I share Chip’s concerns about Mark’s attempt to exempt trespass suits categorically from the scope of RFRAs, but Doug’s comments below made me think that perhaps Mark’s approach might try to draw some support from Flagg Brothers v. Brooks, 436 U.S. 149 (1978).
David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> To: 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? 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
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