I saw various people in Berkeley, including Sumana and Ben. It's nice over there. ASUC election season is in full swing.
The Cheese Board collective and their pizza shop are really good (on Shattuck by Vine).
I have an ear ache.
I read To an Unknown God: Religious Freedom on Trial, by Garrett Epps. It's the story of Employment Division v. Smith, the case about whether Native Americans had a legal right under the First Amendment to use peyote in religious ceremonies. The Supreme Court's answer was "no"; I think the issue is remarkably subtle and important, and it brings into focus or digs up a lot of other interesting topics.
Epps doesn't talk in much detail about the history of the Religious Freedom Restoration Act, which was passed (and overturned) after Smith was decided. He gives it a few pages but barely mentions why the Supreme Court decided to throw it out in City of Boerne v. Flores (the famous "art gallery owned by an atheist" argument).
I think somebody should open an art gallery called Art Gallery Owned By An Atheist, but I don't think many people would get the joke.
I was particularly interested in RFRA because it was used as a basis for the only recent successful court challenge to the California loyalty oath, in Bessard v. California Community Colleges. But Bessard was almost immediately overruled by City of Boerne. As I've written elsewhere, I had mixed feelings about this, because I thought that Smith and Boerne were correctly decided, but I thought that the laws to which religious objections were asserted in Smith (drug prohibition), Bessard (loyalty oath for public employees), and Boerne (zoning ordinance) were all unjust!
Bessard actually came close to eliminating the loyalty oath entirely, because under other precedents, someone who claimed a religious objection would likely not have been required to provide much more detail. On the other hand, we have United States v. Seeger (where the Supreme Court said that atheists could be conscientious objectors to the draft) -- so the logic of Bessard together with Seeger could almost have created a plausible argument that nobody could be forced to sign the oath!
Except...
Except that that's a complete end-run around the purpose of the RFRA, which was to create special privileges or exemptions based on religious beliefs and not simply based on sincere beliefs. And because the RFRA (under which Bessard was decided) really did set out to create that special status for religious beliefs, it was invalided by the Supreme Court.
(I think I'm overstating what Seeger held too -- it's a long time since I read that opinion, and when I glance at it, it looks much narrower than I'm making it out to be.)
I wrote a lot on patents to Biella. I really disagreed with Professor Lemley's piece on "rational ignorance" and his critiques of patent reform proposals.
I bookmarked this when I read that book a few days ago, meaning to quote it here:
Yet science teaches us something about song: Scientific formulas describe the laws by which the universe operates and suggest in equations that a balance is possible even if things are in apparent imbalance. So do songs. Songs are compensatory. When a singer asks, Why did you do this to me, why did you break my heart . . . the inhering formula is that the degree of betrayal is equivalent to the eloquence of the cry of pain. [...] And when a song is good, a standard, we recognize it as expressing a truth. Like a formula, it can apply to everyone, not just the singer.
This passage actually has relatively little to do with the rest of the book, although it does suggest a connection between a couple of themes which do show up repeatedly.
Contact: Seth David Schoen
