Re: Harm to Others as a Factor in Accommodation Doctrine
Marci said: I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. As a side note, the Episcopal church in America ordains female priests. Not ministers, but priests. Doctrinally, the two churches are very close, with the exception of the doctrine that the Pope is the spiritual head of the church. In fact, the Catholic church accepts the ordination of male priests by the Episcopal church, insofar as to allow married male priests to convert and retain their ordination. This has been under-publicized, but there are many former Episcopal priests serving as Catholic priests who are married. They are not required to follow the rule of celibacy. Many priests converted due to increasing disaffection with the Episcopal church's liberal policy of ordaining homosexuals and lesbians. Presumably they would have to acknowledge the pope's authority, which was the original issue that forced the schism under Henry VIII. I'm not sure what bearing this has on the discussion, but it seems that if the Catholic Church can bend the rule of celibacy for male priests, surely they can bend the rules about women lacking that wee bit of proud flesh, but who uphold the authority of the pope and are willing to abide by the rule of celibacy. Jean Dudley http://jeansvoice.blogspot.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Though this isn't a theology list, a clarification is in order; the Catholic Church does not recognize the validity of Episcopalian ordinations. They were rejected by the Church as early as 1554, and definitively in 1896. Episcopalian ministers who convert to Catholicism must be ordained as Catholic priests. I presume the last statement was an attempt at humor, but I'm afraid succeeds only in being offensive. Richard Dougherty Jean Dudley wrote: Marci said: I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. As a side note, the Episcopal church in America ordains female priests. Not ministers, but priests. Doctrinally, the two churches are very close, with the exception of the doctrine that the Pope is the spiritual head of the church. In fact, the Catholic church accepts the ordination of male priests by the Episcopal church, insofar as to allow married male priests to convert and retain their ordination. This has been under-publicized, but there are many former Episcopal priests serving as Catholic priests who are married. They are not required to follow the rule of celibacy. Many priests converted due to increasing disaffection with the Episcopal church's liberal policy of ordaining homosexuals and lesbians. Presumably they would have to acknowledge the pope's authority, which was the original issue that forced the schism under Henry VIII. I'm not sure what bearing this has on the discussion, but it seems that if the Catholic Church can bend the rule of celibacy for male priests, surely they can bend the rules about women lacking that wee bit of proud flesh, but who uphold the authority of the pope and are willing to abide by the rule of celibacy. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Harm to Others as a Factor in Accommodation Doctrine
Actually, there is a considerable difference between, for want of a better term, the squabbling and accommodation between Catholics and Anglicans and the permissible gender of priests. The differences are rooted both in Scripture and in the Magisterium of the Catholic Church. (This explanation, if necessary, will have to take place off list.) For what it is worth, in Orthodoxy (and in the first 1000 years or so of Catholicism) priests -- male priests, that is -- could be married. Although, as I best understand it, the rule was that the marriage had to take place before ordination. Put differently, no ordained priest could marry. Also, there was -- and is -- a rule in both Orthodoxy and Catholicism that bishops could not be married. Neither Church has ever formally accepted women priests, married or not. The rule in Western Christianity regarding married priests was, at first, a rule of discipline. Thus quite different than the rule against women priests. Pope John Paul II has sought, perhaps successfully (I leave the question to canon lawyers) to change the rule of discipline to a rule of doctrine (with, of course, the exception for married Anglican priests who become Catholics). -Original Message- From: Jean Dudley [mailto:[EMAIL PROTECTED] Sent: Monday, March 14, 2005 8:42 AM To: Law Religion issues for Law Academics Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Marci said: I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. As a side note, the Episcopal church in America ordains female priests. Not ministers, but priests. Doctrinally, the two churches are very close, with the exception of the doctrine that the Pope is the spiritual head of the church. In fact, the Catholic church accepts the ordination of male priests by the Episcopal church, insofar as to allow married male priests to convert and retain their ordination. This has been under-publicized, but there are many former Episcopal priests serving as Catholic priests who are married. They are not required to follow the rule of celibacy. Many priests converted due to increasing disaffection with the Episcopal church's liberal policy of ordaining homosexuals and lesbians. Presumably they would have to acknowledge the pope's authority, which was the original issue that forced the schism under Henry VIII. I'm not sure what bearing this has on the discussion, but it seems that if the Catholic Church can bend the rule of celibacy for male priests, surely they can bend the rules about women lacking that wee bit of proud flesh, but who uphold the authority of the pope and are willing to abide by the rule of celibacy. Jean Dudley http://jeansvoice.blogspot.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Harm to Others as a Factor in Accommodation Doctrine
I hope I don't unduly belabor the matter, and those who think I do can hit the delete button and rest assured I won't prolong it in future messages (absent some unexpected expression of demand). As Michael Newsom well explains, the rule of celibacy for Catholic priests is a rule of discipline that has never been universal in time or place for the Catholic Church, while the determination that priests must be male is doctrine grounded in tradition and scripture. The Church's teaching about Men and Women and the unique gifts that each brings to life is far more complex and nuanced than can be captured in the simple observation that all priests are male, although some unfortunately are quick to cite that as a nutshell description of the Church and its attitude toward women. Moreover, the reservation of priestly ordination to men primarily is a reflection of humility on the part of the Church, which observes that all of the apostles who stood at the beginning of the apostolic succession were male and that God has not revealed to the Church any basis for presuming on its own to depart from Christ's example. Again, the question of ordination, and its meaning for equality of the genders, raises matters of Catholic Church teaching and theology beyond what most of the members of list undoubtedly wish to explore on a list reserved to law and religion. I also would add that, contrary to a suggestion made on this list, the dispensation for former Episcopal (and, for that matter, Lutheran) clergy who were married before conversion to Catholicism involved no bending of the rules as such because their situation was not comparable to other Catholic priests of the Latin Order and because their treatment is fully in accord with that for Catholic priests of the Eastern Rite. Catholic priests of the Latin Rite, which account for the vast majority of the Catholic priesthood, especially in the United States, knowingly take an oath of celibacy upon their ordination. By contrast, former Episcopal and Lutheran clergy who were married during their ordained lives in their prior denomination did not take such an oath. Thus expecting them to abandon their spouses in order to continue ordained ministry in full communion with Rome would be inappropriate and unfair. When they converted to the Catholic Church and sought to have their prior ordination renewed in a manner that the Catholic Church regards as genuinely in line with apostolic succession, the Church generously has accepted that those who were married cannot take the same oath of celibacy. However, former Episcopal and Lutheran clergy who were not married indeed are required to take that oath, and married Catholic priests whose spouses die before them are not permitted to remarry. In addition, this understanding for converting clergy is similar to that for priests of the Eastern Rite, that is, the Byzantine Catholic Church. The Eastern Rite is present primarily in that part of the world in which the Orthodox Church prevails, and thus Byzantine Catholics follow many of the same religious customs as the Orthodox Church. However, Eastern Rite Catholics have maintained communion with Rome and accept the Pope as head of the Church. Men who married before ordination may become priests in the Eastern Rite of the Catholic Church (at least in those nations where the Latin Rite does not prevail), although men who were not married before ordination may not marry and those whose spouses precede them in death may not remarry. In the Eastern Rite, all bishops are selected from among the monks, who do take an oath of celibacy. Thus, throughout the world, in all rites and all circumstances, bishops in the Catholic Church are celibate and married only to God. Because celibacy is a disciplinary rule rather than a doctrine, the argument is made from time to time from certain quarters that it should be changed to accommodate to cultural trends or the difficulty in recruiting sufficient numbers of priests. The opposing argument is not only one of tradition but that, especially today, the powerful message of celibacy is a needed antidote to the sex-obsessed society in which we live. It also spares the Catholic Church the scandal that various denominations have experienced of divorce among the clergy, including notorious cases of serial divorces. Interestingly, polls of Catholic priests finds that the older generation are somewhat more likely to support a rollback of celibacy, while younger priests ordained during the papacy of John Paul II accept the discipline of celibacy as an integral part of their vocation. Greg Sisk -Original Message- From: Newsom Michael [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 15, 2005 6:31 PM To: Law Religion issues for Law Academics Subject: RE: Harm to Others as a Factor in Accommodation Doctrine Actually, there is a considerable difference between, for want of a better term, the squabbling and accommodation between Catholics and
Re: Harm to Others as a Factor in Accommodation Doctrine
Not exactly, I think. The law allows sex to be BFOQ. Of course the BFOQ comes from the religious beliefs which in turn are what is protected by the First Amendment. Other BFOQs based on sex include things like restroom attendants and roles in operas and plays and movies -- though Elizabethan theatre could, I suppose, be used to call the arts into question. Steve On Monday, March 14, 2005, at 07:49 AM, Marty Lederman wrote: Actually, as to the Catholic Church and women (priests), the title VII exemption does not address the problem at all, as I tried to explain in a post yesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ Whenever you find yourself on the side of the majority, it is time to pause and reflect. Mark Twain ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
\ I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. Marci Actually, as to the Catholic Church and women (priests), the title VII exemption does notaddress the problem at all, as I tried to explainin a postyesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
The caselaw and legislative history are fairly clear -- and uniform, as far as I know-- in holding to the contrary. The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. For example, if the church has a tenet prohibiting pre-marital pregnancy, or prohibiting lawsuits against the church, such a tenet will not excuse the church from engaging in discrimination based on pregnancy, and will not justify employment sanctions against those who sue the church. In our October 12, 2000 OLC Opinion on religious discrimination by recipients of "charitable choice" funds, we included a fairly extensive discussion of the cases up through 2000 (pages 30-32). The authorities include, e.g., Senator Williams's statement at 118 Cong. Rec. 7167 (1972); and the following cases: Cline, 206 F3d at 658; Bollard, 196 F.3d at 945; Boyd, 88 F3d at 413-14; Demarco, 4 F3d at 173; Freemont Christian Sch., 781 F2d at 1364-67; Rayburn, 772 F2d at 1166-67; Pacific Press, 676 F2d at 1276-77; Mississippi College, 626 F2d at 484; McClure, 460 F2d at 558; Ganzy, 995 F. Supp. at 348-49, 359-60; Vigars, 805 F. Supp. at 806-08; and Dolter, 483 F. Supp. at 269-70. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Monday, March 14, 2005 8:09 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine \ I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. Marci Actually, as to the Catholic Church and women (priests), the title VII exemption does notaddress the problem at all, as I tried to explainin a postyesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Title: Re: Harm to Others as a Factor in Accommodation Doctrine Although Marcis point is well-taken, I think another way to understand Marcs (BTW, how cute is that, Marci and Marc?) point is to change Marcis counter-example from churchs protecting pedophiles under the free exercise clause to abortion clinics protecting pedophiles under the right to privacy. Recently, an attorney general (I forgot what state) tried to acquire the medical records of underage girls who underwent abortions in order to try to investigate whether their pregnancies were the result of relations with adult men. Many folks opposed this acquisition on the grounds that it violated the girls right to privacy. Imagine, however, if the teenage boys molested by priests were seeing them under the cloak of penitent-minister confidentiality. So, we have a pretty good analogy here: penitent-minister, patient-doctor. Heres what Marc may be suggesting (if I am wrong, Marc, please correct me): if the first is fair game (penitent-minister), why not the second (patient-doctor), if in both cases the goal is to prosecute child abusers? Frank On 3/14/05 8:52 AM, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote: Just for the record-- I never said never can there be any burden on third parties, rather that that burden should be assessed by the legislature. There are arenas where the burden may never be tolerable, though, e.g., there are few burdens on children's health or safety that can be justified. There is a broad sprectrum, of course. Exemptions for peyote and religious headgear in the military create de minimis burdens on third parties. Exemptions that permit churches to hide pedophiles from unsuspecting parents and children are enormous burdens. Marci For those who believe accommodation can never entail any burdens on third parties, I wonder if they could explain why the constitutional right (or interest) is in free exercise of religion qualitatively different than these other examples. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Harm to Others as a Factor in Accommodation Doctrine
I see a larger role than Marci does for constitutionally mandated and judicially enforced free exercise exemptions, but there is a problem with Brad's argument. A law that prohibited a certain kind of speech *as speech* would not be neutral and generally applicable; it would target speech the same way the City of Hialea targeted the Santeria religious ritual in the Lukumi case. Cf. O'Brien and other symbolic speech cases in which regulation of conduct is usually upheld despite the effect on the symbolic speech. With regard to Marci's point on the ministerial exception having no bite in the Ninth Circuit where the claim is for sexual harassment, I think she overstates the case. The most recent Ninth Circuit case on the issue (Elvig) severely limits the remedies that an allegedly sexually harassed minister can seek. In a suit for sexual harassment and for retaliation for making a claim of sexual harassment, the plaintiff's recovery cannot include reinstatement, lost wages, recovery for damage to reputation caused by an allegedly retaliatory firing, or an order requiring the church to give the plaintiff access to its process by which ministers find new positions. The court also held that retaliatory employment decisions (e.g., firing, demotion, change in duties) were not actionable, though retaliatory verbal abuse and intimidation would be (if such speech were not religiously mandated), with possible recovery for emotional distress and damage to reputation. (I think the court had in mind a situation in which verbal abuse and intimidation might happen in front of others in the church, with resulting possible damage to the plaintiff's reputation.) I think the plaintiff is left with the possibility of recovering only for emotional distress associated with the alleged harassment, and for emotional distress (and possible damage to reputation) associated with the alleged retaliation. Mark S. Scarberry Pepperdine Univ. School of Law -Original Message- From: Brad Pardee To: Law Religion issues for Law Academics Sent: 3/14/2005 7:18 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
With respect to religious speech, there is no difference. When it comes to conduct, though, it is fairly obvious that conduct must be capable of greater regulation than speech, because of its greater potential for harm. This is a principle that has a distinguished pedigree, Locke, Jefferson, Mill, etc. etc. Marci In a message dated 3/14/2005 10:22:00 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
This is rather far afield, actually. These are questions of what evidence can be adduced in court. Penitent-minister communications are generally not fair game and have been excluded, unless the penitent waives the privilege. Patient-doctor privileges essentially get the same treatment. if the first is fair game (penitent-minister), why not the second (patient-doctor), if in both cases the goal is to prosecute child abusers? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Mark-- Elvig does not gainsay my point that if an abusive or discriminatory practice is not motivated by a sincere religious belief, the claim can go forward in the courts. So the ministerial exception is not some blanket protection for anything that happens between clergy and religious institution. Marci In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: With regard to Marci's point on the ministerial exception having no bite inthe Ninth Circuit where the claim is for sexual harassment, I think sheoverstates the case. The most recent Ninth Circuit case on the issue (Elvig)severely limits the remedies that an allegedly sexually harassed ministercan seek ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Harm to Others as a Factor in Accommodation Doctrine
What Elvig appears to hold is that if the remedy does not interfere with the church's selection of its own clergy, the ministerial exception is not implicated. It certainly does not hold that a pastor can be reinstated if she was discharged because of her sex, or her complaints about sexual harassment, and not because of some religious belief on the part of the church. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Mon 3/14/2005 1:01 PM To: religionlaw@lists.ucla.edu Subject: Re: Harm to Others as a Factor in Accommodation Doctrine Mark-- Elvig does not gainsay my point that if an abusive or discriminatory practice is not motivated by a sincere religious belief, the claim can go forward in the courts. So the ministerial exception is not some blanket protection for anything that happens between clergy and religious institution. Marci In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: With regard to Marci's point on the ministerial exception having no bite in the Ninth Circuit where the claim is for sexual harassment, I think she overstates the case. The most recent Ninth Circuit case on the issue (Elvig) severely limits the remedies that an allegedly sexually harassed minister can seek winmail.dat___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
As I read this, I found myself wondering what the point is of having constitutionally protected free exercise if the exercise is only free when the legislature decides it is. The scenario you describe seems to be one where the legislature is free to demand or prohibit any conduct they like, and to the religious adherent who is unable to comply without violating the tenets of their faith is simply out of luck unless they can get the legislature to exempt them. The legislature can then, out of either hostility or indifference, simply say, "We're not singling you out. Everybody has to do it." Using your theory as I am understandingit, would you say that the Catholic Church is required, by anti-discrimination laws, tohire women as priests unless the anti-discrimination law was to specifically exempt the Church? That certainly is a neutral, generally applicable law, and women who want to be priests could certainly claim that theywould be harmed by an accomodation to allow the Church to onlyhave men as priests. And yet, if the Church is required by law to violate what it understands to be the constraints placed upon it by God, how does that equate with the free exercise of religion? Am I missing something in terms of your understanding of accomodation and free exercise? Brad Pardee - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Saturday, March 12, 2005 7:36 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine To clarify my earlier postings before I had to run my kids around to 14 different activities-- I did not mean "forced accommodation" in the sense Doug interpreted it. I meant that there are times when neutral, generally applicable laws require assimilation. Only when an accommodation is enacted by a legislature for the purpose of lifting a burden on religion and only when that accommodation does not harm others is assimilation permissibly avoided. I did not mean to say, Ellis, that across-the-board exemptions are ever good ideas. Mandatory exemptions were clearly not required when the First Amendment was drafted or ratified, and is not a credible approach. Permissive legislative accommodation, though, isvaluable in a world where religious belief is an avoidable element of human existence. We actually don't have to figure out "harm to third parties." That, in my view, is the job of the legislatures. Isay in my book, though, that in this era, legislatures have been knee-jerk providers of religious accommodations without asking whether someone could be harmed by the law. It boggles the mind to think that Congress could have considered RFRA for 3 years, which was going to potentially hobble every law in the country, without asking whether someone might get hurt if many laws were suspended as applied to religious entities. Religious entities should have latitude like any other groups to lobby to their advantage, but legislators are supposed to ask the hard questions (even when society is not asking them). Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
On Mar 13, 2005, at 10:55 AM, Brad Pardee wrote: ...would you say that the Catholic Church is required, by anti-discrimination laws, to hire women as priests unless the anti-discrimination law was to specifically exempt the Church? It seems to me that the Catholic Church in America doesn't hire priests, any more than the US Military hires recruits. I think there's an implication that the priesthood is a voluntary position. Compensation is not equal to similar jobs in the secular sector, in either case. I think they recruit volunteers, train them, and provide some compensation, but not on the level of an at-will hiring. While I am sure that it would please the Catholic Church to have a Rabbi offer his resume to be hired, I'm not sure they would do so without making sure that there was a profound conversion experience first, and considerable re-training afterwards. This is a position that is specific in nature, and no other religious leaders need apply. Now, to tie this in with the current discussion, I'm not sure that the example cited applies because I think priesthood is a volunteer position. Further, I'd say priesthood in the Catholic Church (or any other Christian demonination that uses the term) is a calling, and not a profession. I could be *way* wrong on that, and will bow to greater knowledge. Jean Dudley http://jeansvoice.blogspot.com Future Law Student. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
The term hire refers to any position in which one is employed, regardless of how one got there or the motivation for doing so. There is, of course, an exemption for religious positions in religious organizations in Title VII and it would be required in any event under the Free Exercise clause. The all-or-nothing approach will never work in the freedom of religion area nor in the Supreme Court nor should it. The legislatures should make exemptions according to balancing interests and policies and resolving competing principles, as should the courts in interpreting and applying the constitution. This is absolutely typical. On Sunday, March 13, 2005, at 12:27 PM, Jean Dudley wrote: Now, to tie this in with the current discussion, I'm not sure that the example cited applies because I think priesthood is a volunteer position. Further, I'd say priesthood in the Catholic Church (or any other Christian demonination that uses the term) is a calling, and not a profession. I could be *way* wrong on that, and will bow to greater knowledge. Jean Dudley http://jeansvoice.blogspot.com Future Law Student. ___ -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
I agree that the Free Exercise clause requirea an exemption, regardless of whether or not Title VII provided for one. However, Marci's position, as I understood her to explain it, is that there would be no exemption under the Free Exercise clause for a neutral, generally applicable law unless the legislation creates the exemption. So my question would be, if Title VII had not included the exemption, what would prevent the Church from being required to comply with anti-discrimination laws in the employment of priests if her position prevailed? It seems like the logical conclusion would be that women wishing to serve as priests would be harmed, so the Church would be required to assimilate, regardless of its understanding of God's requirements. Brad - Original Message - From: Steven Jamar [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, March 13, 2005 1:13 PM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine There is, of course, an exemption for religious positions in religious organizations in Title VII and it would be required in any event under the Free Exercise clause. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
Marci,my comment was responding to Marty's and Tom Berg's earlier post, about harm to third parties being part of the criteria courts employ in determing whether an accommodation the legislature has granted should be struck down on Establishment Clause grounds. Several federal and state court decisions suggest this, but they are typically unclear about what constitutes suffcient harm or the kind of harm that violates the Establishment Clause. I don't know if you have a position on this, but I would be curious to know your thoughts. As your earlier response to Tom's post suggested, I don't think you are arguing that legislative discretion should control this Establishment Clause question -- but that means that we need to address the amount and kind of harm caused by an accommodation that would render it invalid. Also, I understand that you believe as a matter of constitutional principle that determining whether religious exemptions or accommodations should be granted is exclusively the province of the legislature. I don't know whether you believe that principle is supported by a pragmatic evaluation of how legislatures deal with these issues in fact. But it would seem to me that it would be useful to know the cost or burden on religious liberty that your position entails. If legislatures do grant accommodations when third parties are not being harmed, that cost is lower than it would be if legislatures often deny exemptions even when relatively trivial state interests are at issue. That kind of pragmatic analysis, however, requires some understanding of what kinds of harms to third parties justify abridging religious liberty. Similarly, although I recognize that the normative or political question of whether an accommodation is justified is analytically different than the question of whether an exemption is constitutionally required, there is some utility in discussing the former issue as a backdrop to understanding the latter. For example, a person may strongly believe that the equal protection clause does not require rigorous review of laws that discriminate against the disabled, but be equally committed to the enactment of federal and state legislation to protect the civil rights of the disabled. In many of your posts on this list, you cite religious accommodations that are inappropriate and/or unconstitutional because of the harm that they cause to third parties or the public good. Again, I am curious to know what legislatively determined religious accommodations you recognize as legitimate and support -- which is basically asking how you define harm to third parties and the public good. Alan Brownstein UC Davis Marci wrote We actually don't have to figure out harm to third parties. That, in my view, is the job of the legislatures. I say in my book, though, that in this era, legislatures have been knee-jerk providers of religious accommodations without asking whether someone could be harmed by the law. It boggles the mind to think that Congress could have considered RFRA for 3 years, which was going to potentially hobble every law in the country, without asking whether someone might get hurt if many laws were suspended as applied to religious entities. Religious entities should have latitude like any other groups to lobby to their advantage, but legislators are supposed to ask the hard questions (even when society is not asking them). Marci we would first have to figure out how to define what constitutes harm to third parties -- which is no easy undertaking ---1110634583 Content-Type: text/html; charset=US-ASCII Content-Transfer-Encoding: quoted-printable !DOCTYPE HTML PUBLIC -//W3C//DTD HTML 4.0 Transitional//EN HTMLHEAD META http-equiv=3DContent-Type content=3Dtext/html; charset=3DUS- ASCII META content=3DMSHTML 6.00.2900.2604 name=3DGENERATOR/HEAD BODY id=3Drole_body style=3DFONT-SIZE: 10pt; COLOR: #00; FONT- FAMILY:=20= Arial=20 bottomMargin=3D7 leftMargin=3D7 topMargin=3D7 rightMargin=3D7FONT id=3Drol= e_document=20 face=3DArial color=3D#00 size=3D2 DIVTo clarify my earlier postings before I had to run my kids around to 14= =20 different activities--/DIV DIVI did not mean forced accommodation in the sense Doug interpreted=20 it. I meant that there are times when neutral, generally applicable la= ws=20 require assimilation. Only when an accommodation is enacted by a=20 legislature for the purpose of lifting a burden on religion and only when th= at=20 accommodation does not harm others is assimilation permissibly avoided./DIV= DIV /DIV DIVI did not mean to say, Ellis, that across-the-board exemptions are ever= =20 good ideas. Mandatory exemptions were clearly not required when the Fi= rst=20 Amendment was drafted or ratified, and is not a credible approach. =20 Permissive legislative accommodation, though,
Harm to Others as a Factor in Accommodation Doctrine
As usual, it appears that we will not be able to change one another's minds w/r/t the question whether piecemeal legislative accommodations are superior to, or more constitutionally acceptablethan, judicial accommodations pursuant to a general statutory mandate. (And we're certainly not moving the conversation materially beyond where Chip and Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and others, left it several years ago.) So let me ask another question, prompted by Marci's suggestion that accommodations that "harm others" are unconstitutional. Surely, harm to other private parties has played a large role in accommodation doctrine. The general notion that the state should not require private party A to suffer in the furtherance of B's religious objectives or beliefs is a compelling and recurrent theme, and it explains Thornton and Hardison, not to mention the important Harlan concurrence in Welsh and the Court's decisions to expand the military exemption beyond religious objectors in that case and in Seeger. And I agree with Marci that religious exemptions to vaccination statutes, and to child welfarre laws, should generally be unconstitutional because of the serious harms they cause. But then how to explain the two cases in which the Court has approved accommodations -- Zorach and Amos?We've recently discussed the serious harm to nonparticipating students in the release-time cases. And in Amos, the respondent (Mr. Mayson) lost his job of 16 years because he failed to qualify for a temple recommend. 483 U.S. at 330. No small harm to third parties. Is there any way to make sense of this aspect of accommodation doctrine? What role should harm to third parties play in assessing a religious exemption? - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Friday, March 11, 2005 8:19 AM Subject: Re: Institutional Capacity to Manage Exemptions Ellis--- I'm not sure what you mean by across-the-board exemptions. If laws like RFRA, they are illegitimate, but if they are tailored to particular practices, and the public good does not suffer from the exemption, I think they are crucial to the proper balance of liberty and order. The one thing a society cannot do is wish away the intense power of religious belief in people's lives, whether that government is the Soviet Union when it tried unsuccessfully to destroy the Orthodox Church, China now trying to suppress Falun Gong and Christianity, or our country. Religion is a given part of human existence, and deserves to be given as much latitude as possible. Thus, the question is not whether, but where to draw the line on exemptions.A mandatory exemption system is inimical to the public good, especially those who are most vulnerable. But an exemption that harms others is contrary to the scheme of ordered liberty the Constitution constructs. Marci But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Harm to Others as a Factor in Accommodation Doctrine
In connection with the discussion between the interplay between First Amendment rights and harm to others, any thoughts on the recent action by the New York City Board of Health to enjoin a mohel from performing circumcisions, as he generally performs them? The facts are these: As part of the circumcision, the mohel orally suctions blood from the wound. There has been much debate among Jewish law decisors about whether that is required practice, but it is certainly the normative practice among Hasidic Jews. Twin boys who were circumcised by this mohel contracted herpes. Tragically, one died. If the mohel tests positive for herpes, this is an easy case. But presume he tests negative, but tests positive for herpes antibodies (as do the vast majority of adult males)? Is this enough to bar the mohel - who has been practicing for forty years - from performing circumcisions? Is the City required to test the parents, hospital personnel and others before taking action against the mohel? Is the City required to establish a nexus between testing positive for antibodies and transmitting the virus? This is obviously a complex case, but it probably comes down to who has the burden of proof and what are the standards? Any thoughts? [EMAIL PROTECTED] 03/11/05 8:43 AM As usual, it appears that we will not be able to change one another's minds w/r/t the question whether piecemeal legislative accommodations are superior to, or more constitutionally acceptable than, judicial accommodations pursuant to a general statutory mandate. (And we're certainly not moving the conversation materially beyond where Chip and Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and others, left it several years ago.) So let me ask another question, prompted by Marci's suggestion that accommodations that harm others are unconstitutional. Surely, harm to other private parties has played a large role in accommodation doctrine. The general notion that the state should not require private party A to suffer in the furtherance of B's religious objectives or beliefs is a compelling and recurrent theme, and it explains Thornton and Hardison, not to mention the important Harlan concurrence in Welsh and the Court's decisions to expand the military exemption beyond religious objectors in that case and in Seeger. And I agree with Marci that religious exemptions to vaccination statutes, and to child welfarre laws, should generally be unconstitutional because of the serious harms they cause. But then how to explain the two cases in which the Court has approved accommodations -- Zorach and Amos? We've recently discussed the serious harm to nonparticipating students in the release-time cases. And in Amos, the respondent (Mr. Mayson) lost his job of 16 years because he failed to qualify for a temple recommend. 483 U.S. at 330. No small harm to third parties. Is there any way to make sense of this aspect of accommodation doctrine? What role should harm to third parties play in assessing a religious exemption? - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Friday, March 11, 2005 8:19 AM Subject: Re: Institutional Capacity to Manage Exemptions Ellis--- I'm not sure what you mean by across-the-board exemptions. If laws like RFRA, they are illegitimate, but if they are tailored to particular practices, and the public good does not suffer from the exemption, I think they are crucial to the proper balance of liberty and order. The one thing a society cannot do is wish away the intense power of religious belief in people's lives, whether that government is the Soviet Union when it tried unsuccessfully to destroy the Orthodox Church, China now trying to suppress Falun Gong and Christianity, or our country. Religion is a given part of human existence, and deserves to be given as much latitude as possible. Thus, the question is not whether, but where to draw the line on exemptions. A mandatory exemption system is inimical to the public good, especially those who are most vulnerable. But an exemption that harms others is contrary to the scheme of ordered liberty the Constitution constructs. Marci But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? ___ 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.
