Hands off: When and about what

Notre Dame Law Review

Volumn 84, Issue 2, 2009, Pages 913-928

  Greenawalt, Kent ^a  

^a The Earth Institute at Columbia University   (United States)

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EID: 62149090201     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (54)

1. Kent Greenawalt, Hands Off Civil Court Involvement in Conflicts over Religious Property, 98 COLUM. L. REV. 1843 (1998). Most of the content of this Essay is also in 1 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: FREE EXERCISE AND FAIRNESS 261-89 (2006).
2. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .").
3. If the special treatment concerns something like keeping isolated geographical areas free of distractions to open air worship or allowing the importation of a forbidden substance, it may be a group's tenets that need to be discerned. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 434-37 (2006).
4. This sentence puts aside, for the moment, the equality concerns that underlie much of what Christopher Eisgruber and Lawrence Sager say. See Christopher L. Eis-gruber & Lawrence G. Sager, Does It Matter What Religion Is?, 84 NOTRE DAME L. REV. 807 (2009).
5. Andrew Koppelman makes just this point in his essay. See Andrew Koppelman, The Troublesome Religious Roots of Religious Neutrality, 84 NOTRE DAME L. REV. 865, 881-82 (2009).
6. My own proposal is in Religion as a Concept in Constitutional Law, 72 CAL. L. REV. 753 (1984), with some elaboration in 1 GREENAWALT, supra note 1, at 124-56.
7. See Eisgruber & Sager, supra note 4, at 807.
8. See CHRISTOPHER L. EISGRUBER & LAWRENCE A. SAGER, RELIGIOUS FREEDOM AND THE CONSTITUTION 51-78 (2007).
9. Eisgruber and Sager, supra note 4, at 808.
10. See id. at 826-30.
11. See Kent Greenawalt, How Does "Equal Liberty " Fare in Relation to Other Approaches to the Religion Clauses?, 85 TEX. L. REV. 1217 (2007) (book review); see also 2 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISHMENT AND FAIRNESS 462-79 (2008) (addressing Provost Eisgruber and Dean Sager's "equal liberty" approach to the religion clauses).
12. I do not take Eisgruber's and Sager's essay here to suggest otherwise.
13. Since I think Daniel Seeger, whom my father Kenneth W. Greenawalt represented, was a religious person who did not believe in God (as the statute required), see United States v. Seeger, 380 U.S. 163, 166 (1965), the clearer example of a nonreli-gious claimant was raised in the later case of Welsh v. United States, 398 U.S. 333, 338 (1970).
14. See 2 GREENAWALT, supra note 11, at 465-70; Greenawalt, supra note 11, at 1233-38.
15. See, e.g., 42 U.S.C. § 2000e-2 (2000).
16. Eisgruber & Sager, supra note 4, at 813.
17. Thomas v. Review Bd., 450 U.S. 707, 713-16 (1981).
18. Frazee v. Ill. Dep't of Employment Sec., 489 U.S. 829, 834 (1989).
19. EISGRUBER & SAGER, supra note 8, at 115-16.
20. U.S. 398, 400 n.1 (1963); see EISGRUBER & SAGER, supra note 8, at 116.
21. If one demanded an "inflexible obligation," one would doubt whether the nonreligious Ms. Campbell would feel that about her soup kitchen. One would also wonder whether such an approach would unfairly favor the absolutists among us (religious and nonreligious) over those with a more nuanced view of human responsibilities.
22. Bernadette Meyler, Commerce in Religion, 84 NOTRE DAME L. REV. 887 (2009).
23. Id. at 906-11.
24. See Treas. Reg. § 1.170A-1 (h)(1) (as amended in 2008).
25. Id. § 1.170A-1 (h)(1) to (2) (allowing purchases for consideration to be treated as charitable donations to the extent that the taxpayer's payment exceeds fair market value).
26. To be clear, it is my sense that clergy rarely do set fees for counseling.
27. This proposition is at least arguable. One might say that when payment is made for any benefit that goes specifically to the payer, that should not count as a donation.
28. See Hernandez v. Comm'r, 490 U.S. 680, 684-85 (1989) (describing Scientology's process of "auditing").
29. See Tony & Susan Alamo Found, v. Sec'y of Labor, 471 U.S. 290, 303 (1985) ("It is virtually self-evident that the Free Exercise Clause does not require an exemption from a governmental program unless, at a minimum, inclusion in the program actually burdens the claimant's freedom to exercise religious rights.").
30. United States v. Bakker, 925 F.2d 728, 731-32 (4th Cir. 1991).
31. U.S. 78 (1944).
32. Id. at 92-95 (Jackson, J., dissenting).
33. Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150 (2002); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
34. For my discussion of this possibility, see 2 GREENAWALT, supra note 1, at 286-88.
35. See Koppelman, supra note 5, at 867-69.
36. See id. at 880-82.
37. See id.
38. Id. at 881-82.
39. See Wallace v. Jaffree, 472 U.S. 38, 52-53 (1985) ("[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.").
40. See Koppelman, supra note 5, at 876-78.
41. U.S. 205, 215-17 (1972).
42. My remarks here leave open the question of how analogous nonreligious objectors should be treated.
43. Koppelman, supra note 5, at 883-85.
44. Richard W. Garnett, A Hands-Off Approach to Religious Doctrine: What Are We Talking About?, 84 NOTRE DAME L. REV. 837 (2009).
45. Id. at 839-42.
46. A serious factual evaluation of this thesis would need to undertake a study of sexual abuse of minors in other institutions and a comparison of whether such abuse is actually less common among (mosdy heterosexual) married men than men who remain unmarried and have no open sexual partner.
47. Here one would need to discern whether this narrow limit on women's opportunities does affect broader attitudes.
48. See, e.g., 42 U.S.C. § 2000e-2 (2000).
49. For example, in 1890, Wilford Woodruff, President of The Church of Jesus Christ and Latter-day Saints, issued his Manifesto which officially ended the Church's support for plural marriages-eleven years after the Supreme Court rejected polygamy in Reynolds v. United States, 98 U.S. 145, 161-67 (1879). See generally RICHARD S. VAN WAGONER, MORMON POLYGAMY 133-40 (1989).
50. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
51. Apart from what courts may examine, it is a troubling question how far officials should act in accord with reasons independent of religion if an actual dominant motive is to affect religion. My own sense is that it is usually, if not always, improper for officials to take action with the dominant motive to affect religion, even if they can find alternative reasons to support what they do.
52. See Garnett, supra note 44, at 854-63.
53. See, e.g., Troxel v. Granville, 530 U.S. 57, 66 (2000) ("[I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.").
54. See Garnett, supra note 44, at 857-58.