Wednesday, August 31, 2022

Koppelman, then and now. [both SSRN]. His theory of religious exceptionalism has bitten him in the ass.

At Balkinization he sends us to the libertarian shitshow at Volokh

The First Amendment provides in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In Employment Division v. Smith (1990), the Court read this provision narrowly, holding that burdens on religion do not in themselves create any presumptive right to exemption from generally applicable laws. However, the Court later explained in Church of Lukumi Babalu Aye v. Hialeah (1993), "the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Lukumi held that, although religion is entitled to no special privileges, it is protected from discrimination.

Since then, the Court has construed that protection with increasing breadth. It now embraces what has been called the "most-favored-nation" theory (hereinafter MFN), which holds that the denial of a religious exemption is presumptively unconstitutional if the state "treats some comparable secular activities more favorably." That made sense in the context in which it was originally formulated, but the theory has mutated.

"the theory has mutated." That's what they do. It's how language works. And that's the reason for not opening the fucking door. 

And again the stupidity of saying that SCOTUS tells us what the Constitution says, rather than that it defines the legal definition for the present. Decisions are a matter of law not truth.  To say that the court "later explained" makes it seem like the court is consistent and that decisions are additive, and result are cumulative.  You have to take politics seriously to take law seriously.  This shit is why he has a tag. The history is there.

Lawyers who read too much philosophy: Milhiser should know better; Feder, of Jones Day, sat happily on a stage with Gorsuch  

Milhiser: "In retrospect, it was the eight day of law school, when I learned about the “reasonable person” test, when I started to realize how much of law is fake"

The only response:

"Former friends have recounted that Loughner had a fixation for grammar and words, saying that he challenged Giffords at a previous public meeting with the impenetrable question: 'What is government if words have no meaning?'"

Law is "fake" because words have only the meanings we agree on as a community. Money is fake too.

Well it is a vertiginous realization isn’t it? That money is not backed by “anything.” I’ve shocked year after year of smart college students by forcing them to face that reality. There are always a significant minority who cling to some version of the gold standard. They actually do believe that when you “take the note to the central bank,” you will get “something” in exchange. It’s not an easy idea to give up. It’s not unlike the vertiginous feeling that is engendered by realizing that language is not “backed” by anything. We are familiar with solutions to this problem. Create a physical object that can be used as a reference for a word, a definition, a standard, etc.

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