You are misunderstanding me. I'm not saying saying that there ar e true religious objections and false religious objections. I'm saying that, just as there is speech that is protected as free speech and there is speech that is not protected, there are religious objections that are (or once were) protected and there are religious objections that are not protected (think human sacrifice as an extreme example that I think we would all agree is not and never has been protected). The Sherbert rule was useful in distinguishing between them. After Employment Division v Smith dispensed with the Sherbert rule and any meaningful free exercise protection, we wind up in a situations such as where we have no idea what the Court will consider protected and what it will not. Transforming a guarantee of free exercise into a mere anti-discrimination law undermines the very principle of religious freedom. Instead, any time anyone says that a certain law, neutral on its face, places a significant burden on their free exercise, it can (and often is) dismissed with "People supported slavery and opposed interracial marriage the same way." That's not free exercise under any definition that has any meaning.
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Sunday, February 15, 2015 6:20 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical 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) 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.
