Re: Religious exemptions and child sexual abuse
Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’ s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “ reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = ___ 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. ___ 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.
Re: Religious exemptions and child sexual abuse
Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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.
Re: Religious exemptions and child sexual abuse
There are actual cases of it being used as a defense. Abuse of RFRA is not in itself enough to not have such laws, but it is also something not to be ignored in considering the wisdom of and form of a RFRA. Nor should its use to permit or even encourage discrimination against groups be ignored in assessing its value. Nor should its very limited application in support of religion be ignored -- if it s mostly symbolic, why do it? Nor should the ability of courts to find that there is no substantial burden for those RFRAs (like the federal one) that include that predicate. Actual incidents are relevant as are the sorts of statistics Don Clark is asking about. Steve On Jun 14, 2012, at 9:21 AM, lawyer2...@aol.com wrote: Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Whenever you find yourself on the side of the majority, it is time to pause and reflect. Mark Twain ___ 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.
Re: Religious exemptions and child sexual abuse
I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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.
RE: Religious exemptions and child sexual abuse
Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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.
Re: Religious exemptions and child sexual abuse
Doug-- your downplaying of rfras' effect is inaccurate and misleading. The rfras can apply and they are invoked in these casesJust because a case comes down on common law theory doesn't mean rfras don't apply. I think you have sidestepped the issues. Obviously, rfras can be invoked in these cases Are you opposed to exempting child safety from the RFRAs? And what is your view on a RFRA without substantial modifying burden? Marci On Jun 14, 2012, at 11:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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. ___ 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.
RE: Religious exemptions and child sexual abuse
Actually, my criticism of Marci was not because she was a woman (surprise!), but because it seemed to me that for whatever reason her argument was framed in a way that was as unsubstantive and as lacking in concreteness as possible. As I noted in the e-mail to which Marci responded, there is a plausible but contestable explanation for how enacting a RFRA might indeed indirectly increase the rate of child sexual abuse. But that’s an argument that, it seems to me, is most helpfully offered by explaining its specifics, and in the process noting its limitations. Instead, Marci’s first post on the subject framed the matter as “Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA.” “[A] RFRA opens the door to ... child sex abuse”? That’s rhetoric, or hyperbole, or perhaps just careless wording. “Opens the door” suggests that something that before wasn’t happening now would be happening, or at least (as in the “discrimination” and “medical neglect” items) something that before wasn’t legal now would be legal. Of course, child sex abuse is a very serious crime with or without a RFRA; at most, what RFRA might do is diminish the incentives that one set of institutions has to maximally combat child sex abuse. In another post, Marci writes, “RFRA, as we all know, does not mirror the First Amendment, and the North Dakota RFRA would have triggered strict scrutiny even without a showing that the burden was ‘substantial’ -- so we can be certain that it could be more problematic in child sex abuse and medical neglect cases.” Can we really be so “certain,” given the rather modest difference in wording, the fact that court decisions providing protection to churches are generally entanglement cases, not RFRA cases, and the fact that most courts don’t accept either entanglement or free exercise/RFRA challenges? (Or is the sentence saved by the fact that it only says “we can be certain that it could be more problematic,” in which case the claim is made accurate by being made basically empty?) Most recently, Marci’s latest response offers one case citation: Gibson v Brewer. But it might be worth noting that Gibson accepts a First Amendment defense to employer negligence claims on entanglement and endorsement grounds, with a dollop of Kedroff. It didn’t rely on the Sherbert/Yoder/RFRA strict scrutiny model. Again, instead of concrete analysis, what I’m seeing is one-liners and broad assertions. I would not normally publicly criticize another list member’s work this way, but Marci’s implicit accusation of sexism requires me to explain just why her argument struck me as more “rhetoric” than substance, and would have regardless of her sex. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 4:28 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. Eugene's analysis is correct to a point. Even though slightly more than half of the states have rejected religious liberty as an absolute defense, the churches still raise religious liberty defenses in a myriad of situations in these cases i those states Examples: They balk at discovery on a routine basis and use the defense to try to get around SOLs. Shifting from the constitutional standard to the RFRA formulation increases delay and cost in these cases. That means it increases the suffering of the victims now and creates more dangers in the future. These are the facts The same is true for medical neglect. Having said that -- the North Dakota RFRA also was more extreme than most because it did not require a substantial burden. Just a burden. RFRA is a misguided approach. If legislators are foolish enough to adopt this formulation which disables laws they worked hard to pass, at the least they should exempt all cases involving child abuse and neglect. Existing rfras should be amended accordingly and religious lobbyists should include the child safety exemption in every bill they push. Still, the gay rights lobbies and women 's rights lobbies passionately oppose the RFRA formulation. The tide has turned because they came to understand that the rfras are one means of oppressing them. Again just a fact -- not rhetoric. Marci On Jun 14, 2012, at 12:13 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following:
RE: Religious exemptions and child sexual abuse
Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Thursday, June 14, 2012 6:21 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions and child sexual abuse Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = ___ To post, send message to Religionlaw@lists.ucla.edumailto: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 To subscribe,
RE: Religious exemptions and child sexual abuse
Marci, has any church ever won any form of sexual abuse case on a RFRA theory? I will not assert that the number of such cases is zero, because I do not claim to have read every case. I am confident that the number of such cases is very small. As Eugene has already noted, the churches that have won negligent supervision or negligent hiring cases on religious liberty theories have won them on the ground that liability would interfere with the relationship between the church and its ministers. And that theory was never based in RFRA or Sherbert-Yoder. It was and is based in Watson v. Jones and the line of cases that also led to the ministerial exception. We can all agree that the underlying conduct in the sex abuse cases is indefensible. Every judge has agreed with that too. You use them like a three-year old with a newly discovered hammer, to beat on any religious liberty issue no matter how remote or irrelevant. At the AALS in January, you dragged the sex abuse cases into a panel on the land use provisions of RLUIPA. You combine the worst sort of ad hominem with the worst sort of guilt by association – some religious folks have done bad things, so all religious folks should have their liberty constrained in all domains. 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] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 11:12 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse Doug-- your downplaying of rfras' effect is inaccurate and misleading. The rfras can apply and they are invoked in these casesJust because a case comes down on common law theory doesn't mean rfras don't apply. I think you have sidestepped the issues. Obviously, rfras can be invoked in these cases Are you opposed to exempting child safety from the RFRAs? And what is your view on a RFRA without substantial modifying burden? Marci On Jun 14, 2012, at 11:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. 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] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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
Re: Religious exemptions and child sexual abuse
I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene vol...@law.ucla.eduwrote: Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com *Sent:* Thursday, June 14, 2012 6:21 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Religious exemptions and child sexual abuse ** ** *Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise?* *--Don Clark* * Nationwide Special Counsel* * United Church of Christ* In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: ** ** 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). ** ** 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. ** ** 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim.* *** ** ** 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with
Re: Religious exemptions and child sexual abuse
I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.comwrote: I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure to supervise. Art Spitzer On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene vol...@law.ucla.eduwrote: Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com *Sent:* Thursday, June 14, 2012 6:21 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Religious exemptions and child
Re: Religious exemptions and child sexual abuse
This straight out of C.S. Lewis' Bulverism essay, where young Ezekiel Bulver hears his father argue that the angles of a triangle add up to 180, and his mother retort You say that because you are a MAN! At 09:31 AM 6/14/2012, you wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton mailto:hamilto...@aol.comhamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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.
Re: Religious exemptions and child sexual abuse
Obviously the man lives in flatland and the woman in sphereland. :) On Jun 14, 2012, at 2:28 PM, Will Linden wrote: This straight out of C.S. Lewis' Bulverism essay, where young Ezekiel Bulver hears his father argue that the angles of a triangle add up to 180, and his mother retort You say that because you are a MAN! At 09:31 AM 6/14/2012, you wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ 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. ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Nothing ever doesn't change, but nothing changes much. Damian Kulash of OK Go in White Knuckles ___ 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.
RE: Religious exemptions in ND
I posted something briefly from my droid that was short, but now raise it more completely. Is there any evidence that the defeat in ND was at least in part about Indian religious freedom. There is some serious tension between Indians and non-Indians in ND and since the whole issue of RFRA came out of Oregon's hostility to the Native American Church -- Oregon could easily have gone the other way just on the fact of Smith -- I wonder if there is some sense that this issue was present in ND as well. Paul * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go forward, rejecting the diocese's First Amendment defense. It also dismissed a respondeat superior claim against the diocese, based on ordinary principles of Missouri respondeat superior law that would apply to any employer. Missouri respondeat superior law appears to be narrower than, e.g., DC law, where the claim probably would have been allowed to proceed, but that has nothing to do with religion. Likewise, it found no First Amendment bar to a claim of intentional infliction of emotional distress by the diocese, but dismissed that claim because the allegations of the complaint did not state a claim under state law. It would be interesting to know what happened on remand to the claims against the priest and the claim against the diocese for intentional failure
RE: Religious exemptions in ND
These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu [paul.finkel...@albanylaw.edu] Sent: Thursday, June 14, 2012 4:14 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND I posted something briefly from my droid that was short, but now raise it more completely. Is there any evidence that the defeat in ND was at least in part about Indian religious freedom. There is some serious tension between Indians and non-Indians in ND and since the whole issue of RFRA came out of Oregon's hostility to the Native American Church -- Oregon could easily have gone the other way just on the fact of Smith -- I wonder if there is some sense that this issue was present in ND as well. Paul * 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.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Vance R. Koven [vrko...@gmail.com] Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. That said, the fact that RFRA-based claims don't succeed very well may over time cause them to wither as a tactic, especially if plaintiffs can whack the defendants with Rule 11 sanctions for putting them to that bother. And, of course, this additional burden on plaintiffs may itself not be sufficient to outweigh the benefits that RFRAs have in terms of facilitating non-violent religious practice and conscience. I just wanted to add an observation about the fact that everyone agrees that child (and female) abuse is indefensible. This is true in a sense, but the definition of these things matters. Marci's citing the LDS as one of the black-hat institutions raises a red flag that maybe an unsophisticated and tendentious notion of abuse is doing too much work in this discussion--there are practices that many sincere believers do not consider abusive that have become part of the culture wars. To the extent that RFRAs force courts to recognize the potential conscientious validity of these practices, and weigh the countervailing government interest, they can help prevent anti-religious (or anti-denominational) lynch mobs from having free rein. You shouldn't be permitted to just wave your hand in a culturally biased way at a broad spectrum of practices and call them all abusive because they're not the norm in New York 10025 or Cambridge 02138. Vance On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997). If that's the poster child for why RFRAs are bad, it's not much of a poster. In the first place, it didn't involve a RFRA at all, just the First Amendment, with which we're stuck for better or for worse. First, motions to dismiss claims of battery, negligent infliction of emotional distress, and intentional infliction of emotional distress against the priest were denied by the lower courts, and these decisions were not reviewed by the Missouri Supreme Court. the court did dismiss claims of negligent hiring or ordination of clergy, negligent failure to supervise clergy, negligent infliction of emotional distress by clergy, and independent negligence by the diocese on First Amendment grounds. Some of those rulings may have been too broad. But it allowed a claim of intentional failure to supervise clergy to go
Religious exemptions and child sexual abuse
I don't think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it's a fact. I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don't know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it. The significance of 2002, of course, is that that is when the news from Boston broke. 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] On Behalf Of Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance ___ 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.
Re: Religious exemptions and child sexual abuse
There is a significant federal RFRA litigation burden in the diocesan bankruptcies. Marty and I have been on opposite sides litigating it. I currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the RFRA and First Amendment issues. I have seen state rfras pled in many cases. These cases typically settle so decisions are rare. The trend is definitely against their theories but they are part of the fabric of these cases nonetheless. Autonomy theories are persistent in these cases. Marty may not have seen the briefing but I see such issues from around the country on a daily basis. Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. Marci On Jun 14, 2012, at 6:01 PM, Douglas Laycock dlayc...@virginia.edu wrote: I don’t think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it’s a fact. I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don’t know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: “I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it.” The significance of 2002, of course, is that that is when the news from Boston broke. 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] On Behalf Of Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance ___ 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. ___ 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.
Religious exemptions in ND
Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that people could break certain laws on non-discrimination, though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer's religious beliefs.2 A man could claim domestic violence laws don't apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ 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.
RE: Religious exemptions in ND
Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ 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.
Re: Religious exemptions in ND
Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edu wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ 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.
Re: Religious exemptions in ND
The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: Religious exemptions in ND
Presumably the federal Establishment Clause would limit the reach of Measure 3. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: bob b...@jmcenter.org; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jun 14, 2012 9:17 pm Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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. ___ 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.
RE: Religious exemptions in ND
I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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. ___ 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.
Re: Religious exemptions in ND
Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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. ___ 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. ___ 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.
RE: Religious exemptions in ND
I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com blocked::http://www.storzerandgreene.com/ stor...@storzerandgreene.com blocked::mailto:stor...@storzerandgreene.com _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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. ___ 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. ___ 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.
Re: Religious exemptions in ND
In short,any accommodation of religion is a violation of the equal protection clause. This would certainly be a rather sharp departure from the best of the American tradition. And I guess I have been misinformed all these years in thinking religious freedom was a basic american value. Bob's message does illustrate the sharp divide between an egalitarian understanding of the constitution and a liberty based one-a divide highlighted today when the aclu sent the senate a letter calling for a very narrow religious exemption from ENDA. There was a time the aclu valued religious liberty. Apparently no longer for conservative faiths. Marc From: b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Thursday, June 14, 2012 09:12 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edu wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ 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.
RE: Religious exemptions in ND
Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Thursday, June 14, 2012 7:01 PM To: 'b...@jmcenter.org'; 'religionlaw@lists.ucla.edu' Subject: Re: Religious exemptions in ND In short,any accommodation of religion is a violation of the equal protection clause. This would certainly be a rather sharp departure from the best of the American tradition. And I guess I have been misinformed all these years in thinking religious freedom was a basic american value. Bob's message does illustrate the sharp divide between an egalitarian understanding of the constitution and a liberty based one-a divide highlighted today when the aclu sent the senate a letter calling for a very narrow religious exemption from ENDA. There was a time the aclu valued religious liberty. Apparently no longer for conservative faiths. Marc From: b...@jmcenter.orgmailto:b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Thursday, June 14, 2012 09:12
RE: Religious exemptions in ND
Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn’t involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don’t regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners’ liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that “equality is a core American value” or that “religious freedom is a basic American value,” or claims that the ACLU doesn’t “value[] religious liberty” “for conservative faiths.” My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers’ consumption of alcohol – a right that most other businesses enjoy, since it doesn’t involve discrimination based on the passenger’s religion, race, etc. – is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn’t do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ 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.
RE: Religious exemptions in ND
Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ 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
RE: Religious exemptions in ND
OK, sorry, that wasn't meant for the whole list D'oh! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, June 14, 2012 8:11 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views
RE: Religious exemptions in ND
Connecticut and Alabama use burden instead of substantial burden in their state RFRAs. Rhode Island, New Mexico, and Missouri speak of restrictions on religious liberty. But I really don't know how much the difference in language ends up mattering. Connecticut is a burden state, like North Dakota would have been. But the lower courts in Connecticut have interpreted Connecticut's RFRA to be equivalent to the standard laid out in Employment Division v. Smith. It's hard to see how that is even possible, given what state RFRAs were designed to do. But there it is. My South Dakota piece (which Doug referred to earlier) provides the details. Given all this, it's hard for me to understand these fears of dramatic overenforcement. Even with explicit authorization from state legislatures, we can't even seem to get back to Sherbert/Yoder-and it's not as if the Sherbert/Yoder regime led to the horrible things that NARAL was fearing. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 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 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer Sent: Thursday, June 14, 2012 9:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com blocked::http://www.storzerandgreene.com/ stor...@storzerandgreene.com blocked::mailto:stor...@storzerandgreene.com _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a
