Re: The Remarkable Disappearance of State Justifications in Obergefell

[Perry Dane]

 

For what it's worth, I'm actually one of those folks who like
Justice Kennedy's opinion in _Obergefell. _And one reason I like it is
that he doesn't play the usual game of means-end analysis, which in
previous iterations has too often either hollowed out the meaning of
marriage or belittled its potential significance for gay men and women.


For my own argument that is perfectly sensible both (a) to acknowledge
that marriage is in some real sense a paradigmatically heterosexual
institution and at the same time (b) conclude that a decent, fair, and
just society should under the conditions of our age extend that
institution to same-sex couples see http://ssrn.com/abstract=2338239


Perry Dane ___
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RE: Vaccine objectors

[Perry Dane]

 

Sandy, 

Normatively, I do think that when the risk to the health of
a child is grave and imminent, the state can and should intervene and
require treatment. 

Perry 

On 02/01/2015 11:31 pm, Levinson, Sanford V
wrote: 

> I'm still not certain what Perry's position is re the
Jehovah's Witness children, where the adverse consequences are
"internalized" to the child. 
> 
> sandy
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Re: Vaccine objectors

[Perry Dane]

 

Marty, 

I agree with # 1, except in states that might have a
particularly robust state free exercise doctrine. 

I also agree with #
2. 

The issue with respect to # 3, though, is this: What if it turns
out that an exemption regime limited to actual religious objections (and
not "personal" ones) did not produce serious third-party burdens because
the number of kids left unvaccinated would not be enough to compromise
"herd immunity"? 

Such a regime would, I believe, be constitutional.
But it does raise at least a question for folks who (a) argue that
"religion is not special," (b) it is generally unfair to limit exemption
regimes to folks with religious motives, and (c) the best remedy to such
unfairness should generally be to "level up" to include deep
non-religious beliefs rather than "level down" to eliminate exemptions
entirely. 

Perry 

On 02/01/2015 10:38 pm, Marty Lederman wrote: 

>
I'm a bit confused as to which question Perry and Sandy (and Doug?) are
discussing. To break it down a bit for clarification: 
> 1. It would be
perfectly constitutional for the state to require everyone to be
vaccinated; a fortiori, vaccination can be made a condition of attending
school. That's basically what the Second Circuit case is about; and of
course it's correct. 
> 2. It would also be perfectly constitutional for
the state to exempt any children whose parents have a "personal"
objection to immunization, religious or otherwise. The only question as
to those exemption laws is one of policy -- and I'd hope that recent
events cause state legislatures to seriously consider repealing such
exemptions. 
> 3. But if a state chooses to exempt people only for
religious reasons, that raises not only a policy question (which is the
one I intended to raise in starting this thread -- should other states
follow MS and WV in refusing to grant even religious exemptions?), but
also a serious Establishment Clause question, in light of the
third-party burdens (those borne by the children who are not immunized
as well as the children who are made more susceptible to disease). I
haven't checked in a while, but I believe no court has ever held such
religious exemptions unconstitutional except where they discriminate
among religions. I am inclined to say that they are unconstitutional
even where not discriminatory; but the case law does not, as far as I
know, yet support that view.
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Re: Vaccine objectors

[Perry Dane]

 

Sandy, 

Thanks. 

I did elide the state's distinct interest
(separate from its general interest in assuring herd immunity) in making
sure that individual children are protected from illness. That might
indeed be compelling. 

But if the rest of the herd is vaccinated, then
the risk to the individual child might (I'm just speculating here) be
minimal, which might change the calculation and distinguish this case
from the transfusion or cancer treatment cases. Of course, there's a
free rider issue here, of sorts. But should be object to free-riding in
principle, or only in the sort of free-riding that threatens the
provision of the public good at issue? 

Perry 

On 02/01/2015 6:19 pm,
Levinson, Sanford V wrote: 

> This is certainly thoughtful. But what
about the Jehovah's Witnesses cases re transfusions? Are we necessarily
to prefer the interests of the religious parents over the health and
safety of the child? Or do we simply say that the risk of measles,
polio, tetanus etc. isn't so serious as the consequences of no
transfusion. But the Jehovah's Witness child threatens no one else,
whereas, by stipulation, the unvaccinated child does threaten the herd.

> Sandy 
> 
> Sent from my iPhone 
> 
> On Feb 1, 2015, at 3:41 PM,
Perry Dane  wrote:
> 
>> Hi all, 
>> 
>>
Without getting deeply mired myself (right now) in the normative
implications here, it might still be worth noting that: 
>> 
>> 1.
Exemptions from vaccination requirements only become a serious public
health issue when they increase to the point of threatening "herd
immunity." That is to say, we can -- from a public health perspective --
tolerate some exemptions, but not too many. 
>> 
>> 2. According to some
studies, states that allow "personal" in addition to "religious"
exemptions, and states that grant exemptions "easily," have (not a
surprise) a higher rate of non-vaccinators than states that limit
exemptions to "religious" motives or put more hurdles (documentation,
etc.) in the way of folks seeking exemptions. See, e.g.,
http://www.ncbi.nlm.nih.gov/pubmed/17032989 [1] 
>> 
>> 3. It might even
be possible, though I don't have any numbers to support this, that
limiting exemptions to genuine "religious" objectors, and defining
religion in any of the standard ways, would produce a rate of
non-vaccination low enough not to pose a major public health risk. (That
still leaves, of course, the question of risk to the individual
unvaccinated child. But even that risk might be considerably reduced if
"herd immunity" is in place.) 
>> 
>> That is to say, vaccination might
be one of those contexts in which society has a solid compelling
interest in enforcing a rule overall but not necessarily a compelling
interest in enforcing that rule on genuinely religious objectors. (That
was, for better or worse, Burger's argument in _Yoder_). 
>> 
>> The
obvious challenge here is to the "religion is not special" view. If
"leveling up" produces distinctly bad results (of a sort not produced by
more limited religious exemptions), should that be a reason to "level
down" and eliminate all exemptions? That is to say, should religious
objectors lose rights they might otherwise have if too many
non-religious folks want to get on the bandwagon? 
>> 
>> And even for
the rest of us, who do think that "religion is special," the intrusion
of these sorts of facts creates a quandary. What if, for example, one
part of the country has a number of religious objectors below the "herd
immunity" threshold and another part of the country has a number above
the threshold? How should law respond? 
>> 
>> As I said, I'm just
asking the question here, not trying to answer it. 
>> 
>> Perry



Links:
--
[1] http://www.ncbi.nlm.nih.gov/pubmed/17032989
[2]
mailto:d...@crab.rutgers.edu
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Re: Vaccine objectors

[Perry Dane]

 

Hi all, 

Without getting deeply mired myself (right now) in the
normative implications here, it might still be worth noting that: 

1.
Exemptions from vaccination requirements only become a serious public
health issue when they increase to the point of threatening "herd
immunity." That is to say, we can -- from a public health perspective --
tolerate some exemptions, but not too many. 

2. According to some
studies, states that allow "personal" in addition to "religious"
exemptions, and states that grant exemptions "easily," have (not a
surprise) a higher rate of non-vaccinators than states that limit
exemptions to "religious" motives or put more hurdles (documentation,
etc.) in the way of folks seeking exemptions. See, e.g.,
http://www.ncbi.nlm.nih.gov/pubmed/17032989 

3. It might even be
possible, though I don't have any numbers to support this, that limiting
exemptions to genuine "religious" objectors, and defining religion in
any of the standard ways, would produce a rate of non-vaccination low
enough not to pose a major public health risk. (That still leaves, of
course, the question of risk to the individual unvaccinated child. But
even that risk might be considerably reduced if "herd immunity" is in
place.) 

That is to say, vaccination might be one of those contexts in
which society has a solid compelling interest in enforcing a rule
overall but not necessarily a compelling interest in enforcing that rule
on genuinely religious objectors. (That was, for better or worse,
Burger's argument in _Yoder_). 

The obvious challenge here is to the
"religion is not special" view. If "leveling up" produces distinctly bad
results (of a sort not produced by more limited religious exemptions),
should that be a reason to "level down" and eliminate all exemptions?
That is to say, should religious objectors lose rights they might
otherwise have if too many non-religious folks want to get on the
bandwagon? 

And even for the rest of us, who do think that "religion is
special," the intrusion of these sorts of facts creates a quandary. What
if, for example, one part of the country has a number of religious
objectors below the "herd immunity" threshold and another part of the
country has a number above the threshold? How should law respond? 

As I
said, I'm just asking the question here, not trying to answer it.


Perry ___
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Re: science professor lecture

[Perry Dane]

 

Hi all, 

I agree with others that this issue gets complicated by
the professor's own academic freedom and the related question of whether
the views expressed in his lecture should be ascribed to the state.


Putting all that aside, though, the lecture is clearly dubious as a
matter of quasi-constitutional ethics. 

A few years ago, I reacted, in
a letter to editor published in _Academe_, to a similar bit of
overreaching by a science professor. See
http://www.jstor.org/stable/40253040 

By the way, that letter of mine
raises an ancillary question: It does seem to me that, however much we
might respect the science professor's academic freedom, there would be a
real constitutional problem if he penalized students who, while willing
and able to demonstrate their mastery over the scientific content of the
class, explicitly disagreed with him about the underlying Truth value of
that science. 

Take care. 

 Perry 

> On Sep 28, 2014, at 5:24 PM,
Marc Stern  wrote: 
> 
> Today's NY Times Review
section has an article by a professor of evolutionary biology at a
public university describing a lecture he gives annually explaining how
that body of science ‎ has undermined central claims of religious
traditions. 
> 
> Is it constitutional for him to give this lecture?
Would it be constitutional for a professor of theology at the same
university to offer a rebuttal in religious terms? 
> 
> Marc



Links:
--
[1] mailto:ste...@ajc.org
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Underinclusion Arguments Going Forward

[Perry Dane]

 

I do think it's important to distinguish among four distinct types
of underinclusion arguments, though they often overlap both conceptually
and in specific cases: 

1. Exceptions that undermine the government's
argument that the law in question is supported by a compelling interest.
As others have pointed out, one needs to be very careful here because
those other exceptions might well be supported by sound arguments of
their own. 

2. Exceptions that suggest a roadmap for a less intrusive
means to achieve the government's compelling interest. That's the basic
form of the argument in the Hobby Lobby majority opinion. 

3.
Exceptions (as in O'Centro) that, as Alan points out, would raise a
question of inter-religious equality if the claimant doesn't receive a
similar exception. 

4. Finally, some exceptions raise what might be
called a "most favored nation" concern -- the subtle and often implicit
principle that religious interests should be treated at least as well as
roughly analogous secular interests. The challenge here is figuring out
when interests are "roughly analogous," which often requires a more
subtle, imaginative, understanding of religious norms as establishing
something like "hard facts." The disputes arising out of beard rules,
for example, strike me as resting in part on a willingness to
conceptualize religious reasons for not cutting a beard as equivalent to
health-related reasons. Similarly, as Guido Calabresi has emphasized,
the mitigation of damages problem that can come up when tort victims
refuse blood transfusions fall into place if we're willing to treat such
religious convictions as the equivalent of "thin skulls" and then just
apply the general rule that tortfeasors must take their victims as they
find them. As I said, though, this principle, though very important to
my mind, is also often implicit, partly because it is so necessarily
slippery. Also, the bankruptcy law's accommodation of tithing in
personal reorganization rests, I think, on a willingness to treat
tithing obligations as the religious equivalent of hard financial debts,
though secular law would not otherwise treat them that way. 

Perry


* 
Perry Dane 
Professor
of Law 
Rutgers University School of Law


*
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Re: Attenuation

[Perry Dane]

 

Steve Jamar wrote: 

> [1] How about owning stock in companies that
make and sell contraceptives? They had to sign a contract to do that. 
>

> [2] The distance between doing the improper thing -- selling, paying
for, using contraceptives -- and buying general health insurance with
coverages mandated by the government is attenuated sufficiently for me.
However, I understand how one can rhetorically manipulate these matters
as Prof. Dane (and I) have done. And that is fully fair game and 5
justices agreed with one rethorical approach and 4 did not. 5 thought
religion under RFRA should trump the other values (as a matter of
statutory interpretation); 4 did not.

Point 1 simply confirms that we
all draw have to draw lines of causation and moral responsibility
somewhere, and those different lines will be embedded in a variety of
discourses and grounded in a variety of different assumptions. 

As to
point 2, I don't think that "5 justices agreed" with Hobby Lobby's
conclusions about causation and moral responsibility. They simply, and
correctly, accepted them as religious views. It's as if Hobby Lobby had
just said, "for religious reasons, we can't sign a document that alludes
to 'Plan B, Ella, or intrauterine devices.' It's just something about
those words."

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Re: Attenuation

[Perry Dane]

 

Marty, 

I would define religious reasoning as reasoning within a
religious discourse or tradition used by religious people to reach
religiously-significant conclusions. Religious reasoning need not be
metaphysical or transcendent or explicitly spiritual. And it can
certainly resemble analogous secular discourse. But it is still
distinct. 

Three observations: 

1. Look again at my Jewish
separate-plates example. Rabbinic discussions of these sorts of
questions rarely involve discussions about "whether God exists, whether
there's a heaven or a hell, whether God commands a particular thing, or
whether and when an embryo has a 'soul' or is a 'human life.'" So I
return to my question: Should the prison authorities be heard to argue
that the connection between the underlying rule against mixing dairy and
meat and the subsidiary conclusion that those foods must be eaten on
separate plates is just too "attenuated"? 

2. It's a staple of
first-year torts that reasoning about proximate cause is inextricably
intertwined with various policy and other concerns. And even if we
disagree with that, and adopt Ernie Weinrib's view that proximate cause
reasoning is built into the structure of tort law, that would still
suggest that it is embedded in a specific, constrained, discourse that
follows certain rules and makes certain very deep assumptions peculiar
to that discourse. That would suggest that there exist a whole bunch of
constrained discourses about notions of causation, responsibility, and
the like. Each of those constrained discourses is, explicitly or
implicitly, grounded in certain assumptions and world-views. For
example, in Peter Singer's thoroughgoing utilitarian discourse [2], each
of us has a direct affirmative responsibility to try to alleviate
famines and other forms of suffering around the world, since " if it is
in our power to prevent something bad from happening, without thereby
sacrificing anything of comparable moral importance, we ought, morally,
to do it." That is certainly a more radical view than that taken by tort
law, or by more deontological moral discourses, or even by Hobby Lobby.


Now, in the light of all that, it seems to me quite reasonable to
assume that Hobby Lobby is (however inarticulately) reaching _its_
conclusions about causation and responsibility based on forms of
reasoning or instinct embedded in _its_ own religious assumptions and
priorities, though loosely analogous, of course, to other forms of
reasoning about causation and responsibility. 

3. Note that in the
Establishment Clause context, we're (usually rightly, I think) quite
willing to describe certain propositions (such as "creation science") as
religious even though their proponents claim they are not and in fact
carefully try to exclude all mention of "whether God exists, whether
there's a heaven or a hell, whether God commands a particular thing, or
whether and when an embryo has a 'soul' or is a 'human life.'" 

On
07/02/2014 10:32 am, Marty Lederman wrote: 

> Perry: I think this is a
very important, and contestable, assumption: "Hobby Lobby is using
religious reasoning, not secular reasoning" [in determining what sort of
connection constitutes prohibited "complicity"]. What is the basis for
that assumption? In fact, virtually all theological analysis I've ever
seen about questions of complicity does _not _consist of what we would
ordinarily call "religious reasoning" -- such as whether God exists,
whether there's a heaven or a hell, whether God commands a particular
thing, or whether and when an embryo has a "soul" or is a "human life"
-- questions that secular authorities are incapable of or forbidden from
assessing. Instead, that reasoning quite closely resembles the ordinary
sort of reasoning that nonreligious authorities -- academic,
legislative, and judicial -- make all the time about complicity and
responsibility and culpability of "accessories". (Of course, the
exception is that, within the religious assessment, the existence and
importance of the underlying evil -- e.g., prevention of implantation of
a fertilized embryo -- is itself a religious question. I am referring,
instead, to the questions of attenuation/proximate
cause/responsibility/etc.) 
> 
> On Tue, Jul 1, 2014 at 5:47 PM, Perry
Dane  wrote:
> 
>> Steve Jamar writes: "I do
not reject the legitimacy nor the religiousity of the plaintiff's
beliefs. Quite the contrary; I accept them and undertstand them. But I
do not accept that we should accept a complicity with evil claim when it
becomes too attenuated as it is here. The inquiry is attenuation, not
substantive on the sinfulness nor evilness nor "legitimacy" of the
beliefs." 
>> 
>> With all due respect, though, I have always found the
"atte

Attenuation

[Perry Dane]

 

 Steve Jamar writes: "I do not reject the legitimacy nor the
religiousity of the plaintiff's beliefs. Quite the contrary; I accept
them and undertstand them. But I do not accept that we should accept a
complicity with evil claim when it becomes too attenuated as it is here.
The inquiry is attenuation, not substantive on the sinfulness nor
evilness nor "legitimacy" of the beliefs." 

 With all due respect,
though, I have always found the "attenuation" claim the least convincing
of the arguments against Hobby Lobby's position. 

 As the majority
opinion suggests, and as many of us have been saying for a long time,
Hobby Lobby needs to be understood as putting on the table two distinct
religious claims: (1) Certain forms of contraception should not be used.
(2) Hobby Lobby and/or its owners are religiously prohibited from
signing insurance contracts that cover those same forms of
contraception. Of course, Hobby Lobby has religious reasons taking it
from claim (1) to claim (2). But it's not the business of the secular
state to second-guess the quality of that reasoning. In fact, as far as
the secular state is concerned, claim (1) should be essentially
irrelevant. All that really counts is claim (2). 

 Imagine an observant
Jewish prison inmate who asks for kosher food. The prison administration
tells him, "We're happy to give you kosher food. We'll also be sure not
to give you meat meals and dairy meals within however many hours of each
other you think is religiously significant. But we can't give you
separate (or disposable) plates for your meat and dairy meals. That
would just be too expensive or complicated for us to do." The prisoner
responds, "That's not good enough, I'm afraid. As a matter of Jewish
law, hot foot transfers its 'taste' to plates, which in turn transfer
the 'taste' to other food served on those plates, even if the plates are
thoroughly washed between uses. So I need separate or disposable
plates." (There are more technicalities that I won't get into.) The
prison administration replies, "That's just silly. No 'taste' gets
transferred. We understand that you have religious reasons for not
eating meat and dairy food together, and we'll grant you that
accommodation, but this argument you're making about plates and such is
just too attenuated." 

 I suspect that most courts, and most of us,
would reject this defense of "attenuation." (This has nothing to do with
arguments over compelling interest, less restrictive means, etc.) Jewish
law's conclusion [that (1) a ban on mixing dairy and meat foods entails
(2) a ban on using the same dishes for dairy and meat foods] might be
wacky from a secular or scientific point of view, but it's not up to the
secular state to second-guess that view. Indeed, all the secular state
needs to know is that the prisoner has a religious need not to eat meat
and dairy meals from the same plates. If the prisoner is to lose, it
will not be because his claim is too "attenuated." 

 I think the hangup
in the Hobby Lobby context is this: We all appreciate that Jewish law
and other system of religious ritual law often conceptualize the world
in wacky-seeming ways very different from ordinary reasoning. The
separate-plates rule is the least of it. (I say all this with all due
respect; I guide some of my life by those wacky conceptualizations.)
Hobby Lobby, on the other hand, seems to be using a form of argument
(complicity with evil) that has a much clearer secular analogue. But
that's deceptive. Hobby Lobby is using religious reasoning, not secular
reasoning. That doesn't mean it should win at the end of the day. But it
does mean that's it objection to signing certain health insurance
contracts shouldn't just be dismissed as too "attenuated." More to the
point, we really should -- as an analytic and doctrinal matter -- just
ignore Hobby Lobby's underlying objection to certain contraceptives; all
that should matter is that it objects for religious reasons to signing
the damn contracts. 

 Perry 

--

* 
Perry Dane 
Professor of
Law 
Rutgers University School of Law


*
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Contraception mandate - Lee

[Perry Dane]

Just a couple of points on the relevance of Lee:

First, I agree with James Oleske that fitting Lee 
into the analysis is important.  I was more 
concerned in my short comment ( 
http://ssrn.com/abstract=2296635 )  to make the 
point that questions such as the for-profit 
status of the employer should be addressed as 
part of the compelling interest analysis rather than at the threshold.


Second, as to that compelling interest 
analysis:   The quoted line from Lee needs to be 
understood, it seems to me, in the light of the 
Court's more general point about the government's 
compelling interest in collecting social security 
(and other) taxes.  As I point out in my comment, 
governmental interest in the religion-based 
exemptions context should usually be measured "at 
the margin" and not in toto.  Sometimes, though, 
the government has an interest, even at the 
margin, in applying a given rule in all 
cases.  The Court in Lee held that the government 
had a compelling interest, not only in collecting 
taxes from Lee as such, but in maintaining a 
"comprehensive" system with "mandatory and 
continuous participation."  This makes some 
sense, not only for actuarial reasons, but 
because (I extrapolate here) rendering the tax in 
some sense "voluntary" would make it more 
difficult to enforce it against everybody 
else.  (Folks who are being told to pay money to 
the government justifiably resent it when other 
folks get a pass.)  Moreover, as the Court 
pointed out, lots of religious groups object to 
lots of different expenditures to which tax 
revenue is applied, so that allowing an exemption 
would open a real floodgate.  Given that systemic 
interest, the Court concluded that trying to 
carve out a constitutional exception would be 
infeasible.  At that point, the Court had one 
loose end to tie up: that Congress had in fact 
legislated an exception for self-employed 
religious objectors.  It was in the context of 
distinguishing that statutory exception from the 
claimed constitutional exemption that the Court 
wrote that:  "Self-employed persons in a 
religious community having its own "welfare" 
system are distinguishable from the generality of 
wage earners employed by others.  Congress and 
the courts have been sensitive to the needs 
flowing from the Free Exercise Clause, but every 
person cannot be shielded from all the burdens 
incident to exercising every aspect of the right 
to practice religious beliefs. When followers of 
a particular sect enter into commercial activity 
as a matter of choice, the limits they accept on 
their own conduct as a matter of conscience and 
faith are not to be superimposed on the statutory 
schemes which are binding on others in that activity."


The contraception mandate, it seems to me, is 
quite different.  Most importantly, the religious 
objectors are not asking to be let off the hook 
financially.  As the government itself emphasizes 
(to make a different point), contraceptive 
coverage does not make health insurance more 
expensive; indeed, it probably reduces net health 
costs.  Thus, neither the financial integrity of 
the system nor the possible resentment of other 
employers is at risk.  Second, and related, with 
the exception of folks who might object to any 
health insurance or medical treatment for that 
matter (and who are easily distinguishable), 
there aren't a whole bunch of religious objectors 
to other specific pieces of coverage waiting in 
the wings.  Therefore, there's no realistic 
floodgate problem.  So while I'm happy to admit 
that there might be some systemic interest here, 
it isn't even in the ballpark of the systemic 
interest in collecting taxes.  So in the 
light of that very different context, we're back 
to asking whether there's a reason to distinguish 
for-profit from non-profit employers.  There 
might be, for reasons I discuss in the 
comment.  But it's a hard question, and not one that I think Lee resolves.


Regards,

   Perry

On Aug 1, 2013, at 2:35 PM, James Oleske at lclark.edu> wrote:





Like Professor Laycock's piece, Professor Dane's 
piece finds fault with overheated claims on both 
sides of the debate, but I'm most interested in 
the doctrinal analysis Professor Dane offers in 
place of the heat. In particular, on the issue 
of exemptions for for-profit institutions, 
Professor Dane's analysis begins with a line 
that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:


"I do think that the for-profit status of some 
religious objectors might be relevant, but at 
the back end – in the analysis of compelling 
interest – rather than the front end determination of substantial burden."


Professor Dane then notes that arguments can be 
made for and against making distinctions between 
small and large businesses in determining the 
government's interest in denying exemptions (I 
would only add that the denial of an exem

Contraception mandate

[Perry Dane]

 

Hi all, 

I've posted a short essay -- half of a projected exchanged
-- that tries to speak sanely about the contraceptive mandate debate.
The piece offers a doctrinal analysis, but also explores how the debate
-- and in particular the overblown claims by both sides -- "suggest some
imperfectly articulated undercurrents in the current American
conversation about religion and the law." See
http://ssrn.com/abstract=2296635 

Comments would, of course, be
welcome. 

 Perry 

*****

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Dane
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Rutgers University School of
Law

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Saint Stanislaus Kostka Church in St. Louis

[Perry Dane]

Hi all,
Some years
ago, Saint Stanislaus Kostka Church, a Roman Catholic parish church in
St. Louis, got into a dispute with the Catholic bishop in St.
Louis.  the Bishop tried to assert his authority over Saint
Stanislaus, and when the folks running the church refused, the declared
them to be in schism.  The fight ended up in the courts.  Saint
Stanislaus, however,  had an advantage that virtually no other
Catholic parish has -- (secular) title to its own property, a vestige of
a once-common 19th century form of organization for Catholic
churches.  Last March, a trial judge in St. Louis ruled, remarkably,
against the Bishop and in favor of the local parish.  The two sides
have now settled: Saint Stanislaus keeps its building and assets, but
agrees not to represent itself as affiliated with the Roman Catholic
Church.  See

http://ncronline.org/news/faith-parish/st-louis-archdiocese-gives-fight-control-breakaway-parish

Does
anyone on this list happen to have a copy of the original March 2012
opinion (apparently in the neighborhood of 50 pages long) by Judge
Hettenbach?  I assume he relied on a "neutral principles of
law" analysis, but I'd love to see the actual opinion.  It
doesn't seem to be available on either Lexis or Westlaw, and as best as I
can tell the Missouri judicial web sites only post appellate
opinions.
Feel free
to reply privately.  And apologies if this has been discussed
previously on the list.
Thanks.




Perry




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Circumcision

[Perry Dane]

My answers
here should also be informed by Marty's sensible third category of likely
regret.  But I'll limit myself to the two categories I tried to
outline in my earlier post.
(1)
Tattooing:  I don't like tattoos.  I actually often find myself
physically repulsed by them.  My own religion forbids them. 
But if parents had a serious religious reason for tattooing their
underage child (note that I'm limiting myself here to religious reasons),
I would not want the state to intervene unless the tattooing were of a
sort that involved severe pain or was likely to have genuinely harmful
long-term physical, psychological, or sociological consequences for the
child.  
(2)
Sterliziation:  The state could reasonably conclude that forcibly
sterilizing a child produces the grave harm of eliminating that child's
ability to make future reproductive choices.  Here, the issue of
competent consent is inextricably tied up with the procedure. 
Adults who have themselves sterilized are making a reproductive choice;
children who are sterilized without their consent are deprived of all
future such choices.  
(3)
Pregnancy:  It does seem to me that society could reasonably
conclude that pregnancy by a 14-year-old is developmentally inappropriate
for both physical and psychological reasons.  To be sure, we should
respect the kid's autonomous rights in this context, at least to the
extent of, for example, not allowing either the state or the kid's
parents to force her to have an abortion.  But, as Eugene
emphasizes, that doesn't mean that we do or should "excuse" the
culpable role that others might play in getting the kid
pregnant.
Obviously,
one of the issues in all these comparisons is my sense that circumcision
is not as big a deal as some would suggest.  Apart from its
religious significance for many folks, it does seem to have serious
health benefits, including but limited to helping to prevent HIV
infection, which is why there's a major campaign in parts of Africa to
have as many men as possible sterilized.  Moreover, it clearly does
not eliminate sexual sensitivity or gratification, or even reduce it to
the extent that millions upon millions of circumcised men are heard
lamenting their fate.  Indeed, the jury is out as to whether it has
any real effect on sexual sensitivity or gratification at all.  And
even if it did lead to some small reduction in sheer physical
sensitivity, that would strike me as only dubiously relevant:  it
assumes that the quality of sex is tied in a purely linear way to the
quantity of a particular physical stimulus.  
Add to all
this the point I made earlier:  To the extent that the act of
circumcision itself is potentially disturbing or physically complicated
for the one being circumcised, that's much more true for adults than for
eight-day-year-old baby boys.  
Let me,
though, throw out a hypothetical of my own.  Say that baby is born
with a very large and very visible and, by most lights, unsightly mole on
his or her face.  The mole poses no health risk to the child. 
But it is very ugly.  The doctors tell the parents that they can
remove the mole completely with very little risk to the child. 
Having the mole removed as an adult would be possible, but somewhat more
complicated.  In any event, if the procedure were put off, the child
would grow up with the mole still on his or her face.
The
parents decide to have the mole removed (1) for aesthetic reasons and/or
(2) because they're concerned that the sense of social identity or
psychological health of the child will be impaired if they do not have
the mole removed.
Should the
state intervene in this decision?  Should it be entitled to? 
Would these parents' aesthetic and psychological concerns be more worthy
of respect than the religious motives of parents who have their baby boys
circumcised?  Should it matter that the aesthetic judgment of the
mole is culture-specific, or that in some other cultures such a mole
would actually be thought to be a mark of great beauty?
If a
response to this hypo is that circumcision is different from mole-removal
because it cuts off a sexually sensitive part of the body, then I can
tweak the hypo slightly to assume the mole removal (1) will have a
minimal negative consequence such as, say, ever-so-slightly blunting the
kid's sense of smell, and (2) it will also have some positive medical
consequences, such as reducing the risk of certain sorts of infections,
and I can further assume that the parents, taking into account these
facts in addition to their aesthetic and psychological concerns, still go
ahead with asking the doctors to remove the mole.  I'm not sure
these tweaks change the equation very much.
If,
though, the answer is that circumcision is different simply because moles
are "defects" while foreskins are natural parts of the male
human body, that reaction would strike me as just physically
essentialist.  What if the

Circumcision

[Perry Dane]

Marty,

This is sensible.

Obviously, these categories bleed into each other (no pun intended).

Perry



From: Marty Lederman 
Date: Wed, 11 Jul 2012 16:49:33 -0400


Perry:  very helpful.  Would you add this as a third category?:  if 
the state demonstrates that many (most) adult men regret their 
parents' decision to circumcise.  It's if and when that ever happens 
-- not before -- that this will seem like a difficult question.


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Circumcision

[Perry Dane]

Hi,

Just a couple of general thoughts:

1. Most everyone, including Eugene, admits that parents are empowered  
within broad limits to make all sorts of major decisions, inlcuding  
decisions with likely irreversible consequences, on behalf of their  
minor children.  These include decisions about education, religious  
training (or lack of it), form of community (e.g., living in a small  
rural town vs. living in Manhattan), forms of cultural exposure or  
immersion, and etc., etc., etc.


I therefore don't see why we should take seriously a bright line  
between physical interventions such as circumcision and all these  
other myriad ways that parents (often irreverisbily) influence their  
children's lives.  Indeed, even with respect to the narrow question of  
sexual gratification, circumcision is probably very low (even if it  
appears at all) on the list of deeply consequential parental  
interventions, conscious and unconscious.


2. It also bears emphasis that most everyone, including the  
non-libertarians among us, admit that adult men should have the right  
to have themselves circumcised.  That is not merely because the adult  
has the capacity to consent.  There are all sorts of things that even  
"consenting adults" don't have the right to do.  Rather, it is because  
society doesn't understand circumcision -- and in particular  
circumcision for religious reasons -- to be the sort of dire act that  
requires its intervention.  A doctor who, at a patient's request, cut  
off a patient's arm for no good medical reason would likely be charged  
with a crime or at least stripped of his or her license, and the  
patient would very likely be institutionalized.  No such consequence  
would follow for an adult circumcision procedure.  Put another way,  
when the Supreme Court in the Paris Adult Theatre case gave us its  
litany of acts that can be criminalized even among consenting adults  
-- "prostitution, suicide, voluntary self-mutilation, brutalizing  
'bare fist' prize fights, and duels" -- it clearly did not have adult  
circumcision in mind as a form of "self-mutilation."


It seems to me that, in the light of the special role that parents  
play in the upbringing of their children, the state should bear an  
added burden when it tries to limit the right of parents to make a  
decision for their child that it would not keep them from making for  
themselves themselves.  That burden can, I think, be met in at least  
two circumstances:  (1) when the state is trying to prevent an  
unquestionably grave harm, physical or psychological, to the child,  
and (2) when the state is making a demonstrably reasonable judgemnt  
that certain acts are not developmentally appropriate for children  
even apart from the lack (or for that matter the presence) of consent.  
 The first category clearly doesn't apply here, particularly since  
even the purely medical evidence about the pros and cons of  
circumicision remains complicated and controversial.  The second  
category would cover everything from child labor to sexual abuse and  
so on.  But circumcision (need i say more?) is actually more  
developmentally appropriate for an eight-day old baby than for an adult.


Take care.

Perry


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Is a patient who believes "Jesus would save [me]" competent to refuse life-saving medical treatment?

[Perry Dane]

As a general
matter, it's always seemed to me that determinations of mental competence
with respect to a specific judgment should not be based solely on the
"rationality" of that specific judgment, but should look
instead to the entirety of a person's mental state.  
Even
putting that view to one side, though, the crucial question in this case,
I think, is not whether J.M. believes in miracles, even to a degree that
the rest of us would find over-optimistic, but whether she understands,
as a matter of pure fact, that a miracle would be necessary to save her
life.  
I'm also
bothered by the focus on the "inconsistency" and unorthodoxy of
her views.  If the case is viewed through the lens of religious
liberty, it should be clear that protected religious commitments need be
neither consistent nor orthodox.  And if the case is simply viewed
under the rubric of patient autonomy, it seems odd that
"irrational" decisions "unsupported by medical
evidence" would be protected, but confidence in miracles (however
unreasonable, inconsistent, or unorthodox that confidence is) would not
be.
Finally,
as to consistency:  Even a non-religious person with no faith in
miracles might well distinguish between blood transfusions and
resuscitation, which are one-time life-saving procedures, and dialysis,
which involves an indefinite course of often enervating, dispiriting,
treatment.  The point in that non-religious case would not be that
the person wanted to die, but that he or she was willing to undergo some
procedures but not others, in order to live.  In the case of J.M.,
it might be that she thinks that God wants her to look to doctors to save
her life through transfusions, resuscitation, etc., but would intervene
miraculously to avoid her having to suffer the torment of dialysis. 
This is not a judgment I would make, but I'm not J.M.
Take
care.




Perry

From: "Volokh, Eugene"

Date: Thu, 15 Jul 2010 14:58:50 -0700
 From

In
re

Matter of J.M. (N.J. Super. Ct.),

http://www.judiciary.state.nj.us/decisions/BER_P_036_10.pdf, just
released earlier this month (for some interesting reader comments, see
http://volokh.com/2010/07/15/is-a-patient-who-believes-jesus-would-save-me-competent-to-refuse-life-saving-medical-treatment/#comments):
A patient has capacity to consent to medical treatment if she can
reasonably understand her condition, the effect of the proposed
treatment, and the risks of both undergoing and refusing the treatment.
In re Conroy, 98 N.J. 321, 382 (1985). Of the three psychiatrists
who testified, two of them determined J.M. lacked capacity to refuse
dialysis. Dr. Psemar indicated J.M. does not acknowledge the risk of
refusing dialysis. She demonstrated anxiety, depression, and an inability
to problem-solve. Dr. Dealwis testified J.M. did not believe she would
die if not treated, and therefore, was not making a reasoned decision to
choose death over dialysis. They both believed that because she did not
understand the likely consequences of refusing treatment, she lacked
capacity to make decisions about her health. The dissenting psychiatrist,
Dr. Scham, acknowledged that he is not an expert in competency
evaluations and only does five to six of them every year. He said J.M.’s
mental status is clear and she has adequate judgment, but he also
acknowledged her views were inconsistent in that she accepted blood
transfusions and resuscitation, but not dialysis. Dr. Scham believed that
J.M. understood she would die without dialysis, yet he also testified
J.M. stated “God would save her.” When J.M. herself testified, she
asserted that she would not die without dialysis because Jesus would save
her 
A competent patient is able to choose his course of treatment even if his
medical decision may seem irrational or unsupported by medical evidence.
[Footnote: New Jersey courts have ruled that a patient found to be
competent and aware of the consequences of her decision may exercise her
right to refuse treatment for any reason, including when treatment
violates the tenets of her religion. Further, guardians of incompetent
patients must consider the tenets of a patient’s religion when
determining the proper course of treatment. J.M.’s refusal of treatment
was not premised upon an established tenet of her religion precluding
certain medical procedures, as evidenced by her consent to all other
medical treatment and her pastor’s attempt to convince her to undergo
dialysis. As a result, her belief that God would save her does not
preclude her from being found incompetent, nor does the appointed
guardian need to act on that professed belief.] If a patient is unable to
understand the consequences of the decision, however, that patient is
unable to give informed consent and is therefore incapacitated.
The Court found, by clear and convincing evidence, that J.M. does not
have the capacity to make a decision regarding dialysis. She had no
long-last

U.K. Jewish school policy ruled discriminatory

[Perry Dane]

For an account of the case, and a handy link to the many 
opinions in the case, see 
http://www.olswang.com/blogs/scotuk2/article.asp?id=479


Though  the result is, in my opinion, unfortunate, it's 
remarkable to what degree the Justices bent over backwards to 
emphasize that, even if JFS ran afoul of the law, it's admissions 
criteria were not "immoral" or "racist" in the common understanding 
of the word.  From the majority Justice's point of view, this was 
clearly one of those cases that test a judge's ability to follow the 
law even to a bad result.  This is all the more interesting because 
anti-discrimination law is one of those contexts (unlike, say, 
enforcing arcane rules about how to create a fee simple interest 
rather than al life estate) in which we usually assume (or routinely 
shape the law to create) a congruence between "law" and "morality."


Perry




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Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance

[Perry Dane]

Michael Masinter also argues that Belmont Abbey

may have difficulty demonstrating that the resolution of that claim 
in favor of plaintiffs substantially

burdens the free exercise of religion


because an


individual female employee makes the choice to purchase birth
control pills, and whether she does so with the proceeds of her
employer paid salary or her employer paid prescription drug benefits,
she is doing so with funds traceable to her employer, who does not
condition employment on refusing to use birth control or on refusing
to pay for birth control with funds that are proceeds of employment


This is essentially the old argument that "money is 
fungible."  But there are two problems here.  First, law and practice 
are full of instances in which this sort of argument doesn't 
govern.  Cf. much of establishment clause doctrine.  Or consider the 
fact that my school will not reimburse me out of state funds for 
buying alcohol at business meals, but has no problem if I use part of 
my salary to buy alcohol at such meals, and even (I am told) has no 
problem reimbursing me out of gift funds.


More to the point:  Belmont Abbey clearly thinks that there 
is a religiously significant difference between directly and 
indirectly paying for contraception.  And our doctrine of religious 
liberty strongly insists that we not second-guess such judgments, as 
long as they are sincere.   Michael's argument sort of reminds me of 
someone telling an observant Jew that it must be OK to turn on an 
electric light on the Sabbath because, after all, that's not 
"work."  Lots of religious beliefs and doctrines follow forms of 
logic, and make fine distinctions, that don't necessarily convince outsiders.


Perry


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Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance

[Perry Dane]

Michael Masinter wrote:


Contraceptives prevent pregnancy, and only women get pregnant.
Denying contraceptive coverage to men does not expose men to
pregnancy, but denying coverage to women does expose women to
pregnancy.


Let's tease out the issues here.  It's possible that denying 
coverage for contraceptives violates the PDA because of its 
consequences for the risk of unwanted pregnancy, a risk whose effect 
is uniquely borne by women.  If that's true, though, it shouldn't 
matter who is using the contraceptives, men or women.  Let's call 
this the "PDA argument."


But, as I understand it, the EEOC didn't make the PDA 
argument, at least as such.  Instead, it wrote that "By denying 
prescription contraception drugs, Respondent (the college) is 
discriminating based on gender because only females take oral 
prescription contraceptives"?   Let's call this the "straightforward 
argument."  This was the argument to which I was responding.


The consequences of the two arguments are obviously very 
different.  For example, the straightforward argument would apply, 
but the PDA argument would not, if an employer denied coverage for 
some other type of treatment that was directed only at women, such 
as, say, post-menopausal hormone therapy.  Conversely, the PDA 
argument would apply, but the straightforward argument would not, if 
(counterfactually) there were equally-available prescription 
contraceptive pills for both men and women, and an employer denied 
coverage for both types of contraceptives.


I've already suggested why the straightforward argument 
doesn't impress me -- it penalizes Belmont Abbey for institutional 
decisions made by someone else, and it doesn't give an honest account 
of the best description of what Belmont Abbey is doing.  The PDA 
argument strikes me as stronger in principle, but I'm not sure 
(though this is far from the area of my expertise) that the text or 
policy of the PDA can support the weight of it.


    Perry



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Re: EEOC says Catholic College Discriminated by Removing Contraceptive

[Perry Dane]

This point might have been made by someone else already, but 
I'll venture ahead anyway:


I'm not sure we need to accept the premise that Belmont 
Abbey is guilty of sex discrimination here.  The EEOC determination 
found that "By denying prescription contraception drugs, Respondent 
(the college) is discriminating based on gender because only females 
take oral prescription contraceptives"  "By denying coverage, men are 
not affected, only women."   The obvious analogy implicit here is to 
the sort of pregnancy discrimination at issue in Gilbert, which 
Congress has (rightly) determined to be a form of sex discrimination.


But this case is different.  Belmont Abbey can credibly 
argue that its policy would be to refuse to pay for any 
contraceptive, regardless of whether the contraceptive is being taken 
by men or women.  That this policy affects men and women is not the 
product of biology, as it was in Gilbert, but of independent policy 
decisions made by other institutions to treat women's contraceptives, 
but not men's contraceptives, as prescription items.


To put it another way:  When General Electric argued in the 
Gilbert case that it was discriminating against pregnancy, not 
against women, that would rightly strike most observers as a 
laughable, or at least unduly formalistic, proposition.  But when 
Belmont Abbey argues that it is discriminating against contraception, 
not against women, that seems to me to be neither laughable nor formalistic.


Consider this analogy:  Imagine a pacifist landlord who 
refuses to rent to "combat soldiers."  Is that a form of 
discrimination against men merely because another institution (the 
U.S. Congress) has made an independent policy decision not to allow 
women to be combat soldiers?  (For purposes of the hypo, put aside 
the fact that many women do de facto serve in combat.)


Or imagine a landlord right next to a single-sex college who 
refuses to rent to "college students."  Is that a form of sex 
discrimination merely because the college has, of its own accord and 
as its right, chosen to be single-sex?


Now, these situations might, I guess, set up some sort of 
"disparate impact" claim, but that seems to me to require a more 
complicated analysis; in Bemont Abbey's case, it might leave more 
room for the operation of religious conscience or RFRA.


    Perry



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Religious exemptions and undue preference for religion

[Perry Dane]

Eugene,

 I wonder if you're reading the court's footnote too 
broadly.  When the court says that "granting an exception to 
Cornerstone (or perhaps all parochial schools) based on the theory 
that the free exercise claims elevate Cornerstone (or all parochial 
schools) to a higher status than secular nonpublic schools-would be 
equally unacceptable under federal law," it might simply mean that 
such an exception would be "unacceptable" as a requirement of free 
exercise doctrine, not that it would be unconstitutional if required 
by a legislature.

 Even if the court did mean more than that, note that what 
Cornerstone is asking for is far removed from any sort of 
paradigmatic religion-based exemption.  Whatever burden the 
government is imposing on free exercise here is quintessentially 
"indirect."  Moreover, while I'm no great friend of the 
burden-benefit distinction, there surely are some free exercise 
claims, particularly when they involve alleged right to benefits 
rather than defenses against burdens, that are not only off the 
tracks on free exercise grounds but jump the tracks, so to speak, to 
the point of raising establishment clause concerns.  For example, it 
seems to me that if Mrs. Sherbert's religion not only forbade work on 
Saturdays but any work at all, and also forbade contributing to the 
unemployment insurance fund, her claim to unemployment benefits 
would, had it been accepted by the State, actually have raised the 
specter of an unconstitutional religious preference.  And I say this 
as someone who believes in a vigorous free exercise clause and 
continues to lament Smith and City of Boerne.

 Perry



*******
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Religious attitudes towards self-defense, deadly and otherwise

[Perry Dane]

Eugene,

 I can't, offhand, help you with precise theological sources, 
but you might be interested in an internal debate that occurred at 
Calvin College, the very intellectually and religiously serious Dutch 
Reformed college in Michigan, when the school administration decided 
(after the Virginia Tech tragedy) to issue guns to some members of 
the college security force.  A group of students got very upset over 
the decision, claiming it was unchristian, and the administration 
produced a "Theological Explanation for the Use of Force Policy."

 For some account, see, e.g.

http://www.calvin.edu/news/2007-08/use-of-force.htm

http://www.crcna.org/news.cfm?newsid=530

http://clubs.calvin.edu/chimes/article.php?id=3713

http://blog.mlive.com/grpress/2008/05/calvin_board_oks_gun_policy_fo.html

I haven't been able to find the explanation theological document that 
the college administration drafted in defense of its policy.

 Hope this helps.

 Perry


Eugene Volokh wrote:
> I'm looking for good sources that discuss religious attitudes
>towards self-defense or defense of others, deadly and otherwise; in
>particular, I'm looking to see whether there are religious groups that
>(1) take the view that deadly force is always bad, even in self-defense
>or defense of others, but nondeadly force (including pepper spray, stun
>guns, and other devices that are extremely unlikely to kill) is
>permissible, or (2) take the view that given the choice between
>nondeadly force and deadly force, one should always use nondeadly force,
>unless the nondeadly force is very likely to fail (e.g., all one has for
>nondeadly force is fists vs. an attacker's knife).

***
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***
Perry Dane  
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

d...@crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
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Early Massachusetts Statute

[Perry Dane]

 My educated guess is that this statute was only intended to 
apply to Indians who lived in, or visited, the colonists' 
settlements.  If so, it was probably not much more severe (though 
probably less defensible) than the restrictions the colonists placed 
on themselves.

 I'm even more fascinated, though, by one tidbit in the 
statute: the reference to banning only "outward worship."  This 
confirms the degree to which the Puritans had, at least in their 
relations with the Indians, internalized the relatively new ideology 
that defended religious coercion, not as a means to assure individual 
salvation, but simply as a tool for guaranteeing social order, 
political cohesion, protection of others from temptation, etc.

 Some have argued that this focus on the state's interest in 
"outward worship" rather than individual salvation contained, if 
ironically, the seeds of modern conceptions of religious 
liberty.  Consider, in this connection, Elizabeth I's famous 
statement that she had "no desire to make windows into men's 
souls."  For Elizabeth herself, this statement was entirely 
consistent with her oppression of the "outward" practice of Catholic 
worship.  Historically, though, it began the slow process of 
detaching religious commitment from the jurisdiction of the 
state.  (It also began the more normatively complicated process of 
treating religious faith as merely "private.")   I've also found 
really interesting here Janet Halley, Equivocation and the Legal 
Conflict Over Religious Identity In Early Modern England, 3 Yale J.L. 
& Human. 33 (1991), which discusses, among other things, the "Church 
Papists" of Elizabeth England: Catholics who complied with the law 
requiring attendance at Anglican services, and understood such 
attendance as a (practical or even possibly commendable) act of 
"outward" social duty rather than a violation of their Catholic principles.

 Another query:  How would the Indians have understood the 
import and implications of this statute (assuming it was actually 
enforced), particularly given the fact, emphasized by historians of 
the period, that very few New England Indians, at least in the 17th 
century, actually converted to Christianity.  (Indeed, the evidence 
suggests that in the early years of the New England colonies, 
significantly more whites assimilated into native culture and 
society, than the other way around.  That, in fact, might confirm 
that the statute had more to do with controlling whites than 
controlling Indians.)

Doug Laycock wrote:
>  Just ran across a 1633 statute that made it a criminal offense for 
> Indians to worship "their False Gods."  I haven't tracked it to an 
> original source, but James Bradley Thayer has it in a footnote 
> (attached), so I assume it's reliable.
>
>The statute applied "in any part of our jurisdiction;" I don't know 
>if that meant all the territory claimed by Massachusetts Bay colony, 
>or only white towns and farms.  It seems likely that practical 
>enforcement capacity was limited to areas of white settlement, so 
>maybe this is not quite as stunningly outrageous as it appeared on 
>first reading.  Still, it's pretty remarkable.  Maybe they were no 
>longer dependent on the Indians to feed them by this time.


***
Perry Dane
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

d...@crab.rutgers.edu
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***



***
Perry Dane  
Professor of Law

Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

d...@crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596

Work:   (856) 225-6004
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Early Massachusetts Statute

[Perry Dane]

My
educated guess is that this statute was only intended to apply to Indians
who lived in, or visited, the colonists' settlements.  If so, it was
probably not much more severe (though probably less defensible) than the
restrictions the colonists placed on themselves.
I'm even
more fascinated, though, by one tidbit in the statute: the reference to
banning only "outward worship."  This confirms the degree
to which the Puritans had, at least in their relations with the
Indians, internalized the relatively new ideology that defended
religious coercion, not as a means to assure individual salvation, but
simply as a tool for guaranteeing social order, political cohesion,
protection of others from temptation, etc.  
Some have
argued that this focus on the state's interest in "outward
worship" rather than individual salvation contained, if ironically,
the seeds of modern conceptions of religious liberty.  Consider, in
this connection, Elizabeth I's famous statement that she had "no
desire to make windows into men's souls."  For Elizabeth
herself, this statement was entirely consistent with her oppression of
the "outward" practice of Catholic worship.  Historically,
though, it began the slow process of detaching religious commitment from
the jurisdiction of the state.  (It also began the more normatively
complicated process of treating religious faith as merely
"private.")   I've also found really interesting here
Janet Halley, Equivocation and the Legal Conflict Over Religious
Identity In Early Modern England, 3 Yale J.L. & Human. 33 (1991),
which discusses, among other things, the "Church Papists" of
Elizabeth England: Catholics who complied with the law requiring
attendance at Anglican services, and understood such attendance as a
(practical or even possibly commendable) act of "outward"
social duty rather than a violation of their Catholic
principles.
Another
query:  How would the Indians have understood the import and
implications of this statute (assuming it was actually enforced),
particularly given the fact, emphasized by historians of the period, that
very few New England Indians, at least in the 17th century, actually
converted to Christianity.  (Indeed, the evidence suggests that in
the early years of the New England colonies, significantly more whites
assimilated into native culture and society, than the other way
around.  That, in fact, might confirm that the statute had more to
do with controlling whites than controlling Indians.)
Doug Laycock wrote:
 Just ran across a 1633
statute that made it a criminal offense for Indians to worship
"their False Gods."  I haven't tracked it to an original
source, but James Bradley Thayer has it in a footnote (attached), so I
assume it's reliable.  
The statute applied "in any part of our jurisdiction;" I don't
know if that meant all the territory claimed by Massachusetts Bay colony,
or only white towns and farms.  It seems likely that practical
enforcement capacity was limited to areas of white settlement, so maybe
this is not quite as stunningly outrageous as it appeared on first
reading.  Still, it's pretty remarkable.  Maybe they were no
longer dependent on the Indians to feed them by this time.


***
Perry Dane  
   


Professor of Law
Rutgers University 
School of Law  --
Camden

217 North Fifth Street
Camden, NJ 08102  
 


d...@crab.rutgers.edu
Bio:

www.camlaw.rutgers.edu/bio/925/
SSRN Author page:

www.ssrn.com/author=48596
Work:   (856) 225-6004
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Home:   (610) 896-5702
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"A Holy Secular Institution"

[Perry Dane]

Hi all,
For anyone
interested, I've posted my upcoming Emory Law Journal article,
"A Holy Secular Instituition," dealing with the intersection of
the religious and secular dimensions of marriage, with particular
reference to the same-sex marriage debate, on SSRN.  To read the
abstract or download the article, go to

http://ssrn.com/abstract=1293946  The article might be of some
use, in particular, because, as I emphasize, its goal is less to score
points for one side or the other in the marriage debate than to try to
illuminate the playing field.
Take
care.



Perry

***
Perry Dane  
   
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Rutgers University 
School of Law -- Camden  
  

217 North Fifth
Street  

Camden, N.J. 08102 


[EMAIL PROTECTED]
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Religious exemptions for the non-religious

[Perry Dane]

Doug
Laycock writes that "the willingness to treat atheism as a religion
is very encouraging."
I agree
that, for certain purposes, including rights of _expression_, religious
views and anti-religious views need to be treated equally. 

On the
other hand, it has always seemed to me that to extend the idea of
religion-based exemptions beyond the realm of specifically religious
norms conflicting with secular law would, in effect, create a universal
libertarian presumption that no law can be applied against a dissenting
individual unless that law is supported by a compelling governmental
interest.  And that sort of universal libertarian presumption just
strikes me as implausible and inconsistent with our constitutional and
legal structure.
Doug is
right that some opponents of religion-based exemptions make something
like the following argument:
  1.  We can't exempt only believers, because that would
discriminate against nonbelievers.
  2.  But we can't exempt nonbelievers, because nonbelief is
not a religion.
  3.  Therefore, we can't exempt anybody.

But I
think that we should be equally concerned about the following
argument:
  1.  We can't exempt non-believers, because that would create
a universal libertarian presumption in the law, which is
implausible.
  2.  But we can't exempt only believers, because that would
discriminate against nonbelievers.
  3.  Therefore, we can't exempt anybody.

In both
cases, the flaw in the reasoning (which Doug agrees is a flaw) is the
notion that "we can't exempt only believers."  Of course
we can exempt only believers, and there are good, normatively compelling,
reasons to do so.




Perry


***
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Rutgers University 
School of Law  --
Camden

[EMAIL PROTECTED]

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The Flushing Remonstrance

[Perry Dane]

Hi all,

I forgot to include a link to the text of said Flushing Remonstrance:

http://www.nyym.org/flushing/remons.html


Perry

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Missouri declares Christianity its official religion.

[Perry Dane]

A not-very-analytic observation on a Friday afternoon:

	I happened to read these posts on the Missouri resolution at about 
the same time as I was taking a look at a remarkable document called 
the "Flushing Remonstrance," written in 1657, in which the leaders 
and citizens of Town of Flushing told Governor Stuyvesant of the 
then-Dutch colony of New Amsterdam (later, of course, New York) that 
they would not cooperate with his oppressive measures against the 
Quakers.  The document is often called the first formal statement of 
religious liberty in the American colonies, and some treat it as one 
of the direct precursors to the First Amendment.  Unsurprisingly, its 
argument for religious liberty is, in large measure, a religious argument.


	It strikes me, for what it's worth, that the Missouri resolution not 
only contradicts the Constitution (whether it "violates" it is a more 
complicated question having to do with the status of such legislative 
expressions of opinion), it also, in the saddest possible way, 
violates the "law of love, peace, and liberty" referred to in the 
Flushing Remonstrance.  Moreover, with all its talk of majority 
rights, the Missouri resolution is really more a statement of 
identity politics by an angry faction than a genuine defense of 
either religious values in general or even Christianity in particular.


	I am also reminded here of Bob Cover's discussion of 
"commitment."  The authors of the Flushing Remonstrance knew that 
Stuyvesant would end up arresting them, which he did.  I am not 
proposing, of course, that anyone actually test the mettle of the 
Missouri legislators by arresting them, but I wonder how many of them 
would have the courage of their convictions if that were the likely 
outcome of their little legal-literary exercise.


Perry

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Lemon test not applicable in prisons?

[Perry Dane]

Fascinating!

	I do think that the Lemon test is "tempered" in the prison context, 
but not by virtue of Turner v. Safley.  Rather, it seems to me that, 
to the extent that prisons (and, to a lesser extent, the armed 
forces) are closed off from free access to the religious element of 
civil society, the government can justifiably try, to some extent, to 
import or reproduce or sponsor a religious element into the prison, 
even if that requires more direct financial support and entanglement 
than could be justified in other contexts.  Put another way, prisons 
and similar settings present contexts in which the government might 
be justified in recognizing a "positive" (as in the distinction 
between positive and negative freedoms) free exercise interest that 
mitigates, at least partially, against establishment clause concerns.


	The decision that Scott quoted is problematic in two 
respects.  First, it wrongly relies on statist penological interests, 
rather than individual free exercise interests, as the counterweight 
to the establishment clause.  This could very easily lead to a very 
different set of results.  Second, the analysis in Turner is framed 
in terms of a balance (albeit one with a thumb on the scale) between 
the prison's interests and the liberty of an individual.   For 
example, one of the "considerations" in the Turner calculus is 
"whether there are alternative means of exercising the right that 
remain open to prison inmates."  And another consideration is "the 
impact accommodation of the asserted constitutional right will have 
on guards and other inmates."   If the establishment clause is 
understood, however, as protecting structural values rather than 
individual rights, then the whole Turner analysis would have to be 
substantially recast before it could make sense as a way of measuring 
whether the state impermissibly crossed a "tempered" wall of 
separation (forgive the mixed metaphor).


It's still fascinating, though.

Perry

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Religious marriages and the state

[Perry Dane]

Hi all,

	Does anyone know of any cases, apart from People v. Greenleaf in New 
York, in which a clergyperson was prosecuted for  officiating at a 
same-sex marriage?


Thanks.

Perry

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Drawing lines among religons

[Perry Dane]

I want to suggest a broader issue if I could, arising out of 
the Davey discussion.


It seems to me that there is an American legal instinct not 
to let theological differences among religious traditions play too 
large a role in leading to different legal results, even if those 
different results could be justified on objective, secular, 
grounds.  Or, to put it another way, our law often bases a particular 
legal rule on a paradigm case drawn from one religious traditions, 
and then tends to extend the application of that rule to other 
faiths, even if their beliefs or practices don't, strictly speaking, 
fit the original paradigm.


Some examples, important and less so:

(1) The strict clergy-penitent privilege makes the most 
sense for those religious traditions that have a strong notion of a 
specific sacrament of confession, and an absolute seal of 
confidentiality surrounding that confession.  Yet it is applied to 
all faiths.  (If the paradigm case for the privilege were rabbis, for 
example, rather than Catholic priests, it would probably be less stringent.)


(2) If we applied the broader principles of the modern law 
of charities to the status of churches, it seems fairly clear that 
many, but not all, would qualify as genuine "public benefit" 
institutions.  Yet the assumption is that, barring outright fraud and 
the like, all churches qualify.  (Notice the difficulty that the 
opinions in Walz had in explaining why.  Notice also that English law 
is much less sentimental in this regard:  it famously holds that 
while orders of nuns that do educational or other work in the 
community can qualify as beneficiaries of a valid charitable trust, 
orders of purely contemplative nuns cannot.)


(3) Still on the topic of the law of charities:  our 
justification for allowing a charitable deduction for "contributions" 
to churches is based on the paradigm of congregants putting money in 
the basket, and seems, technically speaking, not to fit easily into 
religions with compulsory tithes, pew rents, High Holiday tickets, 
etc.  Yet all these practices qualify for the deduction.  (Hernandez 
was an effort to draw some sort of line here, but its practical 
consequence has been nil.  Indeed, the IRS ended up settling with the 
Scientologists.)


(4) One of my favorite small examples:  the parsonage 
provision in the tax code, whose effect is to treat all clergy as if, 
like Catholic priests, they were required to live in church-provided rectories.



Now, it does seem to me that this "instinct" makes a good 
deal of sense for the American dispensation governing the relation of 
religion and the state.  But it is still difficult.  In a sense, the 
choice often comes down to whether we should (a) draw lines among 
religions, or (b) treat all religions alike, but in the process draw, 
secularly-speaking weakly-justified lines between religious and 
non-religious phenomena.  Thus, for example, the effect of the 
parsonage exemption is to give many Jewish and Protestant clergy an 
arguably arbitrary tax preference compared to non-clergy.  On the 
other hand, the effect of repealing the parsonage exemption would be 
to give Catholic clergy an objectively justifiable but still 
discomforting  tax preference compared to their Jewish and Catholic 
colleagues based on the particular ecclesiology and institutional 
set-up of their respective faiths.  This is a real dilemma, and I've 
never found a totally easy way out if it.  (I happen to think that 
there's a fair amount of intractability in this religion-and-law 
business.  But maybe that's just the post-modernist in me.)


I also think that this "instinct" I'm talking about exists 
below the constitutional surface (though that does not make it any 
less interesting).  But it does raise the usual constitutional 
questions:  When is drawing lines among religions forbidden?  (I.e., 
to what extent does Larson, etc., apply beyond the more blatant cases 
of religious discrimination and gerrymandering.)  When, if ever, is 
refusing to draw lines among religions forbidden?


    Perry

***
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Davey--Let's Focus on Denominational Equality

[Perry Dane]

The line that Marty is drawing is perfectly sensible, and 
enforceable in a public school context.  The problem, though, is that 
religious traditions and institutions often do, and are perfectly 
entitled to, re-configure these sorts of categories according to 
their own best lights.


For example, most of the Bible and Jewish History courses, 
and many, many, other courses, taught in the Rabbinical program at 
the Jewish Theological Seminary, which ordains Conservative Rabbis, 
could easily be taught in a public university's Judaic Studies 
program.  That is largely because the Conservative movement embraces 
the "academic" historical-critical method in studying such 
topics.  For that matter, even the education at more "traditional" 
yeshivas, which is generally averse to historical-critical inquiry, 
might still be transposable to a public educational setting, in that 
it largely focuses on the internal, logical, analysis of Talmudic and 
other Jewish legal texts.  Yet, in a larger sense, both JTS and 
traditional yeshivas are clearly engaged in a devotional enterprise, 
not to mention the fact that they are training clergy.  (A further 
complication is that, in Jewish thought, learning and study are 
themselves devotional acts.)


All this is not to say either that the Washington 
restriction is incoherent or that Davey is wrong.  I'm only 
suggesting that they pose difficulties, and that those difficulties 
arise in part from the many ways that religious traditions draw their 
own lines between scholarly inquiry and devotional study.


Perry



Marty Lederman writes:
The test in Washington is whether the required courses for the major 
involve instruction aimed at inculcating religious belief in the 
doctrine of a particular religion -- or disbelief.  Are they 
devotional in nature or designed to induce religious faith or 
promote a particular religious truth?  If so, they're 
ineligible.  Or, perhaps more to the point:  Could the courses be 
taught by a *public* university in Washington?





***
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Rutgers University
School of Law  -- Camden
217 North Fifth Street
Camden, NJ 08102

[EMAIL PROTECTED]
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Unconstitutional statutory religion-based exemptions

[Perry Dane]

Allen,

Great.  Thanks.

Perry

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Unconstitutional statutory religion-based exemptions

[Perry Dane]

Marty,

I'm sorry.  I'm not being as clear as I should be.

	I'm talking about statutes that try to eliminate what would 
otherwise be a conflict between a secular norm of conduct that is 
directly imposed by the government and a religious norm of 
conduct.  In other words, I'm talking about the same sorts of 
situations that, absent such a statutory exemption, could have, 
before Smith, given rise to a Sherbert/Yoder-type claim for a free 
exercise exemption.


	Examples include:  draft exemptions (which were broadly construed 
but not struck down as such), exemptions from drug laws, exemptions 
from laws requiring drivers to have pictures on their drivers' 
licenses, exemptions from civil rights laws, the New 
Jersey  religion-based exemption from its statute defining death, 
exemptions from auto insurance requirements, exemptions from 
immunization requirements, religious exemptions from (non-tax) 
alcohol-regulation laws, laws exempting employers with contrary 
religious beliefs from an otherwise-applicable statutory duty to 
include contraceptives in their prescription benefit plans for 
employees, statutes exempting religiously-motivated students from 
certain parts of an otherwise-required public school curriculum, 
statutes exempting religious believers (e.g., Amish) from the 
electrical provisions of the Uniform Construction Code, etc.


	Or, if I'm still not being clear in defining my terms (which would 
be my fault), then let me just ask the arbitrary question: beyond the 
examples discussed so far (Caldor, Texas Monthly, etc.), does anyone 
know of other examples?


Perry

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Unconstitutional statutory religion-based exemptions

[Perry Dane]

Marty,

Thanks.

	Thornton, however, did not involve a statutory directive to 
government to accommodate the religious needs of certain individuals, 
but rather a statutory duty imposed on one set of private parties to 
accommodate the religious needs of another set of private parties.


	And Texas Monthly was a tax case.   (There is, of course, language 
in both cases that might be relevant to the narrower issue I'm pursuing.)


	The Christian Science case is more directly on point, though, as you 
say, it involves a pretty extreme case.


	My question then, as refined, is this:  Outside of the most blatant 
denominational preferences, are there good examples of statutory 
religion-based exemptions, defined in the narrow way I have in mind, 
being struck down?


Thanks again.

Perry

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Unconstitutional statutory religion-based exemptions

[Perry Dane]

Hi all,

I'm looking for good examples of statutory religion-based 
exemptions (to otherwise generally applicable regulatory norms) that 
have been struck down on establishment clause, equal protection, or 
similar grounds.


Feel free to respond privately unless you think that this 
would be of general interest.


Thanks.

Perry






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Florida voucher case

[Perry Dane]

Note that this opinion did not turn on any church-state 
issues, but rather on the court's holding that the voucher program 
fostered "plural, nonuniform systems of education" and thus violated 
the provision in the Florida constitution requiring the State to 
provide a "uniform, efficient, safe, secure, and high quality system 
of free public schools..."


This is all still very interesting, though, particularly 
since there's a decent argument that the U.S. Supreme Court's aid 
cases, particularly the earlier ones, were also in some, if only 
implicit, sense as much about defending the public school system as 
they were about drawing a line between church and state.


Those words "plural" and "uniform" also have deep resonance 
here.  Though vouchers, etc., do (maybe for the better) challenge the 
privileged status of the public school system, those of us who are 
relatively strict separationists would still tend to believe that, in 
the long run, they threaten to flatten genuine pluralism by drawing 
religious schools more tightly into the bosom of state regulatory control.


Perry






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Home Schooling and Real Covenants

[Perry Dane]

 can 
not be used for a common residential purpose, raising and directing 
the upbringing of children. It may be contrary to public policy (or 
not touch and concern land).


  Cheers, Rick Duncan






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An even easier polygamy question?

[Perry Dane]

Mary Lederman wrote:

Could I follow up on that with a basic question, the answer to which 
I probably should know (and probably did know at one point; and 
probably would know again if I got around to reading Sarah Gordon's 
book, which I've been meaning to do):  Do laws against polygamy 
prohibit multiple civil marriages, multiple religious marriages, or 
both?  If they prohibit multiple religious marriages, then why 
wouldn't that be a law directed at religion (rather than a generally 
applicable law), impermisisble in modern doctrine under Lukumi and 
like cases?  If, on the other hand, the polygamy regulations only 
prohibit multiple civil marriages, then why bother with a criminal 
penalty? -- why not simply have the law provide that the state will 
only recognize one marriage, which would, I assume, raise absolutely 
no Free Exercise problems as long as people were free to do what 
they wish as a matter of religious law?


Actually, I think that Marty has hit upon a deep and 
profound issue in the law of marriage and the relation of religion 
and civil law.


Just two observations for now:  First, the distinction 
between "civil" and "religious" marriages is not as clean as we might 
suppose.  In a fair number of states, for example, religious 
marriages are given civil effect even in the absence of a marriage 
license, etc.  That is to say, in those states, it is just not 
possible to enter into a "merely religious" marriage.  See, e.g., 
Persad v. Balram, 187 Misc. 2d 711 (N.Y. Sup. Ct. 2001)("There is an 
old cliche that goes 'if it walks like a duck and quacks like a duck, 
and looks like a duck, it's a duck.' ... Essentially, the Domestic 
Relations Law establishes that where parties participate in a solemn 
marriage ceremony officiated by a clergyman or magistrate wherein 
they exchange vows, they are married in the eyes of the law.") By 
the way, this doctrine is quite separate from the notion of 
"common-law marriages," which most States, including New York, have 
now rejected by statute or otherwise.


Second, while bigamy law has, for the sake of lenity, 
traditionally included a more stringent standard to prove a second 
marriage than the law of marriage would otherwise require in other 
contexts, Utah law, precisely to catch in its net polygamists who 
claim they are entering into "merely religious" subsequent marriages, 
specifies that a person is guilty of bigamy "when, knowing he has a 
husband or wife or knowing the other person has a husband or wife, 
the person purports to marry another person or cohabits with another 
person."  In State v. Green, 2004 Utah 76, the Utah Supreme Court 
rejected both free exercise and vagueness challenges to the 
statute.  In some ways, the vagueness challenge is more interesting, 
since Green argued, not unreasonably, that the statute did not 
clearly distinguish his conduct from all manner of other 
extra-marital sexual relations.  The court, for better or worse, 
responded that the statute clearly reached his "spousal-type" or 
"conjugal-type" relationships.


As I say, there are some deep and profound issues lurking here.

Perry



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Regarding "A note about the Atheist Legal Center"

[Perry Dane]

At this point, my own sense is that responding to anything 
that Larry Darby says would only perpetuate the illusion that a 
serious and reasoned conversation is possible with him.


It might be worth, though, standing up for the honor of 
Albert Einstein.


In one of Darby's messages, he included this alleged 
quotation from Einstein:



"Anti-Semitism is nothing but the antagonistic attitude produced in the
non-Jew by the Jewish group. The Jewish group has thrived on oppression
and on the antagonism it has forever met in the world." -- Albert
Einstein, in Collier's Magazine, November 26, 1938


These lines, quoted this way, appear all over the web, but 
only on avowedly antisemitic, neo-Nazi, White Power, and similar 
sites.  In fact, these two sentences are ripped, out of context and 
distorted, from two different pages of a famous essay by Einstein 
called "Why Do They Hate the Jews?," which he published in 1938 
shortly after Kristallnacht.  Einstein's article discussed, among 
other things, the opportunistic role that anti-semitism had come to 
play in totalitarian politics, and also sketched out a quite stirring 
humanist synthesis of traditional Jewish values.  He also made, in 
one short section of the essay, the unremarkable observation that to 
some extent oppression can serve to foster solidarity in the 
oppressed group.   The basic message of the article, however, is that 
antisemitism is the favored tool of a political mentality that "seeks 
to base society exclusively upon authority, blind obedience, and 
coercion."  And he ends the essay, interestingly enough, with a 
warning about the threat, even in the United States, of oppressive 
political movements employing the "weapon of anti-Semitism as well as 
hostility to various other groups."


Perry




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Dover Case Questions

[Perry Dane]

Steve Jamar writes:


Maybe they teach science differently now than when I went to school
and when my boys (now ages 19 and 22) went to school, but science was
inherently taught as conditional and subject to testing and change.
There are things that are known facts, but there is a lot that is
still unexplained -- the true nature of light, for example, and why
gravity is such a weak force compared to the others, and a whole host
of things in biology and geology.


[snip]


If the point is to teach the limits of our understanding, that can be
and in my experience was and is taught.  There are lots of questions
still to which the answer is "we don't know."



There is an important difference between fallibility, 
contingency, and modesty _within_ scientific inquiry and  modesty 
_about_ the scientific enterprise itself.   All good scientists 
accept the former.  Many, but far from all, accept the latter.


Some scientists and philosophers -- folks like Richard 
Dawkins and Daniel Dennett most vocally lately -- argue that the 
conclusions of science, such as evolution, shred any possible basis 
for belief in God.   Would it be constitutional for this sort of 
Dawkins/Dennett claim to be one of the propositions officially taught 
as a part of a science curriculum?  I assume not.  Would it be 
constitutional to tell students that there are no truths that are 
unamentable, in principle, to scientific study and verification?  I 
assume not.  (I'm not saying that these sorts of thing couldn't be 
discussed in public school classrooms.)   All that some of us are 
arguing, then, is that it would be constitutional simply to advise 
students that the methodological naturalism built into scientific 
inquiry (and which properly excludes the teaching of "intelligent 
design theory" as a subject _within_ science) should not be taken for 
an official commitment to the ontological naturalism of folks like 
Dawkins and Dennett.


Perry


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Dover Case Questions

[Perry Dane]

Steve Jamar writes:
Maybe they teach science
differently now than when I went to school  
and when my boys (now ages 19 and 22) went to school, but science
was  
inherently taught as conditional and subject to testing and
change.   
There are things that are known facts, but there is a lot that is 

still unexplained -- the true nature of light, for example, and why 

gravity is such a weak force compared to the others, and a whole
host  
of things in biology and geology.
[snip]
If the point is to teach the
limits of our understanding, that can be  
and in my experience was and is taught.  There are lots of
questions  
still to which the answer is "we don't
know."
There is
an important difference between fallibility, contingency, and modesty
_within_ scientific inquiry and  modesty _about_ the scientific
enterprise itself.   All good scientists accept the
former.  Many, but far from all, accept the latter.  
Some
scientists and philosophers -- folks like Richard Dawkins and Daniel
Dennett most vocally lately -- argue that the conclusions of science,
such as evolution, shred any possible basis for belief in
God.   Would it be constitutional for this sort of
Dawkins/Dennett claim to be one of the propositions officially taught as
a part of a science curriculum?  I assume not.  Would it be
constitutional to tell students that there are no truths that are
unamentable, in principle, to scientific study and verification?  I
assume not.  (I'm not saying that these sorts of thing couldn't be
discussed in public school classrooms.)   All that some of us
are arguing, then, is that it would be constitutional simply to advise
students that the methodological naturalism built into scientific inquiry
(and which properly excludes the teaching of "intelligent design
theory" as a subject _within_ science) should not be taken for an
official commitment to the ontological naturalism of folks like Dawkins
and Dennett.    



Perry

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Camden

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Dover Case Questions

[Perry Dane]

Alan Brownstein writes:


So - suppose someone drafted a statement disclaiming scientific
overreaching as in

1.  "In the absence of some external force which is not bound by the
laws of science, the evidence that we CAN test tells us that evolution
is what happened.  If there was a supernatural actor in the process,
however, then all bets are off because science cannot test the
supernatural."

And then added to it a statement building on Mark's comment - that

2.  In its current form, or state of development, ID does not
provide a framework for identifying testable hypothesis - and as such
can not be recognized as science.

Is that a statement list members think school boards can
constitutionally, and should, as a matter of policy, endorse?


I do think that it might be salutary and just plain correct 
to append to all science classes (and for that matter social science 
classes that proceed from a presumption of methodological naturalism) 
the sort of disclaimer I suggested earlier.  But I worry that 
attaching such a disclaimer specifically to the teaching of evolution 
improperly privileges one particular religious point of view over others.


The trick is to attend to the legitimate concern that 
science education would inadvertently promote an ideology of 
scientism, while also avoiding the official promotion of religion.


Perry


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Dover Case

[Perry Dane]

For what it's worth, there is a good argument for limiting 
the term "Doctor" to physicians (including, by the way, physicians 
without a "doctorate" such as British physicians with only an 
undergraduate medical degree), and referring to all non-physician 
Ph.D.'s as Mr. or Professor or the like.  This is, for example, the 
traditional practice at Yale.  In fact, there's a certain nice 
reverse snobbery to this usage.


That said, all I can add is the following entirely facetious 
observation:  Here we are contemplating whether a particular 
phenomenon (the use of the terms Dr. and Prof.) is (a) essentially 
random, (b) the mechanical product of underlying variables such as 
the self-description of the witnesses, the practice of the attorneys, 
etc., (c) an unconscious tic, or (d) dare I say it, the result of the 
judge's "intelligent design." Escher would be proud.


Perry


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Dover Case Questions

[Perry Dane]

Brad writes:



Perry wrote on 12/21/2005 01:54:14 PM:

>  It is therefore consistent with at least the bare bones of
> ID theory that the designer was evil, or a practical joker, or a
> child-god who designed us as part of the heavenly equivalent of a
> kindergarten art project.

Or that an omniscient God who knows more than we do had a reason for
creating us this way that is no more apparent to us than it is apparent to
a 3 year old why he can't play with a lit candle.



Yes.

And that is part of what makes Intelligent Design Theory so 
theologically and religiously unsatisfactory:  For the sake of trying 
to play in the arena of science, an effort at which it fails, much of 
the ID movement invokes a designer who is simply an abstract 
placeholder rather than the One Who Loves, and who evokes love and 
worship from his or her creation.


There is a deeper point lurking here about the very strange 
terms on which the contemporary culture wars are being fought.  But 
I'll let that pass.


Perry



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Dover Case Questions

[Perry Dane]

Brad writes:
Perry wrote on 12/21/2005
01:54:14 PM:

>  It is
therefore consistent with at least the bare bones of 
> ID theory that the designer was evil, or a practical joker, or a 
> child-god who designed us as part of the heavenly equivalent of
a 
> kindergarten art project.

Or that an omniscient God who knows more than we do had a reason for 
creating us this way that is no more apparent to us than it is apparent
to 
a 3 year old why he can't play with a lit candle.

Yes.

And that
is part of what makes Intelligent Design Theory so theologically and
religiously unsatisfactory:  For the sake of trying to play in the
arena of science, an effort at which it fails, much of the ID movement
invokes a designer who is simply an abstract placeholder rather than the
One Who Loves, and who evokes love and worship from his or her
creation.
There is a
deeper point lurking here about the very strange terms on which the
contemporary culture wars are being fought.  But I'll let that
pass.



Perry


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Dover Case Questions

[Perry Dane]

Ed Brayton writes:



Actually, this depends on which ID advocate you're talking to at the
time and that fact points up the lack of a coherent ID model.



This is fair enough, in a sense.  Yes, to be sure, there are 
different versions of ID, just as there are different versions of 
most schools of thought.  But the fact that a theory has different 
versions that do not cohere with each other does not mean that the 
theory, as a general approach, is not coherent.


It's also worth adding that, outside the range of what is 
usually labeled as ID theory, are a whole set of other views, which 
are self-consciously religious/theological or meta-empirical rather 
than faux scientific, that posit that an intelligent God in some 
sense guides or stands behind or sustains or pushes or pulls or is 
otherwise involved in the process that science, within its own 
perfectly appropriate naturalistic methodological limitations, 
describes to us as evolution through random mutation and natural selection.


Perry




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Dover Case Questions

[Perry Dane]

Ed Darrell writes:

No, urethra design is not beside the point at all.  Is there an 
intelligent design explanation for that design?  There is an 
evolutionary explanation (though not wholly satisfactory to 
many).  How could such a thing have happened, according to 
"intelligent design theory?"


  The absence of any possible answer to that question points to the 
lack of science behind ID.  That is the whole issue.



I agree that ID is not a scientific theory.  I also believe 
that the Dover decision was correct.


That said, though, one needs to be fair here.  The claim of 
intelligent design theory is not that NO features of the biological 
world can be explained by evolution through natural selection.  Nor 
is it, as I said before, that the biological world is, according to 
one or another criterion, well-designed.  It is, rather, that there 
are certain features of the biological world (irreducible complexity 
and all that) that point to at least those features having been 
designed by an intelligence.


It is therefore consistent with at least the bare bones of 
ID theory that the designer was evil, or a practical joker, or a 
child-god who designed us as part of the heavenly equivalent of a 
kindergarten art project.


Perry




*******
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Dover Case Questions

[Perry Dane]

Robert Lipkin wrote:


I would argue that Steve's  inference from the facts of "disease, war,
violence, inequity, inequality,  stupidity of some design features 
(knees, elbows,

eyes)" to the conclusion that  no omnipotent, omniscient, and morally perfect
(loving) deity exists is a  perfectly legitimate inference. That is, 
the facts

of evil and suffering  are incompatible with the existence of such a deity,
and this incompatibility  must be explained away for anyone to 
recognize these

facts but still insist on  the deity's existence.



To be fair to the intelligent design folks, their argument 
is not that the design of the universe IS intelligent, in the sense 
of optimal, or efficient, or morally good, or aesthetically pleasing, 
but rather that certain facts of the universe point to it having been 
designed BY AN intelligence.


This does not, of course, answer Robert's theological 
argument, but it does suggest that the usual anti-intelligent-design 
jokes about the proximity of the prostate gland to the urethra are 
really beside the point.


Perry



*******
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Dover Case Questions

[Perry Dane]

Chris Lund writes:


Where the class happens to fall in the course catalog, in one sense, does
seem completely irrelevant.  But the reason why we have this fight is
because whether ID is taught as science or something else will determine
whether it is taught as true.  If it's taught outside of science class, it
will likely be taught from a purely descriptive point of view: this is how
ID movement historically developed, it had these progenitors, it was
motivated by these concerns, etc.  But if it is taught as science, however,
then it will be taught as true (or at least as a strong candidate for being
true).  That's why Dover wanted this in the science curriculum, and why Dr.
Mirecki (no friend of ID) wanted it taught in a religious-studies class.



This doesn't strike me as quite right.  It seems to me that 
real science should also not, in the public school setting, be taught 
as True with a capital T.  To do so would be to teach, not science, 
but scientism, which is something entirely different.  In fact, it 
seems to me that if a student asks a science teacher, "So is all this 
stuff that you're teaching us actually True," the teacher, qua 
teacher, should say (at a level suitable to high school students) 
something like: "Science is a form of methodologically-constrained 
inquiry built on certain assumptions such as naturalism.  That 
inquiry has proved itself to be incredibly useful, as well as 
insightful.  It is part of what, imperfectly but necessarily, we call 
secular knowledge.  But precisely because it is a constrained 
discourse, it cannot claim, within its own four corners, to give us a 
full picture of Truth."


On the other hand, it seems to me that if intelligent design 
were being taught as part of, say, a philosophy of knowledge class, 
or a class in the relation between science and religion, it could be 
presented as a "candidate for being true," along with other 
candidates, such as pure naturalistic scientism and various competing 
forms of compatibilism, among which the course itself would have to 
remain neutral.


Does that mean that the Dover case turns on "where the class 
falls in the course catalog"?  No.  In fact, I think it would be 
constitutional to inject some philosophy, including consideration of 
intelligent design, into a "science" class.  But that is still not 
the same as teaching intelligent design as an alternative scientific 
theory within the generally accepted secular understanding of 
science.  To do _that_  only makes sense as an effort to advance a 
particular, specifically religious, perspective.


Put another way, it is one thing to teach students about the 
methodological constraints that science imposes on itself, and that 
science might well not have a monopoly on Truth.  But it is something 
else to, in effect, appropriate the rhetoric and prestige of science 
to advance a religious claim.  In a sense, then, the dishonesty about 
which the judge complained really is at the root of the matter.


Perry




***
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Dover Case Questions

[Perry Dane]

Ed Brayton writes:


 But big bang advocates like
George Gamow didn't start a PR campaign to get his ideas into science
classrooms and rant and rave about the "hidebound reactionaries of the
Steady State orthodoxy" or the "Stalinist tactics of the Steady State
Priesthood". They went to work developing a coherent model, proposing
testable hypotheses and devising ways to test them, and when those tests
validated their ideas, the big bang was accepted. Contrast that with the
ID movement, which has never published a single piece of research that
supports ID or developed a coherent model from which one might derive
testable hypotheses, but has instead carried on an enormous political
and public relations campaign to gain access to public school science
classrooms. The analogy is clearly incomplete.



I agree absolutely with Ed Brayton that the analogy between 
"intelligent design theory" and "big bang theory" is incomplete, and 
based on a misunderstanding of one or the other.  (To paraphrase 
Lloyd Bentsen, "Intelligent Design, I knew Big Bank, Big Bang was a 
friend of mine. Intelligent Design, you are no Big Bang.")


I do wonder, though, about the following:

What if, in the early days of big bang theory, a high school 
science textbook were still devoting exclusive attention to steady 
state theory, and a local school board had required that students be 
presented with a disclaimer pointing them to the big bang 
alternative?  And what if that school board's motives had been 
essentially and unambiguously religious -- i.e., that big bang theory 
came closer to supporting at least a loose reading of chapter one of 
Genesis?  Or what if, today, a school board, 
_for_undoubtedly_religious_reasons_, required science classes to have 
presented to them disclaimers about scientific findings re animal 
self-awareness (a continuing legitimate controversy within the 
scientific community) or archeological findings about the early 
history of Ancient Israel (again, a subject of continuing and 
perfectly legitimate debate among equally mainstream experts in the 
field), or etc.


Put another way, does the disjunctive character of the Lemon 
test suggest that the religious character of intelligent design 
theory is a sufficient but not a necessary basis for striking down 
the actions of the Dover school board?


This, of course all goes back to some of the issues that 
Michael Perry and others have raised over the years.


Perry




***
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Zionist-Occupied Government

[Perry Dane]

(I notice that the listserve "scrubbed" my post (for HTML code rather 
than content).   So here it goes again (and without the PS)).


---

The problem, though, is that the term "Zionist-occupied 
government" does not just evoke a factual claim, true or untrue.  Nor 
is it just an "accusation."  Rather, it is a specific anti-Semitic 
code phrase, which originated with certain specific, radical, 
anti-Semitic groups, and has, for them and others, a specific 
anti-Semitic meaning.   I can easily see an argument for allowing all 
forms of language into a forum like this, including "kike."  But, if 
lines are going to be drawn, then ZOG seems to me to be on the same 
side of the line as "kike."


There is, of course, a larger conversation brewing here 
about the relationship between literal meaning and contextual 
understanding.But I'll let others pick up that baton if they like.


Perry

Mark Graber wrote:



The issue is strictly what may
be said, not the truth value of assertions and, for better or worse,
while I think "kike" clearly crosses the line, my line is not crossed by
calling the U.S. Government "Zionist dominated," however mistaken I
think that may be, and however ghastly the history of that accusation
has been.




***
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Rutgers University
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Zionist-Occupied Government

[Perry Dane]

P.P.S.  Actually, I think now that the program was reacting to "kike" 
more than to ZOG.  So I'll take back my "aha."


Perry

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Zionist-Occupied Government

[Perry Dane]

The
problem, though, is that the term "Zionist-occupied government"
does not just evoke a factual claim, true or untrue.  Nor is it just
an "accusation."  Rather, it is a specific anti-Semitic
code phrase, which originated with certain specific, radical,
anti-Semitic groups, and has, for them and others, a specific
anti-Semitic meaning.   I can easily see an argument for
allowing all forms of language into a forum like this, including
"kike."  But, if lines are going to be drawn, then ZOG
seems to me to be on the same side of the line as
"kike."
There is,
of course, a larger conversation brewing here about the relationship
between literal meaning and contextual understanding.   
But I'll let others pick up that baton if they like.



Perry

P.S.After I pushed the
"send" button, my Eudora e-mail program just warned me that the
term "Zionist-occupied government" might be considred
offensive, and that I should reconsider using it in my e-mail. 
Aha.



Mark Graber wrote:
The issue is strictly what
may
be said, not the truth value of assertions and, for better or worse,
while I think "kike" clearly crosses the line, my line is not
crossed by
calling the U.S. Government "Zionist dominated," however
mistaken I
think that may be, and however ghastly the history of that accusation
has
been.

***
Perry Dane  
   


Professor of Law
Rutgers University 
School of Law  --
Camden

217 North Fifth Street
Camden, NJ 08102  
 


[EMAIL PROTECTED]

www.camlaw.rutgers.edu/bio/925/
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Hmmm, Atheist Law Center, Eh?

[Perry Dane]

Hi,

In one sense, John Lofton's notion of "operational atheism" 
has much more to it than meets the eye.  Consider, for example, the 
views of "Radical Orthodox" Christian theologians (e.g., John 
Milbank) and some other important "post-liberal" contemporary 
Christian thinkers (e.g., Stanley Hauerwas) who tend to take the view 
that much of modernity, including the underpinnings of our social 
science, the basis of our economic system, and the assumptions of our 
political theory, are profoundly at odds with the world-view of the 
Bible.  If you're looking for an uncompromising, 
religiously-inspired, critique of the "operational" assumptions of 
our government and society, this is it.


Significantly, though, these thinkers are _not_ sympathetic 
to the so-called "religious right."  To the contrary, they tend to 
find much of the "religious right" agenda to be either beside the 
point or perniciously "Constantinian." Moreover, to the extent that 
they have "public policy" views (though they dislike the term), they 
tend to focus on issues such as justice for the poor (and skepticism 
about capitalism) or, in Hauerwas's case, an uncompromising 
opposition to war.


So, at the end of the day, Ed Brayton is also profoundly 
right to point out that staunch religious believers can end up taking 
what might, in crude shorthand, be called the "ACLU position" on many 
of the issues that divide us, while proud atheists (including many 
neoconservatives) can easily take what might loosely be called the 
"anti-ACLU" position.


The interesting question, though, is why this is, at least 
in popular discourse, so little noticed and appreciated.


Perry




***
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Rutgers University
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The "institution of marriage"

[Perry Dane]

Alan Brownstein writes:


In order to answer Mark's question, we have to decide whether there is a
constitutional dimension to the cultural capital associated with
marriage (accepting Perry's analysis for the moment). Let me pose a
hypothetical question. Are religious individuals entitled to a vote on
the question of what constitutes a religion for cultural capital
purposes? A group calls itself a religion. Members of other faiths are
willing extend to them the same statutory accommodations available to
other faiths, but balk at the law referring to this group's beliefs as a
religion.


This is an interesting hypothetical, but not entirely apposite, it 
seems to me, for at least two reasons.


First, "marriage" differs from "religion," in that  (1) it is an 
institution, and not only a word, (2) there is a long and complicated 
history, going back at least a thousand years, of both contestation and 
intertwining between the religious/spiritual and civil/secular 
aspects/identities of marriage, and (3) perhaps most important, while we 
might imagine a world in which the various meanings of marriage could be 
kept hermetically sealed off from each other, that is not our world, at 
least right now.  Indeed, the civil state has been as insistent as many 
religious folk are on refusing to erect a wall between "religious" and 
"civil" marriage.  (In many states, for example, it is simply not possible 
for a heterosexual, otherwise qualified, couple even to try to enter into a 
"merely religious" wedding: chances are that the wedding will be given 
civil effect, regardless of the lack of a marriage license.  And, at least 
in Utah, a "merely religious" marriage can subject one to a bigamy 
prosecution.)  In this sense, marriage is radically different from words 
such as "religion,"  and, for that matter, from other cultural institutions 
such as, say, the definition of adulthood.  As I point out in my Oxford 
article, we do manage, without any difficulty, to wall off the secular 
legal idea that the age is majority is 18 from, for example, the Jewish 
idea that a boy becomes a "bar mtizvah" at age 13 and a girl becomes a bat 
mitzvah at age 12.  But marriage, for all sorts of reasons, is just different.


Second, it's worth emphasizing that something like my argument 
about "religious capital" can have a "constitutional dimension" without 
necessarily implying a hard constitutional "entitlement."(Oddly enough, 
if there is anything like an "entitlement" argument here, it might well be 
on the other side of the equation,  in favor of recognizing a  right to 
full-fledged same-sex marriage, in that, for certain religious traditions 
(primarily Protestant, as opposed to Catholic or Jewish or Hindu, etc.), it 
is theologically difficult to conceive of a genuine rather than 
metaphorical "religious marriage" apart from an underlying civil institution.)


Perry




***
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The "institution of marriage"

[Perry Dane]

Mark Scarberry writes:


I appreciate Perry's thoughtful comments. Near the end he says, "I
don't think that religious objectors to same-sex marriage are entitled to
any sort of veto in the contest over the meaning of marriage." If they
aren't entitled to a veto, are they nevertheless (anagrammatically speaking)
entitled to a vote?

To put it another way, if their interests are legitimate, are they entitled
to put those interests forward and see whether the democratic process
results in protection of those interests?


For what it's worth, I do think that religious folk are legitimate 
stakeholders in the debate over same-sex marriage.  That gives them both a 
vote and a voice.


On the other hand, I don't think that this necessarily means that 
only the "democratic process" should resolve this debate.  Sometimes the 
Constitution overrides even legitimate voices.  (Do I think there's a 
constitutional right to same-sex marriage?  I'm still struggling with that 
question.  But I certainly don't think that the question is out of bounds, 
or that courts that decide in favor of such a right are crossing some 
fundamental red line.)


On the third hand (there's usually a third hand), I also think 
that the legitimate religious stake in the definition of marriage renders 
both coherent (see my essay, The Intersecting Worlds of Religious and 
Secular Marriage, in Law and Religion: Current Legal Issues, Vol. 4, at 385 
(Richard O'Dair & Andrew Lewis, eds., Oxford University Press 2001)) and 
normatively very tempting a compromise solution such as Vermont-style 
(i.e., including all the secular legal incidents of marriage) civil unions.


    Perry




***
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The "institution of marriage"

[Perry Dane]

Ed Brayton  wrote:

I fail to see how the institution of
marriage can be destroyed without having any actual marriage damaged in any
conceivable way. It's not going to do anything to any marriage that I'm
aware of. No one I know is going to leave their spouse if gay marriage is
legalized, or stop loving their kids, or choose not to get married. If
anyone's marriage is fragile enough that it can damaged by the prospect of
people they don't know being allowed to get married, there wasn't any hope
for that marriage in the first place. And without destroying any particular
marriage, how is the institution of marriage to be destroyed? I've never
seen a logical causal argument made here to support this kind of rhetoric; I
suspect I never will.


I don't oppose same-sex marriage.  But I do understand the 
argument that same-sex marriage would "threaten" the "institution of 
marriage," particularly as that institution is understood in many (though, 
of course, not all) religious traditions.  The issue is not whether any 
given marriage will be damaged, but rather whether the cultural meaning of 
the institution -- the set of purposes, expectations, and even cosmic 
meanings -- that are ascribed to it will shift in a way that will 
unavoidably spill over beyond the merely "secular" realm to religious 
communities as well.  I think it's useful to think of the "institution of 
marriage" as being, at least in part, a piece of cultural capital in whose 
meaning various communities invest, and whose value as a bearer of meaning 
risks being "appropriated," so to speak, when the state radically changes 
the rules.


Consider two analogies:  (1) Why do many American Indians object 
to the use of Indian names and mascots by sports teams, even when the names 
and mascots are not inherently offensive or insulting?  One reason is that 
the appropriation of names and symbols such as "Braves" inevitably alters 
and dilutes the meaning of such names and symbols among Native Americans 
themselves.  (2) Or consider the "pyrrhic victory" argument in 
Establishment Clause debates; that is to say, the argument (which I tend to 
support in lots of contexts) that governmental sponsorship of religious 
symbols such as creches or religious practices such as prayers threatens to 
debase and trivialize the genuine religious meaning of those symbols or 
practices.  That is to say, creches and prayers, as pieces of "religious 
capital" and bearers of meaning, are altered, even in their private use, by 
their public misuse.


Now, of course, to understand the argument that same-sex marriage 
would "threaten" the "institution of marriage" as it is understood in many 
religious traditions is not to support that argument.   If nothing else, 
filling in that argument would require a really detailed and careful 
account of the complicated relationship between marriage as a piece of 
"religious capital" and marriage as a civil institution.  In any event, I 
don't think that religious objectors to same-sex marriage are entitled to 
any sort of veto in the contest over the meaning of marriage.   But we 
should at least be willing to acknowledge that there is something genuine 
at issue here.


Perry



***
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