Doug's "common law rule" point is one reason I raised the trespass issue and suggested a background law distinction.
If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, "Douglas Laycock" <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion & Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that "my ignorance is just as good as your knowledge." Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties. See id. (“It is established doctrine that ‘[i]t is not of moment that the State has here acted solely through its judicial branch, for, whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.’”) (quoting NAACP v. Alabama and Shelley v. Kraemer). This has been settled law for over fifty years. The arguments that RFRA and RLUIPA are only good against the government lie in the particularities (and, I think, unintended particularities) of their texts. The general principles of state action are well settled. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu<mailto:l...@wayne.edu> (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
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