Ellis, you are right that I didn't respond directly to your question of what "secular" means. And, I agree that "religious entities and persons should get everything that non-religious entities and persons do" is too broad a brush to explain what the issue is here. I guess my answer sort of implied some combination of an ontological plus ethical definition---i.e., in this world, the way we live our lives each day in the real world, seeing and (ethically) respecting how we are different from each other. If I (individually or as a government surrogate) see that you are different because you are religious (claiming to be or acting religious:), I think that is a secular judgment, as it does not require a theological or religious belief or argument to come to the conclusion that you're different--it is an observation that everyone can make regardless of his or her religious belief or lack thereof. If I change my behavior because of this difference I see in you, because I think you are entitled to human dignity and part of recognizing your human dignity is respecting your difference in how I treat you, I think that is a "secular" moral decision if by secular we mean anyone holding any belief can come to that conclusion if he accepts the starting premise. (Of course, as we know, there is a debate about whether that premise is necessarily religious.) If as a result of my behavioral change, your daily material life is made less onerous, it seems to me that effect does not depend on religious tradition or thinking and therefore is secular in the sense I am using it. I I guess this points out that "secular" or "religious" can also be a "code" for asking what the purposes of the Free Exercise and Establishment Clauses are, and whether these purposes have been achieved by a governmental rule or act, which seems to be what you are asking. But, it seems to me more direct and careful to ask the question whether the purpose of the Clauses has been achieved by a government act rather than to ask if a purpose or effect IS secular or religious. (And there I stop, too many books on that.. . ) Though I am sympathetic to your cause of focusing on conscience rather than specific religious traditions here, I don't think that automatically solves the problem of what "secular" means if we are looking at purposes of the Clauses. It simply widens the circle of those who are being accommodated to include more "traditions" than the usual suspects including traditions that are usually lumped together as "secular humanism", while excluding others who would not plausibly describe their request for an exemption as "conscience-driven" or based on a particular philosophical or moral tradition. Is an accommodation then "secular" because it includes more or even most traditions of thinking about moral problems, not just the ones that are usually labeled as religious? If secular means "showing respect for difference" as I have suggested, then maybe yes. If it's meant to mean, "this exemption applies to everybody no matter why they want an exemption," then maybe no. Then there is the complication of religions like mine that believe that the law of God is written on the hearts of all persons, and that's where decisions of "conscience" come from, even from so-called non-believers. If we broaden the circle of the exempted to include all who act out of conscience but not anybody else, have we just accepted a theological (natural law) view and therefore violated the "secular" requirement? Or have we observed in the material world that people seem to have consciences, normatively decided that's a good thing to have in our society, and therefore decided to "incentivize" them to exercise their consciences regularly, a "secular" reason? Time to stop before I get completely confused:)
Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu (email) >>> "West, Ellis" <ew...@richmond.edu> 4/12/2012 4:10 PM >>> Marie, I certainly have no objections to exemptions in general just as I have no objections to laws in general from which persons are often exempted—provided the laws (and exemptions?) are secular in purpose and effect, which is what is required by the religion clauses, as originally understood and as interpreted by the Court. Moreover, in my comment, I did not state an objection to religion-based exemptions. I simply asked how such exemptions could be considered secular in nature. I do not think it works to answer that just because all kinds of secular exemptions are granted, religion-based exemptions should be granted or else there is discrimination against religion. According to that logic, if all kinds of “normal” laws give aid, financial and otherwise, to specific secular endeavors (business, health care, education, etc.), then it follows that such aid should be given to specific religions or religious beliefs/activities, or else the government would be guilty of discriminating against religion. But, of course, that kind of “discrimination against religion” is what the establishment clause prohibits. Finally, I would simply add that if the exemptions were conscience-based, as opposed to religion-based, then there would not be an issue. Just as the Court said in dealing with exemptions from the draft, if the government wants to protect religious consciences, it must protect secular consciences as well. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marie A. Failinger Sent: Thursday, April 12, 2012 4:22 PM To: Law & Religion issues for Law Academics Subject: Accommodation Ellis, the government accommodates people all of the time. By law, it is required to accommodate certain groups of people--e.g., to build ramps so that citizens can get into public buildings, to provide waivers of rules to certain people who get public benefits. I can't legally insist that the government build me a ramp, but a disabled person can. Is that impermissible? I think not--the government has seen that some people have a particular burden in fully functioning as citizens, and allowed for it. In practice, the government accommodates a lot more people. Every time a cop stops you and decides not to give you a ticket for speeding, he/she is essentially accommodating you---he/she is not applying a law that he should, because of some circumstance he/she has discovered about you that is distinctive (you're rushing to the hospital, for example.) A permissible accommodation for a group (including a religious group) is simply a circumstance in which government says, "we have seen that X number of people or this particular group needs to have us apply our discretion to do right by them and not disadvantage them because of their particular characteristic. So we're going to make a "rule" accommodating this group, so that each officer looking at their individual circumstance doesn't have to make the individual decision whether their distinctive circumstance warrants not applying the law to them (i.e., not giving them the ticket.) We think all of these folks should be treated the same, no matter who the officer is." It kills me to sound like Justice Scalia, but if the government willingly accommodates all of these folks in all of these circumstances, but refuses to accommodate some folks when the only reason for their particular difference/exception is religious, isn't that discrimination on the basis of religion banned by the Free Exercise Clause? Now, you might argue that religious accommodations are different because individuals "choose" to be in those situations where they need an exception, but surely most religious people don't "choose" their situation any more than you "chose" to speed in order to get to the hospital faster. Finally, don't you think it is a very good thing, ethically, if we have a government that is willing in lots of circumstances to say, "you as a person matter to us more than our rule, and we are willing to see you as a person?" There will, of course, be a point where the law becomes incoherent if the government looks at every individual case to see what the result should be, but where it is not disruptive to the system, why shouldn't we want the government to see us as persons and not as objects to which the law needs to be applied. Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edu (email) >>> "West, Ellis" <ew...@richmond.edu> 4/12/2012 2:34 PM >>> Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law & Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
