Re: Religious exemptions in ND
The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci On Jun 14, 2012, at 11:34 PM, Christopher Lund l...@wayne.edu wrote: 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 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
Re: Religious exemptions in ND
Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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
Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci 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: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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
Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci 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.commailto:hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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.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, 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
Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci 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: Marc Stern ste...@ajc.org To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu; 'lawyer2...@aol.com' lawyer2...@aol.com Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci 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: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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
RE: Religious exemptions in ND
May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Friday, June 15, 2012 9:26 AM To: religionlaw@lists.ucla.edu; lawyer2...@aol.com Subject: Re: Religious exemptions in ND Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci 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.commailto:hamilto...@aol.com -Original Message- From: Marc Stern ste...@ajc.org To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu; 'lawyer2...@aol.com' lawyer2...@aol.com Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.commailto:hamilto...@aol.com [mailto:hamilto...@aol.commailto:hamilto...@aol.com?] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.commailto:lawyer2...@aol.com lawyer2...@aol.commailto:lawyer2...@aol.com;
RE: Religious exemptions in ND
That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ 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
It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the churchs liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had actual knowledge and made an official decision not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. 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 Graber, Mark Sent: Friday, June 15, 2012 9:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justiceso even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ 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
Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments and church autonomy arguments: My previous comments were not about the bankruptcies where federal law, the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes prevail. Second, it is one thing to plead an affirmative defense. It is quite another to file a dispositive motion. Professor Hamilton writes, Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. If she saw the arguments, there must be briefs. Might she share those three briefs with the group? The information I have suggests that counsel, at least in Hawaii and California, are not filing dispositive motions arguing that the church autonomy doctrine bars ecclesiastical negligent supervision claims. Last evening, the leading ecclesiastical defense counsel in California (who has himself handled over 500 cases and who is daily communications with others from that defense bar) told me that he is unaware of defense counsel in California filing dispositive motions contending that tort liability is precluded by the church autonomy doctrine. I suspect that the practical unavailability of a church autonomy argument against negligent ecclesiastical supervision claims in California has something to do with Church defendants paying out around $1.5 billion in settlements in that state. The leading ecclesiastical defense counsel in Hawaii also informed me that he is unaware of church autonomy arguments being briefed in Hawaii to bar ecclesiastical negligent supervision claims. I have not recently conferred with church counsel in Illinois. Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, in those states with such laws. This is consistent with what I've seen. Martin Nussbaum PLEASE TAKE NOTICE, the information contained in this electronic communication and any document attached hereto or transmitted herewith, including metadata, is attorney-client privileged, work product, private or otherwise confidential, and is intended for the exclusive use of the individual or entity named above. The information transmitted in this e-mail and any attachment is intended only for the personal and confidential use of the intended recipients and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or reply e-mail and delete this communication. You are further notified that all personal messages express views solely of the sender which are not to be attributed to Rothgerber Johnson Lyons LLP and may not be copied or distributed without this disclaimer. 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 6:44 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: 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 ___ 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
To be sure church autonomy arguments outpace RFRA arguments, but less than half the states have rfras I don't actually get Doug's point -- a RFRA is irrelevant if it is not the dispositive issue in most cases? It adds a layer of argument in these cases. And from the perspective of child protection, it is bad policy. In any event, Marty has under reported the prevalence of these issues in child sex abuse cases. For a summary of the cases and issues, see my cert petition in John Doe AP, which I have posted on my Cardozo web page http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf For the most recent case, see the Tennessee Supreme Court decision, Redwing v. Catholic Bishop for the Diocese of Memphis - On Jun 15, 2012, at 11:31 AM, Douglas Laycock dlayc...@virginia.edu wrote: Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments and church autonomy arguments: My previous comments were not about the bankruptcies where federal law, the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes prevail. Second, it is one thing to plead an affirmative defense. It is quite another to file a dispositive motion. Professor Hamilton writes, Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. If she saw the arguments, there must be briefs. Might she share those three briefs with the group? The information I have suggests that counsel, at least in Hawaii and California, are not filing dispositive motions arguing that the church autonomy doctrine bars ecclesiastical negligent supervision claims. Last evening, the leading ecclesiastical defense counsel in California (who has himself handled over 500 cases and who is daily communications with others from that defense bar) told me that he is unaware of defense counsel in California filing dispositive motions contending that tort liability is precluded by the church autonomy doctrine. I suspect that the practical unavailability of a church autonomy argument against negligent ecclesiastical supervision claims in California has something to do with Church defendants paying out around $1.5 billion in settlements in that state. The leading ecclesiastical defense counsel in Hawaii also informed me that he is unaware of church autonomy arguments being briefed in Hawaii to bar ecclesiastical negligent supervision claims. I have not recently conferred with church counsel in Illinois. Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, in those states with such laws. This is consistent with what I've seen. Martin Nussbaum PLEASE TAKE NOTICE, the information contained in this electronic communication and any document attached hereto or transmitted herewith, including metadata, is attorney-client privileged, work product, private or otherwise confidential, and is intended for the exclusive use of the individual or entity named above. The information transmitted in this e-mail and any attachment is intended only for the personal and confidential use of the intended recipients and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or reply e-mail and delete this communication. You are further notified that all personal messages express views solely of the sender which are not to be attributed to Rothgerber Johnson Lyons LLP and may not be copied or distributed without this disclaimer. 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 6:44 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: 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.
Re: Religious exemptions and child sexual abuse
Fascinating discussion, from which I am learning a lot. As a non-expert, it strikes me that Marci's account is akin to what I hear from family law attorneys dealing with divorce or child-custody cases -- that it is routine practice to make claims of spousal or child abuse, but that judges almost never take such claims seriously. So, yes, it might make it more complicated to deal with such cases, and it might diminish response to real cases of abuse, but it's unclear that it affects many cases, as I understand it. Richard Dugherty On Fri, Jun 15, 2012 at 11:27 AM, Marci Hamilton hamilto...@aol.com wrote: To be sure church autonomy arguments outpace RFRA arguments, but less than half the states have rfras I don't actually get Doug's point -- a RFRA is irrelevant if it is not the dispositive issue in most cases? It adds a layer of argument in these cases. And from the perspective of child protection, it is bad policy. In any event, Marty has under reported the prevalence of these issues in child sex abuse cases. For a summary of the cases and issues, see my cert petition in John Doe AP, which I have posted on my Cardozo web page http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf For the most recent case, see the Tennessee Supreme Court decision, Redwing v. Catholic Bishop for the Diocese of Memphis - On Jun 15, 2012, at 11:31 AM, Douglas Laycock dlayc...@virginia.edu wrote: Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments and church autonomy arguments: ** ** My previous comments were not about the bankruptcies where federal law, the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes prevail. ** ** Second, it is one thing to plead an affirmative defense. It is quite another to file a dispositive motion. Professor Hamilton writes, Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. If she saw the arguments, there must be briefs. Might she share those three briefs with the group? ** ** The information I have suggests that counsel, at least in Hawaii and California, are not filing dispositive motions arguing that the church autonomy doctrine bars ecclesiastical negligent supervision claims. Last evening, the leading ecclesiastical defense counsel in California (who has himself handled over 500 cases and who is daily communications with others from that defense bar) told me that he is unaware of defense counsel in California filing dispositive motions contending that tort liability is precluded by the church autonomy doctrine. I suspect that the practical unavailability of a church autonomy argument against negligent ecclesiastical supervision claims in California has something to do with Church defendants paying out around $1.5 billion in settlements in that state. The leading ecclesiastical defense counsel in Hawaii also informed me that he is unaware of church autonomy arguments being briefed in Hawaii to bar ecclesiastical negligent supervision claims. I have not recently conferred with church counsel in Illinois. ** ** Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, in those states with such laws. This is consistent with what I've seen. ** ** Martin Nussbaum ** ** ** ** PLEASE TAKE NOTICE, the information contained in this electronic communication and any document attached hereto or transmitted herewith, including metadata, is attorney-client privileged, work product, private or otherwise confidential, and is intended for the exclusive use of the individual or entity named above. The information transmitted in this e-mail and any attachment is intended only for the personal and confidential use of the intended recipients and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or reply e-mail and delete this communication. You are further notified that all personal messages express views solely of the sender which are not to be attributed to Rothgerber Johnson Lyons LLP and may not be copied or distributed without this disclaimer. ** ** ** ** 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,
RE: Religious exemptions and child sexual abuse
First of all, he goes by Martin, not Marty. Marci, you have not yet offered a single example of substantial briefing of a state RFRA issue in a sexual abuse case. It does not have to be the dispositive issue to count. It does need to be an issue that is seriously argued, and not a boilerplate pleading. We haven’t even seen an example of a boilerplate pleading of a state RFRA. There surely are some; lawyers will plead pretty much anything. But investing serious resources to develop the argument, devoting limited pages to the argument, and taking up the court’s time with the argument, is an altogether different decision. You have to do those things before the other side is forced to invest resources responding. Martin says it isn’t happening, and he’s checked with two other lawyers who do a lot of these cases, and they agree that it isn’t happening. Neither your cert petition below nor the Tennessee opinion you cite even mentions a RFRA. The cert petition is from a Missouri case. Both Missouri and Tennessee have RFRAs. The cert petition offers a nationwide set of string cites. There is no mention of state RFRAs as part of the problem. The church autonomy argument is no longer being offered much outside the states that have already recognized it, because it’s chances of success are no longer very good. It is being offered some, including in the Tennessee case, and of course it is offered in states that recognize it. We have no dispute about that. State RFRA arguments are not being seriously pressed in sexual abuse cases, probably because no one believes that such an argument would have the slightest chance of success. Sexual abuse cases as an argument against state RFRAs is just mudslinging. 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: Friday, June 15, 2012 12:27 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse To be sure church autonomy arguments outpace RFRA arguments, but less than half the states have rfras I don't actually get Doug's point -- a RFRA is irrelevant if it is not the dispositive issue in most cases? It adds a layer of argument in these cases. And from the perspective of child protection, it is bad policy. In any event, Marty has under reported the prevalence of these issues in child sex abuse cases. For a summary of the cases and issues, see my cert petition in John Doe AP, which I have posted on my Cardozo web page http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf For the most recent case, see the Tennessee Supreme Court decision, Redwing v. Catholic Bishop for the Diocese of Memphis - On Jun 15, 2012, at 11:31 AM, Douglas Laycock dlayc...@virginia.edu wrote: Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments and church autonomy arguments: My previous comments were not about the bankruptcies where federal law, the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes prevail. Second, it is one thing to plead an affirmative defense. It is quite another to file a dispositive motion. Professor Hamilton writes, Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. If she saw the arguments, there must be briefs. Might she share those three briefs with the group? The information I have suggests that counsel, at least in Hawaii and California, are not filing dispositive motions arguing that the church autonomy doctrine bars ecclesiastical negligent supervision claims. Last evening, the leading ecclesiastical defense counsel in California (who has himself handled over 500 cases and who is daily communications with others from that defense bar) told me that he is unaware of defense counsel in California filing dispositive motions contending that tort liability is precluded by the church autonomy doctrine. I suspect that the practical unavailability of a church autonomy argument against negligent ecclesiastical supervision claims in California has something to do with Church defendants paying out around $1.5 billion in settlements in that state. The leading ecclesiastical defense counsel in Hawaii also informed me that he is unaware of church autonomy arguments being briefed in Hawaii to bar ecclesiastical negligent supervision claims. I have not recently conferred with church counsel in Illinois. Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, in those states with such laws. This is consistent with what I've seen. Martin Nussbaum PLEASE TAKE NOTICE, the information
RE: Religious exemptions in ND
Marc: It seems to me that state RFRAs are aimed at protecting religious observers and religious institutions more than at least many other social interests. Conversely, as I understand the church liability cases, plaintiffs usually aim to simply apply normal negligent hiring/supervision/retention law to churches, just as it would apply to (say) secular private schools, secular youth organizations, secular day care centers, and so on. To be sure, as Doug pointed out, state and local governments often are treated better than all these private institutions, under sovereign-immunity-ish principles. But whether that better treatment or not is right, it is justified by the sense that taxpayer money needs to be specially protected. Why should religious institutions be given more protection against liability than other private organizations? Eugene Marc Stern writes: Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc ___ 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
Public schools should also be held to the same standard as any private institution and it should be child-protective Marci On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the church’s liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had “actual knowledge” and made “an official decision” not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. 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 Graber, Mark Sent: Friday, June 15, 2012 9:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice—so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ 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
Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ 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. Seems like we are arguing BIG principles that, actually everyone agrees with, when the work that needs to be done is in the details. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ 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
Ouch. This was obviously just meant for EV. On Friday afternoons, one should hesitate before hitting the send button. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Thanks. Seems like we are arguing BIG principles that, actually everyone agrees with, when the work that needs to be done is in the details. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 1:33 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ 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
No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity - and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons - it does seem to facilitate religious groups' failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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.
Strict scrutiny, from Sherbert/Yoder to RFRA
From: Volokh, Eugene Sent: Friday, June 15, 2012 10:44 AM To: Law Religion issues for Law Academics Subject: Strict scrutiny, from Sherbert/Yoder to RFRA I disagree on very much with Marci, and I’m not sure that the Sherbert/Yoder test would have been inapplicable to the things that NARAL and CHILD fears. But Marci’s more general point strikes me as quite correct: At least if read literally, RFRA enacts an across-the-board strict scrutiny test, which the Court in the Sherbert/Yoder era never did. For instance, when the government was acting as prison administrator or as commander of military personnel, the religious exemption test--like the Free Speech Clause test--was close to the rational basis framework. Lower courts adopted a similarly deferential test for probation conditions that incidentally interfered with religious practices. When the government was acting as employer, some lower courts likewise adopted fairly (but not entirely) deferential tests borrowed from the Pickering test applied in government employee free speech cases. There was no agreed-on test for the government acting as educator in kindergarten through high school, but courts at least had the option of concluding that the free exercise test--like the free speech test--should be relatively deferential in these cases, too. When the government was acting as sovereign, the test was usually strict scrutiny, but not always. For claimants requesting exemptions from generally applicable speech restrictions, the free exercise test was the same as the free speech test, which might differ from strict scrutiny. Content-neutral restrictions on the time, place, or manner of speech, for instance, are only subject to a form of intermediate scrutiny under the Free Speech Clause, and Heffron v. ISKCON held that this same quasi-intermediate scrutiny was applicable to requests for religious exemptions from such restrictions. Similarly, some lower court cases suggested that zoning restrictions were subject to a lower standard of scrutiny. Now perhaps the same results could be reached by applying strict scrutiny with an eye towards the special circumstances present in those cases – but that, even more than the Court’s “feeble in fact” version of strict scrutiny applied in cases such as Lee, Bob Jones, and the like, would in practice be a way of avoiding strict scrutiny rather than a way of honestly applying it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, June 15, 2012 12:09 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci ___ 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
But as I understand it, some states – though a minority – do indeed protect churches from negligent supervision/retention/hiring liability; and since generally speaking respondeat superior is usually unavailable in such cases, the effect is indeed an immunity of churches from liability for this particular sort of abuse. (I agree that this is hard to lay at the door of RFRAs, since the immunity has generally been recognized under the non-entanglement doctrine.) In any case, it seems to me that these concrete discussions of what the law does and does not authorize, and which law does so, are more helpful than snippy one-liners from either side. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 10:57 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.commailto:lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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
Re: Religious exemptions in ND
I think Mr. Clark's statement and apparent inability to see the potential for mischief of RFRA is troubling and supportive of Prof. Hamilton's point. As a former litigator, I get the sense that some on this list are too dismissive of the impact of making claims that ultimately may fail, but which increase delays and costs in litigation -- sometimes substantially -- a problem particularly where child abuse is possible. We are deep in an accommodationist model now where the religious liberty of adherents is generally being given greater attention and solicitude than the equality interests and other interests (including health and safety) of other affected people. As Prof. Volokh and others have said, we are not dealing with just abstract issues nor are we dealing with just one constitutional value. Ignoring the existence of abusive sects and their attempts to use free exercise and RFRA as a shield does not advance the discussion. These cases exist. The existence of RFRA and free exercise does embolden some. Few. But some. My judgment is different from Prof. Hamilton's but I don't dispute her data and respect her making the contrary judgment on the same facts. Steve -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -- 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/ Sometimes you have to play a long time to be able to play like yourself. Miles Davis ___ 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
Agreed --Don Clark In a message dated 6/15/2012 1:03:29 P.M. Central Daylight Time, vol...@law.ucla.edu writes: In any case, it seems to me that these concrete discussions of what the law does and does not authorize, and which law does so, are more helpful than snippy one-liners from either side. 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
That is an inaccurate analysis of my last post -- The attempts to treat these issues as de minimis are wrong. Read my cert petition and the Redwing case out of Tennessee I don't in any way back off of my statement that rfras open the door to more child sex abuse and less deterrence. They don't stand alone but they do. Child safety should be excluded from all such laws. Safe to say they are unlikely to be passed anyway at this point because gay rights and women's rights groups have come to understand they are adverse to their interests as well. The danger of the RFRA as I have stated before is its blanket blind approach. It hides the actual agendas of those who seek them. Far better for the vulnerable that exemptions be publicly debated. Marci On Jun 15, 2012, at 1:57 PM, lawyer2...@aol.com wrote: Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ 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
Re: Religious exemptions in ND
I think that public schools should be held to, if anything, a HIGHER standard than the church. After all, children are REQUIRED to attend public school; attending church is optional. But I also think that I should be rich and famous. Still waiting for it to happen. Lisa On 6/15/2012 10:29 AM, Marci Hamilton wrote: Public schools should also be held to the same standard as any private institution and it should be child-protective Marci On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the church's liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had actual knowledge and made an official decision not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:*religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Graber, Mark *Sent:* Friday, June 15, 2012 9:46 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice---so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu mailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu 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. -- Lisa A. Runquist Runquist Associates Attorneys at Law 17554 Community Street Northridge, CA 91325 (818)609-7761 (818)609-7794 (fax) l...@runquist.com http://www.runquist.com IRS Circular 230 Notice To ensure compliance with requirements imposed by the IRS, we inform you that
RE: Religious exemptions in ND
Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a compelling governmental interest than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM Christopher Lund l...@wayne.edu wrote: Obviously the sexual abuse of children is tragic and criminal. But I still am not getting how state RFRAs have protected it or encouraged it. State RFRA cases are more boring than those opposed to Measure 3 might think. Plaintiffs generally lose their claims; they sometimes win, but they have not won anything remotely like what NARAL was fearing. (In that South Dakota piece—which is a bit dated now—I slog through the cases and provide citations, to the extent people are interested.) I counted somewhere around 25 Florida state RFRA cases, for example. Of those 25, plaintiffs won 1 on state RFRA grounds. That case involved a church that wanted to feed the homeless in a public park, despite a city rule saying that parks could not be used for social-service purposes. The church didn’t win the right to use the park of its choosing, but the trial judge enjoined the city to let them use some park at some time. The case is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001). Of course, plaintiffs sometimes ask for things they can’t possibly get under state RFRAs—the right to use marijuana while driving, for example, keeps coming up. But that’s a frivolous claim by a desperate criminal defendant, and it simply loses. State RFRAs have been asserted as defenses in some of the sex abuse cases. But usually such claims don’t even get separate analysis, and they certainly don’t win. If people like Marci will be more comfortable with a state RFRA with a child safety exception, I’d gladly do it. Not because I think it’s necessary, but because I think it isn’t: A state RFRA with a child safety exception will be treated exactly like a state RFRA without one. Children will be protected in any event. It’s also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed—and that has happened. Concerned with a pending suit by a Muslim to claim a drivers’ license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida’s RFRA. Judging by Florida’s reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. Best, Chris ___ 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 and discrimination
I think this is combining under the rubric of “discrimination” many different things. First, item 2 doesn’t involve discrimination based on the passenger’s race, religion, sex, and so on which is why businesses generally are free to discriminate against patrons with wine, or employees who drink wine. The relevant law here is a sort of “common carrier” rule that imposes on a few businesses (and only a few) the obligation to do business with pretty much everyone, an obligation that is much broader than that imposed by antidiscrimination law. Relatedly, item 1 doesn’t involve discrimination in the antidiscrimination law sense (except insofar as one can argue that such a refusal is sex discrimination because only women take Plan B, which I doubt will succeed). Indeed, I take it that all of us would agree that a supermarket could choose to refuse to stock condoms (male or female) or over-the-counter contraceptives. Rather, the relevant law is a professional obligation imposed on pharmacies to stock either all in-demand pharmaceuticals, or at least to stock this particular pharmaceutical. Second, even true discrimination rules have historically been applied more narrowly in some areas than in others, and this reflects (in addition to federalism concerns) real differences in the way discrimination affects people. Title II of the Civil Rights Act, for instance, does not constrain pharmacies, cab drivers, or professional photographers; indeed, it applies to only a narrow range of places of public accommodation. It does, however, affect all businesses with more than a threshold number of employees. And this makes sense, because as to many places of public accommodation, the chief harm with discrimination is only dignitary: If Elaine Huguenin refuses to photograph a same-sex commitment ceremony, the couple might be annoyed by the refusal, but they can probably find another photographer at little cost, at least in most places. (Indeed, the couple may prefer to hire a photographer who they feel will see their ceremony as beautiful, and thus be inspired to photograph it that way, rather than a photographer who is being forced by law to photograph something she disapproves of.) On the other hand, employment discrimination can dramatically affect people’s livelihoods, especially since employment is often much less fungible than most commercially available services. Third, different sorts of discrimination rules relate differently to other constitutional rights, and liberty rights more generally. Requiring a photographer to photograph something she doesn’t want to photograph affects her First Amendment right not to create expressive works that she disapproves of. (Even those who think wedding photography isn’t expressive enough to qualify for that purposes might, I think, agree that a commercial press release writer should have the right to refuse to write press releases for Scientology – though that’s discriminating based on religion – or to write a glowing account of a same-sex ceremony.) Likewise, constraining a landlord’s choice about who lives in the other half of a duplex in which she lives may burden her privacy rights, constitutional or otherwise. Not so for a landlord who owns a large apartment building. This doesn’t directly affect the religious exemption claim, of course, but it does highlight why the wedding photographer example may need to be treated differently. Given these differences, it seems to me quite unsurprising that the caselaw rejecting religious exemptions to employment discrimination claims wouldn’t necessarily fully extend to claims of housing discrimination based on marital status (to give an example of a religious exemption claim that some courts have accepted), and wouldn’t be particularly helpful as to claimed exemptions from common carrier obligations or professional regulations. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Friday, June 15, 2012 12:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a compelling governmental interest than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM
