Stuck with a Satanist?:

...As with every fundamental human right, In those cases, it is not likely the burden could have been met, the ultimate security of religious liberty lies not in judges' opinso the decisions are probably wrong...

...But California Supreme Court to demand that the state meet a heavy that would seem something of a long shot...

...What do you do...

...themselves...

...can't they just put their money somewhere else...

...Religions are a %LWL_ communities of corporate worship, or, as one might say in this postmodern world, communities of sense and value, groups of believers struggling to come to a common understanding of the world...

...He tells you that divine retribution" if they allowed the sin of fornication, as they he intends, while living in your apartment, to conduct certain described it, on their property...

...ions but in citizens' commitments...

...does not apply to rentals of single-family homes by their own- The case poses precisely and painfully the liberal dilemma ers or rentals of rooms in such homes, or to buildings with fewer when religious liberty runs up against the regulatory ubiquity than five units if the owner actually occupies one of them...

...ing club...

...Rubber spiders, plastic bracelets, seacome forward and meet the test I have proposed...

...One can see Brennan's point: hiring a plumber to fix the sink Bishop Bishop Rev...

...As the acts of Commonweal 13 August 1993: 17 faith that the state seeks to regulate or forbid become less cen- quire more searching inquiries than the Supreme Court genertral, the state's burden of justification grows less...

...Of course these additional costssuch as the cost of not being able to discriminate-might be justifiable...

...a religious oath...

...These statutes were rights that exist because of the statutes of the New Deal and the defended-implausibly, but never mind-as improving the Second Reconstruction: the rights of employees to organize society...

...If their reli- every time, then we really have become the majoritarian tyrants gion will not let them make it by the rules the state has set out, against whom Tocqueville warned us a century and a half ago...

...Imagine that we are in the United States not of the done (see, "Religion and Liberal Democracy," University of late twentieth century but of the late nineteenth, when state laws Chicago Law Review, 59 [1992]), that what is at issue in these required racial discrimination in many areas of life, and when, cases is a "religious opt-out from the redistributive programs of for example, religious groups that ran integrated schools in the the welfare state...

...Still, "Listening to the "Facing the "Making the "'wards a what Brennan does not say-but what his line of argument im- Voice of the Gender Issue" Cultural AJm-e WhnleChco-rh" Connection" Democrati plies-is that the key "determination [of] whether an activity Church" is religious or secular" must give considerable, if not decisive, weight to the religion's own vision of the distinction...

...to enable a common war on drugs...

...The federal Fair Housing Act that their religious freedom was at stake...

...So you would, in the name of nondiscrimination, he in Employment Division v. Smith, it allowed punishment for Native stuck with the Satanist...

...It is not possible to resolve here all the many cases that might arise from pursuing this approach, so I will limit myself to making two points...

...For a brochure with complete information on both Conferences contact: Translating this principle into law, one would say that the NATIONAL (FN- r£R FOR central acts of faith of a religious community-the aspects that PAsTQRAI...

...proudly, and revel in their measly rewards...

...To Half enclosed: remind me of the balance gain that richer understanding, one must think not of the way in 6 months...

...Then, six years later, the Court the provision of common goods, one might then conclude that ruled that the Labor Department can enforce minimum-wage the Smith case, sustaining the punishment of Native Americans laws on behalf of at least some employees of religious foun- for using peyote in worship as required by their religion, was dations...

...Worshiping together, endeavoring jointly to discern the will of God, if honestly done, ACADEMIC will lead frequently to that result...

...And Big Fun is had by one and all...

...If no exemption is forthcom- tions will admit any longer to relegating people of color to an ing, your unattractive choice is between going to hell by renting inferior status-even the Mormons at last experienced a new to someone who will engage in activities you are religiously for- revelation, that black members can be priests of the Inner Temple bidden to allow on your property and not renting at all...

...Along comes ple found their application for an apartment refused because a possible renter who seems to meet all your re- their potential landlords, John and Agnes Donahue, believed quirements, except that he lets slip, in casual con- they would be "putting themselves in the position of eternal, versation, that he is a Satanist...

...We are will- SEPTEMBER 17-19,1993 ing to countenance the imposition of such a condition be- OMNi SHOREHAM HOTEL cause we deem it vital that, if certain activities constitute WASHING'T'ON, D.C...

...Or you could try...

...Solicitude for a PASTORAL church's ability to do so reflects the idea that furtherance LEADERSHIP of the autonomy of religious organizations often furthers individual religious freedom as well...

...Determining that certain activities are in furtherance of an organization's NATIONAL religious mission, and that only those committed to that CENTER mission should conduct them, is thus a means by which FOR i a religious community defines itself...

...practices...

...Deciding when horse combs, free ice cream, connect-the-dots puzzles, paperback to allow exemptions would place a tremendous burden on the books, and magic shows performed by apprentice prestidigitacourts-but there is no reason that the hard work of protecting tors...

...Because housing discrimination rituals demanded by his faith...

...Sullivan's distinction Presiding Bishop of the Church of Jesus Christ of Latter-Day seems to be that Smith involves a judgment made by an adult Saints v. Amos (1987), the Court upheld a provision of federal about drug use, whereas the cases she comfortably considers law exempting secular nonprofit activities of religious organi- examples of the welfare state in action involve the employment zations from the general prohibition of discrimination on the relationship, which is different...

...No one-yet-proposes state regulation of the ministry, but Cotttniotnveal 13 August 1993: 15 the organized churches are large and complicated operations, crimination case mentioned earlier, even though the rights of unand most have many lay employees...

...ed with the central religious function of the church would re- Of course, these same kids know where Really Big Fun is 18: 13 August 1993 Commonweal...

...The accommodation test here proposed would only BIG STUPID FUN demand that the state offer more than an ordinary justification 'PARK' & 'HERO' for them...

...Protective Association, 1988), the state would have to meet a Still, in crafting a sensible understanding of religious autonomy, very high burden of justification, perhaps even show a com- the courts ideally should play only a minor role...

...That the plumber take they must pay for the other common goods of the civil public order...

...Indeed, it is not regulating and a society that does little...

...basis of religion...

...Printed by permission...

...And as federal constitutional rights go, forbids...

...the government can and should regulate in whatever areas suit If you follow the law-a law you generally support-then its constituents' fancy-unless opponents can interpose a claim you must allow on your property activities that your religion of constitutional right...

...What Brennan understood-and what the Court, and the literature, too often do not-was that religion is more than a matter of what an individual chooses to believe...

...But a different answer is also One might argue, as the legal scholar Kathleen Sullivan has possible...

...Sullivan, however, is cerWhen forbidden discrimination is the issue, even Supreme tain that Smith is wrong, and that it represents discrimination Court justices who might otherwise be considered accommo- against-indeed, a certain judicial "blindness" about-a midationists tread warily...

...In the best-known case, Corporation of nority religion, which it certainly does...

...First, it would be both a secular and a religious ig Fun" is what a children's lidisaster were religions by the dozen suddenly to come forward brarian I know promises to the claiming a free exercise right to engage in all the many forms f kids who join her summer readof discrimination that secular politics has decided to forbid...

...COMMONWEAL ASSOCIATES 15 Dutch Street, New York, N.Y...

...A, courts, and, therefore, when infringing on those central acts, Phone (410) 266-6462 the state must offer a very convincing reason...

...Rosemary in a parish hall is not the same thing as hiring a counselor to Michael Kenny Jane Dixon Virgil Elizondo Ruether work in a religious program to fix dysfunctional families...

...The First Amendment easy, in a nation committed to religious liberty, to understand was written for a world in which regulation was expected to why the risk that the religions might try to impose their relibe rare and would almost never impinge on religious liberty...

...Dr...

...The case of the refusal of the Donahues to rent to an unmarried couple, hown terms of the cases, this would mean that before pun- ever, may be a simple one...

...it is vital that we ourselves, The welfare-state cases-those involving employment or hous- the people of the United States, before allowing our governing discrimination-might at first seem more difficult to re- ment to trespass on religious freedom, balance the depth of our solve...

...Because she believes in the importance of the program, so or labor-organizing rights for employees not directly connect- do the kids...

...Besides, even were escape easier, on the religions...

...When the state tries to block that process of discernment in a faith community, it is acting CONFERENCES tyrannically by removing potential sources of authority and mean- FROM IMPASSE TO OPPORTUNITY ing different from itself...

...In the 1987 Presiding Bishop case, a separate opinion by Justice William J. Brennan, joined by Justice Thurgood Name Marshall, got the point right: 1 Address For many individuals, religious activity derives meaning in large measure from participation in a larger religious City, State, Zip community...

...But at least the justices are in there punching...

...It in particular does not distinguish religious groups is so feared is that some people believe that Smith: the reason the state of Oregon punished the Native the religions, if politically empowered, might try to impose on Americans for using peyote was that they were state employ- the secular society their own versions of the good life...

...You could take the apart- The Donahue case, although many may find it especially ment off the market entirely...

...after all-there are many who understand the word of God as The dilemma is not entirely hypothetical...

...ally likes to see the federal courts undertake...

...On of the welfare state...

...Would Sullivan really suggest that a religion should unions, to be paid a fair wage, and to be free of market discrim- not be allowed to opt out of generally applicable secular reguination...

...The more impelling interest, before it is allowed, through a seemingly neu- portant role is the one that society itself must play, in its politral policy, to trespass upon the central faith-world of a religion...

...The decision, though, was narrow, resting on One is tempted to respond, welfare state or none, that the the conclusion that the exemption was intended to avoid "sig- employees are also adults, and may work for low pay for their nificant governmental interference with the ability of religious religious organizations as willingly as the state employees in organizations to defend and carry out their religious missions...

...The Donahues responded the moral premises of that law...

...After all (one might object), in Smith and Lvng the moral commitment to the policy in question against the value government is acting against people who simply want to wor- of religious autonomy...

...One might answer that greater religious autonomy was needed in an oppressive American South of the r nineteenth century than is needed in the liberal democracy we BECOME BECOME A are said to enjoy today...

...This, too, Brennan plainly understood LISTENING TO THE VOICE OF THE in a way that the Court as a whole rarely has: WHOLE CHURCH The authority to engage in this process of self-definition inevitably involves what we normally regard as infringe- A unique public forum ment on free exercise rights, since a religious organiza- far deliberation of key gender and cultural issues facing the Church...

...Thus, tions that exist in law against employment discrimination, the one might conclude, with Sullivan, that "[j]ust as religionists must potential problems are obvious...

...If our commitment to the policy wins ship, but the Donahues are trying to make money...

...Americans required to use peyote in their religious rituals...

...That the painter tithe...

...But the states are free under their own constituheavy fine...

...Of course you have an alternative...

...Now, it happens that your state's on the basis of marital status is forbidden in California, the refair housing law prohibits religious discrimination, and you share jected applicants filed a complaint...

...gious visions of the good life on secular society is more to be We live instead in a world in which regulation is everywhere, avoided than the risk that the state and its powerful conand the idea that the religious citizen can escape it, through a stituents might try to impose a secular vision of the good life careful search, is a fantasy...

...to be published in September by Basic Books...

...Presumably, if they do not like the rule, they can work for of course, a real danger, although there is reason to doubt that somebody else...

...Should a church be able to re- pay for the secular army that engineers the truce among them, quire that the gardener be a coreligionist...

...10038 What is needed, in order to bring coherence Benefactors $1,000 Charter $125 to the problem of accommodation, is a Supporters $500 Sustaining $50 richer understanding not of the nature of Patrons $250 the welfare state, or, indeed, of government, but of the nature of the religions Full Amount enclosed...

...If, as the Donahues claim, their reishing an obviously central act such as the use of pey- ligious tradition teaches that they will be damned if they allow ote by the Native American Church (the Smith case) or fornication on their property, it is hard to see why anything other before destroying the land that makes a religious tra- than a compelling interest should allow the state to put them at dition possible (LVng v. Northwest Indian Cemetery risk...

...Smith used peyote in their rituals...

...This is, ees...

...STEPHEN L. CARTER RELIGIOUS AUTONOMY IN A REGULATED SOCIETY Suppose that you, a religious person, decide to rent that arose in California not long ago, when an unmarried couout an apartment over your garage...

...Antidiscrimination law is one of the because overcoming such devices as the withdrawal of a listing cutting edges of the accommodation problem, not least because is the sort of thing any good lawyer can do in her sleep...

...the society looks at religions but of the way religions look at (Memberships are tax deductible...

...So, for example, the justices ruled in 1979 that the If the religions are properly called upon to make the sacrifices National Labor Relations Board cannot exercise jurisdiction over that the law requires because the statutes in question all involve lay teachers in Catholic schools...

...The group, moreover, will often be engaged in what David FUTURE OF THE Tracy calls acts of resistance-interposing the group judgment AMERICAN CHURCH against the judgment of a larger society...

...This essay is excerpted from The Culture of Disbelief, movement makes important secular inroads...

...Brennan was concerned about what abuses this rule might invite, and he added a sensible caveat: "Religious organizations should be able to discriminate on the basis of religion only with respect to religious activities, so that a determination should be made in each case whether an activity is religious or secular...

...tics and its rhetoric...

...the problem remains that religious people might wind up finding it more costly to participate in the market than others who SCREEN do not share their views...

...part of a religious community's practice, than a religious organization should be able to require that only members of its community perform those activities...

...Yet what does she give However, it would also be a secular and religious disaster were them once they turn in the lists we to rule out entirely the possibility that a few religions could of books they've read...

...The same might be said of the California housing dis- lations on education...

...The kids read diligently, turn in their lists freedom should be easy...

...Such a community represents an ongoing tra8113/93 J dition of shared beliefs, an organic entity not reducible L 16: 13 August 1993 Commonweal to a mere aggregation of individuals...

...Now, that is another view, not quite consistent with rightly decided after all-a sacrifice that they must make in order the first...

...Given the broad protec- married couples there asserted are of more recent vintage...

...Then, many religious traditions encourage or even require discrimiassuming you were to get away with it, you would have saved nation on grounds that we as a nation have rejected or are on your religious beliefs, but at the cost of getting out of the mar- the way to rejecting...

...Consider a case barring women from priesthood, notwithstanding that the equality of women is firmly established in secular law...

...Conviction carries the Thus, resolution of the cases involving the minimum wage day...

...The Supreme Court burden of justification before applying the antidiscrimination has made such a mess of the right to exercise one's religion law to the Donahues-perhaps even the "compelling interest" freely that there is little chance the claim for an exemption would test that the Supreme Court rejected when, in its 1990 decision succeed...

...Now, even if one concedes the bemusing notion that a major In general, the Supreme Court has seemed indecisive in the task of the armed forces of the United States is to avert reliface of religious objections to statutes regarding employment gious strife, there is still trouble in the welfare state paradise...

...Lr nE1LSHIP do the most to produce shared meaning within the corporate 2661 Riga Road, Suite 1042, body of worship-are entitled to the highest solicitude by the Annapolis, MD 21401 Dept...

...In late twentieth-century America, nearly the other hand, you cannot, consistent with your own religion, everyone seems to operate with the general presumption that allow Satanic rituals on your property...

...It might not work, poignant, is not unique...

...tion is able to condition employment in certain activities on subscription to particular religious tenets...

...more harm to individual freedom necessarily occurs when a More fundamentally, however, the objection misses the religion seeks to impose its vision of the good life than when critical difference between living in a society that does much an entirely secular political movement does it...

...And many STEPHEN L. CARTER is William Nelson Cromwell Professor of Law more religions do not allow as ministers individuals who enat Yale University and the author of Reflections of an Affirmative gage in homosexual activities, even as the gay and lesbian rights Action Baby...

...But while I, like Sullivan, tend to be a 1993 ASSOCIATE supporter of regulatory government, many religions see the welfare state, for all its virtues, as oppressive of their liberties...

...But if you reject the tenant because he happens to be the right to exercise religion freely is quite near the bottom of a Satanist, you will be in violation of the law and could face a the totem pole...

...It doesn't matter...

...Well, we don't...

...If one does happen to encounter a religion that considers the repair of the sink God's work, one must not respond blithely-as the courts too often do-with, "Really...

...We are talking, after all, about employment South were threatened with prosecution...

...But the ob- One of the reasons that the asserted political influence of jection is a non sequitur...

...You might want to plead in defense your constitu- tions to protect more than the federal Constitution does, and a tional right to exercise your religion freely, asking for an ac- friend-of-the-court brief in the Donahue case, signed by relicommodation of your beliefs, which means, in this case, an gious organizations across the political spectrum, urged the exception to a valid statute that applies to everybody else...

...themselves, particularly the nature of religious autonomy...

...Although few American religious tradiket, which means losing income...

...So when one speaks of autonomy, one is speaking not ff just of the individual, but also of the group...