Sorry -- I hit "send" accidentally before finishing my message below. Here's the omitted paragraph:
What is clear from comparing the Court's free speech and free exercise doctrines is that government *can* regulate "false" speech (with limits); it *cannot* regulate "false" religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a "true" religious objection to same-sex marriage and a "false" religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske <jole...@lclark.edu> wrote: > Brad writes of free speech doctrine: > > "[T]he court isn't determining if a person's words are mistaken . . . when > they say that free speech doesn't cover slander or libel. > > we have long held that actual malice requires material falsity > > *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed. > 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) > > > <http://ssrn.com/author=357864> > > On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee <bp51...@windstream.net> > wrote: > >> It's not about the Court saying that beliefs are mistaken, insubstantial, >> plausible, logical, or comprehensible. It's about the Court determining >> what is covered by the free exercise clause and what is not. Again, to >> parallel the free speech guarantees, the court isn't determining if a >> person's words are mistaken, insubstantial, plausible, logical, or >> comprehensible when they say that free speech doesn't cover slander or >> libel. >> >> >> >> That was the value of the Sherbert test because it established a way to >> determine what exercise of religion is protected and what exercise of >> religion is not, without making a determination on the merits of of the >> religious beliefs that are the basis of the exercise in question. In my >> opinion, the reason why I think Employment Division v Smith ranks right up >> with Dred Scott v Sandford among the worst decisions the Supreme Court has >> ever issued. >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske >> *Sent:* Saturday, February 14, 2015 10:25 PM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: The racist prostitute hypothetical >> >> >> >> Brad writes: >> >> "[T]he fact that people have wrongly tried [to] make religious freedom >> claims doesn't mean we disregard all religious freedom claims. We ought to >> be able to distinguish between the two." >> >> >> >> Although Brad thinks the law "ought" to be able to distinguish between >> "wrong" and "correct" religious freedom claims, we can all agree that this >> view is flatly inconsistent with Supreme Court precedent, correct? >> >> >> "[I]t is not for us to say that their religious beliefs are mistaken or >> insubstantial. Instead, our 'narrow function . . . in this context is to >> determine' whether the line drawn reflects 'an honest conviction.' >> >> "Repeatedly and in many different contexts, we have warned that courts >> must not presume to determine . . . the plausibility of a religious claim." >> >> "[R]eligious beliefs need not be acceptable, logical, consistent, or >> comprehensible to others in order to merit First Amendment protection" >> >> - Jim >> >> On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee <bp51...@windstream.net> >> wrote: >> >> I'ts not an all or nothing. The fact that the freedom of speech does not >> protect slander and libel doesn't mean we disregard every other freedom of >> speech claim. We are able to distinguish between the two. Similarly, the >> fact that people have wrongly tried make religious freedom claims doesn't >> mean we disregard all religious freedom claims. We ought to be able to >> distinguish between the two. The difference between same sex relationships >> and interracial relationships seems like one of those distinctions. The >> difference between people of different races is not the same between the >> difference between genders. That's why, for instance, the Negro Leagues in >> baseball have gone by the wayside and yet nobody is saying that the players >> of the WNBA should just try to make the teams in the NBA. >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin >> *Sent:* Saturday, February 14, 2015 8:48 PM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: The racist prostitute hypothetical >> >> >> >> Brad: >> >> >> >> The distinction you see between same-sex relationships and interracial >> relationships makes sense to *you*. It surely does not make sense to >> someone who opposes interracial marriages on religious grounds. >> >> >> >> >> _______________________________________________ >> 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. >> > >
_______________________________________________ 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.
