Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

This particular statute might have been politically unimaginable 25 years
ago, I suppose (although states were already heading in that direction).
But that is true of many, many laws that are enacted every day--perhaps the
majority of them.  What is not unimaginable at all is that Congress would
regularly pass laws that *some *people and institutions would find
religiously objectionable -- that's been happening since the dawn of the
Republic, and I'm not sure why it's especially significant, *for purposes
of* *interpreting RFRA*, that a small percentage of Protestants and
Catholics are the principal objectors now, rather than Jehovah's Witnesses,
the Amish, Quakers, etc.  (The percentage of Catholic and Protestant
religious institutions that think the ACA requirement that almost all
insurance plans in America cover contraception coerces them to "violate
some of their core moral teachings" is fairly minuscule--probably many
fewer than the number of "Just War" Catholics who were denied exemptions
from the draft during VIetnam:  the vast majority of such institutions
don't think that their compliance with the reg (even before the
accommodation) is any different from paying salaries to employees who use
contraception--it's part of the basic package of standard, baseline
compensation throughout the U.S.)

The relevant point is this:  If this regulation *had *been imaginable in
1990, there would have been no reason to think that codifying the pre-*Smith
*law would have required exemptions from it:  Whenever such objections were
made in the past in the commercial sphere, and the requested exemptions
would harm third parties, the religious claimants lost, and almost always
without much hue and cry.


On Mon, Mar 28, 2016 at 9:17 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> I think he means that 25 and more years ago (which just happens to be
> pre-Smith), it would have been politically unimaginable for government to
> require Catholic or Protestant religious institutions to do things that
> violate some of their core moral teachings. Those conflicts were just
> emerging; there is testimony about them in the RFRA hearings. But the
> problem was very new, and still small.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [
> lederman.ma...@gmail.com]
> *Sent:* Monday, March 28, 2016 9:10 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
> "under pre-Smith jurisprudence, a federal mandate on the topic of
> contraception would not have been dreamed of either"
>
> I don't know what this means.  What does Free Exercise jurisprudence have
> to do with whether Congress requires health insurance plans to include
> preventive services?
>
> On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley  
> > wrote:
>
>> Marty makes a fair point.  But under pre-Smith jurisprudence, a federal
>> mandate on the topic of contraception would not have been dreamed of
>> either.
>>
>>
>> On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman > 
>> > wrote:
>>
>>> As reflected in my recent article and (with
>>> Gordon/Greenawalt/Lupu/Tuttle) amicus brief, I have become convinced that
>>> where RFRA(s) went "wrong" is when advocates and judges started
>>> insisting--mistakenly, in the case of federal RFRA--that it is more
>>> demanding than the pre-*Smith* Free Exercise doctrine.  Under that 
>>> pre-*Smith
>>> *jurisprudence, the contraception and antidiscrimination cases would
>>> not be close calls.  And if the Court were to hold (as it should) that RFRA
>>> does incorporate the pre-*Smith *jurisprudence, and does not go well
>>> beyond that law to impose an "exceptionally demanding" test of the
>>> government (as the Court has suggested in *Boerne *and *HL*), then RFRA
>>> (and state RFRAs) will once again become far more palatable to a much
>>> broader coalition.  But of course, as Doug notes, if there's no prospect of
>>> prevailing in the contraception and discrimination cases, then there won't
>>> be much impetus for new RFRAs on the right.
>>>
>>>
___
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RE: Arizona, Indiana . . . and now Georgia

[Scarberry, Mark]

I also wonder how Marty thinks Smith itself should have been decided under 
pre-Smith law. Under that law, did the Native Americans have the right to 
engage in their religious ritual? Or perhaps Justice O'Connor was right that 
there was a compelling interest in preventing them from doing so? A version of 
pre-Smith law that would have yielded the same result as in Smith might not 
have been the version that was in the minds of the drafters of RFRA.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Monday, March 28, 2016 6:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: Arizona, Indiana . . . and now Georgia

I think he means that 25 and more years ago (which just happens to be 
pre-Smith), it would have been politically unimaginable for government to 
require Catholic or Protestant religious institutions to do things that violate 
some of their core moral teachings. Those conflicts were just emerging; there 
is testimony about them in the RFRA hearings. But the problem was very new, and 
still small.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Monday, March 28, 2016 9:10 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia
"under pre-Smith jurisprudence, a federal mandate on the topic of contraception 
would not have been dreamed of either"

I don't know what this means.  What does Free Exercise jurisprudence have to do 
with whether Congress requires health insurance plans to include preventive 
services?

On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley 
>
 wrote:
Marty makes a fair point.  But under pre-Smith jurisprudence, a federal mandate 
on the topic of contraception would not have been dreamed of either.

On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman 
>
 wrote:
As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle) 
amicus brief, I have become convinced that where RFRA(s) went "wrong" is when 
advocates and judges started insisting--mistakenly, in the case of federal 
RFRA--that it is more demanding than the pre-Smith Free Exercise doctrine.  
Under that pre-Smith jurisprudence, the contraception and antidiscrimination 
cases would not be close calls.  And if the Court were to hold (as it should) 
that RFRA does incorporate the pre-Smith jurisprudence, and does not go well 
beyond that law to impose an "exceptionally demanding" test of the government 
(as the Court has suggested in Boerne and HL), then RFRA (and state RFRAs) will 
once again become far more palatable to a much broader coalition.  But of 
course, as Doug notes, if there's no prospect of prevailing in the 
contraception and discrimination cases, then there won't be much impetus for 
new RFRAs on the right.

On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) 
>
 wrote:
The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened.

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat 

RE: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

I think he means that 25 and more years ago (which just happens to be 
pre-Smith), it would have been politically unimaginable for government to 
require Catholic or Protestant religious institutions to do things that violate 
some of their core moral teachings. Those conflicts were just emerging; there 
is testimony about them in the RFRA hearings. But the problem was very new, and 
still small.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Monday, March 28, 2016 9:10 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

"under pre-Smith jurisprudence, a federal mandate on the topic of contraception 
would not have been dreamed of either"

I don't know what this means.  What does Free Exercise jurisprudence have to do 
with whether Congress requires health insurance plans to include preventive 
services?

On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley 
>
 wrote:
Marty makes a fair point.  But under pre-Smith jurisprudence, a federal mandate 
on the topic of contraception would not have been dreamed of either.


On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman 
>
 wrote:
As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle) 
amicus brief, I have become convinced that where RFRA(s) went "wrong" is when 
advocates and judges started insisting--mistakenly, in the case of federal 
RFRA--that it is more demanding than the pre-Smith Free Exercise doctrine.  
Under that pre-Smith jurisprudence, the contraception and antidiscrimination 
cases would not be close calls.  And if the Court were to hold (as it should) 
that RFRA does incorporate the pre-Smith jurisprudence, and does not go well 
beyond that law to impose an "exceptionally demanding" test of the government 
(as the Court has suggested in Boerne and HL), then RFRA (and state RFRAs) will 
once again become far more palatable to a much broader coalition.  But of 
course, as Doug notes, if there's no prospect of prevailing in the 
contraception and discrimination cases, then there won't be much impetus for 
new RFRAs on the right.

On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) 
>
 wrote:
The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened.

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 
Witness, She needed a bloodless liver transplant. It was available in Omaha. It 
was even cheaper than a Kansas transplant with blood transfusions. But Kansas 
Medicaid doesn't pay for out of state medical care. Neutral and generally 
applicable rule. Kansas argued that the state constitution should be 
interpreted to mean Smith. By the time she won that lawsuit on appeal, her 
medical condition had deteriorated to where she was no longer eligible for a 
transplant. Stinemetz v. Kansas Health Policy 

Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

"under pre-Smith jurisprudence, a federal mandate on the topic of
contraception would not have been dreamed of either"

I don't know what this means.  What does Free Exercise jurisprudence have
to do with whether Congress requires health insurance plans to include
preventive services?

On Mon, Mar 28, 2016 at 9:02 PM, Michael Worley  wrote:

> Marty makes a fair point.  But under pre-Smith jurisprudence, a federal
> mandate on the topic of contraception would not have been dreamed of
> either.
>
>
> On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman 
> wrote:
>
>> As reflected in my recent article and (with
>> Gordon/Greenawalt/Lupu/Tuttle) amicus brief, I have become convinced that
>> where RFRA(s) went "wrong" is when advocates and judges started
>> insisting--mistakenly, in the case of federal RFRA--that it is more
>> demanding than the pre-*Smith* Free Exercise doctrine.  Under that pre-*Smith
>> *jurisprudence, the contraception and antidiscrimination cases would not
>> be close calls.  And if the Court were to hold (as it should) that RFRA
>> does incorporate the pre-*Smith *jurisprudence, and does not go well
>> beyond that law to impose an "exceptionally demanding" test of the
>> government (as the Court has suggested in *Boerne *and *HL*), then RFRA
>> (and state RFRAs) will once again become far more palatable to a much
>> broader coalition.  But of course, as Doug notes, if there's no prospect of
>> prevailing in the contraception and discrimination cases, then there won't
>> be much impetus for new RFRAs on the right.
>>
>> On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> The cases of the sort Michael describes (and that Chris Lund has
>>> described in public work) are still out there; they still happen. And the
>>> cases Paul Finkelman imagines, in which state RFRAs justify all kinds of
>>> discrimination against gays, are not out there. They have not happened.
>>>
>>> But gay rights and contraception are getting all the political and press
>>> attention. Both sides are to blame. Republican legislators who are only now
>>> getting around to enacting RFRAs didn't care about the generally small
>>> religious minorities in the cases that don't raise culture war issues. They
>>> and their predecessors weren't motivated to pass a RFRA back when all the
>>> other states were. They don't talk about those cases now, not because they
>>> aren't happening, but because they don't know about them and apparently
>>> wouldn't care if they knew. So they promise their base things about
>>> marriage equality that they can't possibly deliver. At the Republican
>>> debate in Houston, a reporter asked a long series of questions about
>>> religious liberty, and all he got from the candidates was gays and
>>> contraception. That's the only religious liberty issue they know about it.
>>>
>>> And then the other side plays off this rhetoric, and imagines horror
>>> stories with no basis in experience, and some that are beyond imagining.
>>> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels
>>> very much like a prelude to another Kristallnacht." Both real "arguments"
>>> that got reported in the press as though they were serious.
>>>
>>> If anyone needs a narrative about why RFRAs are still needed, just
>>> consider the Kansas woman who died for her faith for lack of a state RFRA.
>>> She was Jehovah's Witness, She needed a bloodless liver transplant. It was
>>> available in Omaha. It was even cheaper than a Kansas transplant with blood
>>> transfusions. But Kansas Medicaid doesn't pay for out of state medical
>>> care. Neutral and generally applicable rule. Kansas argued that the state
>>> constitution should be interpreted to mean Smith. By the time she won that
>>> lawsuit on appeal, her medical condition had deteriorated to where she was
>>> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy
>>> Authority, 252 P.3d 141 (Kan. Ct. App. 2011).
>>>
>>> Douglas Laycock
>>> Robert E. Scott Distinguished Professor of Law
>>> University of Virginia
>>> 580 Massie Road
>>> Charlottesville, VA 22903
>>> 434-243-8546
>>>
>>> 
>>> From: religionlaw-boun...@lists.ucla.edu [
>>> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [
>>> mich...@californialaw.org]
>>> Sent: Monday, March 28, 2016 7:01 PM
>>> To: Law & Religion issues for Law Academics
>>> Subject: Re: Arizona, Indiana . . . and now Georgia
>>>
>>> Unfortunately, for many, the entire spectrum of "religious liberty" in
>>> the United States appears to revolve around LGBT rights. That may, in
>>> fact, be the case for religious "majorities" who are not otherwise
>>> adversely affected by facially neutral state laws that infringe upon
>>> their religious practices and who cry "persecution!" at the slightest
>>> provocation.
>>>
>>> But going back to the original Smith case where 

Re: Arizona, Indiana . . . and now Georgia

[Michael Worley]

Marty makes a fair point.  But under pre-Smith jurisprudence, a federal
mandate on the topic of contraception would not have been dreamed of
either.


On Mon, Mar 28, 2016 at 6:51 PM, Marty Lederman 
wrote:

> As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle)
> amicus brief, I have become convinced that where RFRA(s) went "wrong" is
> when advocates and judges started insisting--mistakenly, in the case of
> federal RFRA--that it is more demanding than the pre-*Smith* Free
> Exercise doctrine.  Under that pre-*Smith *jurisprudence, the
> contraception and antidiscrimination cases would not be close calls.  And
> if the Court were to hold (as it should) that RFRA does incorporate the 
> pre-*Smith
> *jurisprudence, and does not go well beyond that law to impose an
> "exceptionally demanding" test of the government (as the Court has
> suggested in *Boerne *and *HL*), then RFRA (and state RFRAs) will once
> again become far more palatable to a much broader coalition.  But of
> course, as Doug notes, if there's no prospect of prevailing in the
> contraception and discrimination cases, then there won't be much impetus
> for new RFRAs on the right.
>
> On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) <
> hd...@virginia.edu> wrote:
>
>> The cases of the sort Michael describes (and that Chris Lund has
>> described in public work) are still out there; they still happen. And the
>> cases Paul Finkelman imagines, in which state RFRAs justify all kinds of
>> discrimination against gays, are not out there. They have not happened.
>>
>> But gay rights and contraception are getting all the political and press
>> attention. Both sides are to blame. Republican legislators who are only now
>> getting around to enacting RFRAs didn't care about the generally small
>> religious minorities in the cases that don't raise culture war issues. They
>> and their predecessors weren't motivated to pass a RFRA back when all the
>> other states were. They don't talk about those cases now, not because they
>> aren't happening, but because they don't know about them and apparently
>> wouldn't care if they knew. So they promise their base things about
>> marriage equality that they can't possibly deliver. At the Republican
>> debate in Houston, a reporter asked a long series of questions about
>> religious liberty, and all he got from the candidates was gays and
>> contraception. That's the only religious liberty issue they know about it.
>>
>> And then the other side plays off this rhetoric, and imagines horror
>> stories with no basis in experience, and some that are beyond imagining.
>> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels
>> very much like a prelude to another Kristallnacht." Both real "arguments"
>> that got reported in the press as though they were serious.
>>
>> If anyone needs a narrative about why RFRAs are still needed, just
>> consider the Kansas woman who died for her faith for lack of a state RFRA.
>> She was Jehovah's Witness, She needed a bloodless liver transplant. It was
>> available in Omaha. It was even cheaper than a Kansas transplant with blood
>> transfusions. But Kansas Medicaid doesn't pay for out of state medical
>> care. Neutral and generally applicable rule. Kansas argued that the state
>> constitution should be interpreted to mean Smith. By the time she won that
>> lawsuit on appeal, her medical condition had deteriorated to where she was
>> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy
>> Authority, 252 P.3d 141 (Kan. Ct. App. 2011).
>>
>> Douglas Laycock
>> Robert E. Scott Distinguished Professor of Law
>> University of Virginia
>> 580 Massie Road
>> Charlottesville, VA 22903
>> 434-243-8546
>>
>> 
>> From: religionlaw-boun...@lists.ucla.edu [
>> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [
>> mich...@californialaw.org]
>> Sent: Monday, March 28, 2016 7:01 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Arizona, Indiana . . . and now Georgia
>>
>> Unfortunately, for many, the entire spectrum of "religious liberty" in
>> the United States appears to revolve around LGBT rights. That may, in
>> fact, be the case for religious "majorities" who are not otherwise
>> adversely affected by facially neutral state laws that infringe upon
>> their religious practices and who cry "persecution!" at the slightest
>> provocation.
>>
>> But going back to the original Smith case where members of a native
>> American group were denied their unemployment benefits because of
>> peyote use, the people who could really benefit from state RFRAs
>> aren't just visible on the surface but are the minorities whose
>> situations need to be "teased out" from between the social cracks.
>>
>> Certainly Antonin Scalia, lauded for his "conservative" credentials,
>> is often forgotten in his role of drafting the Smith decision in the
>> first 

Re: Arizona, Indiana . . . and now Georgia

[Marty Lederman]

As reflected in my recent article and (with Gordon/Greenawalt/Lupu/Tuttle)
amicus brief, I have become convinced that where RFRA(s) went "wrong" is
when advocates and judges started insisting--mistakenly, in the case of
federal RFRA--that it is more demanding than the pre-*Smith* Free Exercise
doctrine.  Under that pre-*Smith *jurisprudence, the contraception and
antidiscrimination cases would not be close calls.  And if the Court were
to hold (as it should) that RFRA does incorporate the pre-*Smith
*jurisprudence,
and does not go well beyond that law to impose an "exceptionally demanding"
test of the government (as the Court has suggested in *Boerne *and *HL*),
then RFRA (and state RFRAs) will once again become far more palatable to a
much broader coalition.  But of course, as Doug notes, if there's no
prospect of prevailing in the contraception and discrimination cases, then
there won't be much impetus for new RFRAs on the right.

On Mon, Mar 28, 2016 at 8:32 PM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> The cases of the sort Michael describes (and that Chris Lund has described
> in public work) are still out there; they still happen. And the cases Paul
> Finkelman imagines, in which state RFRAs justify all kinds of
> discrimination against gays, are not out there. They have not happened.
>
> But gay rights and contraception are getting all the political and press
> attention. Both sides are to blame. Republican legislators who are only now
> getting around to enacting RFRAs didn't care about the generally small
> religious minorities in the cases that don't raise culture war issues. They
> and their predecessors weren't motivated to pass a RFRA back when all the
> other states were. They don't talk about those cases now, not because they
> aren't happening, but because they don't know about them and apparently
> wouldn't care if they knew. So they promise their base things about
> marriage equality that they can't possibly deliver. At the Republican
> debate in Houston, a reporter asked a long series of questions about
> religious liberty, and all he got from the candidates was gays and
> contraception. That's the only religious liberty issue they know about it.
>
> And then the other side plays off this rhetoric, and imagines horror
> stories with no basis in experience, and some that are beyond imagining.
> Emergency med techs could refuse to treat gays! The Indiana RFRA "feels
> very much like a prelude to another Kristallnacht." Both real "arguments"
> that got reported in the press as though they were serious.
>
> If anyone needs a narrative about why RFRAs are still needed, just
> consider the Kansas woman who died for her faith for lack of a state RFRA.
> She was Jehovah's Witness, She needed a bloodless liver transplant. It was
> available in Omaha. It was even cheaper than a Kansas transplant with blood
> transfusions. But Kansas Medicaid doesn't pay for out of state medical
> care. Neutral and generally applicable rule. Kansas argued that the state
> constitution should be interpreted to mean Smith. By the time she won that
> lawsuit on appeal, her medical condition had deteriorated to where she was
> no longer eligible for a transplant. Stinemetz v. Kansas Health Policy
> Authority, 252 P.3d 141 (Kan. Ct. App. 2011).
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
>
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody [
> mich...@californialaw.org]
> Sent: Monday, March 28, 2016 7:01 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Arizona, Indiana . . . and now Georgia
>
> Unfortunately, for many, the entire spectrum of "religious liberty" in
> the United States appears to revolve around LGBT rights. That may, in
> fact, be the case for religious "majorities" who are not otherwise
> adversely affected by facially neutral state laws that infringe upon
> their religious practices and who cry "persecution!" at the slightest
> provocation.
>
> But going back to the original Smith case where members of a native
> American group were denied their unemployment benefits because of
> peyote use, the people who could really benefit from state RFRAs
> aren't just visible on the surface but are the minorities whose
> situations need to be "teased out" from between the social cracks.
>
> Certainly Antonin Scalia, lauded for his "conservative" credentials,
> is often forgotten in his role of drafting the Smith decision in the
> first place, although now it is the conservatives who are on the
> losing end of the latest social/legal developments and who now claim
> to be most in need of RFRA's protections. Nor is it lost that the
> original proponents of RFRA often came from the left, and as Professor
> Brownstein notes, the California RFRA was vetoed by a Republican in

RE: Arizona, Indiana . . . and now Georgia

[Scarberry, Mark]

Doug writes:

"The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened."

If Doug is wrong, I very much would like to know. So I have a few serious 
questions: 

How frequently have people tried to excuse discrimination against gays and 
lesbians by claiming that their religion required them to do so? There are lots 
of states that have RFRAs or state constitutional equivalents; how often have 
state RFRAs or state constitutions been relied upon in this regard?

I know of the New Mexico wedding photographers, a couple of cake bakers, and at 
least one person who did not want to rent out a hall for a same sex ceremony. I 
know of some clerks who refused to issue marriage licenses (which strikes me as 
the most serious of these occurrences). We all know about the Boy Scouts and 
the Dale case, which is still good law, I think, under the U.S. Constitution. 

Are LGBT persons being denied access to restaurants and hotels on the basis of 
a claim of religious freedom? Are they being fired (or not hired) by employers 
other than religious institutions? Are they being denied medical treatment? 

To what degree is such discrimination comparable to the racial discrimination 
faced by African Americans in the 1950s and before (and perhaps in the 1960s 
and later)? 

Are there a lot of cases that involve something other than same-sex weddings or 
commitment ceremonies?

These are not rhetorical questions. I think the answers are important; and 
there may be a lot that I don't know.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Monday, March 28, 2016 5:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Arizona, Indiana . . . and now Georgia

The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened. 

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 
Witness, She needed a bloodless liver transplant. It was available in Omaha. It 
was even cheaper than a Kansas transplant with blood transfusions. But Kansas 
Medicaid doesn't pay for out of state medical care. Neutral and generally 
applicable rule. Kansas argued that the state constitution should be 
interpreted to mean Smith. By the time she won that lawsuit on appeal, her 
medical condition had deteriorated to where she was no longer eligible for a 
transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. 
App. 2011).  

Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

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RE: Arizona, Indiana . . . and now Georgia

[Laycock, H Douglas (hdl5c)]

The cases of the sort Michael describes (and that Chris Lund has described in 
public work) are still out there; they still happen. And the cases Paul 
Finkelman imagines, in which state RFRAs justify all kinds of discrimination 
against gays, are not out there. They have not happened. 

But gay rights and contraception are getting all the political and press 
attention. Both sides are to blame. Republican legislators who are only now 
getting around to enacting RFRAs didn't care about the generally small 
religious minorities in the cases that don't raise culture war issues. They and 
their predecessors weren't motivated to pass a RFRA back when all the other 
states were. They don't talk about those cases now, not because they aren't 
happening, but because they don't know about them and apparently wouldn't care 
if they knew. So they promise their base things about marriage equality that 
they can't possibly deliver. At the Republican debate in Houston, a reporter 
asked a long series of questions about religious liberty, and all he got from 
the candidates was gays and contraception. That's the only religious liberty 
issue they know about it.

And then the other side plays off this rhetoric, and imagines horror stories 
with no basis in experience, and some that are beyond imagining. Emergency med 
techs could refuse to treat gays! The Indiana RFRA "feels very much like a 
prelude to another Kristallnacht." Both real "arguments" that got reported in 
the press as though they were serious.

If anyone needs a narrative about why RFRAs are still needed, just consider the 
Kansas woman who died for her faith for lack of a state RFRA. She was Jehovah's 
Witness, She needed a bloodless liver transplant. It was available in Omaha. It 
was even cheaper than a Kansas transplant with blood transfusions. But Kansas 
Medicaid doesn't pay for out of state medical care. Neutral and generally 
applicable rule. Kansas argued that the state constitution should be 
interpreted to mean Smith. By the time she won that lawsuit on appeal, her 
medical condition had deteriorated to where she was no longer eligible for a 
transplant. Stinemetz v. Kansas Health Policy Authority, 252 P.3d 141 (Kan. Ct. 
App. 2011).  

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [mich...@californialaw.org]
Sent: Monday, March 28, 2016 7:01 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Unfortunately, for many, the entire spectrum of "religious liberty" in
the United States appears to revolve around LGBT rights. That may, in
fact, be the case for religious "majorities" who are not otherwise
adversely affected by facially neutral state laws that infringe upon
their religious practices and who cry "persecution!" at the slightest
provocation.

But going back to the original Smith case where members of a native
American group were denied their unemployment benefits because of
peyote use, the people who could really benefit from state RFRAs
aren't just visible on the surface but are the minorities whose
situations need to be "teased out" from between the social cracks.

Certainly Antonin Scalia, lauded for his "conservative" credentials,
is often forgotten in his role of drafting the Smith decision in the
first place, although now it is the conservatives who are on the
losing end of the latest social/legal developments and who now claim
to be most in need of RFRA's protections. Nor is it lost that the
original proponents of RFRA often came from the left, and as Professor
Brownstein notes, the California RFRA was vetoed by a Republican in
1998.

RFRA exists for religious minorities such as a Sikh teacher in a
public school who wears religious garb as part of who she is, not to
proselytize. It is to protect an Orthodox Jewish person who is forced
by state law to take an exam on Saturday. And yes, it is to protect a
native American who may lose employment benefits because he uses
peyote as part of a religious ritual.

To understand the full value of RFRA, one must look to members of
religious minorities and observe when they are unintentionally
adversely affected by neutral laws. Then an effort must be made to
attempt to to try to accommodate them. These kinds of situations
normally won't make the headlines, but it is at the heart of why RFRA
matters.

Michael Peabody, Esq.
Editor
ReligiousLiberty.TV
http://www.religiousliberty.tv



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Anyone can subscribe to 

State RFRAs and Breyer's balancing test

[Steven Jamar]

Have any state RFRA sought to use a non-strict scrutiny balancing approach 
under which the weight of the interest of the religious exceptionalist, the 
state’s interest, and the employers/public accomodations/etc. interest are 
weighed to assess the  proper outcome?


--
Prof. Steven D. Jamar   
Howard University School of Law 
vox:  202-806-8017  
fax:  202-806-8567
http://sdjlaw.org

"Rarely do we find men who willingly engage in hard, solid thinking. There is 
an almost universal quest for easy answers and half-baked solutions. Nothing 
pains some people more than having to think."

- Martin Luther King Jr., "Strength to Love,” 1963

___
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To subscribe, unsubscribe, change options, or get password, see 
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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: Arizona, Indiana . . . and now Georgia

[Michael Peabody]

Unfortunately, for many, the entire spectrum of "religious liberty" in
the United States appears to revolve around LGBT rights. That may, in
fact, be the case for religious "majorities" who are not otherwise
adversely affected by facially neutral state laws that infringe upon
their religious practices and who cry "persecution!" at the slightest
provocation.

But going back to the original Smith case where members of a native
American group were denied their unemployment benefits because of
peyote use, the people who could really benefit from state RFRAs
aren't just visible on the surface but are the minorities whose
situations need to be "teased out" from between the social cracks.

Certainly Antonin Scalia, lauded for his "conservative" credentials,
is often forgotten in his role of drafting the Smith decision in the
first place, although now it is the conservatives who are on the
losing end of the latest social/legal developments and who now claim
to be most in need of RFRA's protections. Nor is it lost that the
original proponents of RFRA often came from the left, and as Professor
Brownstein notes, the California RFRA was vetoed by a Republican in
1998.

RFRA exists for religious minorities such as a Sikh teacher in a
public school who wears religious garb as part of who she is, not to
proselytize. It is to protect an Orthodox Jewish person who is forced
by state law to take an exam on Saturday. And yes, it is to protect a
native American who may lose employment benefits because he uses
peyote as part of a religious ritual.

To understand the full value of RFRA, one must look to members of
religious minorities and observe when they are unintentionally
adversely affected by neutral laws. Then an effort must be made to
attempt to to try to accommodate them. These kinds of situations
normally won't make the headlines, but it is at the heart of why RFRA
matters.

Michael Peabody, Esq.
Editor
ReligiousLiberty.TV
http://www.religiousliberty.tv






On Mon, Mar 28, 2016 at 2:50 PM, Michael Worley  wrote:
> More than fair comments by Alan.
>
> On Mon, Mar 28, 2016 at 3:43 PM, Alan E Brownstein
>  wrote:
>>
>> My post was descriptive, not normative. In addition to the two cases,
>> Michael mentions there have been several state RFRA cases decided since
>> 2000. Several of Christopher Lund’s articles describe these cases. I see no
>> pattern that provides a narrative to explain those cases. Chris doesn’t
>> either – although I think he believes, as I do, that these laws are useful
>> in ad hoc circumstances to protect religious liberty.
>>
>>
>>
>> Perhaps Michael is suggesting that there doesn’t need to be a narrative
>> identifying real world problems to justify new RFRA laws. I think the
>> narratives I described were very helpful before 2000. Certainly proponents
>> of state RFRA bills back then talked about these issues a lot. And
>> legislators at least acted as if they wanted to understand the problems that
>> needed to be addressed by the proposed law.
>>
>>
>>
>> Maybe a narrative isn’t necessary today and the utility of state RFRA
>> bills should be self-evident. I am struck, however, by the difficulty state
>> proponents of these laws seem to experience in explaining why these laws are
>> so important if their goal is not to permit discrimination against the LGBT
>> community. I have not heard anyone argue that the reason for a state RFRA is
>> that the state needs to replicate O Centro and Hobby Lobby at the state
>> level.
>>
>>
>>
>> I think state RFRA bills are defensible, although I would exclude civil
>> rights laws from their coverage and try to deal with possible exemptions
>> from such laws through separate legislation. I am far less confident that I
>> can provide a justification for my views that would be adopted by
>> legislators or persuasive to voters.  To do that – particularly when
>> concerns about LGBT discrimination  are so obvious and salient – may require
>> a real world narrative.
>>
>>
>>
>> Alan
>>
>>
>>
>> From: religionlaw-boun...@lists.ucla.edu
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
>> Sent: Monday, March 28, 2016 1:58 PM
>>
>>
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Arizona, Indiana . . . and now Georgia
>>
>>
>>
>> Well, we've had two major RFRA cases-- O Centro and Hobby Lobby-- since
>> 2000; surely replicating those victories for state claimants does not
>> reflect a focus on LGBT issues.  likewise, pre-2000 RFRA cases at the state
>> court level could likewise be used, even if it is true that no such cases
>> have emerged post-2000.
>>
>> I'm not suggesting every state RFRA should be designed to follow how past
>> RFRAs have been applied, but such broad and formerly almost universally
>> praised legislation should be defensible without discussing a relatively
>> narrow aspect of it as the bill's reason for being.
>>
>>
>>
>> On Mon, Mar 28, 2016 at 2:34 PM, Alan E 

Churches at public schools

[Brunson, Samuel]

While picking our daughter up from her public school today, my wife saw an 
enormous sign (my guess? 8 feet by 8 feet at least) that said "Easter at People 
Chicago. New Services 9:30 am and 11:15 am." It's on a super-prominent corner 
(like, 90 percent of kids going to school are going to pass it), and it raised 
a couple questions for me. I know that churches can rent space at public 
schools (heck, mine does while we wait for our new building to be built), and, 
given the budgeting mess that Chicago and Illinois impose on public schools, I 
don't even remotely begrudge them making money where they can.

But the big Easter services sign on the lawn in front of the school strikes me 
as constitutionally suspect. Maybe it's totally unobjectionable 
constitutionally. But if it is objectionable, are there any specific situations 
in which it wouldn't be? I thought about three possible hypotheticals:

(1) The church puts the sign up on Easter Sunday, right before services, and 
takes it down immediately after (and clearly, kids aren't going to school on 
Easter Sunday).

(2) The church puts the sign up either on Good Friday (Chicago Public Schools 
were off that day) or on Saturday (when kids aren't required to be at school). 
They take it down after services.

(3) They put it up whenever, but forget to take it down, so it's still there on 
Monday when kids are required to be back in school.

Ultimately, this is an academic question for me. Unless you think there's a 
really serious problem, in which case I may give a head's-up to the principal 
(because really, my daughter's school is grossly underfunded and doesn't need 
that to be compounded by dealing with a lawsuit).



___
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: Arizona, Indiana . . . and now Georgia

[Michael Worley]

More than fair comments by Alan.

On Mon, Mar 28, 2016 at 3:43 PM, Alan E Brownstein  wrote:

> My post was descriptive, not normative. In addition to the two cases,
> Michael mentions there have been several state RFRA cases decided since
> 2000. Several of Christopher Lund’s articles describe these cases. I see no
> pattern that provides a narrative to explain those cases. Chris doesn’t
> either – although I think he believes, as I do, that these laws are useful
> in ad hoc circumstances to protect religious liberty.
>
>
>
> Perhaps Michael is suggesting that there doesn’t need to be a narrative
> identifying real world problems to justify new RFRA laws. I think the
> narratives I described were very helpful before 2000. Certainly proponents
> of state RFRA bills back then talked about these issues a lot. And
> legislators at least acted as if they wanted to understand the problems
> that needed to be addressed by the proposed law.
>
>
>
> Maybe a narrative isn’t necessary today and the utility of state RFRA
> bills should be self-evident. I am struck, however, by the difficulty state
> proponents of these laws seem to experience in explaining why these laws
> are so important if their goal is not to permit discrimination against the
> LGBT community. I have not heard anyone argue that the reason for a state
> RFRA is that the state needs to replicate *O Centro* and *Hobby Lobby* at
> the state level.
>
>
>
> I think state RFRA bills are defensible, although I would exclude civil
> rights laws from their coverage and try to deal with possible exemptions
> from such laws through separate legislation. I am far less confident that I
> can provide a justification for my views that would be adopted by
> legislators or persuasive to voters.  To do that – particularly when
> concerns about LGBT discrimination  are so obvious and salient – may
> require a real world narrative.
>
>
>
> Alan
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Monday, March 28, 2016 1:58 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
>
>
> Well, we've had two major RFRA cases-- *O Centro* and * Hobby Lobby*--
> since 2000; surely replicating those victories for state claimants does not
> reflect a focus on LGBT issues.  likewise, pre-2000 RFRA cases at the state
> court level could likewise be used, even if it is true that no such cases
> have emerged post-2000.
>
> I'm not suggesting every state RFRA should be designed to follow how past
> RFRAs have been applied, but such broad and formerly almost universally
> praised legislation should be defensible without discussing a relatively
> narrow aspect of it as the bill's reason for being.
>
>
>
> On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein <
> aebrownst...@ucdavis.edu> wrote:
>
> Based purely on anecdotal information, I think this issue is based more on
> timing than on legislative history. I worked on the attempt to get a state
> RFRA passed in California in 1998. The bill passed both houses of the
> legislature -- controlled by the Democrats -- only to be vetoed by the
> Republican governor.
>
>
>
> While proponents of the bill made the basic abstract arguments in favor of
> the bill – explaining why free exercise rights should apply against neutral
> laws of general applicability – the two narratives which were most salient
> and which seemed most persuasive involved land use regulation problems and
> the difficulties houses of worship experienced in the zoning process and
> the problems experienced by inmates trying to practice  their faith in
> prison.
>
>
>
> With the passage of RLUIPA in 2000, both of these narratives have been
> taken off the table. As far as I know there is no pattern of state RFRA
> cases or religious liberty disputes supporting an alternative narrative to
> justify new state RFRA laws since 2000 other than those involving
> discrimination against the LGBT community. That is why proponents of new
> RFRA bills see, e.g. the Governor of Indiana, seem so befuddled when they
> are asked to explain the problems the law is supposed to solve – if it
> isn’t designed to accommodate religious objectors to same-sex marriage or
> other LGBT rights.
>
>
>
> Alan Brownstein
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Monday, March 28, 2016 12:26 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
>
>
> Question for list members:
>
>
>
> What language and/or legislative history would you look for in a bill that
> has in order to consider it having the same intent as the original RFRA,
> and other state RFRAs that were passed absent the LGBT controversy now
> present?
>
>
>
> On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 

RE: Arizona, Indiana . . . and now Georgia

[Alan E Brownstein]

My post was descriptive, not normative. In addition to the two cases, Michael 
mentions there have been several state RFRA cases decided since 2000. Several 
of Christopher Lund’s articles describe these cases. I see no pattern that 
provides a narrative to explain those cases. Chris doesn’t either – although I 
think he believes, as I do, that these laws are useful in ad hoc circumstances 
to protect religious liberty.

Perhaps Michael is suggesting that there doesn’t need to be a narrative 
identifying real world problems to justify new RFRA laws. I think the 
narratives I described were very helpful before 2000. Certainly proponents of 
state RFRA bills back then talked about these issues a lot. And legislators at 
least acted as if they wanted to understand the problems that needed to be 
addressed by the proposed law.

Maybe a narrative isn’t necessary today and the utility of state RFRA bills 
should be self-evident. I am struck, however, by the difficulty state 
proponents of these laws seem to experience in explaining why these laws are so 
important if their goal is not to permit discrimination against the LGBT 
community. I have not heard anyone argue that the reason for a state RFRA is 
that the state needs to replicate O Centro and Hobby Lobby at the state level.

I think state RFRA bills are defensible, although I would exclude civil rights 
laws from their coverage and try to deal with possible exemptions from such 
laws through separate legislation. I am far less confident that I can provide a 
justification for my views that would be adopted by legislators or persuasive 
to voters.  To do that – particularly when concerns about LGBT discrimination  
are so obvious and salient – may require a real world narrative.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 1:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Well, we've had two major RFRA cases-- O Centro and Hobby Lobby-- since 2000; 
surely replicating those victories for state claimants does not reflect a focus 
on LGBT issues.  likewise, pre-2000 RFRA cases at the state court level could 
likewise be used, even if it is true that no such cases have emerged post-2000.

I'm not suggesting every state RFRA should be designed to follow how past RFRAs 
have been applied, but such broad and formerly almost universally praised 
legislation should be defensible without discussing a relatively narrow aspect 
of it as the bill's reason for being.

On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein 
> wrote:
Based purely on anecdotal information, I think this issue is based more on 
timing than on legislative history. I worked on the attempt to get a state RFRA 
passed in California in 1998. The bill passed both houses of the legislature -- 
controlled by the Democrats -- only to be vetoed by the Republican governor.

While proponents of the bill made the basic abstract arguments in favor of the 
bill – explaining why free exercise rights should apply against neutral laws of 
general applicability – the two narratives which were most salient and which 
seemed most persuasive involved land use regulation problems and the 
difficulties houses of worship experienced in the zoning process and the 
problems experienced by inmates trying to practice  their faith in prison.

With the passage of RLUIPA in 2000, both of these narratives have been taken 
off the table. As far as I know there is no pattern of state RFRA cases or 
religious liberty disputes supporting an alternative narrative to justify new 
state RFRA laws since 2000 other than those involving discrimination against 
the LGBT community. That is why proponents of new RFRA bills see, e.g. the 
Governor of Indiana, seem so befuddled when they are asked to explain the 
problems the law is supposed to solve – if it isn’t designed to accommodate 
religious objectors to same-sex marriage or other LGBT rights.

Alan Brownstein

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 12:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Question for list members:

What language and/or legislative history would you look for in a bill that has 
in order to consider it having the same intent as the original RFRA, and other 
state RFRAs that were passed absent the LGBT controversy now present?

On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
> wrote:
https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.legis.ga.gov/Legislation/20152016/161054.pdf

Re: Arizona, Indiana . . . and now Georgia

[Michael Worley]

Well, we've had two major RFRA cases-- *O Centro* and *Hobby Lobby*-- since
2000; surely replicating those victories for state claimants does not
reflect a focus on LGBT issues.  likewise, pre-2000 RFRA cases at the state
court level could likewise be used, even if it is true that no such cases
have emerged post-2000.

I'm not suggesting every state RFRA should be designed to follow how past
RFRAs have been applied, but such broad and formerly almost universally
praised legislation should be defensible without discussing a relatively
narrow aspect of it as the bill's reason for being.

On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein  wrote:

> Based purely on anecdotal information, I think this issue is based more on
> timing than on legislative history. I worked on the attempt to get a state
> RFRA passed in California in 1998. The bill passed both houses of the
> legislature -- controlled by the Democrats -- only to be vetoed by the
> Republican governor.
>
>
>
> While proponents of the bill made the basic abstract arguments in favor of
> the bill – explaining why free exercise rights should apply against neutral
> laws of general applicability – the two narratives which were most salient
> and which seemed most persuasive involved land use regulation problems and
> the difficulties houses of worship experienced in the zoning process and
> the problems experienced by inmates trying to practice  their faith in
> prison.
>
>
>
> With the passage of RLUIPA in 2000, both of these narratives have been
> taken off the table. As far as I know there is no pattern of state RFRA
> cases or religious liberty disputes supporting an alternative narrative to
> justify new state RFRA laws since 2000 other than those involving
> discrimination against the LGBT community. That is why proponents of new
> RFRA bills see, e.g. the Governor of Indiana, seem so befuddled when they
> are asked to explain the problems the law is supposed to solve – if it
> isn’t designed to accommodate religious objectors to same-sex marriage or
> other LGBT rights.
>
>
>
> Alan Brownstein
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley
> *Sent:* Monday, March 28, 2016 12:26 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Arizona, Indiana . . . and now Georgia
>
>
>
> Question for list members:
>
>
>
> What language and/or legislative history would you look for in a bill that
> has in order to consider it having the same intent as the original RFRA,
> and other state RFRAs that were passed absent the LGBT controversy now
> present?
>
>
>
> On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
> wrote:
>
>
> https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0
>
>
>
> The bill:
>
>
>
> http://www.legis.ga.gov/Legislation/20152016/161054.pdf
>
>
> ___
> 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.
>
>
>
>
>
> --
>
> Michael Worley
>
> J.D., Brigham Young University
>
> ___
> 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.
>



-- 
Michael Worley
J.D., Brigham Young University
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RE: Arizona, Indiana . . . and now Georgia

[Alan E Brownstein]

Based purely on anecdotal information, I think this issue is based more on 
timing than on legislative history. I worked on the attempt to get a state RFRA 
passed in California in 1998. The bill passed both houses of the legislature -- 
controlled by the Democrats -- only to be vetoed by the Republican governor.

While proponents of the bill made the basic abstract arguments in favor of the 
bill – explaining why free exercise rights should apply against neutral laws of 
general applicability – the two narratives which were most salient and which 
seemed most persuasive involved land use regulation problems and the 
difficulties houses of worship experienced in the zoning process and the 
problems experienced by inmates trying to practice  their faith in prison.

With the passage of RLUIPA in 2000, both of these narratives have been taken 
off the table. As far as I know there is no pattern of state RFRA cases or 
religious liberty disputes supporting an alternative narrative to justify new 
state RFRA laws since 2000 other than those involving discrimination against 
the LGBT community. That is why proponents of new RFRA bills see, e.g. the 
Governor of Indiana, seem so befuddled when they are asked to explain the 
problems the law is supposed to solve – if it isn’t designed to accommodate 
religious objectors to same-sex marriage or other LGBT rights.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Monday, March 28, 2016 12:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: Arizona, Indiana . . . and now Georgia

Question for list members:

What language and/or legislative history would you look for in a bill that has 
in order to consider it having the same intent as the original RFRA, and other 
state RFRAs that were passed absent the LGBT controversy now present?

On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
> wrote:
https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.legis.ga.gov/Legislation/20152016/161054.pdf

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--
Michael Worley
J.D., Brigham Young University
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Re: Arizona, Indiana . . . and now Georgia

[Michael Worley]

Question for list members:

What language and/or legislative history would you look for in a bill that
has in order to consider it having the same intent as the original RFRA,
and other state RFRAs that were passed absent the LGBT controversy now
present?

On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman 
wrote:

>
> https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0
>
> The bill:
>
> http://www.legis.ga.gov/Legislation/20152016/161054.pdf
>
> ___
> 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.
>



-- 
Michael Worley
J.D., Brigham Young University
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Arizona, Indiana . . . and now Georgia

[Marty Lederman]

https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0

The bill:

http://www.legis.ga.gov/Legislation/20152016/161054.pdf
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