If I’m right that Hosanna-Tabor applies, wouldn’t the church
just have a categorical right to exclude members or attendees, notwithstanding
any antidiscrimination law, just as it has a categorical right to dismiss
clergy notwithstanding any discrimination law – even without a showing that the
church feels religiously compelled to violate the law?
To be sure, I don’t think that Hosanna-Tabor protects “just any
activity [of] a church.” But it does protect decisions whether to accept or
reject clergy; might it equally protect decisions whether to accept or reject
church members or attendees?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 10:13 AM
To: Law Religion & Law List
Subject: Re: Church excludes nursing woman
I assume freedom of association would protect a church in selecting its
membership. And I assume Hosanna-Tabor would protect religion-driven decorum
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a
religiously-compelled doctrine or code of conduct. I don’t see either
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any
activity a church claims and RFRA requires a substantial burden on the exercise
of religion (assuming the VA RFRA is like the federal one — again, I’m not
interested in the particulars of the VA RFRA).
--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org
"In these words I can sum up everything I've learned about life: It goes on."
--Robert Frost
On Apr 27, 2017, at 12:54 PM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
1. Does the principle underlying Hosanna-Tabor extend to
churches excluding members (or visitors) based on race, sex, religion, etc.? I
assume it would, which is why, for instance, Orthodox synagogues could have
separate seating for men and women, Nation of Islam events could be men-only
(there are a few cases on the latter, though free speech cases rather than
religious freedom cases), various churches could be racially or ethnically
exclusionary in their membership, and so on.
2. If a church can exclude people from membership or
attendance based on race, sex, etc., I assume it would likewise be free to
exclude people who engage in certain behavior.
3. Virginia does have a state RFRA, Va Code 57-2.02, but I
assume the Hosanna-Tabor principle – if it’s applicable – would provide
categorical protection, not subject to trumping under strict scrutiny.
Eugene
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, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman
If RFRA applied to the state, or if Virginia had a state RFRA that copied the
federal RFRA, would this state law be legal?
Virginia law provides that a woman can breast feed uncovered anywhere she has a
legal right to be. Can a church then exclude her because breast feeding
uncovered might make some other congregants uncomfortable?
https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org<http://iipsj.org/>
http://sdjlaw.org<http://sdjlaw.org/>
"Years ago my mother used to say to me... 'In this world Elwood' ... She always
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh
So Pleasant.' Well for years I was smart -- I recommend pleasant. You may
quote me." --Elwood P. Dowd
- Mary Chase, "Harvey", 1950
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