That is what happens when I don't review before hitting send. What goes
without saying is that I disagree with Rick on this point! Our positions are
long known
Having said that, I clerked the year Smith was decided and I recently
obtained the Justices' papers on Smith and wrote an article on same. The
Justices considered Smith wholly unlike
Sherbert because the underlying religious conduct was illegal. Attending
church on Saturday is legal. Using peyote was not. Yoder as considered an
outlier and by some wrongly decided
I detail this in an article in Cardozo Law Rev last year. But I also
highly recommend the foreword to that symposium by the Oregon AG at the time
who argued Smith. His insights are critical in coming to a legitimate and
accurate assessment of Smith
I have been impressed over time by the
persistence of the unwillingness of some to take the opinion's discussion of
the "vast majority" of the Court's cases seriously. Smith and Reynolds are
not outliers
Marci
On Mar 3, 2012, at 6:48 PM, "Richard D. Friedman" <rdfrd...@umich.edu> wrote:
> Say what? Although I'm a member of this list, I don't follow the law in this
> area closely, but I know enough that Smith limited Sherbert -- or at least it
> sure appeared to do so, and Congress sure thought so in purporting to restore
> religious freedoms after Smith. I assume Marci has a log-considered take on
> Smith that is contrary to this widely held perception (shared, e.g., by
> Wikipedia's article on Smith), but I can't see how that "goes without saying."
>
> Rich Friedman
>
> At 06:27 PM 3/3/2012, Marci Hamilton wrote:
>> I'm sure it goes without saying that Rick is
>> incorrect about Smith. It did not gut anything
>> It was a case of first impression in the Court's
>> eyes and rightly so. That is what the
>> historical record at the Court establishes
>> clearly. Folks can dislike Smith but lets
>> at least nuance the discussion to the point
>> where preferences do not substitute for
>> the actual doctrinal history
>>
>> Marci
>>
>> On Mar 3, 2012, at 5:57 PM, "Finkelman, Paul < paul.finkel...@albanylaw.edu
>> >"< paul.finkel...@albanylaw.edu> wrote:
>>
>>> Since I have so often -- and often vigorously -- disagreed with Rick, I
>>> thought it appropriate to endorse his analysis and his use of the Franklin
>>> analogy.
>>>
>>> Paul Finkelm
>>>
>>> Connected by DROID on Verizon Wireless
>>>
>>>
>>> -----Original message-----
>>> From: Rick Duncan < nebraskalawp...@yahoo.com>
>>> To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu>
>>> Sent: Sat, Mar 3, 2012 22:47:38 GMT+00:00
>>> Subject: RE: Basketball tournaments on the Sabbath
>>>
>>> I speak about religious liberty at lots of CLEs for conservative Christian
>>> lawyers and law students, and I try to tell them that religious liberty is
>>> a lot like Franklin's view of the American Revolution--"We better all hang
>>> together, or most assuredly we will all hang separately."
>>>
>>> The cases in which religious liberty has taken a hit--Reynolds and Smith
>>> are two of the best examples--are ones involving unpopular religious groups
>>> or practices. I know a lot of Christians were not to upset about Smith--but
>>> Smith gutted free exercise for everyone.
>>>
>>> I know you all know this, but it is worth remembering from time to time.
>>>
>>> Prof. Rick Duncan (Nebraska Law)
>>>
>>> See my recent paper on The Tea Party, federalism, and liberty at:
>>> http://ssrn.com/abstract=1984699
>>>
>>>
>>> "And against the constitution I have never raised a storm,It's the
>>> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
>>> the song, Thomas Muir of Huntershill)
>>>
>>>
>>> --- On Sat, 3/3/12, Douglas Laycock <dlayc...@virginia.edu > wrote:
>>>
>>> From: Douglas Laycock <dlayc...@virginia.edu >
>>> Subject: RE: Basketball tournaments on the Sabbath
>>> To: "'Law & Religion issues for Law Academics'" <
>>> religionlaw@lists.ucla.edu>
>>> Date: Saturday, March 3, 2012, 8:26 AM
>>>
>>> This morning's story in the Times confirms the unreconstructed Texans
>>> theory. It looks like the conservative evangelical schools have taken
>>> control of this organization, and tolerance of diversity has never been one
>>> of their strengths.
>>>
>>> Douglas Laycock
>>> Robert E. Scott Distinguished Professor of Law
>>> University of Virginia Law School
>>> 580 Massie Road
>>> Charlottesville, VA 22903
>>> 434-243-8546
>>>
>>>
>>> -----Original Message-----
>>> From: religionlaw-boun...@lists.ucla.edu
>>> [ mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D.
>>> Friedman
>>> Sent: Saturday, March 03, 2012 12:19 AM
>>> To: Law & Religion issues for Law Academics
>>> Subject: Re: Basketball tournaments on the Sabbath
>>>
>>> The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
>>> Beren play when presented with the papers, before they were actually filed.
>>> But the lawyer who signed the complaint -- which included the application
>>> for the TRO -- confirmed to me that the papers were indeed filed. I get the
>>> impression that TAPPS, while saying adamantly that they were going to adhere
>>> to their schedule, decided they would fold quickly if sued; I think someone
>>> there finally realized that they were not casting themselves in a favorable
>>> light.
>>>
>>> Rich Friedman
>>>
>>> At 07:19 PM 3/2/2012, you wrote:
>>> >It would look less like a discrimination claim and more like an
>>> >exemption claim. Judges tend to naively assume that the calendar is a
>>> >neutral set of rules, and the sharply different treatment of Sunday and
>>> >Saturday here would make it more obvious than usual that that just
>>> >isn't true.
>>> >
>>> >By the way, I was confused about chronology. The complaint was filed,
>>> >and TAPPS caved, yesterday. There was another story in the Times this
>>> >morning. Haven't heard the score of the game.
>>> >
>>> >On Fri, 2 Mar 2012 23:11:44 +0000
>>> > "Finkelman, Paul
>>> > <paul.finkel...@albanylaw.edu >" <paul.finkel...@albanylaw.edu>
>>> wrote:
>>> > >I am guessing that the leaders of this organization never dreamed
>>> > of a Jewish basketball team going to the finals. They never heard of
>>> > Dolph Shayes or Nancy Lieberman.
>>> > >
>>> > >
>>> > >
>>> > >More seriously: If the organization (which includes many
>>> > Christian schools) played games on Sundays, would the Hebrew high
>>> > school be in a weaker position?
>>> > >
>>> > >
>>> > >
>>> > >
>>> > >
>>> > >*************************************************
>>> > >Paul Finkelman, Ph.D.
>>> > >President William McKinley Distinguished Professor of Law Albany Law
>>> > >School
>>> > >80 New Scotland Avenue
>>> > >Albany, NY 12208
>>> > >
>>> > >518-445-3386 (p)
>>> > >518-445-3363 (f)
>>> > >
>>> > >paul.finkel...@albanylaw.edu < mailto:paul.finkel...@albanylaw.edu>
>>> > > www.paulfinkelman.com< http://www.paulfinkelman.com/>
>>> > >*************************************************
>>> > >
>>> > >________________________________
>>> > >From: religionlaw-boun...@lists.ucla.edu
>>> > [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu
>>> > [icl...@law.gwu.edu]
>>> > >Sent: Friday, March 02, 2012 6:03 PM
>>> > >To: Law & Religion issues for Law Academics
>>> > >Subject: Re: Basketball tournaments on the Sabbath
>>> > >
>>> > >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 --
>>> > final is after sundown tomorrow evening.
>>> > >
>>> > >Thanks, Doug.
>>> > >
>>> > >On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell
>>> > <edarr...@sbcglobal.net < mailto:edarr...@sbcglobal.net>> wrote:
>>> > >If your position is utterly untenable as a matter of public
>>> > relations, it may not matter that the other side's state action theory
>>> > is very weak. But they had to file the lawsuit before common sense
>>> > could prevail.
>>> > >
>>> > >One more demonstration of the value of lawyers. Good news that
>>> > they've scheduled the game to fit it in. Good, good news.
>>> > >
>>> > >Ed Darrell
>>> > >Dallas
>>> > >
>>> > >________________________________
>>> > >From: Alan Brownstein
>>> > <aebrownst...@ucdavis.edu < mailto:aebrownst...@ucdavis.edu>>
>>> > >To: Law &
>>>
>>> _______________________________________________
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>> _______________________________________________
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>>
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> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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>
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> people can read the Web archives; and list members can (rightly or wrongly)
> forward the messages to others.
_______________________________________________
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