When Religious Practices become Legal Obligations: Extending the Foreign Compulsion Defense
Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.In 1990, the Supreme Court face...
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| Format: | Electronic Article |
| Language: | English |
| Check availability: | HBZ Gateway |
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| Fernleihe: | Fernleihe für die Fachinformationsdienste |
| Published: |
Cambridge Univ. Press
2008
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| In: |
Journal of law and religion
Year: 2008, Volume: 23, Issue: 2, Pages: 535-578 |
| Online Access: |
Volltext (lizenzpflichtig) Volltext (lizenzpflichtig) |
| Summary: | Can a man excuse his practices to the contrary [of the law] because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.In 1990, the Supreme Court faced the Free Exercise claim of Alfred Smith and Galen Black, both of whom were denied unemployment compensation because they had been fired for misconduct. Smith and Black, however, argued that such a denial violated their First Amendment rights because the alleged misconduct—smoking peyote—was part of a Native American Church ceremony. Overturning the Oregon Supreme Court, the Court struck down the Sherbert balancing test, arguing that an individual cannot excuse himself from a law merely because it "contradicts" his "religious convictions." To do so, the Court continued,would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.Such a conclusion would "contradict[] both constitutional tradition and common sense."This article explores whether United States law, in actuality, does not allow individuals to become "laws unto themselves." While legal scholars in exploring this question have typically focused on the Supreme Court's decision in Boy Scouts of America v. Dale, this article will focus on a more obscure and rarely discussed area of United States law: the foreign compulsion defense. I will argue that it is the foreign compulsion defense which demonstrates that the law does allow individuals to raise themselves above facially neutral and generally applicable laws when they are faced with an irreconcilable legal conflict between foreign and domestic law. |
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| ISSN: | 2163-3088 |
| Contains: | Enthalten in: Journal of law and religion
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| Persistent identifiers: | DOI: 10.1017/S0748081400002368 |