RE: Religious exemptions and sex with 16-year-old
RFRA now covers "any exercise of religion, whether or not compelled by, or central to, a system of religious belief; many of the state statutes (including the Arizona one) say the same, and others aren't as clear, but they might well be interpreted the same way. So I don't think Fischer would have to argue his faith compelled him to marry a third wife who's under 18; it would be enough, I think, if his faith viewed marrying this particular person at this time (and consummating the marriage) as a religious sacrament. That's not implausible, it seems to me, given that marriage is indeed viewed as a sacrament by some religions, and given that many religious people believe their mate is in some sense chosen for them by God. Or am I mistaken on this? Nor do I think that Fischer has to challenge statutory rape laws generally, on non-RFRA grounds. Rather, his claim would be that even though statutory rape generally pass the rational basis test, they don't pass strict scrutiny, especially given the exemptions to age of consent for nonplural marriages (and, possibly, for sexual partners close in age to the minor). Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Wednesday, August 06, 2008 10:48 PM > To: religionlaw@lists.ucla.edu > Subject: Re: Religious exemptions and sex with 16-year-old > > I suppose this case would force the court to either reverse > Reynolds or conclude that RFRA does not apply to statutes > that are not directly prohibiting religious conduct; Fischer > would presumably have to argue that this faith required him > to marry a third wife and that he must marry her before she > is legally of age to do so. But, Fishser's marriage was not > "approved" by the Court; and does RFRA require the Court to > abandon its mandate to protect children? It would obviously > be a cleaner challenge to Reynolds if this did not involve a > minor. But, as Eugene points out, the Court could avoid this > by determining that that the age of consent law in Az fails > -- but then it is not a RFRA case is it? > > Paul Finkelman > President William McKinley Distinguished Professor of Law > and Public Policy > Albany Law School > 80 New Scotland Avenue > Albany, New York 12208-3494 > > 518-445-3386 > [EMAIL PROTECTED] > >>> "Volokh, Eugene" <[EMAIL PROTECTED]> 08/06/08 7:11 PM >>> > State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds > a statutory rape conviction of Kelly Fischer, a member of the > Fundamentalist Church of Jesus Christ of Latter-Day Saints. > Fischer was married, and then took a second wife, Lujean, > though of course she was not recognized as a wife legally. > Lujean's daughter J.S., who was thirteen our fourteen at the > time, moved in with them; some time later (it's not clear > when) Fischer took J.S. as a third wife. J.S. gave birth to > Fischer's daughter when she was 17, so it's clear that he had > sex with J.S. when she was 17, or even younger. J.S. was > prosecuted for statutory rape, the age of consent in Arizona > generally being 18. > > Here's the complicating factor: In Arizona, as in most > other states, sex with under-18-year-olds is not a crime if > the under-18-year-old is a spouse; and in Arizona, as in most > other states, people may marry under-18-year-olds (at least > when they're 16 or older, though perhaps even younger if > there's court approval) so long as a parent or guardian of > the minor approves. So if Fischer's marriage with J.S. were > recognized by law, then his sexual acts with J.S. wouldn't be > statutory rape (assume for now that J.S. was indeed 17, and > not, say, 13, at the time of the first sexual act). > > Fischer demanded an exemption from Arizona's ban on > polygamy, under the federal Free Exercise Clause, but > naturally lost under Smith. > Nothing in the opinion suggests that he demanded a similar > exemption under the Arizona state RFRA-like statute, but > perhaps this is because Arizona bans polygamy (and even > "polygamous cohabitation") in its state constitution. > > But let's say that Fischer were in Texas, which has a > state RFRA and to my knowledge no similar state > constitutional provision, and say that he demanded an > exemption under the RFRA either from the state polygamy ban, > or from state statutory rape law. Say also that Lujean was > not already his wife, which casts some extra doubt on her > independent judgment in deciding whether J.S. would be > allowed to marry Fischer. And say that J.S. was indeed 16 or > 17 at the time of the sexual conduct. Protecting children > from sexual exploitation, Fischer would say, is generally a > compelling interest. But about 40 of the 50 states have an > age of consent of 17 or lower, and about 30 of the 50 have an > age of consent of 16 or lower. What's more, Arizona itself > recognizes a
Re: Conflicts between religious exefcise and gay rights and "cudgels"
Paul Diamond wrote: > Interestingly, there is a similarity of argument on same sex issues in the > US, and the removal of discrimination in the UK on the subject of Islam > (although very different subject matter). Recent developments in the UK > include the Muslim marriage contract and welfare payment for 2nd -4th wives > to reflect a new social norm. > > > This is very interesting. Where can I find out more (on line) about it? The discussion is very relevant to me, probably more than others on the list, because I live in Israel. The Bedouins in the Negev often have a number of wives. Quite apart from the security question (they bring extra wives in from Gaza - so I'm told), we have the question of paying welfare benefits to all the families, and the question of citizenship. In practice, we tend to be pretty compassionate in who gets benefits - our hospitals care for wounded from Gaza, and we're taking in a lot of refugees from Darfur and the Sudan. But I enjoy playing with the legal questions. Susan ___ 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: Conflicts between religious exefcise and gay rights and "cudgels"
Interestingly, there is a similarity of argument on same sex issues in the US, and the removal of discrimination in the UK on the subject of Islam (although very different subject matter). Recent developments in the UK include the Muslim marriage contract and welfare payment for 2nd -4th wives to reflect a new social norm. Eugene summised the issues: Now antidiscrimination law is being urged not just to trump the traditional but constitutionally unprotected freedom to choose one's business relationships, but the freedom of expressive association, the freedom of speech, and (most relevant to this thread) religious accommodation regimes. Even standing on its own, this seems troubling. But in broader perspective, it seems to me to be yet another step down the slope. This is the position in the UK and Canada; and the US needs to be resolute to ensure that these practices do not come to you. This reflects the shift in modern liberalism to require private actors to conform to public values determinate by the State. A fundamental issue is that the First Amendment (and Article 9 of the Convention) gives primacy to religious exercise. However, this fundamental right needs to be directly considered; and not justified against equality/ non- discrimination criteria, against which the religious practice must be justified. or, in reality, justified. Substantive rights have primacy over procedural rights. To take a procedural right (non discrimination) to a substantive right is a political decision (some discrimination against stupid people or alcohol might be good). Constitutional rights cannot be subject to political vissitudes. British courts rarely analysis religious rights, but re-write the legal question to whether it is a legitimate exercise of governmental policy to conform to international norms (EC/UN Treaties/ international law) for the erradication of discrimination and. thereafter, Courts hold that they should defer to the legislature on socio economic issues. Many decisions by individuals, business that were once considered virtuous are now unlawful as discriminatory- such as lending funds to certain projects only. On the New Mexico photographer case, the above position might assist; but why should there not be a correlative duty not to require consceince violation of another where alternative service provision is available. A mutual duty to protect/ respect each other rights. I have been immensely benefited in my discussion with Canadian attorney, Iain Benson (credit where credit is due). Paul Diamond, barrister - Original Message - From: "Volokh, Eugene" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Tuesday, August 05, 2008 9:15 PM Subject: RE: Conflicts between religious exefcise and gay rights and "cudgels" > Well, it's true that there were limits -- clearly > unconstitutional limits -- on this right, in the form of Jim Crow laws > and the like. But it seems to me that people have long cherished their > right to choose whom to deal with. This is true even at lunch counters, > where I suspect many proprietors like to exclude patrons whom they see > as disruptive, or whom they dislike for some reason. Consider the case > from a couple of decades ago where the owner of a German restaurant in > L.A. kicked out four patrons for wearing Nazi lapel pins (and was > ultimately held liable under California's unusually broad public > accommodation discrimination law). Of course proprietors rarely > exercise this right, but it doesn't mean that the right isn't treasured > precisely for the freedom that it provides. > > But surely this is even more so when we're talking not just > about goods, but about personal services, like a wedding photographer's. > What ground is there to pooh-pooh the notion that a photographer, whose > job it is to provide a sympathetic, emotionally warm portrayal of events > -- in an investment of many hours of labor -- might cherish her right to > choose what she'll photograph and what she won't? Perhaps the law > there has indeed gone far beyond the "rule of reason" that Prof. Black > was advocating. > > And more broadly, how would we feel if we were told that, as > consumers, we had an obligation not to discriminate in our choice of > providers of goods and services? The Legal Writing Institute (perhaps > including others) is boycotting a hotel owner on the grounds that the > owner contributed to the anti-same-sex-marriage initiative. How would > we feel if the law barred such action (even setting aside the calls for > the boycott, which might be speech, unless they were found to be > incitement, and focusing on the action) and required everyone not to > discriminate in choice of hotel based on the hotel owner's political > activities, or the hotel owner's religion, or anything else? Even if > the law would very rarely be enforced, wouldn't we rightly bristle at > the notion that we were being tol
