RE: Free Exercise, Free Speech, and harm to others
I actually agree with Greg on much here: The reason that we allow people to inflict various harms on others via their speech has a lot to do with *the way* the harm is inflicted: When harm is inflicted by persuading, informing, or offending people with the content of speech, we treat that infliction of harm as privileged. And that's the reason that I think it's a mistake to say (and Greg hasn't said it, but I think others have), "The Free Speech Clause caselaw gives people the constitutional right to harm others through speech, so the Free Exercise Clause should be interpreted as giving people the constitutional right to harm others through religiously motivated conduct." The Free Speech Clause caselaw lets people harm others through some specific speech-related ways. It doesn't follow that the Free Exercise Clause lets people harm others in other ways -- whether through discriminating against them, trespassing on their property, breaching contracts, and so on, even if the harms are comparatively minor. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Sisk, Gregory C. > Sent: Monday, March 14, 2005 5:15 PM > To: 'Law & Religion issues for Law Academics' > Subject: RE: Free Exercise, Free Speech, and harm to others > > > I accept Eugene's observation that my comparison cases suffer > from inadequate similarity comparison purposes. Perhaps at > some point I'll try harder to develop less inferior paired > hypotheticals to better express my point (perhaps that task > will seem more appealing in a few weeks when I'm grading blue books). > > But I still am not convinced either (1) that a greater degree > of burden from speech is acceptable because freedom of speech > is a more robust constitutional right than free exercise, or > (2) that the harms identified in the Flynt/Glynt > hypotheticals are truly comparable and thus illustrate the > point. Indeed, in the Glynt hypothetical, if Mary Glynt > engaged in the same expression by bull-horn at the house > window but offered a free speech rather than free exercise > justification, the result would be the same -- she still > would lose. Thus, it isn't the nature of the right that > explains the differing results but something about the nature > of the intrusion or the harm or the presence or absence of an > attenuated link between them. > > Along these same lines, I'm persuaded that Eugene has a point > that we permit a larger range of expression under freedom of > speech than conduct under free exercise. But isn't that in > part because speech is different from conduct (as Jim Maule > suggested) rather than because the constitutional rights > underlying one or the other are at different points in the > hierarchy of constitutional values? While speech may and > sometimes does cause harm, it almost always does so > indirectly, as it depends for efficacy upon persuading > someone else that the message is credible or that a response > should be made. Thus, speech that is harmful depends upon a > chain from the speaker through the medium to a recipient who > in turn chooses to respond in a manner that induces harm to > the recipient or someone else. Even speech that is intended > to cause harm may prove ineffective due to breaks in the > chain, especially if the recipient finds it uninteresting or > unpersuasive. By contrast, conduct -- whether expressive in > nature or not -- is immediate and if that conduct is harmful, > the harm is rather directly realized. > > And related to that, I still think -- although my clumsy > hypotheticals may not have illustrated it well -- that the > harms involved may be different in nature or degree. While > one subjectively and understandably might regard being > slandered before millions of readers as a greater source of > distress than being momentarily accosted at one's home by a > loud protester, the law always has treated a physical > invasion as different from an emotional response, even an > induced emotional response. Indeed, some strains of law even > today still preclude recovery in tort for emotional distress > that is unaccompanied by physical injury. If there is > anything to what I'm trying to say here, would it not follow > that different treatment of the trespasser who asserts a free > exercise defense from the magazine writer who claims freedom > of speech turns not upon which actor invokes which > constitutional protection but rather upon the nature of the > impact caused by the underlying conduct/expression? > > Greg Sisk > > > > -Original Message- > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > Sent: Monday, March 14, 2005 3:57 PM > To: Law & Religion issues for Law Academics > Subject: RE: Free Exercise, Free Speech, and harm to others > > I appreciate Greg's thoughtful analysis, but I think > that ultimately the magnitude of the burden on t
RE: Free Exercise, Free Speech, and harm to others
My analysis: Warning of bad behavior by others, who are genuinely unrelated to the speaker, and who are understood by listeners to be unrelated to the speaker is protected. Warning of retribution by God is thus not a threat -- but neither is warning of retribution by religious zealots, if it's clear from context that the zealots aren't the speaker or his confederates. Warning of bad behavior by yourself or by your confederates is unprotected. Warning of retribution is thus a threat, if it's intended to and reasonably likely to lead the listener to think that you or your confederates will act as God's agents in this. This may well leave lots of questions about when ambiguous warnings are really warnings of future misconduct by the speaker or his confederates. But that's true whether you're warning of retaliation by God or by others. A closing set of examples: 1. "Don't have promiscuous sex, or else God will strike you dead." 2. "Don't have promiscuous sex, or else you'll die of AIDS." 3. "Don't have promiscuous sex, or else your crazy cousin will kill you." (Assume that the speaker is unconnected to the cousin.) 4. "Don't have promiscuous sex, cousin, because I'll kill you to wipe off the stain from our family honor." 5. "Don't have promiscuous sex, cousin, because God will strike you dead." (Assume that other people the listeners know have been killed under mysterious circumstances, and it's assumed that these were "honor killings" by family.) Seems to me that #1-3 are protected and #4-5 are unprotected; the relevant distinction isn't the religiosity of the motivation or the statement, but the items I mention above. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of James Maule > Sent: Monday, March 14, 2005 7:52 PM > To: religionlaw@lists.ucla.edu > Subject: RE: Free Exercise, Free Speech, and harm to others > > > Suppose the statement was a wee bit different: "This is a > really nice restaurant you have here, except for those > blasphemous pictures on the walls. It would be a shame if > God caused it to burn down, for example, by causing lightning > to strike or a meteor fragment to hit, which I pray every day > God will do if you don't let God answer my other prayer that > you see the light and take down those pictures." And assume > there hasn't been a previous history of restaurants burning > down. Much preaching contains the not-so-veiled threat of > divine retribution. So in this case the speech has to be protected. > > Now suppose a few days later an unexplained fire destroys the > restaurant. Shortly before a thunderstorm. Speaker argues her > prayers were answered. Case probably dismissed on basis of > failure of proof. > > Then it happens again. And again. At some point the > coincidences become too much. So does protected speech lose > its protection based on the "track record" of previous > speech? By the same person? By confederates? By proselytizers > of another denomination or sect? > > Jim Maule > > >>> [EMAIL PROTECTED] 3/14/2005 10:33:25 PM >>> > I think the question in either case would be (1) > whether the listener would reasonably understand this as a > threat of attack by the speaker or the speaker's confederates > and (2) whether the speaker intended to put the listener in > fear of such attack (see Virginia v. Black). So it's > possible that #2 would indeed be a threat, and that #1 would > not be, depending on what else the listener knows about the > speaker. If the speaker or his buddies are suspected of > killing other annoying people, for instance, statement #2 > might well be punishable. > > Consider this statement: "This is a really nice > restaurant you have here, except for those blasphemous > pictures on the walls. It would be a shame if God caused it > to burn down." Other neighboring restaurants have in fact > burned down after they refused to take down blasphemous > pictures. The speaker is religiously motivated (which I take > it is the test for a Sherbert/Yoder-era free exercise claim), > and as it happens the underlying dispute, as well as the > language of the statement, are religious. If the speaker > intends to make the listener afraid of burning by the speaker > or his confederates, and a reasonable listener would have > this fear, then it seems to me that this is a punishable threat. > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of James Maule > > Sent: Monday, March 14, 2005 5:38 PM > > To: religionlaw@lists.ucla.edu > > Subject: RE: Free Exercise, Free Speech, and harm to others > > > > > > OK, I see your point and it helps me refine the hypo: > > > > 1. "I pray I can find someone to put an end to your annoying > > existence on this planet." > > > > 2. "I pray to God every night that someh
RE: Free Exercise, Free Speech, and harm to others
Suppose the statement was a wee bit different: "This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down, for example, by causing lightning to strike or a meteor fragment to hit, which I pray every day God will do if you don't let God answer my other prayer that you see the light and take down those pictures." And assume there hasn't been a previous history of restaurants burning down. Much preaching contains the not-so-veiled threat of divine retribution. So in this case the speech has to be protected. Now suppose a few days later an unexplained fire destroys the restaurant. Shortly before a thunderstorm. Speaker argues her prayers were answered. Case probably dismissed on basis of failure of proof. Then it happens again. And again. At some point the coincidences become too much. So does protected speech lose its protection based on the "track record" of previous speech? By the same person? By confederates? By proselytizers of another denomination or sect? Jim Maule >>> [EMAIL PROTECTED] 3/14/2005 10:33:25 PM >>> I think the question in either case would be (1) whether the listener would reasonably understand this as a threat of attack by the speaker or the speaker's confederates and (2) whether the speaker intended to put the listener in fear of such attack (see Virginia v. Black). So it's possible that #2 would indeed be a threat, and that #1 would not be, depending on what else the listener knows about the speaker. If the speaker or his buddies are suspected of killing other annoying people, for instance, statement #2 might well be punishable. Consider this statement: "This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down." Other neighboring restaurants have in fact burned down after they refused to take down blasphemous pictures. The speaker is religiously motivated (which I take it is the test for a Sherbert/Yoder-era free exercise claim), and as it happens the underlying dispute, as well as the language of the statement, are religious. If the speaker intends to make the listener afraid of burning by the speaker or his confederates, and a reasonable listener would have this fear, then it seems to me that this is a punishable threat. > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of James Maule > Sent: Monday, March 14, 2005 5:38 PM > To: religionlaw@lists.ucla.edu > Subject: RE: Free Exercise, Free Speech, and harm to others > > > OK, I see your point and it helps me refine the hypo: > > 1. "I pray I can find someone to put an end to your annoying > existence on this planet." > > 2. "I pray to God every night that somehow the angel of death > visits you and puts an end to your annoying existence on this planet." > > Assuming that the recipient of the words doesn't treat #2 as > a silliness (e.g. reaction of an athiest) but has a > theological perspective that makes it upsetting and > emotionally distressful, ought not #2 be protected and #1 > actionable (assuming a showing of damage or injury, etc.)? Is > it because the second is unprovable to a purely rational > mind? Would it be on account of #2 being religiously > motivated? (By religiously motivated, do you mean the > motivation for the belief that the threat can be made, or the > underlying dispute that generates the felt need to make the > threat? I'm assuming the first, but perhaps I'm misreading > your explanation.) > > Jim Maule > > >>> [EMAIL PROTECTED] 3/14/2005 7:08:23 PM >>> > I suspect that the distinction here isn't religious > speech vs. secular speech and more (1) speech that sounds > like warning of action by others who are unrelated to the > speakers vs. (2) speech that sounds like warning of action by > the speaker or his confederates. If a mother is really angry > at a child and says "You're going to get killed if you use > drugs / run around with bad kids / do other dangerous stuff," > we wouldn't treat that as a threat, because it's clearly a > warning of what others might do. Conversely, "God is going > to call you to judgment soon" might well be a threat if in > context it's pretty clear that the person is conveying a > message that he or his confederates might be the tools that > God uses for this call. More broadly, there surely shouldn't > be unqualified Free Exercise Clause protection for all > threats that are religiously motivated, no? > > Eugene > > Jim Maule writes: > > > Compare "You're going to get yours some day, and it could be > > within the next minute" (shouted, eyes bulging, face red, > > fists clenched, during law conerence disputing whether a > > state should permit same-gender > > marriages) with "You're going to burn in hell and swim with > > the demons some day, and it could be within the
RE: Free Exercise, Free Speech, and harm to others
I think the question in either case would be (1) whether the listener would reasonably understand this as a threat of attack by the speaker or the speaker's confederates and (2) whether the speaker intended to put the listener in fear of such attack (see Virginia v. Black). So it's possible that #2 would indeed be a threat, and that #1 would not be, depending on what else the listener knows about the speaker. If the speaker or his buddies are suspected of killing other annoying people, for instance, statement #2 might well be punishable. Consider this statement: "This is a really nice restaurant you have here, except for those blasphemous pictures on the walls. It would be a shame if God caused it to burn down." Other neighboring restaurants have in fact burned down after they refused to take down blasphemous pictures. The speaker is religiously motivated (which I take it is the test for a Sherbert/Yoder-era free exercise claim), and as it happens the underlying dispute, as well as the language of the statement, are religious. If the speaker intends to make the listener afraid of burning by the speaker or his confederates, and a reasonable listener would have this fear, then it seems to me that this is a punishable threat. > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of James Maule > Sent: Monday, March 14, 2005 5:38 PM > To: religionlaw@lists.ucla.edu > Subject: RE: Free Exercise, Free Speech, and harm to others > > > OK, I see your point and it helps me refine the hypo: > > 1. "I pray I can find someone to put an end to your annoying > existence on this planet." > > 2. "I pray to God every night that somehow the angel of death > visits you and puts an end to your annoying existence on this planet." > > Assuming that the recipient of the words doesn't treat #2 as > a silliness (e.g. reaction of an athiest) but has a > theological perspective that makes it upsetting and > emotionally distressful, ought not #2 be protected and #1 > actionable (assuming a showing of damage or injury, etc.)? Is > it because the second is unprovable to a purely rational > mind? Would it be on account of #2 being religiously > motivated? (By religiously motivated, do you mean the > motivation for the belief that the threat can be made, or the > underlying dispute that generates the felt need to make the > threat? I'm assuming the first, but perhaps I'm misreading > your explanation.) > > Jim Maule > > >>> [EMAIL PROTECTED] 3/14/2005 7:08:23 PM >>> > I suspect that the distinction here isn't religious > speech vs. secular speech and more (1) speech that sounds > like warning of action by others who are unrelated to the > speakers vs. (2) speech that sounds like warning of action by > the speaker or his confederates. If a mother is really angry > at a child and says "You're going to get killed if you use > drugs / run around with bad kids / do other dangerous stuff," > we wouldn't treat that as a threat, because it's clearly a > warning of what others might do. Conversely, "God is going > to call you to judgment soon" might well be a threat if in > context it's pretty clear that the person is conveying a > message that he or his confederates might be the tools that > God uses for this call. More broadly, there surely shouldn't > be unqualified Free Exercise Clause protection for all > threats that are religiously motivated, no? > > Eugene > > Jim Maule writes: > > > Compare "You're going to get yours some day, and it could be > > within the next minute" (shouted, eyes bulging, face red, > > fists clenched, during law conerence disputing whether a > > state should permit same-gender > > marriages) with "You're going to burn in hell and swim with > > the demons some day, and it could be within the next minute > > because you never know when God's going to call you to > > judgment" (shouted, eyes bulging, face red, fists clenched, > > during theological convention disputing whether a > > denomination should sanctify same-gender marriages). > > > > Recipient of speech in both instances sues, alleging > > emotional distress, fear of harm, and physical manifestations > > thereof. Recipient in both instances is a person who believes > > in the existence of hell and for whom an eternal placement > > therein is a horrifying thought. Recipient is also a person > > who dreads physical pain. If the first tirade is construed as > > fighting words, is the second necessarily treated the same > > way? I can see the same jury finding for the plaintiff in the > > first but not in the second. Why? Because the second involves > > speech the meaning of which is immersed in theological > > mystery (after all, who really knows for sure?) whereas the > > first involves speeach the meaning of which is immersed in a > > not so mysterious message of imminent physical threat. Note > > that the conduct and principa
Re: ministerial exception
Chip-- How does this principle play out in the Petruska case now heading to the 3d Cir? The district court threw out a woman's claim against the Catholic Church on the theory of the "ministerial exception." She was a Catholic chaplain who was fired after being a whistleblower on clergy abuse in the church. She claimed gender issues were involved. District court held that her claim was barred by the ministerial exception. Marci In a message dated 3/14/2005 4:44:13 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: for now the ministerial exception doctrine has held firm in every non-harassment case of discrimination brought by a member of the clergy against his or her denomination. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Institutional Capacity to Manage Exemptions
As I have said repeatedly, plenty of legislative accommodations are constitutional and legitimate. Blind accommodation, though, (RFRA/RLUIPA) in particular, presents legislators at their worst-- deferential to the point of being brain-dead, when there are obvious harms to others in the process. It's not that legislators have to come out on the side of the third-party victims every time. Rather, a legislator that does not question the religious entity's request for exemption has sold out. Marci In a message dated 3/14/2005 4:54:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
OK, I see your point and it helps me refine the hypo: 1. "I pray I can find someone to put an end to your annoying existence on this planet." 2. "I pray to God every night that somehow the angel of death visits you and puts an end to your annoying existence on this planet." Assuming that the recipient of the words doesn't treat #2 as a silliness (e.g. reaction of an athiest) but has a theological perspective that makes it upsetting and emotionally distressful, ought not #2 be protected and #1 actionable (assuming a showing of damage or injury, etc.)? Is it because the second is unprovable to a purely rational mind? Would it be on account of #2 being religiously motivated? (By religiously motivated, do you mean the motivation for the belief that the threat can be made, or the underlying dispute that generates the felt need to make the threat? I'm assuming the first, but perhaps I'm misreading your explanation.) Jim Maule >>> [EMAIL PROTECTED] 3/14/2005 7:08:23 PM >>> I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says "You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff," we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, "God is going to call you to judgment soon" might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: > Compare "You're going to get yours some day, and it could be > within the next minute" (shouted, eyes bulging, face red, > fists clenched, during law conerence disputing whether a > state should permit same-gender > marriages) with "You're going to burn in hell and swim with > the demons some day, and it could be within the next minute > because you never know when God's going to call you to > judgment" (shouted, eyes bulging, face red, fists clenched, > during theological convention disputing whether a > denomination should sanctify same-gender marriages). > > Recipient of speech in both instances sues, alleging > emotional distress, fear of harm, and physical manifestations > thereof. Recipient in both instances is a person who believes > in the existence of hell and for whom an eternal placement > therein is a horrifying thought. Recipient is also a person > who dreads physical pain. If the first tirade is construed as > fighting words, is the second necessarily treated the same > way? I can see the same jury finding for the plaintiff in the > first but not in the second. Why? Because the second involves > speech the meaning of which is immersed in theological > mystery (after all, who really knows for sure?) whereas the > first involves speeach the meaning of which is immersed in a > not so mysterious message of imminent physical threat. Note > that the conduct and principal issue are identical, but the > location, context, and participants differ (secular v. theological). > > Would you protect the speech in both cases? Not protect it in > both cases? Or leave open the possibility of different outcomes? > > Jim Maule > Villanova University School of Law > > >>> [EMAIL PROTECTED] 3/14/2005 6:23:40 PM >>> > I'm not sure why "it makes a lot of sense to severely > limit the extent to which courts measure the emotional > distress caused by religious expression (in contrast to other > speech)" -- why not severely limit the extent to which courts > impose liability on emotional distress caused by speech, > period? If Senator Llynt gives a speech decrying the > political positions taken by Falwell, denouncing the alleged > intrusion of Falwell's theology into politics, and > characterizing Falwell as a generally bad person, it seems to > me that he should be categorically immune from IIED liability > even if his speech is purely nonreligious. If I'm right, then > why is there any need for extra protection for religious speech? > > (I realize that there might be some situations where > religious speech is immune from liability because it's > incapable of secular proof; but generally the remedy there is > to treat is the same as secular opinions that are incapable > of proof, which are constitutionally > protected,) > > Eugene > > Jim Maule writes: > > > Suppose instead of Flynt satirizing Falwell, the Rev. Llynt > > preaches a sermon in his progressive church decrying the > > theological positions taken by Falwell, denouncing the > > alleged intrusion of Falwell's theology into po
RE: Free Exercise, Free Speech, and harm to others
I accept Eugene's observation that my comparison cases suffer from inadequate similarity comparison purposes. Perhaps at some point I'll try harder to develop less inferior paired hypotheticals to better express my point (perhaps that task will seem more appealing in a few weeks when I'm grading blue books). But I still am not convinced either (1) that a greater degree of burden from speech is acceptable because freedom of speech is a more robust constitutional right than free exercise, or (2) that the harms identified in the Flynt/Glynt hypotheticals are truly comparable and thus illustrate the point. Indeed, in the Glynt hypothetical, if Mary Glynt engaged in the same expression by bull-horn at the house window but offered a free speech rather than free exercise justification, the result would be the same -- she still would lose. Thus, it isn't the nature of the right that explains the differing results but something about the nature of the intrusion or the harm or the presence or absence of an attenuated link between them. Along these same lines, I'm persuaded that Eugene has a point that we permit a larger range of expression under freedom of speech than conduct under free exercise. But isn't that in part because speech is different from conduct (as Jim Maule suggested) rather than because the constitutional rights underlying one or the other are at different points in the hierarchy of constitutional values? While speech may and sometimes does cause harm, it almost always does so indirectly, as it depends for efficacy upon persuading someone else that the message is credible or that a response should be made. Thus, speech that is harmful depends upon a chain from the speaker through the medium to a recipient who in turn chooses to respond in a manner that induces harm to the recipient or someone else. Even speech that is intended to cause harm may prove ineffective due to breaks in the chain, especially if the recipient finds it uninteresting or unpersuasive. By contrast, conduct -- whether expressive in nature or not -- is immediate and if that conduct is harmful, the harm is rather directly realized. And related to that, I still think -- although my clumsy hypotheticals may not have illustrated it well -- that the harms involved may be different in nature or degree. While one subjectively and understandably might regard being slandered before millions of readers as a greater source of distress than being momentarily accosted at one's home by a loud protester, the law always has treated a physical invasion as different from an emotional response, even an induced emotional response. Indeed, some strains of law even today still preclude recovery in tort for emotional distress that is unaccompanied by physical injury. If there is anything to what I'm trying to say here, would it not follow that different treatment of the trespasser who asserts a free exercise defense from the magazine writer who claims freedom of speech turns not upon which actor invokes which constitutional protection but rather upon the nature of the impact caused by the underlying conduct/expression? Greg Sisk -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 3:57 PM To: Law & Religion issues for Law Academics Subject: RE: Free Exercise, Free Speech, and harm to others I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would feel *much* more distressed by knowing that millions (?) of people are reading about how I supposedly had sex with my mother in an outhouse (even if they know it's a gag) than by a few nights of loud noise outside my house. Likewise, I suspect that the more-or-less three-year-long boycott in Claiborne Hardware affected local businesses more than the occasional blockage would affect the business of an abortion clinic. It's true that this may be so because the boycott went on for a long time, while the blockage in my hypothetical wouldn't. But under free speech law, even speech urging a long boycott can't be punished -- and even one instance of entrance blockage, which would cause vastly less damage than the boycott, would be punishable, whether or not it's religiously based. So people are constitutionally entitled to inflict considerably greater harms through the communicative impact of their speech than through the religiously motivated conduct. Or am I mistaken here? As to the housing discrimination scenario, I just think Greg's comparison cases are actually not terribly similar. The gay couple's claim isn't necessarily that they're deeply emotionally distressed -- rather, it is that they have a legal right to equal treatment, regardless of whether the unequal treatment is terribly distressing. Maybe this right flows from a general sense that the unequal treatment is usually distressing, but it d
RE: Free Exercise, Free Speech, and harm to others
Title: Message (1) I don't think anything I've said suggests that displays of the Ten Commandments by nongovernmental actors could be restrictable. They are just as protected by the freedom of speech as displays of any other sentiments. (Whether governmental actors may display the Ten Commandments is of course a matter of the Establishment Clause constraints on the government.) (2) I think that the Free Speech Clause protects Mormons' and Jehovah's Witnesses' ability to express their views precisely to the same extent that it protects Greenpeace's or the Libertarians' ability. Given Martin v. Struthers, both are protected if the householder hasn't put up a No Soliciting sign, and both are unprotected if the householder has put up a No Soliciting sign. See also Heffron v. ISKCON, holding, even during the Sherbert/Yoder era, that the Free Exercise Clause gave no more protection to religious speech than the Free Speech Clause gives to speech generally (and thus applying intermediate scrutiny rather than strict scrutiny to a Free Exercise Clause challenge to a content-neutral speech restriction). (3) A simple and plausible example: Operation Rescue decides, because of their religious beliefs, to picket an abortion provider's home. A pro-choice group decides, because of their nonreligious political beliefs, to picket the Operation Rescue leader's home. Could Operation Rescue really have broader speech rights than the pro-choice group -- with the Operation Rescue claim being subject to strict scrutiny, and the pro-choice group's being subject only to intermediate scrutiny (see Frisby v. Schultz) -- because Operation Rescue has a religious motivation for its speech? I would think the answer is no. Eugene Steve Jamar writes: -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Monday, March 14, 2005 3:52 PMTo: Law & Religion issues for Law AcademicsSubject: Re: Free Exercise, Free Speech, and harm to others On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote: Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. So you would be against displays of the 10 commandments on free exercise grounds because of the of the psychic harm caused by them to others even though they are displayed as a result of a religious obligation? And you would ban Mormons and JWs from stopping at my door just like all other peddlars -- if I could show psychic harm? I guess I don't see where this leads us out of the wilderness any better than the current mish mash of principles, policies, and adjustments. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
I suspect that the distinction here isn't religious speech vs. secular speech and more (1) speech that sounds like warning of action by others who are unrelated to the speakers vs. (2) speech that sounds like warning of action by the speaker or his confederates. If a mother is really angry at a child and says "You're going to get killed if you use drugs / run around with bad kids / do other dangerous stuff," we wouldn't treat that as a threat, because it's clearly a warning of what others might do. Conversely, "God is going to call you to judgment soon" might well be a threat if in context it's pretty clear that the person is conveying a message that he or his confederates might be the tools that God uses for this call. More broadly, there surely shouldn't be unqualified Free Exercise Clause protection for all threats that are religiously motivated, no? Eugene Jim Maule writes: > Compare "You're going to get yours some day, and it could be > within the next minute" (shouted, eyes bulging, face red, > fists clenched, during law conerence disputing whether a > state should permit same-gender > marriages) with "You're going to burn in hell and swim with > the demons some day, and it could be within the next minute > because you never know when God's going to call you to > judgment" (shouted, eyes bulging, face red, fists clenched, > during theological convention disputing whether a > denomination should sanctify same-gender marriages). > > Recipient of speech in both instances sues, alleging > emotional distress, fear of harm, and physical manifestations > thereof. Recipient in both instances is a person who believes > in the existence of hell and for whom an eternal placement > therein is a horrifying thought. Recipient is also a person > who dreads physical pain. If the first tirade is construed as > fighting words, is the second necessarily treated the same > way? I can see the same jury finding for the plaintiff in the > first but not in the second. Why? Because the second involves > speech the meaning of which is immersed in theological > mystery (after all, who really knows for sure?) whereas the > first involves speeach the meaning of which is immersed in a > not so mysterious message of imminent physical threat. Note > that the conduct and principal issue are identical, but the > location, context, and participants differ (secular v. theological). > > Would you protect the speech in both cases? Not protect it in > both cases? Or leave open the possibility of different outcomes? > > Jim Maule > Villanova University School of Law > > >>> [EMAIL PROTECTED] 3/14/2005 6:23:40 PM >>> > I'm not sure why "it makes a lot of sense to severely > limit the extent to which courts measure the emotional > distress caused by religious expression (in contrast to other > speech)" -- why not severely limit the extent to which courts > impose liability on emotional distress caused by speech, > period? If Senator Llynt gives a speech decrying the > political positions taken by Falwell, denouncing the alleged > intrusion of Falwell's theology into politics, and > characterizing Falwell as a generally bad person, it seems to > me that he should be categorically immune from IIED liability > even if his speech is purely nonreligious. If I'm right, then > why is there any need for extra protection for religious speech? > > (I realize that there might be some situations where > religious speech is immune from liability because it's > incapable of secular proof; but generally the remedy there is > to treat is the same as secular opinions that are incapable > of proof, which are constitutionally > protected,) > > Eugene > > Jim Maule writes: > > > Suppose instead of Flynt satirizing Falwell, the Rev. Llynt > > preaches a sermon in his progressive church decrying the > > theological positions taken by Falwell, denouncing the > > alleged intrusion of Falwell's theology into politics, and > > characterizing Falwell as a modern-day Pharisee. The sermon > > concludes that it is behavior and proselytization such as > > that in which Falwell engages that continues to contribute to > > the agony of Jesus on the Cross. The sermon is broadcast on > > tv, radio, and/or the web (to get roughly the same > > dissemination as Flynt managed with Hustler). Falwell is > > understandably upset and emotionally distressed (assume that > > it's just as distressing to him as were the comments about > > his mother). > > > > Must Falwell meet a higher burden because the offending > > speech is a religious sermon rather than a parody in a > > secular publication? Should the courts get involved in the > > modern equivalent of the 17th century "pamphlet wars" if one > > or both of the parties alleges some sort of emotional > > distress or other damage? Or should the courts do as > > suggested the jury in Thomas Maule's trial: "This is a matter > > for a
RE: Free Exercise, Free Speech, and harm to others
Compare "You're going to get yours some day, and it could be within the next minute" (shouted, eyes bulging, face red, fists clenched, during law conerence disputing whether a state should permit same-gender marriages) with "You're going to burn in hell and swim with the demons some day, and it could be within the next minute because you never know when God's going to call you to judgment" (shouted, eyes bulging, face red, fists clenched, during theological convention disputing whether a denomination should sanctify same-gender marriages). Recipient of speech in both instances sues, alleging emotional distress, fear of harm, and physical manifestations thereof. Recipient in both instances is a person who believes in the existence of hell and for whom an eternal placement therein is a horrifying thought. Recipient is also a person who dreads physical pain. If the first tirade is construed as fighting words, is the second necessarily treated the same way? I can see the same jury finding for the plaintiff in the first but not in the second. Why? Because the second involves speech the meaning of which is immersed in theological mystery (after all, who really knows for sure?) whereas the first involves speeach the meaning of which is immersed in a not so mysterious message of imminent physical threat. Note that the conduct and principal issue are identical, but the location, context, and participants differ (secular v. theological). Would you protect the speech in both cases? Not protect it in both cases? Or leave open the possibility of different outcomes? Jim Maule Villanova University School of Law >>> [EMAIL PROTECTED] 3/14/2005 6:23:40 PM >>> I'm not sure why "it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech)" -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: > Suppose instead of Flynt satirizing Falwell, the Rev. Llynt > preaches a sermon in his progressive church decrying the > theological positions taken by Falwell, denouncing the > alleged intrusion of Falwell's theology into politics, and > characterizing Falwell as a modern-day Pharisee. The sermon > concludes that it is behavior and proselytization such as > that in which Falwell engages that continues to contribute to > the agony of Jesus on the Cross. The sermon is broadcast on > tv, radio, and/or the web (to get roughly the same > dissemination as Flynt managed with Hustler). Falwell is > understandably upset and emotionally distressed (assume that > it's just as distressing to him as were the comments about > his mother). > > Must Falwell meet a higher burden because the offending > speech is a religious sermon rather than a parody in a > secular publication? Should the courts get involved in the > modern equivalent of the 17th century "pamphlet wars" if one > or both of the parties alleges some sort of emotional > distress or other damage? Or should the courts do as > suggested the jury in Thomas Maule's trial: "This is a matter > for a jury of divines."? > > I think it makes a lot of sense to severely limit the extent > to which courts measure the emotional distress caused by > religious expression (in contrast to other speech). > Otherwise, because religious expression also is a form of > free exercise, a back door is open to curtail the free > exercise rights of the speaker. > > Jim Maule > Villanova University School of Law > > >>> [EMAIL PROTECTED] 3/14/2005 4:36:01 PM >>> > While free exercise and free speech may be different in many > respects, and indeed most constitutional rights differ from > all other rights, as they are not merely fungible from one to > another, I don't think Eugene Volokh's thoughtful > hypotheticals satisfactorily dispose of the argument that > free exercise and free speech ought not be treated > differently in the amount of burden that we accept (or the > courts ought to accept) upon the public or others. The > problem with Eugene's hypotheticals, as I see it, is that the > burdens outlined are not comparable, in part because one > involves non-physical speech and the
Re: Free Exercise, Free Speech, and harm to others
On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote: Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. So you would be against displays of the 10 commandments on free exercise grounds because of the of the psychic harm caused by them to others even though they are displayed as a result of a religious obligation? And you would ban Mormons and JWs from stopping at my door just like all other peddlars -- if I could show psychic harm? I guess I don't see where this leads us out of the wilderness any better than the current mish mash of principles, policies, and adjustments. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "Whenever you find yourself on the side of the majority, it is time to pause and reflect." Mark Twain ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
I'm not sure why "it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech)" -- why not severely limit the extent to which courts impose liability on emotional distress caused by speech, period? If Senator Llynt gives a speech decrying the political positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a generally bad person, it seems to me that he should be categorically immune from IIED liability even if his speech is purely nonreligious. If I'm right, then why is there any need for extra protection for religious speech? (I realize that there might be some situations where religious speech is immune from liability because it's incapable of secular proof; but generally the remedy there is to treat is the same as secular opinions that are incapable of proof, which are constitutionally protected,) Eugene Jim Maule writes: > Suppose instead of Flynt satirizing Falwell, the Rev. Llynt > preaches a sermon in his progressive church decrying the > theological positions taken by Falwell, denouncing the > alleged intrusion of Falwell's theology into politics, and > characterizing Falwell as a modern-day Pharisee. The sermon > concludes that it is behavior and proselytization such as > that in which Falwell engages that continues to contribute to > the agony of Jesus on the Cross. The sermon is broadcast on > tv, radio, and/or the web (to get roughly the same > dissemination as Flynt managed with Hustler). Falwell is > understandably upset and emotionally distressed (assume that > it's just as distressing to him as were the comments about > his mother). > > Must Falwell meet a higher burden because the offending > speech is a religious sermon rather than a parody in a > secular publication? Should the courts get involved in the > modern equivalent of the 17th century "pamphlet wars" if one > or both of the parties alleges some sort of emotional > distress or other damage? Or should the courts do as > suggested the jury in Thomas Maule's trial: "This is a matter > for a jury of divines."? > > I think it makes a lot of sense to severely limit the extent > to which courts measure the emotional distress caused by > religious expression (in contrast to other speech). > Otherwise, because religious expression also is a form of > free exercise, a back door is open to curtail the free > exercise rights of the speaker. > > Jim Maule > Villanova University School of Law > > >>> [EMAIL PROTECTED] 3/14/2005 4:36:01 PM >>> > While free exercise and free speech may be different in many > respects, and indeed most constitutional rights differ from > all other rights, as they are not merely fungible from one to > another, I don't think Eugene Volokh's thoughtful > hypotheticals satisfactorily dispose of the argument that > free exercise and free speech ought not be treated > differently in the amount of burden that we accept (or the > courts ought to accept) upon the public or others. The > problem with Eugene's hypotheticals, as I see it, is that the > burdens outlined are not comparable, in part because one > involves non-physical speech and the other involves conduct > (as Jim Maule observes), but also simply because of the > anticipated degree of negative impact upon persons other than > the one exercising the right. > > Just to look at the first pair of hypotheticals: While Jerry > Falwell is postulated to have experienced emotional distress > as a result of both incidents, I submit that we intuitively > would recognize that the immediacy and intrusiveness of the > harm differs greatly when we compare reading a scurrilous > reference to one's self in a periodical with experiencing an > almost physical trespass accompanied by the use of loud > sounds that cannot easily be escaped and, perhaps most > importantly, that occurs at one's place of sanctuary, the > home. Thus, while I agree that the free speech claim in that > pair of hypotheticals is stronger than the free exercise > claim, I don't see the two cases as truly comparable in terms > of the degree and perhaps the nature of the harm, even if > both forms of harm are generally categorized as emotional distress. > > Thus, for a set of hypotheticals comparing the strength of > free speech and free exercise claims to be truly comparable, > the nature or at least the degree of harm must also be > comparable. While not neatly involving parallel factual > settings or messages, consider these two scenarios: First, > we again have the offensive parody of Jerry Falwell in Larry > Flynt's Hustler magazine, in which Flynt invokes freedom of > speech as a defense against a claim for emotional distress. > Second, we have a homosexual couple that is rejected as > tenants by a homeowner of traditional religious val
RE: Free Exercise, Free Speech, and harm to others
I'm not grounding it on the text, which gets us fairly little here. I'm generally persuaded by Justice Scalia's original meaning argument in City of Boerne v. Flores as to free exercise; as to the original meaning of free speech, I think that's basically unknown and likely unknowable. I should say, by the way, that my argument is *not* that religiously motivated conduct or speech should be treated worse than the nonreligiously motivated conduct or speech; I think the Free Exercise Clause bars such discrimination against religious motivation. I think Lukumi is right, and Locke v. Davey is wrong. Rather, my argument is that the Free Exercise Clause ought not be read as allowing people to do things that harm others simply because they feel a religious obligation to do those things. > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Richard Dougherty > Sent: Monday, March 14, 2005 2:35 PM > To: Law & Religion issues for Law Academics > Subject: Re: Free Exercise, Free Speech, and harm to others > > > Eugene: > Are you grounding your analysis here of speech and religion > in the text of the First Amendment? It seems to my untutored > eye that it is precisely "exercise" of religion that is > protected, no? Is there any reason to think that exercise of > religion might not be harmful? I guess my question is > whether you see the harm done by religion as unprotected > because of some constitutional reason (such as, it amounts > to establishment)? Why would the religious motivation be > treated any differently than an anti-religious motivation, or > a commitment to Millian liberalism, or the will to power? If > the protection for speech's harm, is that speech is good for > democracy, cannot one make the same argument about much, if > not all, religious exercise? > > (I'm not defending the principle that there is a right to > harm, only looking for consistency.) > > Thanks, > Richard Dougherty > > > "Volokh, Eugene" wrote (in part): > > > The Free Speech Clause and other rights *are* rights to > > inflict certain kinds of harm on others in certain ways > (for instance, > > through the communicative impact of speech); we think that > for various > > reasons, the government ought not be allowed to interfere with this > > harm, perhaps because speech is so valuable to democratic > > self-government, or because we suspect the government will > abuse its > > regulatory powers. Likewise, as I argue at > > > http://www1.law.ucla.edu/> ~volokh/relfree.htm#Several%20Specific%20Proh > > ib > > itions%20on%20Government, in a few contexts (for instance, > > discrimination in hiring clergy, or religious frauds), the > Free Exercise > > Clause also allows religious people or institutions to > inflict what the > > law might otherwise treat as harm to others. > > > > But we ought not read the Free Exercise Clause as generally > > licensing religious objectors to inflict harm on others (or > even to do > > so subject to a possible strict scrutiny trump). As I argue, my > > relationship with my God may be important to me, but it can't by > > itself be a constitutionally sufficient justification for > my harming > > you, even slightly (for instance, by intentionally inflicting > > emotional distress on you in secular ways, blocking access > to your property, or slightly > > vandalizing your commercial building). From your > perspective and the > > legal system's perspective (even if not from my own), my God is my > > God, not yours, and the Constitution doesn't give those > acting in His > > name sovereignty over your legally recognized rights and interests. > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a sermon in his progressive church decrying the theological positions taken by Falwell, denouncing the alleged intrusion of Falwell's theology into politics, and characterizing Falwell as a modern-day Pharisee. The sermon concludes that it is behavior and proselytization such as that in which Falwell engages that continues to contribute to the agony of Jesus on the Cross. The sermon is broadcast on tv, radio, and/or the web (to get roughly the same dissemination as Flynt managed with Hustler). Falwell is understandably upset and emotionally distressed (assume that it's just as distressing to him as were the comments about his mother). Must Falwell meet a higher burden because the offending speech is a religious sermon rather than a parody in a secular publication? Should the courts get involved in the modern equivalent of the 17th century "pamphlet wars" if one or both of the parties alleges some sort of emotional distress or other damage? Or should the courts do as suggested the jury in Thomas Maule's trial: "This is a matter for a jury of divines."? I think it makes a lot of sense to severely limit the extent to which courts measure the emotional distress caused by religious expression (in contrast to other speech). Otherwise, because religious expression also is a form of free exercise, a back door is open to curtail the free exercise rights of the speaker. Jim Maule Villanova University School of Law >>> [EMAIL PROTECTED] 3/14/2005 4:36:01 PM >>> While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by the homosexual couple under a municipal gay rights ordinance. Assume for the sake of argument that other rental opportunities for homosexual couples are available in that community (a reasonable assumption, as a municipality in which political support exists for enactment of a gay rights law involving housing is unlikely to one in which such discrimination is omnipresent across the community, but even if you find the assumption more debatable, I ask you to accept it for this hypothetical). Under that hypothetical, then, the claim of the homosexual couple, although framed as housing discrimination and seeking the remedy of an injunction, in practical terms is about the emotional distress of having experienced discrimination by being rejected as a tenant on the basis of sexual orientation. Isn't that experience of emotional distress comparable to that of Jerry Falwell who was targeted for sexualized slurs based upon his religious and political views? In both instances, the complaining party understandably and sincerely has suffered an emotional injury (as I'll assume for this hypothetical, as I doub
Re: Free Exercise, Free Speech, and harm to others
Eugene: Are you grounding your analysis here of speech and religion in the text of the First Amendment? It seems to my untutored eye that it is precisely "exercise" of religion that is protected, no? Is there any reason to think that exercise of religion might not be harmful? I guess my question is whether you see the harm done by religion as unprotected because of some constitutional reason (such as, it amounts to establishment)? Why would the religious motivation be treated any differently than an anti-religious motivation, or a commitment to Millian liberalism, or the will to power? If the protection for speech's harm, is that speech is good for democracy, cannot one make the same argument about much, if not all, religious exercise? (I'm not defending the principle that there is a right to harm, only looking for consistency.) Thanks, Richard Dougherty "Volokh, Eugene" wrote (in part): > The Free Speech Clause and other rights *are* rights to inflict > certain kinds of harm on others in certain ways (for instance, through > the communicative impact of speech); we think that for various reasons, > the government ought not be allowed to interfere with this harm, perhaps > because speech is so valuable to democratic self-government, or because > we suspect the government will abuse its regulatory powers. Likewise, > as I argue at > http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specific%20Prohib > itions%20on%20Government, in a few contexts (for instance, > discrimination in hiring clergy, or religious frauds), the Free Exercise > Clause also allows religious people or institutions to inflict what the > law might otherwise treat as harm to others. > > But we ought not read the Free Exercise Clause as generally > licensing religious objectors to inflict harm on others (or even to do > so subject to a possible strict scrutiny trump). As I argue, my > relationship with my God may be important to me, but it can't by itself > be a constitutionally sufficient justification for my harming you, even > slightly (for instance, by intentionally inflicting emotional distress > on you in secular ways, blocking access to your property, or slightly > vandalizing your commercial building). From your perspective and the > legal system's perspective (even if not from my own), my God is my God, > not yours, and the Constitution doesn't give those acting in His name > sovereignty over your legally recognized rights and interests. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Wash. Post article on churches and land use regulation
Yes, let's adopt a position of neutrality -- and tax churches and church lands just like other businesses and their land. Why accommodate religion anyway? Give them equal treatment on taxation. Eugene, how do you square the neutrality principle you advocate for benefits but not burdens? On Monday, March 14, 2005, at 04:31 PM, Scarberry, Mark wrote: http://www.washingtonpost.com/wp-dyn/articles/A32382-2005Mar13.html Mark S. Scarberry Pepperdine Univ. School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope." Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Institutional Capacity to Manage Exemptions
I take it that challenges are improper even if well grounded? Not all challenges, of course, prevail (Rosenberger). On Monday, March 14, 2005, at 04:53 PM, Anthony Picarello wrote: Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment Clause challenges to their hard-won legislative accommodations: as "blind giveaways" if they are too broad (Cutter), as "denominational preferences" if too tailored (Kiryas Joel). They may also face separation of powers challenges on the (ironic) theory that in providing accommodations, the legislature is usurping the role of judiciary. In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. Hostility by whom toward whom? The ACLU and other groups defend religious people's rights as well as the rights of others, including in schools when teachers, principals or school boards utterly ban religious expression -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope." Reinhold Neibuhr ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
I was glad to see Alan's response, and I'll try to respond myself below. But Alan, what do you think of the three examples I give? Alan Brownstein writes: > 1. As I tried to argue in an earlier post, "harm to others" can be an ambiguous term. If it includes financial costs and emotional > distress, most rights are protected at least to some extent, even if doing so imposes such > consequences on third parties or the general public. Maybe free exercise rights are different than other rights in this regard -- but that > difference needs to be explained and justified. And with due respect, Eugene, I don't think you have done that. I understand that > my G-d may not a deity to you. But it is also true for most self realizing rights or autonomy or dignitary rights that what is important and > meaningful to me may be meaningless and irrelevant to you. This is even true for the non-instrumental value of freedom of speech. > Maybe X needs to express racially derogatory comments to individuals of a different race to be self > -fulfilled. But I don't. And I see virtually no instrumental value in permitting targeted racist invective. But I accept that some such > expression is constitutionally protected, notwithstanding the emotional harm that it causes. Why is that different than protecting > free exercise rights that "harm" others of a faith committed to tenets that I do not accept. I think this is a great explanation for why pure self-expression isn't an adequate defense for free speech claims, and it's one reason that the Court has accepted some exceptions from free speech protection even when the speaker is deriving self-expression benefits from the speech (e.g., lies, threats, and -- most relevant for Alan's example -- fighting words). But the chief reason the Court has given for protecting free speech is the social benefits of speech, and the social harms of giving the government broad power to restrict speech. So I do think there's substantial social benefit in protecting racist speech broadly (though not necessarily fighting words, whether racist or not). > 2. Also, Eugene, for the purpose of your argument, does harm to the general community have the same analytic consequence as harm to > specific third parties. The burden of granting some free exercise exemptions is essentially financial -- it imposes costs on the public fisc. > For example, exempting a church from land use regulations limiting development in a commercial zone has financial consequences for a > community -- since the church does not pay taxes and does not engage in activities that provide sales tax revenue to the city. But the costs > of protecting freedom of speech can also be quite high. For example, large political demonstrations do not police themselves. Is their a > reason why we should accept the financial costs of exercising free speech rights, but not those associated > with exercising free exercise rights? (I recognize that political rallies have instrumental value, but certainly, one can argue that > society benefits in a variety of intangible and tangible ways from the houses of worship in our communities) I think that harm to the general community at least often does qualify as harm -- and that includes financial harm. For instance, criticism of the draft (short of Brandenburg incitement) is protected, even when that is likely to lead some people to disobey the draft law; religious refusal to obey the draft is not protected, see Gillette. Criticism of the tax system (again, short of incitement) is protected, even when that is likely to lead to less tax revenue; religious refusal to pay taxes is not, see Bob Jones. Alan, do you think these results are wrong? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
I appreciate Greg's thoughtful analysis, but I think that ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's rights doesn't resolve the problems. I would feel *much* more distressed by knowing that millions (?) of people are reading about how I supposedly had sex with my mother in an outhouse (even if they know it's a gag) than by a few nights of loud noise outside my house. Likewise, I suspect that the more-or-less three-year-long boycott in Claiborne Hardware affected local businesses more than the occasional blockage would affect the business of an abortion clinic. It's true that this may be so because the boycott went on for a long time, while the blockage in my hypothetical wouldn't. But under free speech law, even speech urging a long boycott can't be punished -- and even one instance of entrance blockage, which would cause vastly less damage than the boycott, would be punishable, whether or not it's religiously based. So people are constitutionally entitled to inflict considerably greater harms through the communicative impact of their speech than through the religiously motivated conduct. Or am I mistaken here? As to the housing discrimination scenario, I just think Greg's comparison cases are actually not terribly similar. The gay couple's claim isn't necessarily that they're deeply emotionally distressed -- rather, it is that they have a legal right to equal treatment, regardless of whether the unequal treatment is terribly distressing. Maybe this right flows from a general sense that the unequal treatment is usually distressing, but it doesn't, I think, require a case-by-case analysis here. I have a right to be free even from minor trespasses on my land, or minor batteries (consider someone popping me in the face with a cream pie, probably not tremendously insulting as batteries go). People aren't free to engage in this conduct even if they feel a religious obligation to do so (say, for instance, that they want to engage in a pilgrimage to what they think is a newly discovered holy site on my land, or that they feel they need to pie me as a statement about my blasphemy). Likewise, I take it that many supporters of antidiscrimination law believe that a right to be free from certain kinds of discrimination in certain transactions is a comparable private entitlement. I don't see how a court can, as a constitutional matter, conclude that this form of infringement of one's rights just isn't that emotionally distressing, while other forms are. Eugene Greg Sisk writes: > While free exercise and free speech may be different in many > respects, and indeed most constitutional rights differ from > all other rights, as they are not merely fungible from one to > another, I don't think Eugene Volokh's thoughtful > hypotheticals satisfactorily dispose of the argument that > free exercise and free speech ought not be treated > differently in the amount of burden that we accept (or the > courts ought to accept) upon the public or others. The > problem with Eugene's hypotheticals, as I see it, is that the > burdens outlined are not comparable, in part because one > involves non-physical speech and the other involves conduct > (as Jim Maule observes), but also simply because of the > anticipated degree of negative impact upon persons other than > the one exercising the right. > > Just to look at the first pair of hypotheticals: While Jerry > Falwell is postulated to have experienced emotional distress > as a result of both incidents, I submit that we intuitively > would recognize that the immediacy and intrusiveness of the > harm differs greatly when we compare reading a scurrilous > reference to one's self in a periodical with experiencing an > almost physical trespass accompanied by the use of loud > sounds that cannot easily be escaped and, perhaps most > importantly, that occurs at one's place of sanctuary, the > home. Thus, while I agree that the free speech claim in that > pair of hypotheticals is stronger than the free exercise > claim, I don't see the two cases as truly comparable in terms > of the degree and perhaps the nature of the harm, even if > both forms of harm are generally categorized as emotional distress. > > Thus, for a set of hypotheticals comparing the strength of > free speech and free exercise claims to be truly comparable, > the nature or at least the degree of harm must also be > comparable. While not neatly involving parallel factual > settings or messages, consider these two scenarios: First, > we again have the offensive parody of Jerry Falwell in Larry > Flynt's Hustler magazine, in which Flynt invokes freedom of > speech as a defense against a claim for emotional distress. > Second, we have a homosexual couple that is rejected as > tenants by a homeowner of traditional religious values for > the spare room in her house, in which the homeowner invokes > free exercise as a d
RE: Institutional Capacity to Manage Exemptions
Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment Clause challenges to their hard-won legislative accommodations: as "blind giveaways" if they are too broad (Cutter), as "denominational preferences" if too tailored (Kiryas Joel). They may also face separation of powers challenges on the (ironic) theory that in providing accommodations, the legislature is usurping the role of judiciary. In other words, the unifying theme in this position is not deference to legislative acts, but hostility to legislative acts and judicial rules alike if they help religious litigants. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED]Sent: Monday, March 14, 2005 4:15 PMTo: religionlaw@lists.ucla.eduSubject: Re: Institutional Capacity to Manage Exemptions As Justice Scalia notes in Smith, the likelihood in this society that such an exemption would not go forward is highly unlikely. It is harmless to others, and the religious entities had ready access to the governing powers that be. That is how the system works -- entities who want to amend the law or to force it to accommodate them before it is enacted, lobby their representatives and every other power center they can. There has never been an era in the United States when religious entities felt shy about such political pressure. Marci In a message dated 3/14/2005 2:05:54 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Would it have been acceptable during National Prohibition to force Episcopalians, Eastern Orthodox and Catholics to âassimilateâ by giving up wine and using grape juice instead in celebrating the Eucharist? Is the use of wine no different than the religiously motivated practices that you described below? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: ministerial exception
Marci:
I know of no cases challenging the exclusion of women from the
Catholic priesthood. But if denominations that purport to treat
women and men equally for clergy positions get the benefit of the
ministerial exception, as they do, it would seem to follow a fortiori
that the Catholic Church, Orthodox Jewish congregations, and
others that exclude women from the clergy as a matter of religious
doctrine would get the exception as well.
As for whether the sexual harassment cases represent, as I say, an
"exception to the ministerial exception," or, as you say, "are part of
> the evolving law being applied to religious entity's employment
> practices and point the way to the future," only time will tell. But for now
> the ministerial exception doctrine has held firm in every non-harassment case
> of discrimination brought by a member of the clergy against his or her
> denomination.
By the way -- you alluded earlier to cases about race discrimination
and the ministerial exception. Are you aware of any case in which
the clergy-plaintiff alleged race discrimination, the religious entity
defendant pleaded the ministerial exception, and the court rejected
the defense and let the case go forward? I know of no such cases
(or of cases that go the other way, where the defense is accepted),
and I would like to learn of any cases about race discrimination and
the ministerial exception.
Chip
On 14 Mar 2005 at 16:19, [EMAIL PROTECTED] wrote:
> Chip-- I never said that the Catholic Church had experienced such
> litigation; we were talking about hypotheticals.
>
> Isthe absence of Catholic Church gender litigationbecause these cases
> have never been brought, or because the claimis not cognizable
> underthe ministerial exception? With respect to Bollard and Elvig,
> they are not simply exceptions to the general rule, but are part of
> the evolving law being applied to religious entity's employment
> practices and point the way to the future.
>
> Marci
>
> In a message dated 3/14/2005 2:35:47 P.M. Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> The ministerial exception cases have never involved the Catholic
> priesthood or any denomination which claims a sincere religious
> belief in favor of gender exclusion from the clergy.
>
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
___
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RE: Free Exercise, Free Speech, and harm to others
While free exercise and free speech may be different in many respects, and indeed most constitutional rights differ from all other rights, as they are not merely fungible from one to another, I don't think Eugene Volokh's thoughtful hypotheticals satisfactorily dispose of the argument that free exercise and free speech ought not be treated differently in the amount of burden that we accept (or the courts ought to accept) upon the public or others. The problem with Eugene's hypotheticals, as I see it, is that the burdens outlined are not comparable, in part because one involves non-physical speech and the other involves conduct (as Jim Maule observes), but also simply because of the anticipated degree of negative impact upon persons other than the one exercising the right. Just to look at the first pair of hypotheticals: While Jerry Falwell is postulated to have experienced emotional distress as a result of both incidents, I submit that we intuitively would recognize that the immediacy and intrusiveness of the harm differs greatly when we compare reading a scurrilous reference to one's self in a periodical with experiencing an almost physical trespass accompanied by the use of loud sounds that cannot easily be escaped and, perhaps most importantly, that occurs at one's place of sanctuary, the home. Thus, while I agree that the free speech claim in that pair of hypotheticals is stronger than the free exercise claim, I don't see the two cases as truly comparable in terms of the degree and perhaps the nature of the harm, even if both forms of harm are generally categorized as emotional distress. Thus, for a set of hypotheticals comparing the strength of free speech and free exercise claims to be truly comparable, the nature or at least the degree of harm must also be comparable. While not neatly involving parallel factual settings or messages, consider these two scenarios: First, we again have the offensive parody of Jerry Falwell in Larry Flynt's Hustler magazine, in which Flynt invokes freedom of speech as a defense against a claim for emotional distress. Second, we have a homosexual couple that is rejected as tenants by a homeowner of traditional religious values for the spare room in her house, in which the homeowner invokes free exercise as a defense as a claim for discrimination by the homosexual couple under a municipal gay rights ordinance. Assume for the sake of argument that other rental opportunities for homosexual couples are available in that community (a reasonable assumption, as a municipality in which political support exists for enactment of a gay rights law involving housing is unlikely to one in which such discrimination is omnipresent across the community, but even if you find the assumption more debatable, I ask you to accept it for this hypothetical). Under that hypothetical, then, the claim of the homosexual couple, although framed as housing discrimination and seeking the remedy of an injunction, in practical terms is about the emotional distress of having experienced discrimination by being rejected as a tenant on the basis of sexual orientation. Isn't that experience of emotional distress comparable to that of Jerry Falwell who was targeted for sexualized slurs based upon his religious and political views? In both instances, the complaining party understandably and sincerely has suffered an emotional injury (as I'll assume for this hypothetical, as I doubt that Jerry Falwell truly was that distressed). But both emotional injuries are unaccompanied by any physical component and both involve primarily upset feelings. By that analysis, shouldn't the free exercise claim of the homeowner be regarded as equally viable as the free speech claim of Larry Flynt? (And if you don't like my hypotheticals, feel free to formulate your own, in which the comparability of harm is the pivot point rather than comparable factual settings.) Greg Sisk Gregory Sisk Professor of Law University of St. Thomas School of Law (Minneapolis) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 [EMAIL PROTECTED] http://personal2.stthomas.edu/GCSISK/sisk.html -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 11:59 AM To: Law & Religion issues for Law Academics Subject: Free Exercise, Free Speech, and harm to others Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explai
Wash. Post article on churches and land use regulation
http://www.washingtonpost.com/wp-dyn/articles/A32382-2005Mar13.html Mark S. Scarberry Pepperdine Univ. School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: ministerial exception
Chip-- I never said that the Catholic Church had experienced such litigation; we were talking about hypotheticals. Is the absence of Catholic Church gender litigation because these cases have never been brought, or because the claim is not cognizable under the ministerial exception? With respect to Bollard and Elvig, they are not simply exceptions to the general rule, but are part of the evolving law being applied to religious entity's employment practices and point the way to the future. Marci In a message dated 3/14/2005 2:35:47 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The ministerial exception cases have never involved the Catholic priesthood or any denomination which claims a sincere religious belief in favor of gender exclusion from the clergy. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Institutional Capacity to Manage Exemptions
As Justice Scalia notes in Smith, the likelihood in this society that such an exemption would not go forward is highly unlikely. It is harmless to others, and the religious entities had ready access to the governing powers that be. That is how the system works -- entities who want to amend the law or to force it to accommodate them before it is enacted, lobby their representatives and every other power center they can. There has never been an era in the United States when religious entities felt shy about such political pressure. Marci In a message dated 3/14/2005 2:05:54 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Would it have been acceptable during National Prohibition to force Episcopalians, Eastern Orthodox and Catholics to âassimilateâ by giving up wine and using grape juice instead in celebrating the Eucharist? Is the use of wine no different than the religiously motivated practices that you described below? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Free Exercise, Free Speech, and harm to others
I tend to agree with Eugene that free speech and free exercise rights do not parallel each other -- so that it does not necessarily follow that because freedom of speech is protected even when the speech causes harm to third parties, free exercise rights must receive similar protection. But I have several problems with other parts of Eugene's analysis. 1. As I tried to argue in an earlier post, "harm to others" can be an ambiguous term. If it includes financial costs and emotional distress, most rights are protected at least to some extent, even if doing so imposes such consequences on third parties or the general public. Maybe free exercise rights are different than other rights in this regard -- but that difference needs to be explained and justified. And with due respect, Eugene, I don't think you have done that. I understand that my G-d may not a deity to you. But it is also true for most self realizing rights or autonomy or dignitary rights that what is important and meaningful to me may be meaningless and irrelevant to you. This is even true for the non-instrumental value of freedom of speech. Maybe X needs to express racially derogatory comments to individuals of a different race to be self -fulfilled. But I don't. And I see virtually no instrumental value in permitting targeted racist invective. But I accept that some such expression is constitutionally protected, notwithstanding the emotional harm that it causes. Why is that different than protecting free exercise rights that "harm" others of a faith committed to tenets that I do not accept. 2. Also, Eugene, for the purpose of your argument, does harm to the general community have the same analytic consequence as harm to specific third parties. The burden of granting some free exercise exemptions is essentially financial -- it imposes costs on the public fisc. For example, exempting a church from land use regulations limiting development in a commercial zone has financial consequences for a community -- since the church does not pay taxes and does not engage in activities that provide sales tax revenue to the city. But the costs of protecting freedom of speech can also be quite high. For example, large political demonstrations do not police themselves. Is their a reason why we should accept the financial costs of exercising free speech rights, but not those associated with exercising free exercise rights? (I recognize that political rallies have instrumental value, but certainly, one can argue that society benefits in a variety of intangible and tangible ways from the houses of worship in our communities) Again, I am not suggesting that all rights are analogous to each other with regard to whether they include the freedom to inflict harm on others -- or with regard to other attributes. But if free exercise rights are to be defined more narrowly than many if not most other rights, I think the proponents of doing so need to persuasively explain why this is so. Alan Brownstein UC Davis Eugene writes, But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a possible strict scrutiny trump). As I argue, my relationship with my God may be important to me, but it can't by itself be a constitutionally sufficient justification for my harming you, even slightly (for instance, by intentionally inflicting emotional distress on you in secular ways, blocking access to your property, or slightly vandalizing your commercial building). From your perspective and the legal system's perspective (even if not from my own), my God is my God, not yours, and the Constitution doesn't give those acting in His name sovereignty over your legally recognized rights and interests. The trouble with such a broad religious freedom claim to do whatever you please so long as you don't harm others is not that private contract, property, and tort law rights, or private interests in being free from criminal vandalism (consider the rights and interests implicated in the three examples I note above) somehow outweigh religious freedom rights: How could we justify such a conclusion? Even if one somehow determines that such private rights are as important as religious freedom rights, I see no way to explain why they are more important, which would be required to show such an outweighing. Rather, the reason why a general exemption regime can't override these rights must be that any religious freedom right that's solely grounded in the religious motivation for one's actions simply can't extend to actions that impair others' rights or impose improper externalities on others. Whether your countervailing right is a right to life, to bodily integrity, or to something perhaps somewhat less important, such as property or freedom from emotional distress, if it is indeed a right then the religiosity of my motivation can't justify violating it. _
RLUIPA Reply Briefs
RLUIPA Reply Briefs 03:01 PM | Marty Lederman | Comments (0) | TrackBack (0) Both the private Petitioners and the Acting SG have filed their reply briefs in No. 03-9877, Cutter v. Wilkinson. The respondents'-side briefs can be found here; the top-side briefs will be available here (when the link is fixed). Argument is next Monday. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: ministerial exception
Marci is correct that " the ministerial
exception is not some blanket protection for anything that happens
between clergy and religious institution," because courts have
tended not to permit religious entities to rely on it to get rid of claims
of negligent supervision in cases of harm to third party victims of
clergy (e.g,. sexual abuse victims.)
But she is wrong when she asserts that, under the ministerial
exception, "if an abusive or discriminatory practice is not motivated
by a sincere religious belief, the claim can go forward in the courts."
The ministerial exception cases have never involved the Catholic
priesthood or any denomination which claims a sincere religious
belief in favor of gender exclusion from the clergy. All of the
ministerial exception cases (and there are many) involve
denominations that DO ordain female clergy, but assert that courts
cannot adjudicate claims of pretext when the dismissed
clergywoman asserts gender discrimination, and the religious
employer might be obliged to show that it had a non-gendered
reason for the dismissal. Such inquiries into the possibility of
pretext in the employment relation with clergy, the cases uniformly
hold, is constitutionally impermissible. The harassment cases like
Bollard and Elvig are thus exceptions to the ministerial exception
(justified, it is said, because they can be adjudicated without a court
second-guessing a religious entity's evaluation of a member of the
clergy), with the remedial limitiations that Mark and Doug have
noted.
Chip Lupu
On 14 Mar 2005 at 14:01, [EMAIL PROTECTED] wrote:
> Mark-- Elvig does not gainsay my point that . So >
> Marci
>
>
> In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> With regard to Marci's point on the ministerial exception having
> no bite in the Ninth Circuit where the claim is for sexual
> harassment, I think she overstates the case. The most recent Ninth
> Circuit case on the issue (Elvig) severely limits the remedies
> that an allegedly sexually harassed minister can seek
>
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
___
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messages to others.
RE: Institutional Capacity to Manage Exemptions
Title: Message I don’t understand the distinction between across the board and ad hoc exemptions, particularly as applied to something like National Prohibition and the exemption for the religious use of wine. How are you going to know whether a practice of a religion about which you know, hypothetically speaking, little or nothing, was significant enough to warrant an exemption? I don’t understand how the indeterminacy of text renders any reliance on it unprincipled. If that were true then none of the Religion Clause cases (or Equal Protection or Due Process cases) could be said to have been principled. Is that your position? I might agree with you that the ”founders” would have thought that at least *some* religious exemptions were not guaranteed. But of course the question that matters is which ones were and which ones were not, and whether or not the topography of the domain of freedom from and freedom of religion might have changed over time. -Original Message- From: West, Ellis [mailto:[EMAIL PROTECTED] Sent: Sunday, March 13, 2005 2:43 PM To: Law & Religion issues for Law Academics Subject: FW: Institutional Capacity to Manage Exemptions In response to Prof. Newsome's questions below, I would, first, simply repeat that my original question was whether an across-the-board exemption from valid, secular laws given, by either a legislature or the Supreme Court, to religious persons/groups, and them alone, can be justified on the basis of some theory or principle (other than that the majority has a right to pass whatever laws it wants to pass). Second, as explained in an earlier message, by an across-the-board exemption, I mean an exemption from all laws or a large category of laws that is given unconditionally or given unless the government, on the basis of some test like the strict scrutiny test, can convince a judge that in any given situation an exemption should not be given. Third, I am not opposed in principle to legislatures' granting ad hoc exemptions, i.e., exemptions from particular laws granted to certain categories of persons/groups, religious or otherwise, who would be significantly harmed by the application of those laws to them. Therefore, and fourth, I would not be opposed in principle to churches' being given an exemption from a prohibition law so that they could use wine in their rituals. Moreover, although I am not familiar with how essential the use of wine is in various churches, if I were a legislator being asked to include such an exemption in a prohibition law, I would certainly be open to being shown that the harm caused the churches by the law was significant enough to warrant their being given an exemption. Finally, I am not sure how to respond to your second question because I do not understand its import. My initial question, stated above, was predicated on the assumption that there was such disagreement about the meaning of the free exercise clause that one could not simply cite the free exercise clause as a principled reason for across-the-board religion-based exemptions. Although I personally believe, having researched and written on this matter for some years now, that the free exercise clause as originally understood does not guarantee a right to religion-based exemptions, if I could be shown otherwise, then, given my own theory of constitutional adjudication, I would not object to the courts' granting religion-based exemptions on the basis of the free exercise clause. Ellis M. West Political Science Department University of Richmond, VA 23173 804-289-8536 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, March 11, 2005 6:40 PM To: Law & Religion issues for Law Academics Subject: RE: Institutional Capacity to Manage Exemptions I have to ask Professor West whether it would have been OK with him if during National Prohibition no exemption had been allowed for the religious use of wine. His answer to *that* question will be most revealing. A second question deserving a response is what conclusions should one draw if it turns out that the meaning(s) of the Religion Clauses are contestable or contingent. (His answer to the first question should have some bearing on his answer to the second question.) A third question is when did I say that I favored “across the board” exemptions. I still don’t know, however, what that term means, as Professor West uses it. As I said before the exemption in the Volstead Act is probably not “across the board.”) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messa
RE: Harm to Others as a Factor in Accommodation Doctrine
What Elvig appears to hold is that if the remedy does not interfere with the church's selection of its own clergy, the ministerial exception is not implicated. It certainly does not hold that a pastor can be reinstated if she was discharged because of her sex, or her complaints about sexual harassment, and not because of some religious belief on the part of the church. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 3/14/2005 1:01 PM To: religionlaw@lists.ucla.edu Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Mark-- Elvig does not gainsay my point that if an abusive or discriminatory practice is not motivated by a sincere religious belief, the claim can go forward in the courts. So the ministerial exception is not some blanket protection for anything that happens between clergy and religious institution. Marci In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: With regard to Marci's point on the ministerial exception having no bite in the Ninth Circuit where the claim is for sexual harassment, I think she overstates the case. The most recent Ninth Circuit case on the issue (Elvig) severely limits the remedies that an allegedly sexually harassed minister can seek <>___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Institutional Capacity to Manage Exemptions
Would it have been acceptable during National Prohibition to force Episcopalians, Eastern Orthodox and Catholics to “assimilate” by giving up wine and using grape juice instead in celebrating the Eucharist? Is the use of wine no different than the religiously motivated practices that you described below? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, March 11, 2005 7:02 AM To: religionlaw@lists.ucla.edu Subject: Re: Institutional Capacity to Manage Exemptions It is lamentable when an accommodation that makes good sense is turned down by a legislature. But I see no reason to think that forcing assimilation of many behaviors is lamentable. Only the most rose-colored vision of religion that can think that it should not assimilate in many circumstances. Religiously motivated practices have included slavery, the oppression of women, and polygamy. The oppression of children for religious purposes continues to this day, putting them at risk of sex abuse, physical abuse, and the suffering and death associated with medical neglect. Marci It's just unavoidable that the Smith rule, without > strong and frequent legislative protection for religious > exemptions, will force religious observers to convert > outright, to minimize their own religiosity, or to change it > to fit the government regulation -- religious people will > have "to convert, to pass and to cover." I find that lamentable. > > Chris Lund ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Mark-- Elvig does not gainsay my point that if an abusive or discriminatory practice is not motivated by a sincere religious belief, the claim can go forward in the courts. So the ministerial exception is not some blanket protection for anything that happens between clergy and religious institution. Marci In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: With regard to Marci's point on the ministerial exception having no bite inthe Ninth Circuit where the claim is for sexual harassment, I think sheoverstates the case. The most recent Ninth Circuit case on the issue (Elvig)severely limits the remedies that an allegedly sexually harassed ministercan seek ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Free Exercise, Free Speech, and harm to others
Religious speech, it seems to me, should be no more and no less protected by the Free Speech Clause than other speech. Thus, the interesting questions (including the ones we've been discussing on related threads) arise when there's a claim of religious accommodation for conduct, or for speech that causes harm through its noncommunicative components. So my pairs of examples do compare the Free Speech Clause treatment of speech (speech that causes harm through what it communicates) against the Free Exercise Clause treatment of conduct (or speech that causes harm through its noncommunicative impact). But that's the comparison, I take it, that Brad and Marc were urging; if they had simply been demanding protection for religious speech, they would be getting it, see Widmar, Lamb's Chapel, etc. Jim Maule writes: > Is the distinction between your hypothetical pairings one of > free speech versus free exercise or one of words versus > conduct? (Flynt writes, Glynt yells; the NAACP publishes, > Operation Rescue blocks; Schenck writes/publishes, Penck blocks). > > If Glynt, Operation Rescue or Penck were to write/publish > would there be a difference in the analysis? Assume that the > writing was based on, and reflected, sincerely held religious > beliefs. Does free speech subsume free exercise if the > exercise is that of writing/speaking/publishing? Does free > exercise not include free speech with respect to religious > beliefs? Are the two concomitant with respect to religious > expression? I'm not convinced that the overlap is symmetrical > or concomitant, and I wonder if concluding that the overlap > IS concomitant effectively makes one of the freedoms > subservient to the other. > > Nor do I think that a blanket conclusion requiring a higher > level of proof of harm for free exercise than for free speech > is necessary or wise. I also think that there is a freedom of > religious expression that draws on both freedoms and that may > need to be tested differently than either free speech or free > exercise. > > Jim Maule > Villanova University School of Law > > >>> [EMAIL PROTECTED] 3/14/2005 12:59:04 PM >>> > Brad's and Marc's posts raise an excellent question: > If free speech means that people have the constitutional > right to impose burdens on others, why shouldn't free > exercise operate the same way? The same can be said of other > rights, incidentally: For instance, the Compulsory Process > Clause right gives criminal defendants very substantial > powers to constrain others' liberty. (I set aside here the > permissible scope of legislative accommodations, and focusing > on what's constitutionally > compelled.) > > I think that free speech and free exercise *are* > different this way, and let me briefly try to explain why. > I'll begin with some hypotheticals that I think help > illustrate this, and then offer a broader theoretical > explanation. (The following is borrowed from my A Common-Law > Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), > http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the > hypos, which consist of pairs of claims, one free speech and > one religious > freedom: > > 1. (A) Larry Flynt inflicts emotional distress on > Jerry Falwell by publishing his vitriolic "ad parody" in > Hustler Magazine; when sued under the IIED tort, Flynt raises > his free speech rights as a defense. (B) Mary Glynt > inflicts emotional distress on Jerry Falwell by standing > outside his window at night with a bullhorn; when sued under > the IIED tort, Glynt raises her free exercise rights as a > defense -- she claims (assume that the claim is sincere) that > she feels a religious obligation to remonstrate this way with > heretics (and she considers Falwell to be one). > > 2. (A) The NAACP interferes with Claiborne Hardware's > business relations by publicizing the names of its visitors, > and urging people to boycott Claiborne; when sued under the > interference with business advantage tort, it raises its free > speech rights as a defense. (B) Operation Rescue interferes > with an abortion clinic's business relations by blocking the > entrance to the clinic; when sued under the same tort, it > raises its (or its members') free exercise rights as a > defense -- it claims (assume that the claim is sincere) that > its members feel a religious obligation to protect fetuses this way. > > 3. (A) A modern-day Schenck tries to interfere with > the war effort by publishing books, leaflets, and Web sites > urging people to vandalize munitions manufacturers; when > prosecuted for counseling illegal conduct, he raises his free > speech rights as a defense. (B) His religiously pacifist > cousin Penck tries to interfere with the war effort by > blocking the entrance to a military contractor's building; > when prosecuted for trepassing, he claims (assume that the claim is
Re: Free Exercise, Free Speech, and harm to others
Eugene, Is the distinction between your hypothetical pairings one of free speech versus free exercise or one of words versus conduct? (Flynt writes, Glynt yells; the NAACP publishes, Operation Rescue blocks; Schenck writes/publishes, Penck blocks). If Glynt, Operation Rescue or Penck were to write/publish would there be a difference in the analysis? Assume that the writing was based on, and reflected, sincerely held religious beliefs. Does free speech subsume free exercise if the exercise is that of writing/speaking/publishing? Does free exercise not include free speech with respect to religious beliefs? Are the two concomitant with respect to religious expression? I'm not convinced that the overlap is symmetrical or concomitant, and I wonder if concluding that the overlap IS concomitant effectively makes one of the freedoms subservient to the other. Nor do I think that a blanket conclusion requiring a higher level of proof of harm for free exercise than for free speech is necessary or wise. I also think that there is a freedom of religious expression that draws on both freedoms and that may need to be tested differently than either free speech or free exercise. Jim Maule Villanova University School of Law >>> [EMAIL PROTECTED] 3/14/2005 12:59:04 PM >>> Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explain why. I'll begin with some hypotheticals that I think help illustrate this, and then offer a broader theoretical explanation. (The following is borrowed from my A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the hypos, which consist of pairs of claims, one free speech and one religious freedom: 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic "ad parody" in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way. Under standard free speech doctrine, the free speech claimants in each of these cases would have a good Free Speech Clause defense, *even though* their speech causes harm to others. But do people on this list think that the religious freedom claimants in each of these cases should likewise prevail with their Free Exercise Clause defenses? The government interests -- and the private interests that the government is protecting -- in all the cases, it seems to me, are quite similar. The speech and the religious conduct jeopardizes those interests (perhaps not identically, but to similar degrees). But while the government is barred from restricting the speech when the content of the speech causes harm to others, the government may (and I think should) restrict the religious conduct when that causes harm to others. If I'm right, then this suggests that we can't just casually equate free speech and free exercise claims (perhaps
Re: Harm to Others as a Factor in Accommodation Doctrine
This is rather far afield, actually. These are questions of what evidence can be adduced in court. Penitent-minister communications are generally not fair game and have been excluded, unless the penitent waives the privilege. Patient-doctor privileges essentially get the same treatment. if the first is fair game (penitent-minister), why not the second (patient-doctor), if in both cases the goal is to prosecute child abusers? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
With respect to religious speech, there is no difference. When it comes to conduct, though, it is fairly obvious that conduct must be capable of greater regulation than speech, because of its greater potential for harm. This is a principle that has a distinguished pedigree, Locke, Jefferson, Mill, etc. etc. Marci In a message dated 3/14/2005 10:22:00 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Free Exercise, Free Speech, and harm to others
Brad's and Marc's posts raise an excellent question: If free speech means that people have the constitutional right to impose burdens on others, why shouldn't free exercise operate the same way? The same can be said of other rights, incidentally: For instance, the Compulsory Process Clause right gives criminal defendants very substantial powers to constrain others' liberty. (I set aside here the permissible scope of legislative accommodations, and focusing on what's constitutionally compelled.) I think that free speech and free exercise *are* different this way, and let me briefly try to explain why. I'll begin with some hypotheticals that I think help illustrate this, and then offer a broader theoretical explanation. (The following is borrowed from my A Common-Law Model for Religious Exemptions, 46 UCLA L. Rev. 1465 (1999), http://www1.law.ucla.edu/~volokh/relfree.htm.) Here are the hypos, which consist of pairs of claims, one free speech and one religious freedom: 1. (A) Larry Flynt inflicts emotional distress on Jerry Falwell by publishing his vitriolic "ad parody" in Hustler Magazine; when sued under the IIED tort, Flynt raises his free speech rights as a defense. (B) Mary Glynt inflicts emotional distress on Jerry Falwell by standing outside his window at night with a bullhorn; when sued under the IIED tort, Glynt raises her free exercise rights as a defense -- she claims (assume that the claim is sincere) that she feels a religious obligation to remonstrate this way with heretics (and she considers Falwell to be one). 2. (A) The NAACP interferes with Claiborne Hardware's business relations by publicizing the names of its visitors, and urging people to boycott Claiborne; when sued under the interference with business advantage tort, it raises its free speech rights as a defense. (B) Operation Rescue interferes with an abortion clinic's business relations by blocking the entrance to the clinic; when sued under the same tort, it raises its (or its members') free exercise rights as a defense -- it claims (assume that the claim is sincere) that its members feel a religious obligation to protect fetuses this way. 3. (A) A modern-day Schenck tries to interfere with the war effort by publishing books, leaflets, and Web sites urging people to vandalize munitions manufacturers; when prosecuted for counseling illegal conduct, he raises his free speech rights as a defense. (B) His religiously pacifist cousin Penck tries to interfere with the war effort by blocking the entrance to a military contractor's building; when prosecuted for trepassing, he claims (assume that the claim is sincere) that he feels a religious obligation to fight the war this way. Under standard free speech doctrine, the free speech claimants in each of these cases would have a good Free Speech Clause defense, *even though* their speech causes harm to others. But do people on this list think that the religious freedom claimants in each of these cases should likewise prevail with their Free Exercise Clause defenses? The government interests -- and the private interests that the government is protecting -- in all the cases, it seems to me, are quite similar. The speech and the religious conduct jeopardizes those interests (perhaps not identically, but to similar degrees). But while the government is barred from restricting the speech when the content of the speech causes harm to others, the government may (and I think should) restrict the religious conduct when that causes harm to others. If I'm right, then this suggests that we can't just casually equate free speech and free exercise claims (perhaps, for instance, because the Court was correct to conclude in Smith that the Free Exercise Clause right is a nondiscrimination right, or perhaps because both Smith and Sherbert were wrong and the proper test for exemptions from generally applicable laws is less than strict scrutiny though not rational basis). And here's my thinking as to why this is so: The Free Speech Clause and other rights *are* rights to inflict certain kinds of harm on others in certain ways (for instance, through the communicative impact of speech); we think that for various reasons, the government ought not be allowed to interfere with this harm, perhaps because speech is so valuable to democratic self-government, or because we suspect the government will abuse its regulatory powers. Likewise, as I argue at http://www1.law.ucla.edu/~volokh/relfree.htm#Several%20Specific%20Prohib itions%20on%20Government, in a few contexts (for instance, discrimination in hiring clergy, or religious frauds), the Free Exercise Clause also allows religious people or institutions to inflict what the law might otherwise treat as harm to others. But we ought not read the Free Exercise Clause as generally licensing religious objectors to inflict harm on others (or even to do so subject to a
RE: Harm to Others as a Factor in Accommodation Doctrine
I see a larger role than Marci does for constitutionally mandated and judicially enforced free exercise exemptions, but there is a problem with Brad's argument. A law that prohibited a certain kind of speech *as speech* would not be neutral and generally applicable; it would target speech the same way the City of Hialea targeted the Santeria religious ritual in the Lukumi case. Cf. O'Brien and other symbolic speech cases in which regulation of conduct is usually upheld despite the effect on the symbolic speech. With regard to Marci's point on the ministerial exception having no bite in the Ninth Circuit where the claim is for sexual harassment, I think she overstates the case. The most recent Ninth Circuit case on the issue (Elvig) severely limits the remedies that an allegedly sexually harassed minister can seek. In a suit for sexual harassment and for retaliation for making a claim of sexual harassment, the plaintiff's recovery cannot include reinstatement, lost wages, recovery for damage to reputation caused by an allegedly retaliatory firing, or an order requiring the church to give the plaintiff access to its process by which ministers find new positions. The court also held that retaliatory employment decisions (e.g., firing, demotion, change in duties) were not actionable, though retaliatory "verbal abuse and intimidation" would be (if such speech were not religiously mandated), with possible recovery for emotional distress and damage to reputation. (I think the court had in mind a situation in which verbal abuse and intimidation might happen in front of others in the church, with resulting possible damage to the plaintiff's reputation.) I think the plaintiff is left with the possibility of recovering only for emotional distress associated with the alleged harassment, and for emotional distress (and possible damage to reputation) associated with the alleged retaliation. Mark S. Scarberry Pepperdine Univ. School of Law -Original Message- From: Brad Pardee To: Law & Religion issues for Law Academics Sent: 3/14/2005 7:18 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
gender as bfoq
Assume there was no exemption for religious organizations per se under Title VII. But assume there was a BFOQ exemption for any employer, including religious organizations. Can there be any doubt that the free exercise clause would be applied to permit Catholics to ordain only men into the priesthood as a religious BFOQ? So there must be some content in the FE clause that would be in some cases narrower and in some cases broader than legislative accommodations. And should this not be the case? That there is a core set of rules built around the Constitution directly that cannot be constricted or perhaps even touched by legislative/majoritarian/money-powered interests? The free exercise clause is to protect the minorities against the majorities, and to protect even the majority religion -- Christianity -- from governmental aggrandizement of power. This latter aspect has been played to great effect of late by Christians asserting victimhood at the hands of the government -- exactly who this "evil government" foisting victimhood on downtrodden Christian may be a bit hard to determine, given the huge predominance of Christians in all positions of power in our society -- even a greater level of control than the Republicans currently possess. Sometimes one might think we are back in pre-Constantinian Rome. But the FE clause is there to protect the people against the government and the minorities against the majorities. And legislative action will not always work out for the minorities. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think." - Martin Luther King Jr., "Strength to Love", 1963 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Title: Re: Harm to Others as a Factor in Accommodation Doctrine Although Marci’s point is well-taken, I think another way to understand Marc’s (BTW, how cute is that, “Marci and Marc”?) point is to change Marci’s counter-example from church’s protecting pedophiles under the free exercise clause to abortion clinics protecting pedophiles under the right to privacy. Recently, an attorney general (I forgot what state) tried to acquire the medical records of underage girls who underwent abortions in order to try to investigate whether their pregnancies were the result of relations with adult men. Many folks opposed this acquisition on the grounds that it violated the girls’ right to privacy. Imagine, however, if the teenage boys molested by priests were seeing them under the cloak of penitent-minister confidentiality. So, we have a pretty good analogy here: penitent-minister, patient-doctor. Here’s what Marc may be suggesting (if I am wrong, Marc, please correct me): if the first is fair game (penitent-minister), why not the second (patient-doctor), if in both cases the goal is to prosecute child abusers? Frank On 3/14/05 8:52 AM, "[EMAIL PROTECTED]" <[EMAIL PROTECTED]> wrote: Just for the record-- I never said never can there be any burden on third parties, rather that that burden should be assessed by the legislature. There are arenas where the burden may never be tolerable, though, e.g., there are few burdens on children's health or safety that can be justified. There is a broad sprectrum, of course. Exemptions for peyote and religious headgear in the military create de minimis burdens on third parties. Exemptions that permit churches to hide pedophiles from unsuspecting parents and children are enormous burdens. Marci For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Brad The answer would be that those religious groups would lobby and obtain what they want. Just because the courts don't provide something does not mean religious entities throw up their hands and quit. Quite to the contrary. Marci So my question would be, if Title VII had not included the exemption, what would prevent the Church from being required to comply with anti-discrimination laws in the employment of priests if her position prevailed? It seems like the logical conclusion would be that women wishing to serve as priests would be harmed, so the Church would be required to assimilate, regardless of its understanding of God's requirements.Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Just for the record-- I never said never can there be any burden on third parties, rather that that burden should be assessed by the legislature. There are arenas where the burden may never be tolerable, though, e.g., there are few burdens on children's health or safety that can be justified. There is a broad sprectrum, of course. Exemptions for peyote and religious headgear in the military create de minimis burdens on third parties. Exemptions that permit churches to hide pedophiles from unsuspecting parents and children are enormous burdens. Marci For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Harm to Others as a Factor in Accommodation Doctrine
Vindication of constitutional rights often entails shifting burdens form one party to another. A public figure defamed without malice has to suffer damage to reputation in the furtherance of creating a vigorous marketplace of ideas. The interests of a fetus‘father in the birth of his child yield to the superior right of a mother not to be compelled to carry to term. One could multiply still further such examples. For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 14, 2005 9:39 AM To: religionlaw@lists.ucla.edu Subject: Re: Harm to Others as a Factor in Accommodation Doctrine The state courts are actually not uniform on this -- except for race. I could not find a church that was permitted to discriminate according to race, even if the discrimination was religiously motivated. The ministerial exception is being argued in many clergy abuse cases as a general right to control all aspects of the clergy-religious institution employment relationship. Marci The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
The state courts are actually not uniform on this -- except for race. I could not find a church that was permitted to discriminate according to race, even if the discrimination was religiously motivated. The ministerial exception is being argued in many clergy abuse cases as a general right to control all aspects of the clergy-religious institution employment relationship. Marci The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
The caselaw and legislative history are fairly clear -- and uniform, as far as I know -- in holding to the contrary. The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. For example, if the church has a tenet prohibiting pre-marital pregnancy, or prohibiting lawsuits against the church, such a tenet will not excuse the church from engaging in discrimination based on pregnancy, and will not justify employment sanctions against those who sue the church. In our October 12, 2000 OLC Opinion on religious discrimination by recipients of "charitable choice" funds, we included a fairly extensive discussion of the cases up through 2000 (pages 30-32). The authorities include, e.g., Senator Williams's statement at 118 Cong. Rec. 7167 (1972); and the following cases: Cline, 206 F3d at 658; Bollard, 196 F.3d at 945; Boyd, 88 F3d at 413-14; Demarco, 4 F3d at 173; Freemont Christian Sch., 781 F2d at 1364-67; Rayburn, 772 F2d at 1166-67; Pacific Press, 676 F2d at 1276-77; Mississippi College, 626 F2d at 484; McClure, 460 F2d at 558; Ganzy, 995 F. Supp. at 348-49, 359-60; Vigars, 805 F. Supp. at 806-08; and Dolter, 483 F. Supp. at 269-70. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Monday, March 14, 2005 8:09 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine \ I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. Marci Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
\ I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. Marci Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
My view of accommodation arises from the institutional competencies of the legislative and judicial branches. This is not a pragmatic view, but rather one based on the enumerated powers and constitutional limitations on each branch. The judicial branch lacks the power and investigatory powers to determine whether a law that is neutral and generally applicable is consistent with the public good. For such laws, strict scrutiny places the court in a position of free-wheeling power to assess public interest according to the court's view of the world (which can hardly be reliable if she is an honorable judge, because she is not in contact with constituents, not working through public positions on issues that may well appear before the court, and only considering those laws and issues coming to the court at the parties' behest, not hers). So any doctrine that makes a court into a mini-legislature is at cross-purposes with the enumerated powers. I would measure the harm that a court can discern according to how well the accommodation fits the practice (not according to agreement on public policy goals). If the accommodation fits the practice perfectly, then the accommodation is legitimate (even if wrongheaded). If there are unacceptable levels of harm, the victims need to go to the legislature to educate the legislators. That is what is happening all over the country with clergy abuse survivors. It is extremely difficult to get legislators to listen to any entity that is arguing against religious entities, because the religious entities have such entree to the legislators, but they are slowly making progress a legislators are becoming educated about the intense harm done by religious entities to them. That does not mean I would never invoke strict scrutiny of legislation by a court. When the law is such that it appears to have discriminatory purpose, because it is not neutral and generally applicable, strict scrutiny is completely appropriate. The legislature has lost the justification for deference by working outside the neutral and generally applicable rubric, and the court must determine whether the discrimination exists. (Note that the Court is not determining whether the public policy is good, but rather whether the legislature has enacted a law that exceeds constitutional purposes.) This is how strict scrutiny works in other rights arenas, including the Equal Protection Clause and the Free Speech Clause. In neither of those arenas do the courts get the power to prowl around neutral, generally applicable legislative determinations to see if the policy enacted fits their view of proper policy (best example again is Yoder). Rather, the courts are deferential until the legislature acts in a way that demands closer scrutiny of the purposes behind the law. (by purposes, I don't mean motivation). If they don't get that power in the speech context, they should not get that power in the religious conduct context, because it is manifest that religious conduct can cause much more harm than religious speech in the vast majority of circumstances. Marci Marci,my comment was responding to Marty's and Tom Berg's earlier post, about harm to third parties being part of the criteria courts employ in determing whether an accommodation the legislature has granted should be struck down on Establishment Clause grounds. Several federal and state court decisions suggest this, but they are typically unclear about what constitutes suffcient harm or the kind of harm that violates the Establishment Clause. I don't know if you have a position on this, but I would be curious to know your thoughts. As your earlier response to Tom's post suggested, I don't think you are arguing that legislative discretion should control this Establishment Clause question -- but that means that we need to address the amount and kind of harm caused by an accommodation that would render it invalid.Also, I understand that you believe as a matter of constitutional principle that determining whether religious exemptions or accommodations should be granted is exclusively the province of the legislature. I don't know whether you believe that principle is supported by a pragmatic evaluation of how legislatures deal with these issues in fact. But it would seem to me that it would be useful to know the cost or burden on religious liberty that your position entails. If legislatures do grant accommodations when third parties are not being harmed, that cost is lower than it would be if legislatures often deny exemptions even when relatively trivial state interests are at issue. That kind of pragmatic analysis, however, requires some understanding of what kinds of harms to third parties justify abridging religious liberty.Similarly, although I recognize that the normative or political question of whether an accommodation is jus
Re: Harm to Others as a Factor in Accommodation Doctrine
Not exactly, I think. The law allows sex to be BFOQ. Of course the BFOQ comes from the religious beliefs which in turn are what is protected by the First Amendment. Other BFOQs based on sex include things like restroom attendants and roles in operas and plays and movies -- though Elizabethan theatre could, I suppose, be used to call the arts into question. Steve On Monday, March 14, 2005, at 07:49 AM, Marty Lederman wrote: Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "Whenever you find yourself on the side of the majority, it is time to pause and reflect." Mark Twain ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
The answer would be that those religious groups would lobby and obtain what they want. Just because the courts don't provide something does not mean religious entities throw up their hands and quit. Quite to the contrary. Marci So my question would be, if Title VII had not included the exemption, what would prevent the Church from being required to comply with anti-discrimination laws in the employment of priests if her position prevailed? It seems like the logical conclusion would be that women wishing to serve as priests would be harmed, so the Church would be required to assimilate, regardless of its understanding of God's requirements.Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Monday, March 14, 2005 7:45 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine There is a structural check on discrimination in the neutral, generally applicable rule. If the law is tailored to only burden a religious entity's religious practices and not other identical secular practices, it is unconstitutional per Lukumi. If the legislature, though, is willing to burden everyone who engages in the conduct with the law, they are in all likelihood are regulating the conduct as harmful conduct, not religious conduct in particular. This makes sense of the Sherbert and unemployment cases as Smith explained them. They are problematic, because govt was willing to make an exception to its rule (meaning that the rule against conduct did not need to be absolute) and therefore when the state refused the same exemption for religious reasons, the state has triggered concern about discriminatory conduct and deserves to be subjected to strict scrutiny. On the same reasoning, Yoder was wrongly decided, which is my view. By the way, in this era, in my experience, you will have to look long and hard for a legislator that is not eager to grant even the most troubling exemptions, e.g., exemptions for clergy from having to report known child abuse. The balance at rest at this point in history is not on the side of the public good, but rather the religious entity. As to the Catholic Church and women, the Title VII exemption for religious belief goes a long way to take care of that problem. Where the church is not choosing clergy, though, I think it is perfectly legitimate for the govt to decide whether to permit discrimination or not. Marci As I read this, I found myself wondering what the point is of having constitutionally protected free exercise if the exercise is only free when the legislature decides it is. The scenario you describe seems to be one where the legislature is free to demand or prohibit any conduct they like, and to the religious adherent who is unable to comply without violating the tenets of their faith is simply out of luck unless they can get the legislature to exempt them. The legislature can then, out of either hostility or indifference, simply say, "We're not singling you out. Everybody has to do it." Using your theory as I am understanding it, would you say that the Catholic Church is required, by anti-discrimination laws, to hire women as priests unless the anti-discrimination law was to specifically exempt the Church? That certainly is a neutral, generally applicable law, and women who want to be priests could certainly claim that they would be harmed by an accomodation to allow the Church to only have men as priests. And yet, if the Church is required by law to violate what it understands to be the constraints placed upon it by God, how does that equate with the free exercise of religion? ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
In some jurisdictions, the ministerial exemption is not quite as broad as Marty describes it. It has been held that when the religious entity's conduct is not religiously motivated, e.g., sexual harrassment of a seminarian (Bollard, 9th Cir), the ministerial exception has no bite. Marci The exemption that permits the Church to ignore all of the limitations of title VII for the priesthood is, instead, the so-called "ministerial" exemption. That exemption differs from the statutory exemption in at least three ways: (1) Notwithstanding some early judicial language to the contrary, it is a constitutional exemption, not a statutory exemption. (That is to say, Jean Dudley's question about the need for constitutional exemptions in this context remains relevant to this thread.) (2) It's broader than the statutory exemption in one important sense -- namely, that it applies to each type of proscribed discrimination in title VII. (3) On the other hand, it's narrower than the statutory exemption in another sense -- namely, that it applies only to a limited number of positions that are "ministerial" in nature (and thus probably does not at all protect some organizations that do make some use of the statutory exemption). ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
There is a structural check on discrimination in the neutral, generally applicable rule. If the law is tailored to only burden a religious entity's religious practices and not other identical secular practices, it is unconstitutional per Lukumi. If the legislature, though, is willing to burden everyone who engages in the conduct with the law, they are in all likelihood are regulating the conduct as harmful conduct, not religious conduct in particular. This makes sense of the Sherbert and unemployment cases as Smith explained them. They are problematic, because govt was willing to make an exception to its rule (meaning that the rule against conduct did not need to be absolute) and therefore when the state refused the same exemption for religious reasons, the state has triggered concern about discriminatory conduct and deserves to be subjected to strict scrutiny. On the same reasoning, Yoder was wrongly decided, which is my view. By the way, in this era, in my experience, you will have to look long and hard for a legislator that is not eager to grant even the most troubling exemptions, e.g., exemptions for clergy from having to report known child abuse. The balance at rest at this point in history is not on the side of the public good, but rather the religious entity. As to the Catholic Church and women, the Title VII exemption for religious belief goes a long way to take care of that problem. Where the church is not choosing clergy, though, I think it is perfectly legitimate for the govt to decide whether to permit discrimination or not. Marci As I read this, I found myself wondering what the point is of having constitutionally protected free exercise if the exercise is only free when the legislature decides it is. The scenario you describe seems to be one where the legislature is free to demand or prohibit any conduct they like, and to the religious adherent who is unable to comply without violating the tenets of their faith is simply out of luck unless they can get the legislature to exempt them. The legislature can then, out of either hostility or indifference, simply say, "We're not singling you out. Everybody has to do it." Using your theory as I am understanding it, would you say that the Catholic Church is required, by anti-discrimination laws, to hire women as priests unless the anti-discrimination law was to specifically exempt the Church? That certainly is a neutral, generally applicable law, and women who want to be priests could certainly claim that they would be harmed by an accomodation to allow the Church to only have men as priests. And yet, if the Church is required by law to violate what it understands to be the constraints placed upon it by God, how does that equate with the free exercise of religion? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
