Doug's analysis is dead-on. While it is unfair, only by weeding out some FE claims can we have any coherent system of FE exemptions. I have read any number of articles discussing the weeding out process, and the inclination of courts not to respect claims derived from "different" or "strange" religious or morality systems.
________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Friday, August 31, 2007 11:37 AM To: religionlaw@lists.ucla.edu Subject: RE: "Mormon Student, Justice, ACLU Join Up" Judges are reluctant to decide sincerity, but they are not reluctant to get rid of marginal claims. He may say the belief is not sincere. More likely, he may say the belief is not religious. He may find that a fairly weak interest is compelling. He may dismiss the claim on some procedural or jurisdictional technicality. He may do something really stupid, like interpret a state RFRA to mean the same thing as Smith. If he were more theoretically sophisticated, he might say of the religious motivation to make money that the claim is too closely aligned with secular self interest, thus raising insuperable difficulties in determining sincerity, the threat of unmanageable numbers of claims, and pressuring people to convert to this religion so that their secular self interest would have a religious wrapper. Judges write these opinions all sorts of ways. But they are suspicious of claims that are too idiosyncratic, suspicious of claims that pose a risk of being self-interested, and they find ways to get rid of these cases. It is hard enough to win a claim for a core religious practice of a large and well-understood religion. These marginal claims that law professors so readily imagine are a tiny percentage of all claims and almost impossible to win. Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Hmm -- why is this so? First, I've seen very few cases in which > a judge finds a religious claimant to be insincere. My sense is that > judges tend to try to avoid doing this, partly because reading people's > minds on such issues seems even more unreliable, bias-prone, and > subjective than reading people's minds on other issues. > > Second, why is it so odd to imagine a religious motivation -- > does it really have to be "primary," by the way? -- for an 18-year-old's > desire to spend a couple of years helping support his disabled parents > (perhaps a way of "honor[ing his] father and mother"), or his new wife > and child? I would think that many a religious person would indeed feel > such a religious duty or at least religious motivation, no? > > Eugene > > > Doug Laycock writes: > > Yes in theory, but in the real world, Eugene's assumed facts > will be very difficult to prove and judges will almost never find them > to be true. Certainly the judge is not going to believe a primarily > religious motivation for a desire to make more money. Meditation and > finding the meaning of life might have a slight chance in this case, > because the state's interest in cancelling a four-year scholarship if > the years are not consecutive looks trivial, but judges are going to be > skeptical of such claims. The less conventional the religious claim, the > harder it is to prove. > > In one sense this is discriminatory and unfair. It is also > inevitable. And it is better that success rates gradually fall away for > lack of proof than that we have arbitrary rules that eliminate whole > classes of serious claims. Better to have some problems at the margins > of an area of law (an almost inevitable circumstance no matter the > rules) than to have incoherence at the core. > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > A quick question: Say the Mormon student wins, on a > Sherbert-like > > rationale. Another student wants a similar exemption on the > grounds > > that he feels a religious motivation to take two years off to > meditate, > > or to make money to help support his family, or to fulfill > what he sees > > as God's command to step back from formal education and take > time to > > find the meaning of life. Assume that the student's religious > > motivation for this is found to be sincere. > > > > I take it that he'd have to be treated the same as the > Mormon, > > right? I'm not saying that this is a particularly horrible > result, but > > I just wanted to explore what the result would end up being. > > > > 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. > > > > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > _______________________________________________ > 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. > > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
_______________________________________________ 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.
