It seems to me the broader debate suggests that *lots* of people these days,
and not just the "religious," have no sympathy for post-modernist
anti-foundationalism--and/or that most of us are capable of moving between
legal realism and formalism and back again in a split second, often without
noticing.
> On Jul 5, 2014, at 11:41 AM, "Levinson, Sanford V" <slevin...@law.utexas.edu>
> wrote:
>
> Let me tendentiously suggest that "accommodationist" is synonymous with
> "irrationalist" if in fact one can't subject the proffered arguments to some
> kind of "independent" scrutiny. Of course, this may represent the ironic
> triumph of post-modernism, inasmuch as it taught many of us that there is in
> fact no truly independent vantage point from which to police claims. But,
> also of course, one can be certain that Wheaton and other religious claimants
> have no sympathy for post-modernist anti-foundationalism.
>
> Sandy
>
> Sent from my iPhone
>
> On Jul 5, 2014, at 10:16 AM, "Steven Jamar" <stevenja...@gmail.com> wrote:
>
>> Yes. We are not only deep into an accommodationist regime, but the
>> complicity theory immunizes religious claims from examination except for
>> sincerity. Attenuation could be adopted in a later case, but if it is not
>> attenuated in HL, then it is hard to see where it would be. And as we all
>> know, one can easily play rhetorical games with attenuation and with
>> defining just what is the evil with which one would be complicit.
>>
>> If one believes Justice Alito, and I don’t, then the complicity theory only
>> establishes burden, not substantial burden, which is a separate inquiry. So
>> in theory, one could accept any level of complicity as a claim of burden,
>> but still not find it substantial. But that is a twisted mess too, isn’t
>> it. How can one inquire into the substantiality of the burden if one
>> accepts the claim of burden? Can we use, as the court did in HL, external
>> financial burden to show substantiality and nothing else? Or would just an
>> action (entering into a contract) be the substantial burden without any
>> showing of financial hardship? And if the adherent claims that just
>> entering the contract is the substantial burden, under the complicity theory
>> coupled with the immunization of the claims from scrutiny seems to make the
>> financial aspect irrelevant.
>>
>> So then the government falls back on compelling interest and least
>> restrictive alternative. I wonder whether to some extent this decision
>> reflects continuing picque at Congress overturning Smith by enacting RFRA —
>> and the court is trying to get it repealed or changed by the surest way —by
>> enforcing it strictly — as pointed out by Abraham Lincoln.
>>
>> Steve
>>
>>
>>
>>> On Jul 5, 2014, at 9:29 AM, Levinson, Sanford V <slevin...@law.utexas.edu>
>>> wrote:
>>>
>>> Marty writes that the “mess . . . is a function of the increasingly
>>> implausible theories of complicity being offered by the plaintiffs' lawyers
>>> -- which the Court has invited with its capacious understanding of what
>>> constitutes a "religious question" beyond the ken of civil authorities to
>>> evaluate.” I think he’s absolutely right. Hasn’t the Court in effect made
>>> evaluation of religious argument, at last from an outsider’s perspective,
>>> nearly impossible, unless one goes down the rabbit hold of challenging
>>> “sincerity.”
>>>
>>> sandy
>>>
>>>
>>> _______________________________________________
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>>
>>
>> --
>> Prof. Steven D. Jamar vox: 202-806-8017
>> Director of International Programs, Institute for Intellectual Property and
>> Social Justice http://iipsj.org
>> Howard University School of Law fax: 202-806-8567
>> http://sdjlaw.org
>>
>> "Example is always more efficacious than precept."
>>
>> Samuel Johnson, 1759
>> _______________________________________________
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> _______________________________________________
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