Where is the factual fallacy in "the presumption of religion as good is folly
for the vulnerable"? It is rock solid.
Honestly-- please provide the empirical refutation of this.
The First Amendment is not a refuge for scoundrels... Nothing in the
Constitution demands that judges and the
government assume religious is good . The text protects the "free exercise" of
religion, but according to history
and case law, that does not mean religious organizations can engage in bad
acts. In act, at the time of the framing,
it was assumed that "licentiousness" would never be protected under free
exercise. SSP--I wrote an article saying
as much in the William and Mary BIll of Rights Journal.
What kind of system demands judges assume a counterfactual as the basis of a
constitutional right?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-----Original Message-----
From: Arthur Spitzer <artspit...@gmail.com>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Sent: Tue, Jul 10, 2012 10:41 am
Subject: Re: What religion is an 8-day-old?
As an empirical matter, that ("the presumption of religion as good is folly for
the vulnerable") may or may not be true. But when acting in the legal world,
isn't it a presumption mandated by the Constitution? The presumption of
freedom of speech as good may also be folly for the vulnerable, but the
Constitution instructs judges to assume it to be true. No?
Art Spitzer
On Tue, Jul 10, 2012 at 10:27 AM, Marci Hamilton <hamilto...@aol.com> wrote:
As long as it is a case-by-case analysis, I am on board. But I think the
presumption of religion as good is folly for the vulnerable.
Marci
On Jul 10, 2012, at 10:10 AM, Andrew M M Koppelman
<akoppel...@law.northwestern.edu> wrote:
> I said that the value of religion sometimes outweighs other considerations.
> I didn't say it always does so. Marci has compiled some mighty persuasive
> horror stories showing that the balance is often struck with excessive
> deference to religion. But that doesn't answer the circumcision question.
> In that context, it's doubtful whether the child is harmed at all, and the
> religious values on the other side are substantial.
> ________________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of hamilto...@aol.com [hamilto...@aol.com]
> Sent: Monday, July 09, 2012 10:36 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: What religion is an 8-day-old?
>
> With all due respect to Andrew, but in complete seriousness, religion is
> often not a good thing even under the law, and often a deadly and permanently
> disfiguring or disabling thing for children, the disabled, and emotionally
> disabled adults. A focus on religion as a "good thing" rather
> than a focus on the best interest of the child is precisely what has led to
> the deep suffering of far too many children. I find it
> astonishing that anyone would still be talking in this era in these
> generalities to protect religion when it is harming children.
>
> Now, if one wants to argue that religion is good when it is not harming the
> vulnerable, that is a different topic, but it has nothing
> to do with the circumcision debate that has gone on on this thread, which has
> revolved basically around a fact question: is it
> harmful, even though a fair amount of theory has surrounded this fact
> discussion.
>
> Having said that, I also agree that much of this discussion has had an unreal
> quality to it, but mainly because of my original
> point that these issues are best described and analyzed under a best interest
> of the child analysis, case-by-case, and simply
> not amenable to these theoretical generalities. And under our pre-existing
> criminal and tort laws. Those are the laws that have
> held religious organizations and leaders (e.g., Msgr. Lynn) to account for
> the cover up of serial child predators to protect religious
> identity, wealth, and power. These civil laws are the main reason we have
> any justice in this field. This law has not treated religion
> as "valuable" or "good" but rather as a no-good defense to harm. (Except in
> a diminishing number of states.) And it is no
> argument in response that no religious groups believe in child sex abuse.
> That is not true, e.g., Tony Alamo (yes, it's a cult, still a religion);
> FLDS, and the many religious organizations who have theological tenets
> requiring the cover up of abuse which then multiplies the
> number of victims by enabling predators.
>
> There are some legal areans where religion has been treated as "good," e.g.,
> NY state law on land use. But it is dangerous
> to legal analysis to take them at face value. As religious land use has
> changed and expanded, however, this presumption has become
> increasingly difficult to defend.
>
> Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> hamilto...@aol.com<mailto:hamilto...@aol.com>
>
>
> -----Original Message-----
> From: Andrew M M Koppelman <akoppel...@law.northwestern.edu>
> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> Sent: Mon, Jul 9, 2012 10:42 am
> Subject: RE: What religion is an 8-day-old?
>
> This discussion is fascinating, but it has a curiously unreal quality,
> because everyone seems to want, in typically lawyerly fashion, to subsume
> under some broad and generally applicable principle a practice that is in
> fact unique and exceedingly unlikely to generate analogous cases. This is
> another case where I think it's helpful to recognize that American law treats
> religion as valuable, in a way that sometimes outweighs other considerations.
> I elaborate in my forthcoming book:
> http://www.hup.harvard.edu/catalog.php?isbn=9780674066465. If religion is a
> good thing, and two of the major religions of America practice circumcision,
> then we have a strong reason not to interfere. This, I think, is what is
> actually going on, not the application of some Wechslerian neutral principle
> about parental rights or individual religious rights or whatever. This
> discussion has made clear that neither of those principles fits the practice
> in question very well.
>
>
> ________________________________
> From:
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>]
> Sent: Monday, July 09, 2012 9:12 AM
> To: Law & Religion issues for Law Academics
> Subject: What religion is an 8-day-old?
>
> The theoretical principle behind my claim that, “As to ‘the
> sons' own interest in conforming to their religion,’ I don't think it's
> ‘their religion’ at age 8 days, at least under what should be the secular
> legal system's understanding of religion (the subject's own belief system),”
> is simply that, under the First Amendment and under equal protection
> principles, any special treatment of people based on their religion must stem
> from their religious beliefs – their own understanding of God’s commands –
> and not because of their bloodlines.
>
> First, the justifications for religious freedom have generally stemmed from
> the burden that is imposed on people when they are ordered by secular law to
> do something and feel ordered by their religious beliefs to do the opposite.
> And it is the individual’s beliefs that are important, not to the beliefs of
> the group to which society says he “belongs.” See, e.g., Thomas v. Review
> Bd. Second, claims that we should treat some people’s interests differently
> because of the ethnic group to which their mothers belonged conflicts with
> well-established equal protection principles, under which our secular rights
> and interests are not supposed to be affected by our ethnicity.
>
> Eugene
>
> From:
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu?>]
> On Behalf Of Paul Horwitz
> Sent: Monday, July 09, 2012 5:35 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Equivocal evidence, and the right to choose
>
> I am also curious about roughly the same point Howard raises. I always value
> the doctrine- and act-specific discussions I get on this list--I learn a
> great deal from them, and the theory I can more or less do on my own. But
> these discussions often seem to me to be just one step away from fairly major
> and consequential statements or assumptions about the underlying theory. So
> what is driving Eugene's paragaph (2), or some of the other statements (not
> just from Eugene) that have taken place in the course of this valuable
> discussion? Is it a moral intuition? A belief, as the paragraph below
> indicates, both that we have a "secular legal system" and about what that
> entails? A belief about the Constitution itself and what it requires? A
> belief in a wholly individualist and voluntarist conception of the self as a
> legal subject? A kind of implication that the Constitution enacts Mill's On
> Liberty or Joel Feinberg's work and not, say, Charles Taylor's work? A thin
> or thick conception of what "harm" means? A belief about the relevance or
> irrelevance of history, tradition, community, the sources of or proper
> occasions for thick commitments?
>
> I appreciate that these are large questions. And in many particular
> fact-based cases what I loosely call my common-sense intuitions *might*
> comport with Eugene's views. But it seems to me, as I wrote earlier, that
> there are some fairly large theoretical commitments guiding those intuitions
> here and that they are reasonably subject to questioning.
>
> Paul Horwitz
> University of Alabama School of Law
> ________________________________
> Subject: RE: Equivocal evidence, and the right to choose
> Date: Sun, 8 Jul 2012 13:08:57 -0400
> From: howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>
> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
>
> It seems to me that your paragraph (2) focuses the issue. Should the Free
> Exercise clause understand "religion" only as a belief system? Traditional
> Judaism does not define it that way. Instead (for those who are born of a
> Jewish mother) it is an identity that precedes a belief system. Can the 1st
> Amendment be seen as protecting a concept of religion that is different from
> the Christian notion that belief (acceptance of Jesus) defines religion? It
> was the insistence on seeing religion as only a belief system that led to the
> controversial decision by the Supreme Court of the United Kingdom in 2009
> that ruled Jewish schools using the Orthodox Jewish definition of "who is a
> Jew" were engaged in "ethnic origin" discrimination (which British law
> equates with racial discrimination).
>
> Howard Friedman
>
>
> -----Original Message-----
> From:
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> on behalf of Volokh, Eugene
> Sent: Sun 7/8/2012 12:29 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Equivocal evidence, and the right to choose
>
> (1) I'm not sure why A's interest in B's religion should give
> A the right to alter B's body - even if A is B's parent.
>
> (2) As to "the sons' own interest in conforming to their
> religion," I don't think it's "their religion" at age 8 days, at least under
> what should be the secular legal system's understanding of religion (the
> subject's own belief system).
>
> Eugene
>
>
>
> _______________________________________________
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>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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--
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
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artspit...@gmail.com
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