I think it's worth at least trying to limit Hardison as much as possible. I think the present Court would be amenable to that in principle, but I'm not yet sure how to limit the decision without overruling it. Gene Schaerr
-----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Reinach Sent: Friday, June 5, 2015 10:12 PM To: religionlaw@lists.ucla.edu Subject: RE: Religionlaw Digest, Vol 135, Issue 4 Eugene: Granted that the Supreme Court now respects these various statutes, but in the 1977 decision in TWA v. Hardison, the Court stopped short of accepting the Establishment Clause challenge to religious accommodation provisions of Title VII only by watering down the "undue hardship" standard to "de minimus." Does anyone have any thoughts on whether the new acceptance of Title VII's protection re: religious accommodation would warrant reconsideration of Hardison? I know at least one colleague who is considering taking a "run" at Hardison. Alan Reinach Church State Council -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of religionlaw-requ...@lists.ucla.edu Sent: Thursday, June 04, 2015 12:01 PM To: religionlaw@lists.ucla.edu Subject: Religionlaw Digest, Vol 135, Issue 4 Send Religionlaw mailing list submissions to religionlaw@lists.ucla.edu To subscribe or unsubscribe via the World Wide Web, visit http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw or, via email, send a message with subject or body 'help' to religionlaw-requ...@lists.ucla.edu You can reach the person managing the list at religionlaw-ow...@lists.ucla.edu When replying, please edit your Subject line so it is more specific than "Re: Contents of Religionlaw digest..." Today's Topics: 1. Re: Abercrombie & Fitch (Dawinder S. Sidhu) 2. RE: Abercrombie & Fitch (Volokh, Eugene) ---------------------------------------------------------------------- Message: 1 Date: Wed, 3 Jun 2015 15:04:36 -0400 From: "Dawinder S. Sidhu" <dsi...@gmail.com> To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> Subject: Re: Abercrombie & Fitch Message-ID: <cag_yqvxe1jdfdvars4b5te8pdzpbuv9xtmfcssqvqeaqsfp...@mail.gmail.com> Content-Type: text/plain; charset=UTF-8 Forgive me, but my understanding is that Abercrombie's argument was not that it prevails under Title VII because its look policy was generally applicable or "not intended to address religion." Instead, I believe it argued that the plaintiff loses because she did not make Abercrombie aware of the religious nature of the headscarf. Abercrombie correctly guessed -- but did not know from the applicant -- that the headscarf was a religious requirement. The Court rejected Abercrombie's position that actual knowledge was needed to trigger its obligation to prove that it offered a reasonable accommodation or that one could not be offered without incurring an undue hardship. As to the question about whether the Court is backsliding from Smith, I am not so sure. One could respond that the recent "victories" are due to statutes (e.g., Title VII in Abercrombie, RLUIPA in Holt, RFRA in Hobby Lobby) which provide more robust protection for religious exercise than does the constitutional baseline noted in Smith. Congress can seek to avoid a City of Boerne outcome by doing what it did in RLUIPA, which is to ground the statute in a power other than the Fourteenth Amendment. On Wed, Jun 3, 2015 at 12:42 PM, Michael Peabody <mich...@californialaw.org> wrote: > It seems that in Abercrombie, the Supreme Court essentially recognized > that a prospective employee's right to practice her faith was unjustly > encumbered by a facially neutral "look policy" of an employer, and > that the employer would be required to make an exception for the > religious employee in order to fulfill its obligations under Title > VII. The employer argued that its policy did not discriminate against > Muslims because it was not intended to address religion. > > At the risk of making an "apples and oranges" comparison here, I'm > wondering if this case, along with several others such as Hobby Lobby, > are a sign that the Court is starting to back away from Employment > Division v. Smith? I know that Smith involved actual statutes, not a > company's policy, but the reasoning seems to fall along the same > lines. Put another way, is it possible that for right now, businesses > have to meet a higher level of religious accommodation than the > states, post-Boerne v. Flores, and that the Court will soon bring Smith into parity with its more recent decisions? > > (It doesn't go unnoticed that Justice Scalia wrote both Smith and > Abercrombie.) > > Will the Court ultimately reintroduce strict scrutiny analysis to free > exercise cases nationwide or is Abercrombie a fluke? > > Michael Peabody, Esq. > Editor > > http://www.ReligiousLiberty.TV > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can > (rightly or > wrongly) forward the messages to others. ------------------------------ Message: 2 Date: Wed, 3 Jun 2015 12:13:32 -0700 From: "Volokh, Eugene" <vol...@law.ucla.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: RE: Abercrombie & Fitch Message-ID: <e7aaec684f9e3641b8cfc2b9a0bd965a029cf1a43...@uclawe2k7.lawnet.lcl> Content-Type: text/plain; charset="us-ascii" Indeed. In RFRA, RLUIPA, and Title VII, Congress deliberately created regimes that mandate religious exemptions from some generally applicable rules. The Court is applying those regimes. That doesn't suggest, I think, that the Court will revisit its judgment that the Constitution does not mandate such an exemption regime. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Dawinder S. Sidhu > Sent: Wednesday, June 03, 2015 12:05 PM > To: Law & Religion issues for Law Academics > Subject: Re: Abercrombie & Fitch > > Forgive me, but my understanding is that Abercrombie's argument was > not that > it prevails under Title VII because its look policy was generally > applicable or "not > intended to address religion." Instead, I believe it argued that the > plaintiff loses > because she did not make Abercrombie aware of the religious nature of > the > headscarf. > Abercrombie correctly guessed -- but did not know from the applicant > -- that the headscarf was a religious requirement. The Court rejected > Abercrombie's position that actual knowledge was needed to trigger its > obligation to prove that it offered a reasonable accommodation or that > one > could not be offered without incurring an undue hardship. > > As to the question about whether the Court is backsliding from Smith, > I am not > so sure. One could respond that the recent "victories" are due to > statutes (e.g., > Title VII in Abercrombie, RLUIPA in Holt, RFRA in Hobby Lobby) which > provide > more robust protection for religious exercise than does the > constitutional > baseline noted in Smith. > Congress can seek to avoid a City of Boerne outcome by doing what it > did in > RLUIPA, which is to ground the statute in a power other than the > Fourteenth > Amendment. > > On Wed, Jun 3, 2015 at 12:42 PM, Michael Peabody > <mich...@californialaw.org<mailto:mich...@californialaw.org>> wrote: > > It seems that in Abercrombie, the Supreme Court essentially > > recognized > > that a prospective employee's right to practice her faith was > > unjustly > > encumbered by a facially neutral "look policy" of an employer, and > > that the employer would be required to make an exception for the > > religious employee in order to fulfill its obligations under Title > > VII. The employer argued that its policy did not discriminate > > against > > Muslims because it was not intended to address religion. > > > > At the risk of making an "apples and oranges" comparison here, I'm > > wondering if this case, along with several others such as Hobby > > Lobby, > > are a sign that the Court is starting to back away from Employment > > Division v. Smith? I know that Smith involved actual statutes, not > > a > > company's policy, but the reasoning seems to fall along the same > > lines. Put another way, is it possible that for right now, > > businesses > > have to meet a higher level of religious accommodation than the > > states, post-Boerne v. Flores, and that the Court will soon bring > > Smith into > parity with its more recent decisions? > > > > (It doesn't go unnoticed that Justice Scalia wrote both Smith and > > Abercrombie.) > > > > Will the Court ultimately reintroduce strict scrutiny analysis to > > free > > exercise cases nationwide or is Abercrombie a fluke? > > > > Michael Peabody, Esq. > > Editor > > > > http://www.ReligiousLiberty.TV > > > > > > > > _______________________________________________ > > To post, send message to > > Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To > > subscribe, > > unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed > > as > > private. Anyone can subscribe to the list and read messages that > > are > > posted; people can read the Web archives; and list members can > > (rightly or > > wrongly) forward the messages to others. > _______________________________________________ > To post, send message to > Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To > subscribe, unsubscribe, > change options, or get password, see > http://lists.ucla.edu/cgi-<http://lists.ucla.edu/cgi-bin/mailman/listi > nfo/religionlaw> > bin/mailman/listinfo/religionlaw<http://lists.ucla.edu/cgi-bin/mailman > /listinfo/religionlaw> > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; > people can > read the Web archives; and list members can (rightly or wrongly) > forward the > messages to others. -------------- next part -------------- An HTML attachment was scrubbed... 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Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
