RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass Cards'

[Marc Stern]

Does not US v Ballard (US 1944) state the applicable rule-which is 
(unsurprisingly) the rule Doug proposed?
Marc Stern



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, August 04, 2009 10:30 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass 
Cards'



Both these and the kosher laws address a species of fraud.  But the fraud must 
be defined in a way that does not require a) government resolution of a 
religious question, or b) government designation of a preferred authority to 
resolve the religious question or act for the religion.  The fact that is 
mispresented must be a secular fact, verifiable as true or false in this world. 

Quoting Eric Rassbach : 

> 
> What if the law specified that the "Holy Sacrifice of the Mass" was 
> purported to be a "Mass" intended to be celebrated in the "Church"?  
> Would not then the offence simply be a species of fraud, i.e. the 
> shop claimed to be selling the right to have a "Mass" offered in the 
> "Church" but it was instead not to be offered in the "Church"?  And 
> would Irish law already ban such fraudulent activity, thereby 
> rendering the law superfluous? 
> 
> None of this would affect Art's separate point about the 
> unconstitutionality of the apparent presumption of guilt. 
> 
> I must say that there seems to be a bit of trend in Ireland right now 
> with legislation that purports to protect religious freedom but 
> actually harms it (cf. the recent blasphemy law, which surely 
> violates the ECHR). 
> 
> Eric 
> 
> PS  Máiréad -- as you can see, the members of this list will opine on 
> this sort of thing "for fun" -- and for free -- with very little 
> provocation! 
> 
> 
> 
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock 
> [layco...@umich.edu] 
> Sent: Tuesday, August 04, 2009 8:48 PM 
> To: religionlaw@lists.ucla.edu 
> Subject: Re: Ireland Charities Act 2009: Regulating the Sale of 
> Catholic'Mass Cards' 
> 
> Unconstitutional.  There is an analogous line of US cases on the sale 
> of food labeled as kosher but not kosher in accordance with 
> government standards.  All struck down.  If there's a fraud problem, 
> the government can require the label to say who certified the food as 
> kosher.  That is a question that can be answered in this world.  But 
> government can't decide for itself what counts as kosher, or 
> designate a particular rabbi or association as the only approved 
> certifying agent. 
> 
> The sale of Mass cards sounds like the same problem.  The state could 
> require disclosure of who authorized the Mass card.  Or a disclosure 
> of whether and how the priest who signed the Mass card will be 
> informed of the sale and of who purchased the card.  Those are 
> verifiable facts.  But the state can't decide that only a bishop or a 
> head of an order can authorize the sale of Mass cards.  That's a 
> matter of internal church governance. 
> 
> Quoting Mairead Enright : 
> 
>> Dear All, 
>> A colleague and I hoping to write a short article on s. 99 of the Irish 
>> Charities Act, 2009  ( 
>> http://www.oireachtas.ie/documents/bills28/acts/2009/a0609.pdf).  The 
>> section regulates the sale of Catholic Mass cards. A Mass card is a greeting 
>> card given to someone to let them know that they, or a deceased loved-one, 
>> will be remembered and prayed for by a priest during a Catholic Mass. The 
>> person who purchases the card makes a donation to the church in exchange for 
>> the Mass and Mass cards are a significant source of revenue to Irish 
>> churches. Ordinarily, the card is signed by the priest who will say the 
>> Mass, at the time that the Mass is requested. However, in recent years, 
>> controversy has arisen regarding the sale of pre-signed Mass cards in 
>> ordinary shops ( 
>> http://www.irishtimes.com/newspaper/weekend/2009/0307/1224242428583.html). 
>> Section 99 of the new Charities Act provides that a person who sells a Mass 
>> card ?other than pursuant to arrangement with a recognised person? is guilty 
>> of a criminal offence. A ?recognised person? is defined as a bishop of the 
>> church, or the head of an order recognised by it. In any proceedings it will 
>> be presumed, unless proved to the contrary, that an offence has been 
>> committed. 
>> 
>> We were wondering whether one of the subscribers to this list might be 
>> willing - for fun - to venture an opinion on what the position of this 
>> section might be under U.S. constitutional law. Information on analogous 
>> U.S. cases would also be useful. A former Irish Attorney General has 
>> suggested that the legislation falls foul of the Irish constitution because 
>> (1) it is disproportionate to the aim sought to be achieved and (2) it 
>> represents 
>> a seri

RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass Cards'

[Eric Rassbach]

Sorry, my earlier post was not clear - by "Church" in quotation marks I meant 
the defined term in the statute, not the word "Church" on the card.  I agree 
completely with Doug and Marc.  My point was only that if the Mass card said 
e.g. that a mass had been arranged to be said in a Roman Catholic church under 
the authority of Diarmuid Martin, Roman Catholic Archbishop of Dublin, then it 
would be fraudulent to sell a card where that act had in fact not been 
arranged.  I think that would be a secular fact that a court could decide or 
not decide, and adjusting the proposed law in that way would render it 
constitutional under US law.

But I think there is a far easier solution - if this really is a widespread 
problem, the RC Church in Ireland should just require all mass cards issued by 
it to bear the Catholic equivalent of a hechsher.



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Thursday, August 06, 2009 10:04 AM
To: Law & Religion issues for Law Academics
Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass 
Cards'

Does not US v Ballard (US 1944) state the applicable rule-which is 
(unsurprisingly) the rule Doug proposed?
Marc Stern


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, August 04, 2009 10:30 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass 
Cards'

Both these and the kosher laws address a species of fraud.  But the fraud must 
be defined in a way that does not require a) government resolution of a 
religious question, or b) government designation of a preferred authority to 
resolve the religious question or act for the religion.  The fact that is 
mispresented must be a secular fact, verifiable as true or false in this world.

Quoting Eric Rassbach :

>
> What if the law specified that the "Holy Sacrifice of the Mass" was
> purported to be a "Mass" intended to be celebrated in the "Church"?
> Would not then the offence simply be a species of fraud, i.e. the
> shop claimed to be selling the right to have a "Mass" offered in the
> "Church" but it was instead not to be offered in the "Church"?  And
> would Irish law already ban such fraudulent activity, thereby
> rendering the law superfluous?
>
> None of this would affect Art's separate point about the
> unconstitutionality of the apparent presumption of guilt.
>
> I must say that there seems to be a bit of trend in Ireland right now
> with legislation that purports to protect religious freedom but
> actually harms it (cf. the recent blasphemy law, which surely
> violates the ECHR).
>
> Eric
>
> PS  Máiréad -- as you can see, the members of this list will opine on
> this sort of thing "for fun" -- and for free -- with very little
> provocation!
>
>
>
> 
> From: religionlaw-boun...@lists.ucla.edu
> [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> [layco...@umich.edu]
> Sent: Tuesday, August 04, 2009 8:48 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Ireland Charities Act 2009: Regulating the Sale of
> Catholic'Mass Cards'
>
> Unconstitutional.  There is an analogous line of US cases on the sale
> of food labeled as kosher but not kosher in accordance with
> government standards.  All struck down.  If there's a fraud problem,
> the government can require the label to say who certified the food as
> kosher.  That is a question that can be answered in this world.  But
> government can't decide for itself what counts as kosher, or
> designate a particular rabbi or association as the only approved
> certifying agent.
>
> The sale of Mass cards sounds like the same problem.  The state could
> require disclosure of who authorized the Mass card.  Or a disclosure
> of whether and how the priest who signed the Mass card will be
> informed of the sale and of who purchased the card.  Those are
> verifiable facts.  But the state can't decide that only a bishop or a
> head of an order can authorize the sale of Mass cards.  That's a
> matter of internal church governance.
>
> Quoting Mairead Enright :
>
>> Dear All,
>> A colleague and I hoping to write a short article on s. 99 of the Irish
>> Charities Act, 2009  (
>> http://www.oireachtas.ie/documents/bills28/acts/2009/a0609.pdf).  The
>> section regulates the sale of Catholic Mass cards. A Mass card is a greeting
>> card given to someone to let them know that they, or a deceased loved-one,
>> will be remembered and prayed for by a priest during a Catholic Mass. The
>> person who purchases the card makes a donation to the church in exchange for
>> the Mass and Mass cards are a significant source of revenue to Irish
>> churches. Ordinarily, the card is signed by the priest who will say the
>> Mass, at the time that the Mass is requested. However, in recent year

Francis Collins and Acceptable Criticisms

[Anthony Decinque]

Francis Collins has been selected to be the head of NIH, where he will have
substantial authority to allocate the nation’s scientific research funding.
There are a few criticisms of Mr. Collins being made regarding his religion.


For this list, I wanted to set aside a specific criticism.  Specifically,
let’s ignore criticisms based on Mr. Collins using his government position
to promote religion.  (For example, if Mr. Collins were to give a speech, as
head of the Human Genome Project, claiming that DNA is evidence for God.)

Instead, I wanted to get the list’s opinion on a different criticism.  This
criticism goes like this: (1) science is a product of another, deeper, more
important feature – skeptical thinking; (2) Mr. Collins does not practice
skeptical thinking; (3) in fact, Mr. Collins has made many statements
undermining and contradicting skeptical thinking.  Therefore, the criticism
goes, Mr. Collins should not be the head of NIH because he undermines what
science is all about.

To get a flavor of the criticism, you can read this
pieceby
Sam Harris.
It is an elaboration of a NY Times editorial Mr. Harris recently authored.  In
response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris has
“deeply held prejudices against religion” and opposes Mr. Collins merely
because “he is a Christian.”

What does the list think?  Should it be acceptable for an employer to
discriminate against a job candidate on the grounds that the candidate
believes, practices, and advocates for ideas that are antithetical to the
values underlying the job?  (Again, assuming that the candidate would not
otherwise abuse the post and would generally do a fine administrative job.)



Thanks,

Anthony DeCinque
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Re: Francis Collins and Acceptable Criticisms

[Douglas Laycock]

The alleged "ideas that are antithetical to the values underlying the job" are 
simply his religion.  Some consider his religion antithetical; he does not.  It 
is not antithetical unless you accept certain other assumptions about the 
relation between religion and science -- assumptions that his critics adopt but 
that he rejects. 

If he has said anything about science that is antithetical to sound science, 
that would be a fair ground of criticism.  But if he is sound when he talks 
about science, and the only evidence against him is the inferences people draw 
when he talks about religion, that is simply a religious disqualification. 

Quoting Anthony Decinque :

> Francis Collins has been selected to be the head of NIH, where he will have
> substantial authority to allocate the nation?s scientific research funding.
> There are a few criticisms of Mr. Collins being made regarding his religion..
>
>
> For this list, I wanted to set aside a specific criticism.  Specifically,
> let?s ignore criticisms based on Mr. Collins using his government position
> to promote religion.  (For example, if Mr. Collins were to give a speech, as
> head of the Human Genome Project, claiming that DNA is evidence for God.)
>
> Instead, I wanted to get the list?s opinion on a different criticism.  This
> criticism goes like this: (1) science is a product of another, deeper, more
> important feature ? skeptical thinking; (2) Mr. Collins does not practice
> skeptical thinking; (3) in fact, Mr. Collins has made many statements
> undermining and contradicting skeptical thinking.  Therefore, the criticism
> goes, Mr. Collins should not be the head of NIH because he undermines what
> science is all about.
>
> To get a flavor of the criticism, you can read this
> pieceby[1]
> Sam Harris.
> It is an elaboration of a NY Times editorial Mr. Harris recently 
> authored.  In
> response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris has
> ?deeply held prejudices against religion? and opposes Mr. Collins merely
> because ?he is a Christian.?
>
> What does the list think?  Should it be acceptable for an employer to
> discriminate against a job candidate on the grounds that the candidate
> believes, practices, and advocates for ideas that are antithetical to the
> values underlying the job?  (Again, assuming that the candidate would not
> otherwise abuse the post and would generally do a fine administrative job.)
>
>
>
> Thanks,
>
> Anthony DeCinque
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1] 
http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/>by___
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Re: Francis Collins and Acceptable Criticisms

[Anthony Decinque]

I think that begs the question, in a sense.  You say, "If he has said
anything about science that is antithetical to sound science, that would be
a fair ground of criticism."  Mr. Collins states that he believes in the
virgin birth.  Is that antithetical to sound science?

I don't really want to get into a religious debate or comment on the
validity of Mr. Collins's specific beleifs.  I want to know when someone's
advocacy of ideas that are antithetical to a profession can be used to
disqualify that person (legally).  You can change the hypothetical if you
want.  A faith-healer that is applying to be Surgeon General?

A

On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock  wrote:

> The alleged "ideas that are antithetical to the values underlying the job"
> are simply his religion.  Some consider his religion antithetical; he does
> not.  It is not antithetical unless you accept certain other assumptions
> about the relation between religion and science -- assumptions that his
> critics adopt but that he rejects.
>
> If he has said anything about science that is antithetical to sound
> science, that would be a fair ground of criticism.  But if he is sound when
> he talks about science, and the only evidence against him is the inferences
> people draw when he talks about religion, that is simply a religious
> disqualification.
>
>
>
>
>
> Quoting Anthony Decinque :
>
> > Francis Collins has been selected to be the head of NIH, where he will
> have
> > substantial authority to allocate the nation?s scientific research
> funding.
> > There are a few criticisms of Mr. Collins being made regarding his
> religion..
> >
> >
> > For this list, I wanted to set aside a specific criticism.  Specifically,
> > let?s ignore criticisms based on Mr. Collins using his government
> position
> > to promote religion.  (For example, if Mr. Collins were to give a speech,
> as
> > head of the Human Genome Project, claiming that DNA is evidence for God.)
> >
> > Instead, I wanted to get the list?s opinion on a different criticism.
> This
> > criticism goes like this: (1) science is a product of another, deeper,
> more
> > important feature ? skeptical thinking; (2) Mr. Collins does not practice
> > skeptical thinking; (3) in fact, Mr. Collins has made many statements
> > undermining and contradicting skeptical thinking.  Therefore, the
> criticism
> > goes, Mr. Collins should not be the head of NIH because he undermines
> what
> > science is all about.
> >
> > To get a flavor of the criticism, you can read this
> > piece<
> http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/>by
> > Sam Harris.
> > It is an elaboration of a NY Times editorial Mr. Harris recently
> > authored.  In
> > response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris
> has
> > ?deeply held prejudices against religion? and opposes Mr. Collins merely
> > because ?he is a Christian.?
> >
> > What does the list think?  Should it be acceptable for an employer to
> > discriminate against a job candidate on the grounds that the candidate
> > believes, practices, and advocates for ideas that are antithetical to the
> > values underlying the job?  (Again, assuming that the candidate would not
> > otherwise abuse the post and would generally do a fine administrative
> job.)
> >
> >
> >
> > Thanks,
> >
> > Anthony DeCinque
> >
>
>
>
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI  48109-1215
>   734-647-9713
>
> ___
> 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.
>
___
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RE: Francis Collins and Acceptable Criticisms

[Marc Stern]

As a legal matter, the claim that someone's religious views are
disqualifying comes close to, if not actually constituting a prohibited
religious test for public office especially as the NIH to which Collins
was nominated is a federal institution subject to the tests clause
directly.However there are cases in which the federal courts ahve upheld
the discharge of political appointees who have made (hostile) religious
statements about homosexuality. 
Marc  Stern 


From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony
Decinque
Sent: Thursday, August 06, 2009 4:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms


I think that begs the question, in a sense.  You say, "If he has said
anything about science that is antithetical to sound science, that would
be a fair ground of criticism."  Mr. Collins states that he believes in
the virgin birth.  Is that antithetical to sound science?
 
I don't really want to get into a religious debate or comment on the
validity of Mr. Collins's specific beleifs.  I want to know when
someone's advocacy of ideas that are antithetical to a profession can be
used to disqualify that person (legally).  You can change the
hypothetical if you want.  A faith-healer that is applying to be Surgeon
General?
 
A


On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock 
wrote:


The alleged "ideas that are antithetical to the values
underlying the job" are simply his religion.  Some consider his religion
antithetical; he does not.  It is not antithetical unless you accept
certain other assumptions about the relation between religion and
science -- assumptions that his critics adopt but that he rejects.

If he has said anything about science that is antithetical to
sound science, that would be a fair ground of criticism.  But if he is
sound when he talks about science, and the only evidence against him is
the inferences people draw when he talks about religion, that is simply
a religious disqualification.

 

 


Quoting Anthony Decinque :

> Francis Collins has been selected to be the head of NIH, where
he will have
> substantial authority to allocate the nation?s scientific
research funding.
> There are a few criticisms of Mr. Collins being made regarding
his religion..
>
>
> For this list, I wanted to set aside a specific criticism.
Specifically,
> let?s ignore criticisms based on Mr. Collins using his
government position
> to promote religion.  (For example, if Mr. Collins were to
give a speech, as
> head of the Human Genome Project, claiming that DNA is
evidence for God.)
>
> Instead, I wanted to get the list?s opinion on a different
criticism.  This
> criticism goes like this: (1) science is a product of another,
deeper, more
> important feature ? skeptical thinking; (2) Mr. Collins does
not practice
> skeptical thinking; (3) in fact, Mr. Collins has made many
statements
> undermining and contradicting skeptical thinking.  Therefore,
the criticism
> goes, Mr. Collins should not be the head of NIH because he
undermines what
> science is all about.
>
> To get a flavor of the criticism, you can read this

>
pieceby
  

> Sam Harris.
> It is an elaboration of a NY Times editorial Mr. Harris
recently 
> authored.  In
> response, biologist Kenneth Miller wrote in the NY Times that
Mr. Harris has
> ?deeply held prejudices against religion? and opposes Mr.
Collins merely
> because ?he is a Christian.?
>
> What does the list think?  Should it be acceptable for an
employer to
> discriminate against a job candidate on the grounds that the
candidate
> believes, practices, and advocates for ideas that are
antithetical to the
> values underlying the job?  (Again, assuming that the
candidate would not
> otherwise abuse the post and would generally do a fine
administrative job.)
>
>
>
> Thanks,
>
> Anthony DeCinque
>




 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713


___
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Please note that messages sent to this

Re: Francis Collins and Acceptable Criticisms

[Douglas Laycock]

It is you who are begging the question.  The question is whether religious 
faith and scientific commitment are inherently inconsistent.  You assumed the 
answer to that question when you characterized his views as antithetical to the 
values underlying science. 

The virgin birth, if it happened, was outside the natural order.  Has any said 
or done anything unscientific in or about the course of his scientific work, 
when he is talking about things within the natural order?  Has he said or done 
anything allegedly anithetical to science other than state and promote his 
religious beliefs? 

A faith healer who refuses medical treatment could not be Surgeon General.  An 
excellent physician who does everything medically indicated, and also prays for 
cures and believes that God sometimes answers those prayers, could be Surgeon 
General. 

Quoting Anthony Decinque :

> I think that begs the question, in a sense.  You say, "If he has said
> anything about science that is antithetical to sound science, that would be
> a fair ground of criticism."  Mr. Collins states that he believes in the
> virgin birth.  Is that antithetical to sound science?
>
> I don't really want to get into a religious debate or comment on the
> validity of Mr. Collins's specific beleifs.  I want to know when someone's
> advocacy of ideas that are antithetical to a profession can be used to
> disqualify that person (legally).  You can change the hypothetical if you
> want.  A faith-healer that is applying to be Surgeon General?
>
> A
>
> On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock  wrote:
>
>> The alleged "ideas that are antithetical to the values underlying the job"
>> are simply his religion.  Some consider his religion antithetical; he does
>> not.  It is not antithetical unless you accept certain other assumptions
>> about the relation between religion and science -- assumptions that his
>> critics adopt but that he rejects.
>>
>> If he has said anything about science that is antithetical to sound
>> science, that would be a fair ground of criticism.  But if he is sound when
>> he talks about science, and the only evidence against him is the inferences
>> people draw when he talks about religion, that is simply a religious
>> disqualification.
>>
>>
>>
>>
>>
>> Quoting Anthony Decinque :
>>
>> > Francis Collins has been selected to be the head of NIH, where he will
>> have
>> > substantial authority to allocate the nation?s scientific research
>> funding.
>> > There are a few criticisms of Mr. Collins being made regarding his
>> religion..
>> >
>> >
>> > For this list, I wanted to set aside a specific criticism.  Specifically,
>> > let?s ignore criticisms based on Mr. Collins using his government
>> position
>> > to promote religion.  (For example, if Mr. Collins were to give a speech,
>> as
>> > head of the Human Genome Project, claiming that DNA is evidence for God.)
>> >
>> > Instead, I wanted to get the list?s opinion on a different criticism.
>> This
>> > criticism goes like this: (1) science is a product of another, deeper,
>> more
>> > important feature ? skeptical thinking; (2) Mr. Collins does not practice
>> > skeptical thinking; (3) in fact, Mr. Collins has made many statements
>> > undermining and contradicting skeptical thinking.  Therefore, the
>> criticism
>> > goes, Mr. Collins should not be the head of NIH because he undermines
>> what
>> > science is all about.
>> >
>> > To get a flavor of the criticism, you can read this
>> > piece<
>> http://www.reasonproject.org/archive/item/the_strange_case_of_francis_collins2/>by[1]
>> > Sam Harris.
>> > It is an elaboration of a NY Times editorial Mr. Harris recently
>> > authored.  In
>> > response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris
>> has
>> > ?deeply held prejudices against religion? and opposes Mr. Collins merely
>> > because ?he is a Christian.?
>> >
>> > What does the list think?  Should it be acceptable for an employer to
>> > discriminate against a job candidate on the grounds that the candidate
>> > believes, practices, and advocates for ideas that are antithetical to the
>> > values underlying the job?  (Again, assuming that the candidate would not
>> > otherwise abuse the post and would generally do a fine administrative
>> job.)
>> >
>> >
>> >
>> > Thanks,
>> >
>> > Anthony DeCinque
>> >
>>
>>
>>
>> Douglas Laycock
>> Yale Kamisar Collegiate Professor of Law
>> University of Michigan Law School
>> 625 S. State St.
>> Ann Arbor, MI  48109-1215
>>   734-647-9713
>>
>> ___
>> 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[3]
>>
>> 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

RE: Francis Collins and Acceptable Criticisms

[Volokh, Eugene]

Are we sure this is so as a legal matter?  I don't support a 
Senator's voting against a nominee based on the nominee's religion, but it 
doesn't seem obvious to me that a Senator's so voting violates the Religious 
Test Clause - or is there some conclusive historical or doctrinal evidence to 
the contrary?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Thursday, August 06, 2009 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Francis Collins and Acceptable Criticisms

As a legal matter, the claim that someone's religious views are disqualifying 
comes close to, if not actually constituting a prohibited religious test for 
public office especially as the NIH to which Collins was nominated is a federal 
institution subject to the tests clause directly.However there are cases in 
which the federal courts ahve upheld the discharge of political appointees who 
have made (hostile) religious statements about homosexuality.
Marc  Stern

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony Decinque
Sent: Thursday, August 06, 2009 4:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms
I think that begs the question, in a sense.  You say, "If he has said anything 
about science that is antithetical to sound science, that would be a fair 
ground of criticism."  Mr. Collins states that he believes in the virgin birth. 
 Is that antithetical to sound science?

I don't really want to get into a religious debate or comment on the validity 
of Mr. Collins's specific beleifs.  I want to know when someone's advocacy of 
ideas that are antithetical to a profession can be used to disqualify that 
person (legally).  You can change the hypothetical if you want.  A faith-healer 
that is applying to be Surgeon General?

A
On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock 
mailto:layco...@umich.edu>> wrote:

The alleged "ideas that are antithetical to the values underlying the job" are 
simply his religion.  Some consider his religion antithetical; he does not.  It 
is not antithetical unless you accept certain other assumptions about the 
relation between religion and science -- assumptions that his critics adopt but 
that he rejects.

If he has said anything about science that is antithetical to sound science, 
that would be a fair ground of criticism.  But if he is sound when he talks 
about science, and the only evidence against him is the inferences people draw 
when he talks about religion, that is simply a religious disqualification.




Quoting Anthony Decinque 
mailto:anthony.decin...@gmail.com>>:

> Francis Collins has been selected to be the head of NIH, where he will have
> substantial authority to allocate the nation?s scientific research funding.
> There are a few criticisms of Mr. Collins being made regarding his religion..
>
>
> For this list, I wanted to set aside a specific criticism.  Specifically,
> let?s ignore criticisms based on Mr. Collins using his government position
> to promote religion.  (For example, if Mr. Collins were to give a speech, as
> head of the Human Genome Project, claiming that DNA is evidence for God.)
>
> Instead, I wanted to get the list?s opinion on a different criticism.  This
> criticism goes like this: (1) science is a product of another, deeper, more
> important feature ? skeptical thinking; (2) Mr. Collins does not practice
> skeptical thinking; (3) in fact, Mr. Collins has made many statements
> undermining and contradicting skeptical thinking.  Therefore, the criticism
> goes, Mr. Collins should not be the head of NIH because he undermines what
> science is all about.
>
> To get a flavor of the criticism, you can read this
> pieceby

> Sam Harris.
> It is an elaboration of a NY Times editorial Mr. Harris recently
> authored.  In
> response, biologist Kenneth Miller wrote in the NY Times that Mr. Harris has
> ?deeply held prejudices against religion? and opposes Mr. Collins merely
> because ?he is a Christian.?
>
> What does the list think?  Should it be acceptable for an employer to
> discriminate against a job candidate on the grounds that the candidate
> believes, practices, and advocates for ideas that are antithetical to the
> values underlying the job?  (Again, assuming that the candidate would not
> otherwise abuse the post and would generally do a fine administrative job.)
>
>
>
> Thanks,
>
> Anthony DeCinque
>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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To post, send message to 
Religionlaw@lists.ucla.ed

Re: Francis Collins and Acceptable Criticisms

[Anthony Decinque]

To be clear, I did not make that characterization.  I was repeating Mr.
Harris's argument.  (My view would be different.)

Again, I don't want to get into a religious argument (I don't think it's the
point of this list) but Mr. Harris's argument was different:  Even if the
virgin birth is outside the natural order, the question Mr. Harris pushes on
is "how does Mr. Collins know that X event happened?"  In other words, since
Mr. Collins is claiming that the natural order was suspended on a certain
date at a certain place, he is the one who should have to provide evidence
for that assertion.  I think that this the "failure of skepticism" Mr.
Harris is referring to  I refer you to his piece for his arguments
instead of my clumsy paraphrasing.


All that aside, I wanted to assume that "his views [are] antithetical to the
values underlying science," not just characterize them that way.  Assuming
that they are, what result?  Is it discrimination to say that someone's
religious views undercut values that are needed in a job?


I think the faith-healer hypothetical was more on target, but doesn't have
the full flavor of the argument.  A faith-healer, I suppose, never accepts
conventional medicine.  (Mr. Harris is arguing that) Mr. Collins is like a
part-time faith healer.

The doctor-who-prays response is helpful.  What about a doctor who was
excellent on the job, but sometimes denounced accepted fields of medicine
off the job?

A
On Thu, Aug 6, 2009 at 5:03 PM, Douglas Laycock  wrote:

> It is you who are begging the question.  The question is whether religious
> faith and scientific commitment are inherently inconsistent.  You assumed
> the answer to that question when you characterized his views as antithetical
> to the values underlying science.
>
> The virgin birth, if it happened, was outside the natural order.  Has any
> said or done anything unscientific in or about the course of his scientific
> work, when he is talking about things within the natural order?  Has he said
> or done anything allegedly anithetical to science other than state and
> promote his religious beliefs?
>
> A faith healer who refuses medical treatment could not be Surgeon General.
> An excellent physician who does everything medically indicated, and also
> prays for cures and believes that God sometimes answers those prayers, could
> be Surgeon General.
>
>  Quoting Anthony Decinque :
>
> > I think that begs the question, in a sense.  You say, "If he has said
> > anything about science that is antithetical to sound science, that would
> be
> > a fair ground of criticism."  Mr. Collins states that he believes in the
> > virgin birth.  Is that antithetical to sound science?
> >
> > I don't really want to get into a religious debate or comment on the
> > validity of Mr. Collins's specific beleifs.  I want to know when
> someone's
> > advocacy of ideas that are antithetical to a profession can be used to
> > disqualify that person (legally).  You can change the hypothetical if you
> > want.  A faith-healer that is applying to be Surgeon General?
> >
> > A
> >
> > On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock 
> wrote:
> >
> >> The alleged "ideas that are antithetical to the values underlying the
> job"
> >> are simply his religion.  Some consider his religion antithetical; he
> does
> >> not.  It is not antithetical unless you accept certain other assumptions
> >> about the relation between religion and science -- assumptions that his
> >> critics adopt but that he rejects.
> >>
> >> If he has said anything about science that is antithetical to sound
> >> science, that would be a fair ground of criticism.  But if he is sound
> when
> >> he talks about science, and the only evidence against him is the
> inferences
> >> people draw when he talks about religion, that is simply a religious
> >> disqualification.
> >>
> >>
> >>
> >>
> >>
> >> Quoting Anthony Decinque :
> >>
> >> > Francis Collins has been selected to be the head of NIH, where he will
> >> have
> >> > substantial authority to allocate the nation?s scientific research
> >> funding.
> >> > There are a few criticisms of Mr. Collins being made regarding his
> >> religion..
> >> >
> >> >
> >> > For this list, I wanted to set aside a specific criticism.
> Specifically,
> >> > let?s ignore criticisms based on Mr. Collins using his government
> >> position
> >> > to promote religion.  (For example, if Mr. Collins were to give a
> speech,
> >> as
> >> > head of the Human Genome Project, claiming that DNA is evidence for
> God.)
> >> >
> >> > Instead, I wanted to get the list?s opinion on a different criticism.
> >> This
> >> > criticism goes like this: (1) science is a product of another, deeper,
> >> more
> >> > important feature ? skeptical thinking; (2) Mr. Collins does not
> practice
> >> > skeptical thinking; (3) in fact, Mr. Collins has made many statements
> >> > undermining and contradicting skeptical thinking.  Therefore, the
> >> criticism
> >> > goes, Mr. Collins shoul

RE: Francis Collins and Acceptable Criticisms

[Volokh, Eugene]

I do think this raises a troublesome question for those of us who 
recognize the importance of religious toleration, and yet have to evaluate 
people's qualities for various purposes.  Say someone sincerely tells us that 
he thinks the world literally rests on the back of four elephants, which rest 
on the back of a turtle.  When told that this is inconsistent with various 
facts about the world, elephants, and turtles, he says that this is an artifact 
of some special treatment by divine forces, which allows evasion of the normal 
rules of the universe.  I take it that our first reaction would be to take a 
pretty negative view of the person.

And that the person believes this for religious reasons wouldn't displace our 
doubts, I think.  Even if we have reason to think that he's been a perfectly 
good geneticist, we might wonder whether he's the best person to promote to a 
rather different job that involves a broad range of choices about health 
science funding.  Maybe we have some sort of ethical or constitutional 
obligation to set aside our worries, and draw a sharp line between beliefs that 
a person says are "outside the natural order" and those that he says relate to 
the natural order.  But it seems to me that setting them aside at least runs 
against our first common-sense reactions, and might in fact not be sound.

From there we can shift the hypothetical.  What if the person 
believes the world is 6000 years old, and that people used to live nearly 1000 
years, and that all the contrary evidence is miracles produced by God to test 
our faith?  What if he doesn't take such a view, but believes that there have 
been several departures from the standard rules of nature in the past several 
thousand years, such as a virgin birth, a resurrection, and the like?

My sense is that we would indeed draw lines between these examples. 
 It is certainly significant to me that very many smart, thoughtful, and 
suitably scientific skeptical people are believing Christians, and that (I 
suspect) many fewer such smart, thoughtful, and skeptical people are 
Young-Earthers or people who literally accept certain Hindu creation myths.  
But it's not easy for me to figure out how to translate that sort of sensible 
distinction into a legal or constitutional rule, or even a broadly acceptable 
principle of political ethics.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony Decinque
Sent: Thursday, August 06, 2009 2:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms

To be clear, I did not make that characterization.  I was repeating Mr. 
Harris's argument.  (My view would be different.)

Again, I don't want to get into a religious argument (I don't think it's the 
point of this list) but Mr. Harris's argument was different:  Even if the 
virgin birth is outside the natural order, the question Mr. Harris pushes on is 
"how does Mr. Collins know that X event happened?"  In other words, since Mr. 
Collins is claiming that the natural order was suspended on a certain date at a 
certain place, he is the one who should have to provide evidence for that 
assertion.  I think that this the "failure of skepticism" Mr. Harris is 
referring to  I refer you to his piece for his arguments instead of my 
clumsy paraphrasing.


All that aside, I wanted to assume that "his views [are] antithetical to the 
values underlying science," not just characterize them that way.  Assuming that 
they are, what result?  Is it discrimination to say that someone's religious 
views undercut values that are needed in a job?


I think the faith-healer hypothetical was more on target, but doesn't have the 
full flavor of the argument.  A faith-healer, I suppose, never accepts 
conventional medicine.  (Mr. Harris is arguing that) Mr. Collins is like a 
part-time faith healer.

The doctor-who-prays response is helpful.  What about a doctor who was 
excellent on the job, but sometimes denounced accepted fields of medicine off 
the job?

A
On Thu, Aug 6, 2009 at 5:03 PM, Douglas Laycock 
mailto:layco...@umich.edu>> wrote:

It is you who are begging the question.  The question is whether religious 
faith and scientific commitment are inherently inconsistent.  You assumed the 
answer to that question when you characterized his views as antithetical to the 
values underlying science.

The virgin birth, if it happened, was outside the natural order.  Has any said 
or done anything unscientific in or about the course of his scientific work, 
when he is talking about things within the natural order?  Has he said or done 
anything allegedly anithetical to science other than state and promote his 
religious beliefs?

A faith healer who refuses medical treatment could not be Surgeon General.  An 
excellent physician who does everything medically indicated, and also prays for 
cures and believes

RE: Francis Collins and Acceptable Criticisms

[Eric Rassbach]

Isn't one of the lines to draw whether the idea is scientifically testable or 
not?   We can make scientific observations now about whether the world rests 
upon turtles, but we cannot observe the birth of Christ.

Also query whether the "natural order" we've been discussing isn't overly 
Newtonian in its assumptions.  Quantum mechanics allows us to calculate the 
non-zero probabilities, however infinitesimal, of events we might otherwise 
hold to be outside the standard rules of nature.

Finally, would it have been right for someone in the late 19th century to take 
pretty negative views of someone who didn't buy into an aether theory?  For the 
government to impose legal detriments on that person?




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, August 06, 2009 5:54 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms

I do think this raises a troublesome question for those of us who 
recognize the importance of religious toleration, and yet have to evaluate 
people's qualities for various purposes.  Say someone sincerely tells us that 
he thinks the world literally rests on the back of four elephants, which rest 
on the back of a turtle.  When told that this is inconsistent with various 
facts about the world, elephants, and turtles, he says that this is an artifact 
of some special treatment by divine forces, which allows evasion of the normal 
rules of the universe.  I take it that our first reaction would be to take a 
pretty negative view of the person.

And that the person believes this for religious reasons wouldn't displace our 
doubts, I think.  Even if we have reason to think that he's been a perfectly 
good geneticist, we might wonder whether he's the best person to promote to a 
rather different job that involves a broad range of choices about health 
science funding.  Maybe we have some sort of ethical or constitutional 
obligation to set aside our worries, and draw a sharp line between beliefs that 
a person says are "outside the natural order" and those that he says relate to 
the natural order.  But it seems to me that setting them aside at least runs 
against our first common-sense reactions, and might in fact not be sound.

From there we can shift the hypothetical.  What if the person 
believes the world is 6000 years old, and that people used to live nearly 1000 
years, and that all the contrary evidence is miracles produced by God to test 
our faith?  What if he doesn't take such a view, but believes that there have 
been several departures from the standard rules of nature in the past several 
thousand years, such as a virgin birth, a resurrection, and the like?

My sense is that we would indeed draw lines between these examples. 
 It is certainly significant to me that very many smart, thoughtful, and 
suitably scientific skeptical people are believing Christians, and that (I 
suspect) many fewer such smart, thoughtful, and skeptical people are 
Young-Earthers or people who literally accept certain Hindu creation myths.  
But it's not easy for me to figure out how to translate that sort of sensible 
distinction into a legal or constitutional rule, or even a broadly acceptable 
principle of political ethics.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony Decinque
Sent: Thursday, August 06, 2009 2:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms

To be clear, I did not make that characterization.  I was repeating Mr. 
Harris's argument.  (My view would be different.)

Again, I don't want to get into a religious argument (I don't think it's the 
point of this list) but Mr. Harris's argument was different:  Even if the 
virgin birth is outside the natural order, the question Mr. Harris pushes on is 
"how does Mr. Collins know that X event happened?"  In other words, since Mr. 
Collins is claiming that the natural order was suspended on a certain date at a 
certain place, he is the one who should have to provide evidence for that 
assertion.  I think that this the "failure of skepticism" Mr. Harris is 
referring to  I refer you to his piece for his arguments instead of my 
clumsy paraphrasing.


All that aside, I wanted to assume that "his views [are] antithetical to the 
values underlying science," not just characterize them that way.  Assuming that 
they are, what result?  Is it discrimination to say that someone's religious 
views undercut values that are needed in a job?


I think the faith-healer hypothetical was more on target, but doesn't have the 
full flavor of the argument.  A faith-healer, I suppose, never accepts 
conventional medicine.  (Mr. Harris is arguing that) Mr. Collins is like a 
part-time faith healer.

The doctor-who-prays response is helpful.  What about a

RE: Francis Collins and Acceptable Criticisms

[Johnson Jr., Paul C. - OALJ]

Why do you hate elephants and turtles?



From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 8/6/2009 5:53 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms



I do think this raises a troublesome question for those of us who 
recognize the importance of religious toleration, and yet have to evaluate 
people's qualities for various purposes.  Say someone sincerely tells us that 
he thinks the world literally rests on the back of four elephants, which rest 
on the back of a turtle.  When told that this is inconsistent with various 
facts about the world, elephants, and turtles, he says that this is an artifact 
of some special treatment by divine forces, which allows evasion of the normal 
rules of the universe.  I take it that our first reaction would be to take a 
pretty negative view of the person.  

 

And that the person believes this for religious reasons wouldn't displace our 
doubts, I think.  Even if we have reason to think that he's been a perfectly 
good geneticist, we might wonder whether he's the best person to promote to a 
rather different job that involves a broad range of choices about health 
science funding.  Maybe we have some sort of ethical or constitutional 
obligation to set aside our worries, and draw a sharp line between beliefs that 
a person says are "outside the natural order" and those that he says relate to 
the natural order.  But it seems to me that setting them aside at least runs 
against our first common-sense reactions, and might in fact not be sound.

 

From there we can shift the hypothetical.  What if the person 
believes the world is 6000 years old, and that people used to live nearly 1000 
years, and that all the contrary evidence is miracles produced by God to test 
our faith?  What if he doesn't take such a view, but believes that there have 
been several departures from the standard rules of nature in the past several 
thousand years, such as a virgin birth, a resurrection, and the like?

 

My sense is that we would indeed draw lines between these examples. 
 It is certainly significant to me that very many smart, thoughtful, and 
suitably scientific skeptical people are believing Christians, and that (I 
suspect) many fewer such smart, thoughtful, and skeptical people are 
Young-Earthers or people who literally accept certain Hindu creation myths.  
But it's not easy for me to figure out how to translate that sort of sensible 
distinction into a legal or constitutional rule, or even a broadly acceptable 
principle of political ethics. 

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony Decinque
Sent: Thursday, August 06, 2009 2:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms

 

To be clear, I did not make that characterization.  I was repeating Mr. 
Harris's argument.  (My view would be different.)  

 

Again, I don't want to get into a religious argument (I don't think it's the 
point of this list) but Mr. Harris's argument was different:  Even if the 
virgin birth is outside the natural order, the question Mr. Harris pushes on is 
"how does Mr. Collins know that X event happened?"  In other words, since Mr. 
Collins is claiming that the natural order was suspended on a certain date at a 
certain place, he is the one who should have to provide evidence for that 
assertion.  I think that this the "failure of skepticism" Mr. Harris is 
referring to  I refer you to his piece for his arguments instead of my 
clumsy paraphrasing.

 

 

All that aside, I wanted to assume that "his views [are] antithetical to the 
values underlying science," not just characterize them that way.  Assuming that 
they are, what result?  Is it discrimination to say that someone's religious 
views undercut values that are needed in a job?

 

 

I think the faith-healer hypothetical was more on target, but doesn't have the 
full flavor of the argument.  A faith-healer, I suppose, never accepts 
conventional medicine.  (Mr. Harris is arguing that) Mr. Collins is like a 
part-time faith healer.

 

The doctor-who-prays response is helpful.  What about a doctor who was 
excellent on the job, but sometimes denounced accepted fields of medicine off 
the job?

 

A

On Thu, Aug 6, 2009 at 5:03 PM, Douglas Laycock  wrote:

It is you who are begging the question.  The question is whether religious 
faith and scientific commitment are inherently inconsistent.  You assumed the 
answer to that question when you characterized his views as antithetical to the 
values underlying science.

The virgin birth, if it happened, was outside the natural order.  Has any said 
or done anything unscientific in or about the course of his scientific work, 
when he is talking about things within the natural order?  Has he 

RE: Francis Collins and Acceptable Criticisms

[Michael R. Masinter]

I'm delighted to learn that we can count on the Becket Fund to assist  
the ACLU in our recurring litigation against public schools that use  
science classes to teach religious doctrine.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)
Chair, ACLUFL legal panel

Quoting Eric Rassbach :



Isn't one of the lines to draw whether the idea is scientifically   
testable or not?   We can make scientific observations now about   
whether the world rests upon turtles, but we cannot observe the   
birth of Christ.





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RE: Francis Collins and Acceptable Criticisms

[Volokh, Eugene]

I appreciate Eric's suggestion, but I wonder whether it works.  I 
take it that the response to "But all our instruments show that there's no 
elephant or turtle down there" would be the same as the response to "But all 
our experience with medicine tells us that there can't be a virgin birth or a 
resurrection" - "Well, this is a special miracle that can't be tested with your 
instruments / that doesn't fit with our experience."  I'm not sure one can 
easily distinguish the two.

But even if one does draw the line that Eric suggests, say the 
person says "The world used to rest on the back of four elephants, which rest 
on a turtle.  But not long ago that changed, and that's why our instruments 
can't perceive this now."  Would our view of the person's general 
trustworthiness really change, on the grounds that now he's saying something 
that isn't currently testable with current observations?

Likewise, the quantum mechanics rationale doesn't strike me as 
working, either.  If it turned out that an NIH candidate believes in werewolves 
(perhaps with some religious explanation), and explains his belief on the 
grounds that there's a probability, however infinitesimal, that he'll turn into 
a werewolf, would you be satisfied about his qualities?  What if you heard this 
from a doctor that you were considering going to - wouldn't you think you might 
be safer in someone else's hands?

As to the aether theory, I don't know what the view was at the 
time; I suspect that it wasn't viewed so firmly that anyone who disagreed would 
be seen as a crank.  But say that it was, and that therefore people who 
rejected the theory were wrongly condemned and discriminated against.  That's 
surely bad.  Yet does our uncertainty about what's right, and our recognition 
that time has upset many fighting faiths, mean that we just have to 
categorically ignore a person's seemingly unsound scientific views when he's 
being considered for a high government post?  Remember, the question isn't 
whether to throw someone in prison for his views about elephants and turtles 
(though in extreme cases, we do lock someone up as insane if we see his views 
as "delusions," for instance if the person really believes that he's Napoleon) 
- it's whether we should consider the views in deciding whether to trust the 
person with a great deal of discretionary authority.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, August 06, 2009 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Francis Collins and Acceptable Criticisms


Isn't one of the lines to draw whether the idea is scientifically testable or 
not?   We can make scientific observations now about whether the world rests 
upon turtles, but we cannot observe the birth of Christ.

Also query whether the "natural order" we've been discussing isn't overly 
Newtonian in its assumptions.  Quantum mechanics allows us to calculate the 
non-zero probabilities, however infinitesimal, of events we might otherwise 
hold to be outside the standard rules of nature.

Finally, would it have been right for someone in the late 19th century to take 
pretty negative views of someone who didn't buy into an aether theory?  For the 
government to impose legal detriments on that person?




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, August 06, 2009 5:54 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms

I do think this raises a troublesome question for those of us who 
recognize the importance of religious toleration, and yet have to evaluate 
people's qualities for various purposes.  Say someone sincerely tells us that 
he thinks the world literally rests on the back of four elephants, which rest 
on the back of a turtle.  When told that this is inconsistent with various 
facts about the world, elephants, and turtles, he says that this is an artifact 
of some special treatment by divine forces, which allows evasion of the normal 
rules of the universe.  I take it that our first reaction would be to take a 
pretty negative view of the person.

And that the person believes this for religious reasons wouldn't displace our 
doubts, I think.  Even if we have reason to think that he's been a perfectly 
good geneticist, we might wonder whether he's the best person to promote to a 
rather different job that involves a broad range of choices about health 
science funding.  Maybe we have some sort of ethical or constitutional 
obligation to set aside our worries, and draw a sharp line between beliefs that 
a person says are "outside the natural order" and those that he says relate to 
the natural order.  But it seems to me that setting them aside at least runs 
against our first common-sense reactions, and m

RE: Francis Collins and Acceptable Criticisms

[Scarberry, Mark]

If scientists want public support for their effort -- support that I for one am 
happy to give even if it means taxes are somewhat higher than they otherwise 
would be -- then scientists need to show that they do not consider most of us 
to be fools. If belief in the basic traditional doctrines of the majority faith 
in the US disqualifies one from leading a scientific effort because it somehow 
shows that the person cannot be trusted to do honest science, then science is, 
in Dickens' phrase "a ass -- a idiot." (Mr. Bumble in Oliver Twist, speaking 
not of science but of the law.) There have been many very distinguished 
scientists who have had such beliefs, and I think it is bigotry to disqualify 
such persons from scientific positions. Or perhaps we now should discard the 
results of the human genome project, because Francis Collins led the effort, 
and of course the results cannot be reliable.
 
A scientist might reasonably ask whether a candidate for such a position would 
use methodological naturalism in carrying out his or her duties. I doubt that 
Francis Collins ever thought that God would send a miracle to make up for 
sloppy treatment of DNA samples, or that he set up a program to look for hidden 
biblical messages in the base sequences of human DNA. But naturalism as a 
method is far different from naturalism as a belief system; to require 
naturalism as a belief system is indeed to impose a religious test.
 
Mark Scarberry
Pepperdine



From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 8/6/2009 4:35 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms



I appreciate Eric's suggestion, but I wonder whether it works.  I 
take it that the response to "But all our instruments show that there's no 
elephant or turtle down there" would be the same as the response to "But all 
our experience with medicine tells us that there can't be a virgin birth or a 
resurrection" - "Well, this is a special miracle that can't be tested with your 
instruments / that doesn't fit with our experience."  I'm not sure one can 
easily distinguish the two.

 

But even if one does draw the line that Eric suggests, say the 
person says "The world used to rest on the back of four elephants, which rest 
on a turtle.  But not long ago that changed, and that's why our instruments 
can't perceive this now."  Would our view of the person's general 
trustworthiness really change, on the grounds that now he's saying something 
that isn't currently testable with current observations?

 

Likewise, the quantum mechanics rationale doesn't strike me as 
working, either.  If it turned out that an NIH candidate believes in werewolves 
(perhaps with some religious explanation), and explains his belief on the 
grounds that there's a probability, however infinitesimal, that he'll turn into 
a werewolf, would you be satisfied about his qualities?  What if you heard this 
from a doctor that you were considering going to - wouldn't you think you might 
be safer in someone else's hands?

 

As to the aether theory, I don't know what the view was at the 
time; I suspect that it wasn't viewed so firmly that anyone who disagreed would 
be seen as a crank.  But say that it was, and that therefore people who 
rejected the theory were wrongly condemned and discriminated against.  That's 
surely bad.  Yet does our uncertainty about what's right, and our recognition 
that time has upset many fighting faiths, mean that we just have to 
categorically ignore a person's seemingly unsound scientific views when he's 
being considered for a high government post?  Remember, the question isn't 
whether to throw someone in prison for his views about elephants and turtles 
(though in extreme cases, we do lock someone up as insane if we see his views 
as "delusions," for instance if the person really believes that he's Napoleon) 
- it's whether we should consider the views in deciding whether to trust the 
person with a great deal of discretionary authority.

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, August 06, 2009 3:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Francis Collins and Acceptable Criticisms

 

 

Isn't one of the lines to draw whether the idea is scientifically testable or 
not?   We can make scientific observations now about whether the world rests 
upon turtles, but we cannot observe the birth of Christ.

 

Also query whether the "natural order" we've been discussing isn't overly 
Newtonian in its assumptions.  Quantum mechanics allows us to calculate the 
non-zero probabilities, however infinitesimal, of events we might otherwise 
hold to be outside the standard rules of nature.

 

Finally, would it have been right for someone in the late 19th century to ta

Re: Francis Collins and Acceptable Criticisms

[ArtSpitzer]

The courts have told us that a statute that coincides with a religious
belief, and that may have been enacted by legislators whose votes were
influenced by their personal religious beliefs, is not thereby an establishment 
of
religion.   E.g., Harris v. McRae (no tax funding for abortions).   Why
shouldn't the same principle apply here?   If a person's openly held beliefs or
public statements are actually antithetical to the requirements of a
particular job, then that person should not have to be hired or retained in 
that job.
  Whether the beliefs or statements at issue arise from the person's
religion or from some other source should be irrelevant.   If I won't defend
someone's legal right to utter blasphemy, then the ACLU could reasonably refuse
to hire me as a First Amendment litigator, regardless of whether my refusal
to do so arises from my religious belief that blasphemy (and the defense of
blasphemy) is a sin, or from my purely secular belief that the world would be
a better place if people were legally prohibited from casting aspersions on
other people's religious beliefs.

I therefore don't see how denying a job to a person who holds beliefs that
are antithetical to the requirements of the job constitutes a religious
test.

I think the argument that this is a religious test assumes that “no
religious test shall ever be required as a qualification” includes the meaning 
“no
secular test shall ever be require as a qualification,” which seems dubious
to me.   Is it a “religious test” to require that a Public Health Service
nurse be willing and able to give vaccinations, which (I'm assuming for the
sake of making the point) means that a Christian Scientist can't get that
job?

Whether a person's beliefs are actually antithetical to the requirements of
a particular job depends a lot on the job.   I don't care if an NIH file
clerk believes that the germ theory of disease is a false invention of Satan,
intended to mislead people into vainly trying to cure illness with medicine
rather than with prayer -- as long as that belief doesn't cause him to
misfile charts.   But such a belief should disqualify a person from being the
head of NIH, because such a belief is very likely to skew decisions that are
within the power of that job.   (And this remains true even though it's
possible that in 200 years the germ theory will have been displaced by a more
sophisticated understanding of illness. We can't live 200 years in the future.)

Of course, it's the government's option to assert or to disregard such a
disqualification.   There's nothing unlawful about appointing a person who
doesn't believe in germs to be the head of NIH, any more than it's unlawful to
appoint a person who doesn't believe in regulating Wall Street to be the
head of the SEC, or unlawful to appoint a person who believes that “when the
President does it, it's not against the law” to be the Attorney General.
Perhaps it should be, but its not.

Art Spitzer (speaking personally; I don't think the ACLU has expressed any
view about the appointment of Dr. Collins)


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Re: Francis Collins and Acceptable Criticisms

[Lisa A. Runquist]

Wasn't Galileo was tried and convicted by those who wrongly rejected his 
theories, as they conflicted with the scientific and religious beliefs 
of the day?


Lisa

Volokh, Eugene wrote:

As to the aether theory, I don’t know what the view was at 
the time; I suspect that it wasn’t viewed so firmly that anyone who 
disagreed would be seen as a crank.  But say that it was, and that 
therefore people who rejected the theory were wrongly condemned and 
discriminated against.  That’s surely bad.  Yet does our uncertainty 
about what’s right, and our recognition that time has upset many 
fighting faiths, mean that we just have to categorically ignore a 
person’s seemingly unsound scientific views when he’s being considered 
for a high government post?  Remember, the question isn’t whether to 
throw someone in prison for his views about elephants and turtles 
(though in extreme cases, we do lock someone up as insane if we see his 
views as “delusions,” for instance if the person really believes that 
he’s Napoleon) – it’s whether we should consider the views in deciding 
whether to trust the person with a great deal of discretionary authority.


 


Eugene

 

*From:* religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Eric Rassbach

*Sent:* Thursday, August 06, 2009 3:51 PM
*To:* Law & Religion issues for Law Academics
*Subject:* RE: Francis Collins and Acceptable Criticisms

 

 

Isn’t one of the lines to draw whether the idea is scientifically 
testable or not?   We can make scientific observations now about whether 
the world rests upon turtles, but we cannot observe the birth of Christ.


 

Also query whether the “natural order” we’ve been discussing isn’t 
overly Newtonian in its assumptions.  Quantum mechanics allows us to 
calculate the non-zero probabilities, however infinitesimal, of events 
we might otherwise hold to be outside the standard rules of nature.


 

Finally, would it have been right for someone in the late 19^th century 
to take pretty negative views of someone who didn’t buy into an aether 
theory?  For the government to impose legal detriments on that person?


 

 

 

 

*From:* religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene

*Sent:* Thursday, August 06, 2009 5:54 PM
*To:* 'Law & Religion issues for Law Academics'
*Subject:* RE: Francis Collins and Acceptable Criticisms

 

I do think this raises a troublesome question for those of 
us who recognize the importance of religious toleration, and yet have to 
evaluate people’s qualities for various purposes.  Say someone sincerely 
tells us that he thinks the world literally rests on the back of four 
elephants, which rest on the back of a turtle.  When told that this is 
inconsistent with various facts about the world, elephants, and turtles, 
he says that this is an artifact of some special treatment by divine 
forces, which allows evasion of the normal rules of the universe.  I 
take it that our first reaction would be to take a pretty negative view 
of the person. 

 

And that the person believes this for religious reasons wouldn’t 
displace our doubts, I think.  Even if we have reason to think that he’s 
been a perfectly good geneticist, we might wonder whether he’s the best 
person to promote to a rather different job that involves a broad range 
of choices about health science funding.  Maybe we have some sort of 
ethical or constitutional obligation to set aside our worries, and draw 
a sharp line between beliefs that a person says are “outside the natural 
order” and those that he says relate to the natural order.  But it seems 
to me that setting them aside at least runs against our first 
common-sense reactions, and might in fact not be sound.


 

>From there we can shift the hypothetical.  What if the 
person believes the world is 6000 years old, and that people used to 
live nearly 1000 years, and that all the contrary evidence is miracles 
produced by God to test our faith?  What if he doesn’t take such a view, 
but believes that there have been several departures from the standard 
rules of nature in the past several thousand years, such as a virgin 
birth, a resurrection, and the like?


 

My sense is that we would indeed draw lines between these 
examples.  It is certainly significant to me that very many smart, 
thoughtful, and suitably scientific skeptical people are believing 
Christians, and that (I suspect) many fewer such smart, thoughtful, and 
skeptical people are Young-Earthers or people who literally accept 
certain Hindu creation myths.  But it’s not easy for me to figure out 
how to translate that sort of sensible distinction into a legal or 
constitutional rule, or even a broadly acceptable principle of political 
ethics.


 


Eugene

 

*From:* religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] *On

RE: Francis Collins and Acceptable Criticisms

[Douglas Laycock]

Mark has stated much more precisely what I was trying to get it by 
distinguishing what Collins says about science from what he says about 
religion.  Collins has to be committed to methodological naturalism (roughly, 
the pursuit of exclusively natural causes and phenomena by exclusively natural 
methods) whenever he does science.  He doesn't have to believe that that's all 
there is.  

Quoting "Scarberry, Mark" : 

> If scientists want public support for their effort -- support that I 
> for one am happy to give even if it means taxes are somewhat higher 
> than they otherwise would be -- then scientists need to show that 
> they do not consider most of us to be fools. If belief in the basic 
> traditional doctrines of the majority faith in the US disqualifies 
> one from leading a scientific effort because it somehow shows that 
> the person cannot be trusted to do honest science, then science is, 
> in Dickens' phrase "a ass -- a idiot." (Mr. Bumble in Oliver Twist, 
> speaking not of science but of the law.) There have been many very 
> distinguished scientists who have had such beliefs, and I think it is 
> bigotry to disqualify such persons from scientific positions. Or 
> perhaps we now should discard the results of the human genome 
> project, because Francis Collins led the effort, and of course the 
> results cannot be reliable. 
> 
> A scientist might reasonably ask whether a candidate for such a 
> position would use methodological naturalism in carrying out his or 
> her duties. I doubt that Francis Collins ever thought that God would 
> send a miracle to make up for sloppy treatment of DNA samples, or 
> that he set up a program to look for hidden biblical messages in the 
> base sequences of human DNA. But naturalism as a method is far 
> different from naturalism as a belief system; to require naturalism 
> as a belief system is indeed to impose a religious test. 
> 
> Mark Scarberry 
> Pepperdine 
> 
>  
> 
> From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene 
> Sent: Thu 8/6/2009 4:35 PM 
> To: 'Law & Religion issues for Law Academics' 
> Subject: RE: Francis Collins and Acceptable Criticisms 
> 
> 
> 
> I appreciate Eric's suggestion, but I wonder whether it 
> works.  I take it that the response to "But all our instruments show 
> that there's no elephant or turtle down there" would be the same as 
> the response to "But all our experience with medicine tells us that 
> there can't be a virgin birth or a resurrection" - "Well, this is a 
> special miracle that can't be tested with your instruments / that 
> doesn't fit with our experience."  I'm not sure one can easily 
> distinguish the two. 
> 
> 
> 
> But even if one does draw the line that Eric suggests, 
> say the person says "The world used to rest on the back of four 
> elephants, which rest on a turtle.  But not long ago that changed, 
> and that's why our instruments can't perceive this now."  Would our 
> view of the person's general trustworthiness really change, on the 
> grounds that now he's saying something that isn't currently testable 
> with current observations? 
> 
> 
> 
> Likewise, the quantum mechanics rationale doesn't strike 
> me as working, either.  If it turned out that an NIH candidate 
> believes in werewolves (perhaps with some religious explanation), and 
> explains his belief on the grounds that there's a probability, 
> however infinitesimal, that he'll turn into a werewolf, would you be 
> satisfied about his qualities?  What if you heard this from a doctor 
> that you were considering going to - wouldn't you think you might be 
> safer in someone else's hands? 
> 
> 
> 
> As to the aether theory, I don't know what the view was 
> at the time; I suspect that it wasn't viewed so firmly that anyone 
> who disagreed would be seen as a crank.  But say that it was, and 
> that therefore people who rejected the theory were wrongly condemned 
> and discriminated against.  That's surely bad.  Yet does our 
> uncertainty about what's right, and our recognition that time has 
> upset many fighting faiths, mean that we just have to categorically 
> ignore a person's seemingly unsound scientific views when he's being 
> considered for a high government post?  Remember, the question isn't 
> whether to throw someone in prison for his views about elephants and 
> turtles (though in extreme cases, we do lock someone up as insane if 
> we see his views as "delusions," for instance if the person really 
> believes that he's Napoleon) - it's whether we should consider the 
> views in deciding whether to trust the person with a great deal of 
> discretionary authority. 
> 
> 
> 
> Eugene 
> 
> 
> 
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach 
> Sent: Thursday, August 06, 2009 3:51 PM 
> To: Law & Religion issues for Law Academics 
> Subjec

RE: Francis Collins and Acceptable Criticisms

[Will Linden]

At 04:35 PM 8/6/09 -0700, you wrote:
explains his belief on the grounds that there's a probability, however 
infinitesimal, that he'll turn into a werewolf, would you be satisfied 
about his qualities?



Turn INTO a werewolf?

 ___
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RE: Francis Collins and Acceptable Criticisms

[Scarberry, Mark]

Many list members whose email programs block attachments may have wondered, as 
I did, what Will Linden's point was. If you let the attachment through you will 
see that it includes his photo, in which, in my view, he simply looks 
respectably hirsute. You may be able to see it below.

With appreciation for Will's attempt to lighten the mood,

Mark Scarberry

Pepperdine

At 04:35 PM 8/6/09 -0700, Will Linden wrote:


explains his belief on the grounds that there's a probability, however 
infinitesimal, that he'll turn into a werewolf, would you be satisfied about 
his qualities?  



Turn INTO a werewolf?

   
<>___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Francis Collins and Acceptable Criticisms

[Brownstein, Alan]

I think Mark is clearly right when he talks about generally recognized 
religious doctrines in part because we know as an empirical matter that 
individuals who hold these beliefs are capable of engaging in first rate 
scientific work, practicing medicine with great skill, and doing all kinds of 
other work that requires scientific knowledge and expertise.

Eugene's question focuses on less conventional and less common religious 
beliefs, however. One answer to the problem of the individual who holds 
uncommon religious beliefs who is nominated to a position of authority is that 
we can look at the individual's life and accomplishments as a check on our 
concern about his religious beliefs being inconsistent with the position to 
which he has been appointed. Typically leadership positions are offered to 
people with considerable experience and accomplishments in their field. If 
unconventional religious beliefs have not interfered with their professional 
responsibilities and accomplishments for 25 years or so, there seems little 
reason to believe that they would suddenly become inconsistent with their 
ability to preform their professional responsibilities when appointed to a 
leadership position.

I think the harder question is whether unconventional religious beliefs should 
preclude an individual from entry level positions when the individual's beliefs 
(in the abstract) may seem inconsistent with the responsibilities they would 
assume in the position they are seeking and we have no track record to offset 
such concerns. The answer to that question may be contextual -- depending for 
example on the consequences of the individual's failure to perform his job in a 
competent way.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Thursday, August 06, 2009 5:06 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law 
Academics
Subject: RE: Francis Collins and Acceptable Criticisms

If scientists want public support for their effort -- support that I for one am 
happy to give even if it means taxes are somewhat higher than they otherwise 
would be -- then scientists need to show that they do not consider most of us 
to be fools. If belief in the basic traditional doctrines of the majority faith 
in the US disqualifies one from leading a scientific effort because it somehow 
shows that the person cannot be trusted to do honest science, then science is, 
in Dickens' phrase "a ass -- a idiot." (Mr. Bumble in Oliver Twist, speaking 
not of science but of the law.) There have been many very distinguished 
scientists who have had such beliefs, and I think it is bigotry to disqualify 
such persons from scientific positions. Or perhaps we now should discard the 
results of the human genome project, because Francis Collins led the effort, 
and of course the results cannot be reliable.

A scientist might reasonably ask whether a candidate for such a position would 
use methodological naturalism in carrying out his or her duties. I doubt that 
Francis Collins ever thought that God would send a miracle to make up for 
sloppy treatment of DNA samples, or that he set up a program to look for hidden 
biblical messages in the base sequences of human DNA. But naturalism as a 
method is far different from naturalism as a belief system; to require 
naturalism as a belief system is indeed to impose a religious test.

Mark Scarberry
Pepperdine


From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 8/6/2009 4:35 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms

I appreciate Eric’s suggestion, but I wonder whether it works.  I 
take it that the response to “But all our instruments show that there’s no 
elephant or turtle down there” would be the same as the response to “But all 
our experience with medicine tells us that there can’t be a virgin birth or a 
resurrection” – “Well, this is a special miracle that can’t be tested with your 
instruments / that doesn’t fit with our experience.”  I’m not sure one can 
easily distinguish the two.

But even if one does draw the line that Eric suggests, say the 
person says “The world used to rest on the back of four elephants, which rest 
on a turtle.  But not long ago that changed, and that’s why our instruments 
can’t perceive this now.”  Would our view of the person’s general 
trustworthiness really change, on the grounds that now he’s saying something 
that isn’t currently testable with current observations?

Likewise, the quantum mechanics rationale doesn’t strike me as 
working, either.  If it turned out that an NIH candidate believes in werewolves 
(perhaps with some religious explanation), and explains his belief on the 
grounds that there’s a probability, howe