The free exercise of culture: Some doubts and distinctions

Daedalus

Volumn 129, Issue 4, 2000, Pages 193-208

  Sager, Lawrence G ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 33748183756     PISSN: 00115266     EISSN: 15486192     Source Type: Journal    
DOI: None     Document Type: Article

References (6)

1. The following observations about the free exercise of religion draw heavily on themes that my colleague Christopher Eisgruber and I have explored at greater length in several essays. We first developed our general views in Christopher L. Eisgruber and Lawrence G. Sager, "The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct," University of Chicago Law Review 61 (1245) (1994).
2. We have continued to elaborate our ideas in subsequent work; see, e.g., Eisgruber and Sager, "Equal Regard," in Stephen Feldman, ed., Law and Religion: A Critical Anthology (forthcoming, New York University Press), and Eisgruber and Sager, "Congressional Power and Religious Liberty After City of Boerne v. Flores," 1997 S. Ct. Rev. 79 (1997).
3. Wisconsin v. Yoder, 406 US 205 (1972).
4. Yoder is offered here as evidence of the intuitive force of cultural concerns, not as a laudable instance of the judicial protection of religious liberty. Yoder would have been a sound decision only if: a) it were predicated upon a more general right of parents to make reasonable choices about the developmental regimes to which their children will be subject; or b) Wisconsin were to have offered some parents the sort of choice it was withholding from Amish parents.
5. In Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 US 439 (1988), the Bureau of Land Management had decided to build a road through land deemed sacred by a Native American religion, threatening to cripple the religious group's ability to practice their faith. The Supreme Court rejected a free exercise challenge to the bureau's decision; Congress responded by refusing to fund the road until it was relocated. In Employment Division, Department of Human Resources of Oregon v. Smith, 494 US 872 (1990), the Supreme Court held that members of the Native American Church were not constitutionally entitled to ingest peyote as part of their religion's sacrament. Congress responded with a small blizzard of legislation aimed at protecting the church members' right to ingest peyote, including the Religious Freedom Restoration Act.
6. This point was brought home to me by its forceful presentation in Caroline Bledsoe and Jane Maslow Cohen, "Immigrants, Agency and Allegiance: Some Conundra from Anthropology and from Law," in The Free Exercise of Culture: How Free Is It? How Free Ought It To Be? ed. Richard Shweder, Martha Minow, and Hazel Markus (forthcoming, Russell Sage Foundation).