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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Wednesday, December 03, 2003

Eugene Volokh on some of the things it would take to straighten out the, errr, unholy mess the Supreme Court has made of the Establishment clause, with an eye to the public policy made by other agencies as a result of those holdings.

Here is Volokh's proposal for a Constitutional Amendment:

Neither the state nor federal governments, nor any of their subdivisions, shall treat any persons or organizations differently based on their religion or religiosity, or the religion or religiosity of their programs or teachings.
-- together with an elaboration:
This would apply not just to funding programs, but to all programs, which would mean that exemptions for religious objectors from generally applicable laws -- when such exemptions are available -- would have to be available to secular conscientious objectors as well as to religious ones. I think that's the right thing to do, and should generally pose few practical problems (except for one item that I haven't yet figured out, which is the clergy-penitent testimonial privilege, but I set that aside for now). Unfortunately, though, this might be a more controversial and less easily enactable proposal than the narrower provision I mention above.

How is the clergy-penitent privilege a problem? The only reason for treating it differently from any other relation privileged under the law (and especially the privileged relationship between psychiatrist and patient) would be, quite simply, that it is based in religion, exactly the type of consideration Volokh's proposed amendment looks to prohibit. So unless Volokh wants to abolish the clergy-penitent privilege, I don't see where the problem lies.

-- posted by Clayton 12/03/2003 03:10:00 PM

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