But isn’t the central question protecting “free exercise” when there are arguably significant third-party consequences? Inevitably, we return to the problem at the heart of Mill’s On Liberty: Can we really identify a category of acts that do not inflict harm on third parties. What about suicide? For many of us, that would be a quintessential example, so that the state has no interest in trying to prevent suicide by competent adults. But for others, suicide is not only immoral, but also a grievous harm inflicted on survivors. Or that old standby, religious sacrifice. Why not, at least if those being sacrificed, perhaps like suicide bombers, accept their demise in the name of a higher calling? Ditto with regard to adult bigamy? Marci, I know, believes that women are harmed by the practice. What if one begs to disagree and wants more evidence of specifiable harms?
But re vaccinations, at least if we’re talking about contagious diseases, it’s altogether easy to figure out the potential harm. So some take refuge in statistics—the harm isn’t that likely, even if it’s costs are great in the unlikely event that it is suffered—or in straight-out balancing: the harm isn’t that great and should be willingly accepted as the relatively small price to pay for protecting religious freedom. But how does this square, say, with the employment accommodation cases (is the right cite Thornton?), where, as I recall, people aren’t not allowed to generate costs to third parties if they refuse to work on religiously-freighted days (as against the duty of the employer, which I don’t object to, to try to work out accommodations by eliciting voluntary day shifting and the like). sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Monday, February 02, 2015 6:11 PM To: Law & Religion issues for Law Academics Subject: RE: Homeschooling, vaccinations, and Yoder Legislators and others might also think that people have rights beyond those set out in the Constitution or provided for even on a fair reading of the Constitution – rights that ought to be respected by government even though the Constitution does not require that they be respected. Cf. the Ninth Amendment. To the extent that the state and federal constitutions permit legislators to recognize such rights, they can of course do so. (Of course states can recognize rights in their own constitutions beyond those provided for in the federal constitution, again, so long as such recognition doesn’t violate the federal constitution.) Consider, e.g., Eugene’s argument for permissibility of legislative accommodation of religious exercise, and consider both federal and state RFRAs. I do have difficulty with the notion that religious exercise can’t to some degree be protected qua religious exercise, given the specific recognition in the 1st Am of the right to free exercise of religion. Even a legislator who thinks the Smith decision is right as an interpretation of the demands made by the Constitution might think that the policies behind the Free Exercise clause or the importance of religious liberty as part of what it means to be free justify special protection for exercise of religion, at least as broadly defined. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, February 02, 2015 3:49 PM To: Law & Religion issues for Law Academics Subject: Re: Homeschooling, vaccinations, and Yoder I think I agree with everything Paul says here, and I didn't mean to suggest naivete or anything else; I just meant to disagree with the assertion that I understood Paul to be making. In particular, I agree that if you asked many state legislators--and especially those who favor homeschooling for personal or political reasons--they will honestly tell you that they believe that the state cannot conscript their children into schools (public or otherwise) without giving parents some rights to homeschool. In my view, they are certainly wrong as a federal constitutional matter. But I do think they believe it, as do many parents who homeschool. (Indeed, this is part of my argument in the paper I linked to.) On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz <phorw...@hotmail.com<mailto:phorw...@hotmail.com>> wrote: I have no complaint about the way Hillel puts things below. I had no complaint, as such, about the way he put things the first time. And I could think of much worse things to be accused of than naiveté. But I should like to defend myself to a certain extent. Of course I understand that legislators are motivated by politics! I would have hoped it was obvious that I did. And of course I understand that one could think of more suitable parties than legislators when thinking about consistent, thoughtful, serious attempts to understand and follow the Constitution. (Mind you, on reflection I'm not sure who, exactly: not this or most Presidents, for instance; not this or most Congresses; I'm not all that certain I'd put every academic student of the Constitution in that category either. Military officers, maybe.) I did have a point in offering my comment, but it was not the result of some belief, fanciful or otherwise, that legislators are paragons of seriousness in interpreting the constitution. The point is that, if those cases are open on this issue--and I did not make an assertion about that one way or the other; I took it as a premise for purposes of responding to Hillel--then legislators are entitled, and indeed obliged, to make their own decision about what the federal Constitution, and/or their state constitution, requires with respect to homeschooling. It would not surprise me if they did not take this duty especially seriously, of course. I would add that although I am fine with most of Hillel's response, I would part ways slightly on one thing. It would not surprise me--to the contrary, it would surprise me if it were never the case--if there are some legislators, and specifically some who are ardent supporters of homeschooling, who are strongly convinced that there is a constitutional right to homeschool and that it includes the right to be substantially unregulated. They may be totally wrong; they certainly would be engaged in extremely motivated reasoning, as everyone else does; and they certainly ought to be aware of the political gains that would be involved in taking such a position. But, given that this is a culture war issue for this constituency, I would be surprised if some of them hadn't actually become convinced of the constitutional rightness of their position. Of course I understood the point of Hillel's comment to be primarily, if not purely, descriptive. But it seemed to me that if we were going to talk about the role played by past decisions of the Court in influencing legislators, then it was important, for both descriptive and normative reasons, to be clear that the legislators who accept the arguments on behalf of homeschooling lobbyists might conceivably, mirabile dictu, agree with them. It can't, after all, be surprising that in a country where there are people who homeschool for religious reasons, and an even larger number of people who don't but hold traditionalist religious views, a legislator might from time to time be elected who actually believes in this kind of reading of the Constitution. It's even possible that such a legislator might, at one and the same time, have both cynical political and sincere constitutional views on the matter. That is, after all, how many if not most people, of whatever political stripe, reason about the Constitution a good deal of the time. May I add that, despite our well-founded lack of faith in legislators' sincerity or seriousness about interpreting the Constitution, we often, for various reasons, act as if they are at least capable of doing so. People write letters to them, for instance, purporting to explain the law. It is possible that all such efforts are purely cynical: merely an effort to put a good face on the real work of calculating interest-group politics that is going on behind the scenes. But I would like to think that there is a bit of sincerity, or perhaps cynicism with just a bit of hopefulness and idealism mixed in, in such efforts; and I think our politics will function better in the long run if we treat those legislators as participants, however imperfect, in the constitutional interpretive community. ________________________________ From: hillelle...@gmail.com<mailto:hillelle...@gmail.com> Date: Mon, 2 Feb 2015 17:14:40 -0500 Subject: Re: Homeschooling, vaccinations, and Yoder To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they could form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they have. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu<mailto:hle...@uga.edu> hillelle...@gmail.com<mailto:hillelle...@gmail.com> SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ 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.
