting tax preference compared to their Jewish and Catholic colleagues based on the particular ecclesiology and institutional set-up of their respective faiths. This is a real dilemma, and I've never found a totally easy way out if it. (I happen to think that there's a fair amount of intractability in this religion-and-law business. But maybe that's just the post-modernist in me.) I also think that this "instinct" I'm talking about exists below the constitutional surface (though that does not make it any less interesting). But it does raise the usual constitutional questions: When is drawing lines among religions forbidden? (I.e., to what extent does Larson, etc., apply beyond the more blatant cases of religious discrimination and gerrymandering.) When, if ever, is refusing to draw lines among religions forbidden? Perry ******************************************************* Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 ******************************************************* _______________________________________________ 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.
