The courts -- and the legislature -- get to decide what is "traditionally within the religious sphere," or who gets to decide what is or is not within that sphere. The Religion Clauses are not self-executing.
The belief-action distinction is not particularly helpful here precisely because of the "overlap," the expanding spheres of both church and state. That is what seems to matter here. I am not as sanguine about "accommodation" as others might be. My largest concern about "accommodation" is that it all too often functions as a cover for majoritarian suasion, if not outright coercion. Those concerned about the rights of religious minorities, therefore, tend not to embrace the view that "accommodation" is normatively or prescriptively the proper default position. I also think that there is a tendency to confuse hostility to religion with hostility to the overreaching of majoritarian religion. They are not the same thing. -----Original Message----- From: Gregory Wallace [mailto:[EMAIL PROTECTED] Sent: Thursday, April 06, 2006 7:06 PM To: Law & Religion issues for Law Academics Subject: Re: San Francicso Board of Supervisors Catholic CharitiesResolution I¹m not sure the answer is as simple as saying that they¹re denouncing a practice, not religious truth, or that the resolution is not aimed at the liturgy, sacraments, or other matters ³traditionally within the religious sphere² (who gets to decide what¹s included here?). Such responses hearken back to the old belief-action distinction that provides little real protection for religious freedom. To tell religious persons that they can believe whatever they want, but any attempt to act on those beliefs is subject to government regulation, prohibition, or condemnation makes religious freedom a fairly empty guarantee. In many instances, you can¹t neatly separate religious practice from religious truth, because the practice reflects the religious believer¹s effort to follow religious truth. The reason that Catholic charities do not place children with homosexual couples is because they believe that it would be in violation of Church teaching to do so. To denounce the practice as ³wrong² or ³unacceptable² can suggest the same about the truth or doctrine behind the practice. Of course, government policy and religious doctrine are not always going to be in agreement. One need look no farther than the issue of abortion to see that legal doctrine and Catholic teaching are incompatible. But, to my knowledge, the neither the Supreme Court nor any other government institution has ever explicitly condemned Catholic teaching on abortion as false and untrue, and urged Catholics everywhere in America to refuse to follow it.² It¹s one thing for government to say we¹re going to apply different rules in the secular sphere; it¹s quite another for government to say a particular religion¹s teaching or views are unacceptable and should not be followed. While one can infer government disapproval from the adoption of different rules, that inference is not a necessary one. Michael is correct that the problem here is due, at least in part, to ³overlap²<religious believers carrying out religious obligations within the secular sphere. But in such circumstances, the Religion Clause cases seem to counsel that religious freedom is best served by accommodation, not hostility. (Here, an accommodation of the sort suggested in the thread on the Catholic charities in Boston may be appropriate.) The Supreme Court on several occasions has described the Establishment Clause as forbidding not only state action that advances or endorses religion, but also such action that evinces hostility toward religion. While no cases have tested the latter, it seems to me that both endorsement and condemnation pose significant threats to religious freedom. One last thought: Do you suppose that this resolution has made Cardinal Levada feel like an ³outsider² in his political community? Greg Wallace Campbell University School of Law > From: Newsom Michael <[EMAIL PROTECTED]> > Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Date: Thu, 6 Apr 2006 13:23:52 -0400 > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Conversation: San Francicso Board of Supervisors Catholic CharitiesResolution > Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution > > These questions are posed to no one in particular, so everybody is free to > respond -- or not. > > Does it matter that Catholic Charities is what Noonan and Gaffney might call a > "double duty" organization or institution? That is, the spheres or both > church and state have grown so that they frequently overlap. > > The resolution does not attack or criticize Church teaching regarding the > liturgy or the sacraments. One could say that matters that traditionally have > been within the religious sphere are not the subject of the resolution. (It > is precisely when the state does concern itself with these matters that we > have Establishment, as, for example, with the efforts of the Tudor and Stuart > states to outlaw the doctrine of Transubstantiation.) The resolution attacks > the area of "overlap," the rendering of certain social services. It is hard > to make out a clear EC violation in such a case, or at least I think so. > > On the other hand, the resolution -- unwisely in my view -- appears to attack > the Church's ecclesiology, the very idea of being in communion with the See of > Rome. We know that English Protestants, beginning with the Tudor Sate, sought > to attack the authority of the See of Rome, as a matter of state policy. > Again, that is the stuff of establishment, it seems to me. > > So perhaps one might ask whether the "overlap" stuff in the resolution, which > probably does not raise EC concerns, trumps the ecclesiology stuff, or whether > the ecclesiology stuff in the resolution trumps the "overlap" stuff. > > Perhaps it matters that there is strong whiff of traditional Protestant Empire > anti-Catholicism in this resolution. Is that fact, standing by itself, an > adequate basis for concluding that the resolution presents serious EC > problems? (This is another way of saying that the impermissible elements of > the resolution trump the permissible elements.) > > Not entirely in jest, one can ask whether the Lynch/Allegheny -- or the > McCreary/Van Orden -- approach to context ought to control the analysis here. > Thus, does the "overlap" stuff function essentially like the plastic reindeer, > the Santa Claus figure and striped candy canes? Does the "overlap" stuff > function essentially like the other monuments in Austin (but not like the > documents in Kentucky that finally showed up)? (This is another way of saying > that the permissible elements of the displays trump the elements that would be > impermissible if displayed alone or in different contexts.) > > > -----Original Message----- > From: Alan Brownstein [mailto:[EMAIL PROTECTED] > Sent: Thursday, April 06, 2006 12:59 PM > To: Law & Religion issues for Law Academics > Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution > > I think Greg's point has more force to it than some other list-members > suggest. But there are two counter-arguments that might mitigate it. > > 1. I wonder if there is there a "secular purpose" analogy that can be drawn > here? Just as government can not pass laws enforcing religiously based moral > principles or promote messages for exclusively religious reasons, but can do > either,in many circumstances, when there is a secular reason for doing so -- > perhaps a similar argument applies to criticisms of religious beliefs. If the > government's criticism reflects a religious purpose (denying the truth of a > religious belief on theological grounds), it violates the Establishment > Clause. But if the argument is that the religious belief should be criticized > for secular reasons, it doesn't. I'm not committed to this idea. I just > thought of it. > > 2. A common argument raised against claims that government expression of > religious messages or promotion of religious displays "endorses" religious > beliefs is that the government is merely acknowledging what many of its > constituents believe to be important and true. It isn't endorsing or affirming > the truth of anything. Again, can a similar argument be raised here -- that > the Board is simply acknowledging that many people in SF hold certain beliefs. > I have never been impressed by this argument when it is used to refute claims > of endorsement -- but if it works in one situation, it arguably applies in the > other as well. (Of course, the Board could have expressed itself using > different language if it was only acknowledging what many SF residents > believe.) > > Constitutional arguments aside, I see little of value in resolutions like > this. Does anyone think resolutions like this serve any useful purpose? Would > it serve any useful purpose if a city in which a majority of the residents > were religious conservatives adopted a resolution condemning gay organizations > in the city for saying or doing things that they construed to be > anti-religious. > > Alan Brownstein > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Gregory Wallace > Sent: Thursday, April 06, 2006 7:59 AM > To: Law & Religion issues for Law Academics > Subject: Re: San Francicso Board of Supervisors Catholic Charities Resolution > > It seems to me that it¹s one thing for government to engage in actions that > are inconsistent with religious doctrine or practice (i.e., you go your way, > we¹ll go ours), but it¹s quite another for government to explicitly denounce > religious doctrine as discriminatory, defamatory, insulting, meddlesome, > hateful, callous, insensitive, ignorant, absolutely unacceptable, and > deserving of defiance. At what point does this constitute a government > declaration that religious doctrine is false and untrue, something I thought > government is incompetent (and forbidden) to do? > > Greg Wallace > Campbell University School of Law > > >> From: Jean Dudley <[EMAIL PROTECTED]> >> Reply-To: Law & Religion issues for Law Academics >> <religionlaw@lists.ucla.edu> >> Date: Thu, 6 Apr 2006 07:29:28 -0700 >> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> >> Subject: Re: San Francicso Board of Supervisors Catholic Charities Resolution >> >> >> On Apr 6, 2006, at 2:26 AM, Marty Lederman wrote: >> >> "...it's not really for a municipality to say whether a decree to >> Catholic agencies is or is not "acceptable," is it? (And the fifth >> clause is a bit odd, if not silly, because I assume Cardinal Levada >> does not make any pretense of being a "representative" of San >> Francisco.) >>> >>> Having said all that, I think the most interesting and difficult >>> provision in the resolution, certainly from a constitutional >>> perspective, is the first part of the final clause, urging local >>> Catholics to "defy" the Church's decrees. I'm sure many people on >>> this list will conclude that that is unacceptable, but I'm not so sure >> >> I think we have an interesting question right here: Who is allowed to >> find something unacceptable? The representatives of a municipality, I >> should think, are indeed qualified to state that something is >> unacceptable for that particular municipality. >> >> As for those of us on the list who find the call to defy unacceptable, >> well, they're welcome to their opinion. However, they cannot dictate >> that to the municipality, IMO. >> >> Jean Dudley >> http://jeansvoice.blogspot.com >> Future Law Student >> >> _______________________________________________ >> 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 > > 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.
