I cannot help but wonder what Alan's view is of the recent Utah polygamy case. It does seem to me that the arguments he so eloquently makes below should apply (easiest case) to adult "old-Mormons" who continue to believe that their religion encourages (compels?) multiple marriages. In this instance, at least, I suspect there's be relatively little incentive to engage in strategic misrepresentation, though the obvious problem is the creation of a new sect, perhaps in Colorado, that preaches the virtues both of smoking marijuana and multiple marriage (polyandrous and well as polygamous). I personally have no problem with this, though, to put it mildly, I would be surprised if Windsor were interpreted to require recognition of such marriages even if, by stipulation, Colorado did.
sandy -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, December 19, 2013 12:19 AM To: Law & Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Sorry. My mistake. My post was focusing on statutory accommodations because RFRA has been the focus of most of the recent discussion on the list. Eugene is quite right that the case for an analogy to family relationships is stronger for statutory accommodations. But there is some basis for analogizing the constitutional protection and accommodation of religious liberty to the protection and accommodation of family relationships. I don't want to overstate the point here, but the Court does discuss freedom of intimate association in Roberts and suggests that such associations might be exempt from anti-discrimination laws. Such cases rarely come up because statutes do not attempt to subject intimate associations such as families to anti-discrimination laws. But I assume that a family could assert a family/intimate association exemption should it be subject to anti-discrimination laws in various social settings. Moore v. City of East Cleveland also requires in a sense a family exemption from zoning laws. One might also argue that the right to marry protects the ability to form a family and marry the person one loves, even though doing so imposes costs on third parties. Cases like Zablocki are not necessarily cost free. A divorced father owing child support who starts a new family may have less resources available to support his earlier family. Finally, some, but not all, of the debate about same-sex marriages could be characterized as a debate about providing constitutional protection to gay men (or lesbians) who love each other and want the state to recognize and protect their mutual commitments and the responsibilities they accept that arise from those commitments. Many argue that constitutional law requires states to accommodate the love, commitment and loyalty of same-sex partners who seek to be married notwithstanding state law that only permits marriages between one man and one woman. I must admit that I have never understood the argument that such marriages impose costs on third parties or the general public. But clearly, many people believe that such costs exist. Would proof of some such costs, however modest they might be, justify denying same-sex couples the right to marry? Or would we insist that it should require a showing of very, very, high costs before we would allow a state to refuse to acknowledge! and accommodate the right of two adults who love each other and are committed to caring for each other to marry. Alan ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, December 18, 2013 4:17 PM To: Law & Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments I appreciate Alan's point, but I wonder how far it goes. First, I might not have been clear enough on this in my post, but I was speaking of what should be a matter of constitutional entitlement, or entitlement under a generally applicable exemption scheme. And we generally do not provide any constitutional exemption for love- and loyalty-based interests. Loyalty to a friend, a child, a parent, or a spouse won't give you a constitutionally mandated exemption from, say, a duty to testify. (The spousal testimonial privileges, I think, is a matter of common law and statute, not a constitutional mandate.) If you quit a job because of a desire to spend more time with your children, your spouse, or your aging parents, you will not get a constitutional entitlement to unemployment compensation. Second, even if we focus on exemptions created as a matter of legislative discretion (or common law), there are likewise very few in which familial love and loyalty exempt one from what would otherwise be a generally applicable rule. The spousal testimonial privileges are one example, but note that even they don't extend to children, parents, or other family members. Likewise, the few statutes that impose a general duty to report crimes sometimes exempt people from having to report on close relatives. The Family Medical Leave Act might be seen as a statute protecting familial love and loyalty against generally applicable employer policies, though there the matter might not be so much love and loyalty as providing social goods (care for sick family members). Perhaps the historical exemptions from the draft for fathers might qualify, though that too might be best seen as a means of providing social goods (financial support and parental guidance for children! ) rather than just avoiding intrusion on family relationships. So the analogy to family relationships, I think, cuts against any constitutional exemption regime (as in Sherbert/Yoder), though it can indeed support some statute-by-statute exemptions, including potentially high-cost exemptions. (As I mentioned, low-cost exemptions are subject to different arguments.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 18, 2013 2:18 PM To: Law & Religion issues for Law Academics Subject: RE: Two kinds of religious exemption arguments Eugene writes, "Now it seems to me -- though of course others disagree -- that the normative case for a right to impose costs on others through conduct simply because you think God requires that conduct is not an appealing case. Your God is your God, not mine; why should I lose some of my legal rights, or some of the benefits that various laws seek to confer on me, just because you want to do what your God tells you to do?" I think one answer to Eugene's question is that we value interests such as love and loyalty - particularly when they arise in certain kinds of relationships. Suppose the question is "why should we respect the duties and obligations that arise out of family relationships." After all, I could say, it is Eugene's relationship to his wife, and children and family, not mine, that might require him to do things that impose costs on others. Of course, there are limits as to the scope of those costs we are willing to incur to accommodate family relationships, and a strict scrutiny regime may be the wrong way to evaluate and balance such costs. But that is different than saying we should never accommodate the duties and obligations arising out of family relationships if doing so imposes costs on others. I think it is reasonable to question which relationships in our society should receive accommodations and protection. Certainly, religion and family life may not exhaust the range of accommodated relationships. But that is a different question than asking whether these relationships warrant accommodation in the first place. Alan _______________________________________________ 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.
