RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

I agree with Sandy, at least to this extent:  defining religion is increasingly 
problematic, but as long as religion carries distinctive constitutional or 
legal significance, it requires some sort of constitutional or legal definition 
– perhaps explicitly stated, perhaps implicitly understood.  One response to 
the definitional problem is to reduce or eliminate religion’s distinctive 
constitutional/legal status; we’ve had some movement in that direction, and 
some argue that there should be more.  Another response to the definitional 
issue is to engage in a context-specific approach that includes a measure of 
analogical reasoning, as Kent Greenawalt has proposed.  See Kent Greenawalt, 
Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984).

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Tuesday, June 28, 2016 12:04 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. Petition Filed in Pharmacy Free Exercise Case

Does anyone seriously believe that the Supreme Court is capable of offering a 
“constitutional definition of religion” that would not instantly be ridiculed 
by a variety of academic students of religion (whether theologicans, 
philosophers, historians, anthropologists, or sociologists), not to mention 
ordinary persons who would be excluded as “religious” by whatever the Court 
said (unless, of course, the Court went the Tillichian route of describing as 
“religious” anyone who professed to have some “ultimate concern,” whatever it 
was and whatever form it took?  I agree that the language of the Constitution, 
for better and worse, forces lawyers to address its meaning.  That’s not the 
question.  It is whether (and under what circumstances) the audience would take 
the Court’s answer as truly dispositive.  Cf. the plurality opinion in Casey in 
which the country was told that it should simply accept, without further ado, 
whatever the Court said about abortion.

sandy



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Tuesday, June 28, 2016 10:52 AM
To: 'Law & Religion issues for Law Academics' 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Cert. Petition Filed in Pharmacy Free Exercise Case

I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>





From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 11:44 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Seeger provides a definition of "religion" for a particular statute.  I don't 
think there's any dispute that the FEC -- and Lukumi -- adopts a narrower view 
of what constitutes "religion."

On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:
With respect to the issue of religious as opposed to other moral and ethical 
objections:

Does it matter for purposes of the Lukumi analysis whether religious exercise, 
as protected by the Free Exercise Clause, is defined narrowly and traditionally 
or, instead, is defined broadly enough to include the exercise of moral and 
ethical beliefs that are comparable to traditionally religious beliefs?  Cf. 
Seeger.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331<tel:%28812%29%20855-4331>
fax (812) 855-0555<tel:%28812%29%20855-0555>
e-mail con...@indiana.edu<mailto:con...@indiana.edu>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religi

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

Yes, but Seeger and Welsh both were influenced by constitutional 
considerations, including the risk that a narrow statutory definition, limiting 
the statute to conventional religion, would render the statute 
unconstitutionally sectarian under the religion clauses, a constitutional claim 
that makes sense only if a broad constitutional definition of religion is 
assumed.  On the other hand, yes, there is the language of Yoder and Fraser, 
and it’s more recent.  And then again, there is the citation to Seeger that 
Eugene highlights.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

Once again, Welsh, like Seeger, was construing a statute, not the FEC.

Sent from my iPhone

On Jun 28, 2016, at 12:18 PM, Christopher Lund 
<l...@wayne.edu<mailto:l...@wayne.edu>> wrote:
Isn’t the simple answer that there’s tension between Yoder/Frazee and Welsh?  
That’s how I’ve always taught it.  Burger wrote Yoder; White wrote Frazee; but 
both of them dissented in Welsh.

This seems a pretty open question to me.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, June 28, 2016 12:08 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

From Frazee:

There is no doubt that “[o]nly beliefs rooted in religion are protected by the 
Free Exercise Clause,” Thomas, supra, 450 U.S., at 713, 101 S.Ct., at 
1430.<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1981114889=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=co_pp_sp_708_1430=document=DocumentItem=(sc.Search)#co_pp_sp_708_1430>
 Purely secular views do not suffice. United States v. Seeger, 380 U.S. 163, 85 
S.Ct. 850, 13 L.Ed.2d 733 
(1965)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1965125037=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=document=DocumentItem=(sc.Search)>;Wisconsin
 v. Yoder, 406 U.S. 205, 215-216, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 
(1972)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1972127114=708=Ic1e2d2da9c1e11d991d0cc6b54f12d4d=RP=co_pp_sp_708_1533=document=DocumentItem=(sc.Search)#co_pp_sp_708_1533>.

From Yoder:

[T]o have the protection of the Religion Clauses, the claims must be rooted in 
religious belief. Although a determination of what is a ‘religious' belief or 
practice entitled to constitutional protection may present a most delicate 
question,6<https://1.next.westlaw.com/Link/Document/FullText?findType=Y=1972127114=708=Ic1dba6f29c1e11d991d0cc6b54f12d4d=RP=document=DocumentItem=(sc.DocLink)#co_footnote_B00761972127114>
 the very concept of ordered liberty precludes allowing every person to make 
his own standards on matters of conduct in which society as a whole has 
important interests. Thus, if the Amish asserted their claims because of their 
subjective evaluation and rejection of the contemporary secular values accepted 
by the majority, much as Thoreau rejected the social values of his time and 
isolated himself at Walden Pond, their claims would not rest on a religious 
basis. Thoreau's choice was philosophical and personal rather than religious, 
and such belief does not rise to the demands of the Religion Clauses.

On Tue, Jun 28, 2016 at 11:52 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:
I don’t think this is obviously so, Marty.  Lukumi didn’t present this question 
because a narrow sense of religion was clearly at issue.  I think the 
constitutional definition of religion remains an open question, and the 
resolution of that question could bear on the proper application of the Lukumi 
analysis as to deliberate targeting as well as general applicability.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331<tel:%28812%29%20855-4331>
fax (812) 855-0555<tel:%28812%29%20855-0555>
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behal

RE: Cert. Petition Filed in Pharmacy Free Exercise Case

[Conkle, Daniel O.]

With respect to the issue of religious as opposed to other moral and ethical 
objections:

Does it matter for purposes of the Lukumi analysis whether religious exercise, 
as protected by the Free Exercise Clause, is defined narrowly and traditionally 
or, instead, is defined broadly enough to include the exercise of moral and 
ethical beliefs that are comparable to traditionally religious beliefs?  Cf. 
Seeger.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, June 28, 2016 11:25 AM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. Petition Filed in Pharmacy Free Exercise Case

The bulk of Justice Alito's dissent focuses on the argument Stormans made at 
the beginning of its cert petition in support of summary reversal: the pharmacy 
regulations amount to religious targeting akin to the targeting in Lukumi. 
(Marty notes below the central problem with this argument: the regulations 
actually cover all moral and ethical objections, not just religious objections. 
Thus, the pharmacy owner who has secular ethical objections to carrying drugs 
tested on animals or produced in countries with records of human rights abuses 
is no more entitled to an exemption under the regulations than are the owners 
of Stormans.)

Notwithstanding the dissent's primary focus on the religious-targeting 
argument, there is one section of the dissent (III.B) indicating how the three 
dissenting justices might come down on the broader "selective-exemption" issue 
that has split the circuits: whether, in the absence of a religious targeting, 
the inclusion of one or more secular exemptions in a law triggers a 
constitutional requirement that religious exemptions be made when requested. 
Section III.B. of the dissent indicates that three justices believe the answer 
is "yes" if the religious exemptions would not undermine the state's interest 
in the law more than the existing exemptions.

- Jim


On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman 
> wrote:
This case is very confused, and complicated, as a factual matter, by virtue of 
the interactions of two different Washington regulations--the "Stocking" rule 
and the "Delivery" rule--and the fact that the State has not enforced either 
rule against Storman's or any other religious objector.  For what it's worth, I 
believe Alito's description of the facts--his treatment of the distinct 
operations of, and practices under, the two rules--is incomplete and 
misleading, for reasons I'd be happy to discuss offline.  But that's really 
beside the point now that the Court has denied cert.  (It would have created a 
nightmare of untangling had they granted cert.)

For now, I would just point out the following:  Even on Alito's own account of 
the facts and the Washington regulations, the State does not "uniquely burden 
religiously motivated conduct."  This is the telling passage in his dissent:

While the regulations themselves do not expressly single out religiously 
motivated referrals, the Board’s guidance accompanying the regulations does: 
“The rule,” it warns, “does not allow a pharmacy to refer a patient to another 
pharmacy to avoid filling the prescription due to moral or ethical objections.” 
SER 1248 (emphasis added).

Religious objections to contraception, in other words, are not "uniquely 
burdened," even on Alito's view of the case; instead, they are--at 
worst--treated exactly the same as other "moral or ethical objections."


On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman 
> wrote:
15-page Alito dissent from denial, joined by Roberts and Thomas:

http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf

On Thu, Jun 2, 2016 at 1:20 AM, James Oleske 
> wrote:
A quick update on the petition in Stormans. After the petition was relisted for 
conference several times, the lower court record was requested on May 19 and 
received on May 26, and the petition is back on the schedule for tomorrow's 
conference (June 2).

As I've said before, I think some of the legal arguments made in the petition 
are cert worthy. But the Ninth Circuit decided the case by rejecting a factual 
predicate for those arguments -- a predicate that was central to the district 
court's decision in favor of Stormans. Which might explain the record request.

In any event, if cert is granted, this has the makings of a landmark free 
exercise case.

- Jim

On Mon, Jan 4, 2016 at 11:34 PM, James Oleske 
> wrote:
On Monday, 

RE: The Bedford pool exemption--a collection of reactions

[Conkle, Daniel O.]

As a conceptual matter, I would describe Chip’s point about justification in 
slightly different terms:  if the government is indeed accommodating in a 
permissible way, by removing a significant or substantial burden on religious 
exercise, it is acting to promote or protect *religious freedom*, not religion 
as such, and this should be treated as a secular justification.  In other 
words, the government in these circumstances is endorsing *religious freedom*, 
not religion.  The endorsement test is not inapplicable; instead, the test is 
satisfied.  If the accommodation goes too far, e.g., by ignoring third-party 
harms, that might suggest a constitutionally improper justification, one of 
promoting or endorsing religion as such, rather than the religious freedom of 
those who are being accommodated.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, June 07, 2016 11:18 AM
To: Law & Religion issues for Law Academics
Subject: Re: The Bedford pool exemption--a collection of reactions

A few more thoughts:

1.  Are there any women participating on this listserv?  It seems remarkable 
that we have talking about this gender based policy for days and (unless I 
missed something, and please forgive me if that is the case) all the 
participants are men.

2.  The Kiryas Joel problem is not about third party harms; it's about 
sectarian discrimination.  Would any other religious minority in NYC (Muslims, 
for example) be able to get women only pool hours in their neighborhood?  I 
understand there may be problems of proof if they have never tried, and the 
case may turn on the role of the City in tolerating a sex-based policy, in this 
neighborhood, that the City would not tolerate elsewhere.  But there are 
questions here, to which Alan Brownstein alluded when he asked if this were 
Lukumi reversed -- an intentionally sect-based benefit, not available to others.

3.  The endorsement test, FWIW, applies only to government acknowledgments of 
religion (e.g., publicly supported Christmas Creches and Chanukah Menorahs; 
Crosses at war memorials; Ten Commandments displays).  The endorsement does not 
apply to accommodations -- relief of government-imposed burdens on religious 
practice.  The U.S. government does not endorse the content of religious 
symbols that members of the Armed Forces put on jewelry; or on their 
gravestones when they are buried in a military cemetery; or the meaning of 
religious headgear, like yarmulkes or turbans, that soldiers or even prison 
inmates, may be allowed to wear.

If Hillel wants to say more about the relevant Jewish law assumptions that "
relate to women's bodies being sexual,
 and therefore
​that they ​
​should
 be covered when men are present
​ (except in the case of a spouse, and then only sometimes)," we all might 
learn something about the Orthodox Jewish treatment of women.  I would welcome 
that lesson.  But what we learn can't possibly determine the outcome of a 
constitutional challenge to the accommodation.  Suppose, pre-Yoder, a state 
agreed voluntarily (and contrary to state compulsory education law) to permit 
Amish parents to home school beginning at age 14.  The state authorities know 
that the Amish will rear their boys to be farmers and their girls to be 
housewives.  Is the accommodation now suspect because the religious community, 
left to its own norms, will act in sexist ways? Similarly, the ministerial 
exception involves effective permission for an all-male (or all female) 
priesthood, and everyone knows that.  Endorsement has nothing to do with this 
set of problems.

On Tue, Jun 7, 2016 at 8:34 AM, Marty Lederman 
> wrote:
Well, I'm sure glad I asked about this case -- this has been a wonderfully 
provocative and informative thread, thanks!

A few reactions and further questions:

1.  I'll start with the Establishment Clause.  First, let's assume for the sake 
of argument (and to clarify our analysis) a counterfactual, namely, that this 
were a classic religious exemption:  On Mondays, Wednesdays and Fridays from 
9:15 to 11 a.m., and on Sunday afternoons from 2:45 to 4:45, the Bedford pool 
is open only to women who have religious objections to co-ed swimming.  Would 
that violate the Establishment Clause?

Most of the discussion here has focused on harm to those who would not be able 
to use the pool during those eight hours of the week.  But that's putting the 
cart before the horse.  Under governing doctrine, a religion-only accommodation 
is ok only if it alleviates a significant state-imposed burden on religious 

RE: Jewish law, women's bodies, and accommodations

[Conkle, Daniel O.]

It certainly doesn’t answer Chip’s particular questions about the judicial role 
in the situation here, but the Supreme Court’s decision in Amos, or at least 
Justice Brennan’s opinion in that case, can be read to support a balancing 
inquiry in addressing the issue of third-party harms.  Decided two years after 
Caldor, the Court upheld Title VII’s religious-organization exception to the 
statute’s ban on religious discrimination in employment, finding the 
accommodation permissible even though it obviously imposes a burden on the 
livelihood - and the religious freedom - of employees and employment applicants 
(even for nonreligious jobs)  who do not conform to the employer’s religion.  
In his opinion concurring in the judgment, Brennan endorsed a balancing 
inquiry, concluding that the free exercise interest of religious 
organizations—“an interest in autonomy in ordering their internal affairs” [cf. 
Hosanna-Tabor]—was sufficiently important to override the burden on third 
parties, permitting the Title VII exemption because it “appropriately balances 
these competing concerns.”

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, June 06, 2016 12:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Jewish law, women's bodies, and accommodations

I agree that it's not for the state to arbitrate between Hillel's and Meir's 
view about what is embedded in Jewish law with respect to women's bodies.  But 
I want to go back to Eugene's earlier argument that 3rd party harms are not 
relevant to the Establishment Clause problem because the accommodation is not 
religion-specific -- that is, the hours are "women only," not "Jewish women 
only."  True enough, but there is still a gerrymander here -- this is not a 
City wide policy.  It applies only to this one neighborhood pool, in a 
neighborhood with a strong Orthodox Jewish presence.  (If the policy were 
city-wide, it would help all women who want female-only swimming hours, for 
whatever reason. The sex discrimination problem would remain.)  In light of the 
conspicuous religious gerrymander, perhaps we need to add Kiryas Joel to the 
mix of relevant cases.

When the policy is 1) motivated by religion specific concerns, and 2) 
geographically limited to reflect those concerns, perhaps the Caldor problem of 
harms to third parties (men, who want those hours to swim, and the weekday 
hours may be just as important to some of them as the Sunday hours) remains.  
If so, I repeat the question -- is the relevant test one of "balancing" 
religious accommodations against inconvenience to others?  How would we do 
that, with or without interrogating religious reasoning?

On Mon, Jun 6, 2016 at 12:20 PM, Meir Katz 
> wrote:
Hillel's assumption that "Jewish laws relating to sexual modesty have embedded 
within them, and reinforce, certain [negative] assumptions and norms about 
women's and girls' bodies [that are contrary to public policy]" is both 
incorrect and not widely held by those who observe those laws. The laws have a 
rather different purpose, one certainly not contrary to public policy, that was 
shared broadly by civil society until the 1950s. I would be interested to learn 
from where Hillel's assumption derives.

In any event, even if Hillel's assumption were arguably correct, it would still 
be inappropriate, as Eugene inquires, for a judge (or, for that matter, any 
third-party decision-maker) to use that assumption to bias his decisions. A 
civil judge cannot be in the position of deciding religious questions or 
determining the contours of religious law. For one to conclude that "Jewish 
laws relating to sexual modesty have embedded within them, and reinforce, 
certain [negative] assumptions," he would need to have a deep and rather 
sophisticated understanding not just of what those Jewish laws require, but 
also where they come from, why they exist, and how they impact those who follow 
them. That inquiry necessarily intrudes deeply into religious thought. Even if 
a civil judge were able to perform that inquiry properly and reach an accurate 
conclusion, it is not a proper role for that judge.

Moreover, as I intimated in my first paragraph, the assumption that Hillel 
reaches is contrary to the purpose and objective behind Jewish modesty laws as 
generally understood by its adherents. As a result, using the assumption to 
guide judicial decision-making would not merely improperly impose physical 
burdens on the religious adherents, it would also impose on them an alternative 
understanding as to what their 

New Book, "Religion, Law, and the Constitution"

[Conkle, Daniel O.]

For those who might be interested, I've published a new book in the Foundation 
Press Concepts and Insights Series:  "Religion, Law, and the Constitution."  
With apologies for the self-promotion (and double apologies if you have already 
received an email concerning the book), here's a description from the 
publisher's web site.

http://www.westacademic.com/Professors/ProductDetails.aspx?NSIID=50883

Religion, Law, and the Constitution

This creative and tightly reasoned book brings a measure of coherency to this 
controversial and seemingly chaotic field of law. It begins by recounting the 
history of American religious liberty, from its Lockean origins to the First 
Amendment to the present day. Drawing upon that history, it identifies a set of 
embedded and evolving constitutional values: religious voluntarism, respect for 
religious identity, religious equality, and freedom of religious speech, as 
well as broader structural values such as preserving tradition, protecting 
government from religion, and protecting religion from government. The book 
returns to these values time and again as it explores and evaluates the Supreme 
Court's contemporary First Amendment doctrine under the Free Exercise and 
Establishment Clauses, as well as its protection of religious speech under the 
Free Speech Clause. A separate chapter discusses other important sources of 
religious freedom, including the Religious Freedom Restoration Act (RFRA) and 
the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The book provides comprehensive and up-to-date coverage of all of the major 
facets of the Supreme Court's decisionmaking, including the Court's general 
doctrinal tests as well as its rulings and reasoning in particular areas, for 
example, concerning prayer and religious instruction in the public schools, 
religious symbolism in other settings, legislative prayer, financial aid to 
religious schools and organizations, and claims for religious exemptions under 
RFRA and RLUIPA. It provides selective coverage of lower court decisions as 
well, for instance, under the land use provisions of RLUIPA. It also includes 
references to leading academic works. In its concluding chapter, the book 
highlights ongoing developments in the American religious landscape and 
explains how they might affect the future of religious liberty in the United 
States.

Offering clear exposition combined with creative and sophisticated analysis, 
this book will be of value not only to students but also to scholars, lawyers, 
and judges.

* * * * * * * * * * * *

Daniel O. Conkle
********
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>



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Research Queries

[Conkle, Daniel O.]

A colleague of mine, who is working on an interdisciplinary book, has asked me 
for ideas on the following:

First, to reply to the criticism that law reviews are not respected by other 
disciplines, I am searching for examples of important scholarship published in 
law reviews by social scientists, historians or religion scholars rather than 
academic lawyers. Second, to reply to the criticism that legal scholars have no 
influence outside their discipline, I am searching for examples where social 
scientists, historians or religion scholars have recognized the contribution to 
knowledge in their fields made by legal scholars with no additional credentials.

If anyone has thoughts that I might pass along to him, please let me know, 
off-list.  Thanks in advance.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Federal RFRA in Davis-Like Situation?

[Conkle, Daniel O.]

I have a conceptual question that I’ve been trying to get my mind around.

Could the *federal* RFRA be invoked by someone like Kim Davis (whether or not 
the state has its own RFRA), arguing that a federal court order—that is, an 
order that is designed to enforce the 14th Amendment—is action of the 
“government,” which is defined under 42 U.S.C. Sec. 2000bb–2 to “include[] a 
branch, department, agency, instrumentality, and official (or other person 
acting under color of law) of the United States.”  In other words, is the 
judicial enforcement of the Constitution subject to RFRA?  Cf. 42 U.S.C. Sec. 
2000bb–3:  “This chapter applies to all Federal law, and the implementation of 
that law, whether statutory or otherwise . . . .”

On the face of it, it would seem that the federal RFRA would indeed apply, but 
maybe I’m missing something.  (It’s happened before!)

I’m not suggesting that a federal RFRA objection could or should prevail.  I’m 
simply wondering whether the federal RFRA might apply.

Needless to say, enforcing the requirements of the 14th Amendment is a 
compelling governmental interest.  But, as the long thread of Kim Davis 
postings has indicated, there might be various ways of serving that compelling 
interest.  E.g., assuming a class action, perhaps the surest and simplest way 
to enforce the 14th Amendment in this setting would be to require, by 
injunction,  that each and every official and employee in every relevant 
government office provide marriage licenses upon request, including for 
same-sex couples.  Putting aside Title VII’s “reasonable accommodation” 
provision, would a federal court be free to issue that type of categorical 
order without taking account of the federal RFRA, assuming it were properly 
raised by one or more state government officials or employees?

Again, I’m not trying to make any point here, either way, on the merits of 
Davis’s objection or about how similar objections ought to be resolved.  I’m 
simply wondering if the federal RFRA is off the table and, if so, why.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 15, 2015 10:53 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics; Michael 
Dorf; Samuel Bagenstos
Subject: CTA6 rejects Davis's KY RFRA claim on sovereign immunity grounds

In an order today the Sixth Circuit rejected Kim Davis's state RFRA claim 
which, realistically, was the only one in play.  "We need not address the 
merits of her claims under Kentucky law because the Eleventh Amendment of the 
U.S. Constitution precludes the federal courts from compelling state officials 
to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 
89, 105–06 (1984)."  As for her federal constitutional claims, they remain 
alive, but only by a thread:  The court held that "Davis has not demonstrated a 
substantial likelihood of success on her federal constitutional claims."
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RE: Question about the Kentucky County Clerk controversy

[Conkle, Daniel O.]

Thanks, Marty.  My point was simply that there is a Ky. RFRA claim in the 
actual case, which I believe the federal courts properly can consider as a 
matter of pendent jurisdiction.  Therefore there is no need for a separate 
state court action to raise the Ky. RFRA claim (regardless of its merit or lack 
thereof).  Right?

Dan Conkle
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 9:50 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

The judge did reject the KY RFRA argument, Dan, but only based upon this:

Davis is simply being asked to signify that couples meet the legal requirements 
to marry. The State is not asking her to condone same-sex unions on moral or 
religious grounds, nor is it restricting her from engaging in a variety of 
religious activities.

That doesn't really get at her argument, which is that the form, by its terms, 
"authorizes" the marriage.  The better response would have been simply that she 
doesn't have to do the authorizing (or even to "signify" anything).

On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. 
<con...@indiana.edu<mailto:con...@indiana.edu>> wrote:
One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle
********
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331<tel:%28812%29%20855-4331>
fax (812) 855-0555<tel:%28812%29%20855-0555>
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the deputy clerk who signs the forms, not Davis.  Her name would 
appear on each form only to identify in which clerk's office the license was 
issued and the certificate recorded.  E.g.:  "Issued this 3 September 2015 in 
the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian 
Mason, Deputy Clerk."

Her petition suggests t

RE: Question about the Kentucky County Clerk controversy

[Conkle, Daniel O.]

One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu<mailto:con...@indiana.edu>




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the deputy clerk who signs the forms, not Davis.  Her name would 
appear on each form only to identify in which clerk's office the license was 
issued and the certificate recorded.  E.g.:  "Issued this 3 September 2015 in 
the office of Kim Davis, Rowan County County Clerk, Morehead, Kentucky by Brian 
Mason, Deputy Clerk."

Her petition suggests that even this factual statement -- that the license was 
issued in her office -- will be seen as her endorsement of the marriage, 
thereby making her complicit in it.  But that's simply wrong, isn't it?:  
Particularly since it will be her deputy's signature, rather than Davis's, that 
appears on the forms, no reasonable observer, with any modicum of knowledge 
about the views of Kentucky County Clerks in the wake of Obergefell, would 
possibly think that Davis herself has endorsed or approved a same-sex marriage. 
 And therefore, her basic claim about complicity-by-approval or 
complicity-by-perceived-endorsement, is premised on a mistake of fact . . . and 
thus there's no substantial burden on her religious exercise, even accepting 
her religious beliefs.

Now, I agree that, if only to end this whole unfortunate dispute in a way that 
will apparently make Davis feel even further removed from the marriages, it 
would be wise and magnanimous of the Governor to allow Davis to leave her name 
off the documents for all marriages in Cowan county, even if the law does not 
require that accommodation.  E.g.:  "Issued this 3 September 2015 in the office 
of the Rowan County County Clerk, Morehead, Kentucky by Brian Mason, Deputy 
Clerk."  But the Governor can and should do so only if such an omission of 
Davis's name would in no way affect the validity of the documents under 
Kentucky law.

On Wed, Sep 2, 2015 at 6:31 PM, Volokh, Eugene 
<v

RE: law suit on behalf of Jesus

[Conkle, Daniel O.]

Cf. United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 
1971) - dismissed on procedural grounds, with court citing personal 
jurisdiction and service of process difficulties.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Wednesday, May 06, 2015 5:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: law suit on behalf of Jesus

Please pardon the intrusion.  Apparently the filing is real:

http://dockets.justia.com/docket/nebraska/nedce/8:2015cv00158/69317

I hope Judge Gerrard isn't too hard on her when he tosses it.



-Leonard A. Zanger


From: Paul Finkelman 
paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Wednesday, May 6, 2015 12:11:32 AM
Subject: law suit on behalf of Jesus

Someone just send me this; it seems like it might be real, but does anyone 
know?  Can the plaintiff bring the suit on behalf of Jesus or G-d without a 
power of attorney signed by one or both?


http://www.thenewcivilrightsmovement.com/davidbadash/nebraska_woman_sues_all_homosexuals_in_federal_court_because_jesus_literally


*
Paul Finkelman
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania

518-439-7296 (p)
518-605-0296 (c)

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com/
*





___
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RE: Text of Indiana RFRA Fix; Video of Hearing

[Conkle, Daniel O.]

I am dealing with other matters and cannot say more, but as someone who 
supported the Indiana RFRA and a letter on that side, I strongly support the 
fix, in part because James is largely correct when he says that it seems “to 
deliver at least 99% of the religious liberty protection that academic 
proponents of RFRA want, while excluding the 1% of cases that so concern the 
LGBT community.”  But beyond that, the RFRA without the fix – whether or not as 
a matter of misperception – was giving religious freedom a bad name and was 
tearing my state apart.  The fix does not include statewide antidiscrimination 
protection for members of the LGBT community; I wish it did

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, April 02, 2015 4:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Text of Indiana RFRA Fix; Video of Hearing

The Indiana House just passed the fix 66-30.
Thanks to Tom, Doug, and Marty for their responses.

As Doug notes, things are moving to fast to expect either of the law-professor 
groups who weighed in earlier on the Indiana RFRA to formulate a new group 
position on the fix, and I didn't meant to be asking for group positions. I 
merely meant to be asking if individual members of the list who had signed 
letters on either side might be supportive or not supportive of the proposed 
fix. And I should have mentioned that I am supportive of the fix, which seems 
to me to deliver at least 99% of the religious liberty protection that academic 
proponents of RFRA want, while excluding the 1% of cases that so concern the 
LGBT community.

With regard to Tom's prediction that many list members would oppose allowing 
nonprofit religious institutions to make RFRA claims, and speaking only for 
myself: Although I'm not a fan of RFRA's strict scrutiny standard in general,* 
I would not actively oppose legislation that allows religious institutions to 
bring RFRA claims. My central concern about the latest round of RFRA advocacy 
has been the move to extend exemption rights into the for-profit commercial 
realm, particularly in the context of LGBT rights. I don't think religious 
exemptions in the LGBT context should be any broader than they have 
traditionally been with respect to the other classes covered under state 
antidiscrimination laws, and we have not had a tradition of granting religious 
exemptions to commercial businesses. Florists, bakers, caterers, and wedding 
venues that are open to the public have never been exempted from state laws 
that preclude discrimination against interracial couples, interfaith couples, 
or couples involving divorced individuals, and I don't think we should change 
that approach to allow discrimination against same-sex couples. I'm open to 
libertarian arguments for limiting the reach of state public accommodations 
laws so they don't reach certain truly intimate or core expressive services, 
and the test I would apply is whether we would allow those services to 
discriminate on the basis of race. I'm pretty sure we wouldn't pass a law 
letting a bakery refuse to provide a wedding cake for an interracial couple, 
but perhaps there are spheres beyond Mrs. Murphy boarding houses where 
consensus could be achieved that proprietors should have absolute discretion to 
select customers (e.g., freelance writers).

* I would prefer that the Court revisit Smith and apply modestly heightened 
scrutiny to incidental burdens as a constitutional matter, not unlike it does 
to incidental burdens on speech; in the absence of that, I would support 
reasonable accommodation statutes at the state level resulting in modestly 
heightened scrutiny of incidental burdens on religious practices.

- Jim

On Thu, Apr 2, 2015 at 12:34 PM, Doug Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Sexual orientation and religious faith go to the core of identity. That is a 
reason for protecting them; it is obviously not an operational test.

I would protect the religious organizations themselves.

I would exempt marriage counselors; it is in no one’s interest to force them to 
counsel couples whose relationship they think is fundamentally wrong.

I would exempt very small businesses in the wedding industry, where the owner 
has to be personally involved in providing the services, if similar services 
are readily available elsewhere. Weddings are special because the religious 
side understands them as inherently religious events, creating a religious 
relationship – even if the couple is secular and thinking only of civil 
marriage. And all those who assist with a wedding are 

Administration to ‘Augment’ ACA Contraceptive Rules

[Conkle, Daniel O.]

This is old news, but I hadn’t seen it and so pass it along in case others 
missed it as well.

Administration to ‘Augment’ ACA Contraceptive Rules

July 24 — The Obama administration intends to issue interim final rules within 
a month regarding the “accommodations” granted to religious nonprofit 
organizations that object to providing contraceptive coverage under the 
Affordable Care Act, according to a government 
briefhttp://www.bloomberglaw.com/public/document/Little_Sisters_of_the_Poor_et_al_v_Burwell_et_al_Docket_No_130154
 filed July 22 (Little Sisters of the Poor v. Burwell, 10th Cir., No. 13-1540, 
brief filed 7/22/14).

. . . . .

“The Wheaton College injunction does not reflect a final Supreme Court 
determination that RFRA requires the government to apply the accommodations in 
this manner,” the July 22 DOJ brief said. “Nevertheless, the Departments 
responsible for implementing the accommodations have informed us that they have 
determined to augment the regulatory accommodation process in light of the 
Wheaton College injunction and that they plan to issue interim final rules 
within a month. . . .”
“The administration believes the accommodation is legally sound, but in light 
of the Supreme Court order regarding Wheaton College, the departments intend to 
augment their regulations to provide an alternative way for objecting 
non-profit religious organizations to provide notification, while ensuring that 
enrollees in plans of such organizations receive separate coverage of 
contraceptive services without cost sharing,” a senior administration official 
told reporters in a briefing July 22. The official spoke on condition of 
anonymity.


Bloomberg BNA, U.S. Law Week (subscription required)

http://news.bna.com/lwln/LWLNWB/split_display.adp?fedfid=50879221vname=lw1notallissuesfcn=56wsn=49832fn=50879221split=0


Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu


___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Hobby Lobby transcript

[Conkle, Daniel O.]

I don't think Marty is suggesting otherwise, but on the substantial burden 
issue and the Iqbal/Twombly point, I can't think that there would have to be a 
new lawsuit.  Wouldn't the Supreme Court properly remand to permit the district 
court to grant leave to amend the complaint under FRCP 15(a)(2)?

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, March 26, 2014 7:44 AM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

Thanks very much to everyone for the responses.  Some follow-ups:
1.  Most importantly, in response to Alan, the less-restrictive solution that 
appeared to have some traction with the Justices was not simply that the 
government could in theory pay for the services (with single-payer or a new tax 
scheme, for instance).  Such a holding would be a radical deviation from 
decades of decisions -- Lee and Tony  Susan Alamo would have come out 
differently, for instance.  And the SG would and should have resisted that idea 
strenuously, as he has done, in his briefs.
The argument, instead, is that once the agency has already offered an 
alternative (here, the Notre Dame solution) to a certain subset of objectors 
(nonprofits) -- thereby demonstrating that that alternative is viable for at 
least a certain group -- it has to treat other religious objectors the same, 
unless there is good reason to treat them differently.  This is, in effect, 
merely O Centro all over again (recall that the government had no good reason 
for treating hoasca differently from peyote).  As the SG indicated in his 
answers to questions about the secondary accommodation, there might be such a 
good reason for disparate treatment here:  For instance, extending the 
accommodation to for-profit corporations might be far more costly to the 
government than if it is limited to nonprofits, depending on how many 
for-profit objectors are self-insured and use third-party administrators.  (In 
such cases, the government effectively picks up the tab by giving credits to 
the TPAs.)  Because these plaintiffs have not asked for that remedy, there 
hasn't been any occasion for the government to estimate such costs yet.  But if 
it turns out that most for-profits use issuers (such as Aetna), or if very few 
for-profits with self-insured plans would invoke the accommodation, then 
perhaps the government would have no good basis for refusing to extend the 
secondary accommodation to for-profits.
Of course, Greg Lipper is right that the Justices would hardly be inclined to 
settle upon this solution if it would not resolve the RFRA claims -- if the 
for-profit cases would simply slide on over into the Notre Dame column, and 
remain unresolved.  But presumably, if they embrace this compromise, they will 
signal (or even hold) that the Notre Dame-like claims are meritless.  (That's 
another virtue of this solution -- it would take care of all the outstanding 
cases.)
2.  As for the possibility that the Justices will hold that there is no 
substantial burden because Hobby Lobby can simply drop its health care plan . . 
. Dan Conkle is right that Paul Clement asked for an opportunity for a trial on 
that question.  I have argued that we needn't even get there, because the 
plaintiffs have failed to satisfy the requirement of even pleading facts that 
would, if proved, demonstrate that that option would impose substantial 
pressure on them to offer contraceptive coverage:  
http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html.  Of 
course, these or other plaintiffs might file new complaints that satisfy 
Iqbal/Trombly, in which case there would, indeed, need to be trials on the 
question.  I am skeptical that most employers will be able to prove the 
requisite degree of pressure -- see 
http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html 
-- but perhaps some would.  The whole point of my posts on this question has 
been that it's a highly fact-intensive question that should be adjudicated 
case-by-case.
3.  I forgot to mention in my original post one other thing that struck me 
during the argument:  Justice Kagan described the Sherbert/Yoder practice of 
the Court as being a form of balancing, involving not only the nature and 
degree of burden on the plaintiff and the government's interest, but also the 
impact on third parties.  Of course, as most of you know, she's absolutely 
right -- this is in fact exactly what the Court was doing in cases from 
Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the 
language of strict scrutiny.  (The only case I'm aware of in which

RE: Hobby Lobby transcript

[Conkle, Daniel O.]

Consistent with Steve's post, the Court in City of Boerne v. Flores at least 
hinted that RFRA could be interpreted to require intermediate rather than 
full-fledged strict scrutiny:  Even assuming RFRA would be interpreted in 
effect to mandate some lesser test, say one equivalent to intermediate 
scrutiny, the statute nevertheless would require searching judicial scrutiny of 
state law with the attendant likelihood of invalidation.  521 U.S. at 534.  
More recent precedents, of course, not to mention RFRA's explicit language, 
might make it difficult for the Court to move in this direction.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Wednesday, March 26, 2014 8:49 AM
To: Law Religion  Law List
Subject: Re: Hobby Lobby transcript

I think Mary is dead-on on this point and would love to see the court interpret 
RFRA as inherently and unavoidably including some sort of balancing test that 
takes into account not just whether the burden is substantial, but just how 
substantial or intrusive it is, as well as recognizing that the state's 
compelling interests are not all equal, and that the state's interest includes 
the employee's liberty and economic and health interests as well as the 
state's separable interests and that the employee's interests should be 
included in the mix in assessing the substantiality of the burden and the 
compellingness of the state's interest.  Of course this requires RFRA to be 
applied somewhat differently from the way it is written, but the court has a 
strong leg to stand on for this sort of intepretation - RFRA itself is the 
Restoration act and specifically states that it was returning the law to what 
it was before Smith - and so congressional intent can be used to interpret 
these terms in the very way Marty articulates below.

We all know that the court often puts its decisions into a form that does not 
reflect fully the real reasons behind the decision, but rather puts them into 
the language and structures of our traditional forms of legal reasoning.  While 
that is generally to the good, I do at times wish the court would be more 
willing to rework its formula of words to reflect what it is doing more 
forthrightly.  Of course this has been true for a long time in EP with its 
rational basis and less deferential rational basis review where, as suggested 
by Justice Thurgood Marshall (among others) the court is really engaging in a 
balancing test looking at not only the interests of the state, and the 
interests of the person whose liberty is at stake, but also at the interests of 
third parties, especially in the employment setting.

Steve



--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

It's not the note you play that's the wrong note - it's the note you play 
afterwards that makes it right or wrong.

Miles Davis

On Mar 26, 2014, at 7:44 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:


3.  I forgot to mention in my original post one other thing that struck me 
during the argument:  Justice Kagan described the Sherbert/Yoder practice of 
the Court as being a form of balancing, involving not only the nature and 
degree of burden on the plaintiff and the government's interest, but also the 
impact on third parties.  Of course, as most of you know, she's absolutely 
right -- this is in fact exactly what the Court was doing in cases from 
Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the 
language of strict scrutiny.  (The only case I'm aware of in which the Court 
was honest about its balancing was Warren's plurality opinion in Braunfeld.)  
This led me to think, once again, that perhaps Chip was right way back in 1993 
-- it would have been much better for Congress to have used the language of 
balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to 
recreate the FEC doctrine of the preceding generation.  A lesson for state 
legislatures and mini-RFRAs going forward?

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RE: Hobby Lobby transcript

[Conkle, Daniel O.]

Marty's argument did seem to get some traction.  But in addressing the 
alternative of not providing insurance and simply paying the $26 million ($2000 
per employee), Clement suggested that the overall cost to the employer - 
including the need to pay higher wages and the adverse impact on attracting 
employees, etc. - still would amount to a substantial burden.  He also argued 
that the government had not litigated the case on the theory that this 
alternative was a viable option, and he suggested that he would like a chance 
to demonstrate - presumably with financial calculations and expert testimony, 
etc. - that this alternative would not be economically viable and therefore 
would not eliminate the substantial burden.

Here's what he says at p. 28: I think there would still be a substantial 
burden on their exercise.  But again, this all turns on issues that the 
government hasn't put in issue.  This case hasn't been litigated on this 
particular theory, so I think -- I'd  love to have the opportunity to show how 
by not providing health insurance it would have a huge burden on my client and 
their ability to attract workers, and that in fact would cost them much more 
out of pocket. But that's not been the nature of the government's theory.

So, even if the Court were inclined to accept Marty's argument, wouldn't the 
challengers have to be given a chance to litigate this question on remand?

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 25, 2014 4:19 PM
To: Law  Religion issues for Law Academics
Subject: Hobby Lobby transcript

is here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
Audio should be available later in the week.
I'd be curious to hear what others who attended thought of the argument.
I'll mention only three things of particular note:

First, several of the Justices, including Justice Kennedy, appeared to be at 
least somewhat sympathetic to the argument I've been stressing that the 
employers' religion might not be substantially burdened because they have the 
option of not offering a plan (which might well save them money).
Second, there appeared by the end of the argument to be a very real possibility 
of a judgment that the government must advance its interests through the less 
restrictive means of offering its secondary accommodation (payment required of 
the issuer or the TPA) to for-profit corporations, as well.  This idea seemed 
to have traction with Justices of varying perspectives, and neither advocate 
resisted it much -- indeed, Paul Clement appeared to go out of his way in 
rebuttal to encourage it, and to stress that he had hinted at it on page 58 of 
the Hobby Lobby brief.
Third, Justices Alito and Scalia tried to argue that RFRA goes much further 
than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there 
are five votes for that.
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RE: Hobby Lobby transcript

[Conkle, Daniel O.]

Yes, and the Crown Kosher case came up in today’s argument. – Dan Conkle

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Tuesday, March 25, 2014 6:21 PM
To: religionlaw@lists.ucla.edu; 'Law  Religion issues for Law Academics'
Subject: Re: Hobby Lobby transcript

One of the blue law cases did involve a kosher butcher - I think it was named 
Crown Kosher

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Levinson, Sanford V
Sent: Tuesday, March 25, 2014 6:12 PM
To: 'Law  Religion issues for Law Academics'
Reply To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby transcript


I stand thoroughly corrected!  And, of course, there is no general category 
called “kosher clothes.”  This is a good demonstration that it’s always a good 
idea to go back and read the cases before opining, because I also would have 
sworn that the case arose in Massachusetts.  I’m glad I’m taking an exam in 
Chip’s course ☺

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 25, 2014 5:00 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

Braunfeld did not sell meat.  From the opinion: Appellants are merchants in 
Philadelphia who engage in the retail sale of clothing and home furnishings 
within the proscription of the statute in issue.

On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
With regard to Braunfield, given that the customers are a distinct subset of 
people who want Kosher meat, isn't the argument more that they are decidedly 
inconvenienced by being unable to shop on Sunday (which is just another day to 
them), but NOT that they will refrain from buying kosher meat from Braunfield.  
After all, no other kosher meat market will be open on Saturday, and they're 
not going to buy non-kosher meat on Sunday.  Or is (was) the argument that 
non-Sabbath observant Jews would no longer buy general grocery products from 
Braunfield that were easily available from Stop and Shop on Saturday?  In the 
former case, then Braunfield's overall income should be roughly the same even 
with the forced Sunday closing.  Is this even a relevant way of approaching the 
case, instead of being upset, as I was almost fifty years ago when I read it, 
at the simple inegalitarian aspects of Jewish butchers being forced to close 
two days a week (one day by the state, one day by their !
 religious duty) while (mainstream) Christians could remain open six days a 
week.  But, to repeat, this would be a competitive advantage only if Jewish 
shoppers really didn't care that much about where they brought their meat and 
other grocery products.  It would be a different case, presumably, if we were 
talking about, say, paint stores, where there's no category called kosher 
paint.

sandy

-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice Kagan 
invoked Braunfeld. I made a similar comparison on the listserv back in December:

 Braunfeld might support Marty's argument. The government provides an option 
 to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't 
 burden religion, and even if it's somewhat more expensive, Braunfeld seems to 
 contemplate that laws will sometimes work in this way. Provided a law doesn't 
 directly compel anyone to violate their religious beliefs, its imposition of 
 additional costs on religious practice is not sufficient to show a 
 substantial burden.

 Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And 
 maybe there are other problems with the analogy, but I wonder if the no 
 employer mandate argument turns on an empirical claim, at least if the cost 
 differentials are not so significant as to be tantamount to coercion -- as in 
 the 4980D tax for failing to comply with coverage requirements.

Here's Justice Kagan (transcript p. 24):

 15  JUSTICE KAGAN: Well, let's say that that's
 16  right. Let's say that they have to increase the wages a
 17  little bit. I mean, still we are talking about pretty
 18  equivalent numbers. Maybe it's a little bit less; maybe
 19  it's a little bit more. But this is not the kind of
 20  thing that's going to drive a person out of business.
 21  It's not prohibitive.
 22  It's like the thing that we talked about in
 23  Braunfeld where we said, you know, maybe if the store
 24  can't stay open 7 days a week, it makes a little bit
 25  less money. 

RE: bigotry and sincere religious belief

[Conkle, Daniel O.]

Thanks to Alan for his thoughtful and nuanced post.

I can at least imagine judges developing legal doctrines to effectuate this 
sort of approach.  But in the political domain, at least, I'm not optimistic 
that these issues will be resolved by informed and nuanced decision making.  
The passions are too high, and hot-button politics doesn't lend itself to 
nuance.  A couple of days ago, for example, when the Arizona legislation was 
pending, my local newspaper republished a political cartoon from the Sacramento 
Bee; it showed a map of the United States, but Arizona's space on the map was 
labeled Uganda.  Not much nuance there.

That said, I think Alan's arguments suggest an appropriate move in the 
direction of reasonable accommodation.

Dan

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Friday, February 28, 2014 1:38 AM
To: Law  Religion issues for Law Academics
Subject: RE: bigotry and sincere religious belief


Let me try to respond to Chip's post. He asks two basic questions. (1) Why 
should we be any more willing to accommodate religious objectors to same-sex 
marriage than we are willing to accommodate religious objectors to inter-racial 
marriages. (Or more broadly why accommodate discrimination against gays and 
lesbians any more than we would accommodate discrimination against 
African-Americans.) (2) Why should we try to distinguish between sincere 
religious objectors to same-sex marriage and bigots since it is probably 
impossible to do that accurately, mistakes will be made, and, in any case, the 
discrimination causes real harm to the victims of discrimination in both cases?



These are good questions, and they are hard questions that are not easy to 
answer. I do not dispute that there are strong arguments opposing my position 
on these issues. But I think my take on this issues is a serious position as 
well.



First, let me make clear that I think Chip and I agree on some important 
points. Discrimination against gays and lesbians and racial discrimination is 
seriously hurtful. As Chip says, the refusal to serve some classes of people 
hurts them (stigma, insult, indignity, and sometimes material harm). I also 
think he recognizes that there are some sincere religious individuals who 
oppose same-sex marriage and are not bigots or phobes. Finally, my guess is 
that he and I would probably agree on 90% or more of the situations in which a 
conflict might arise as to whether or not to accommodate religious objectors to 
same-sex marriage -- and we would agree that an accommodation is not warranted.



On to Chip's questions. As to his first question, I do think race 
discrimination is a unique evil for American society and for our legal system. 
I think slavery was a horror that cannot be analogized easily to other wrongs 
-- terrible as the other wrongs may be. I think the system of violent 
subjugation of African-Americans for the following 100 years was staggering in 
its evil. And racism is not something that our society seems capable of putting 
behind us. It seems to have infected the marrow of our culture and society. I 
have been delighted with the speed with which American culture seems to be 
changing with regard to gay and lesbian rights and legal recognition of same 
sex marriages. I feel no such optimism with regard to the role played by racism 
in our society.



Also, I do not think that race discrimination is the only model or analogy for 
thinking about civil rights laws and anti-discrimination principles. We 
prohibit discrimination against women, against religious minorities, against 
the disabled and the aged. Much of that discrimination has been and is 
invidious. It is hurtful in all the ways that discrimination against gays and 
lesbians is hurtful. Quite a bit of it has been justified by religious beliefs 
and some of it still is. When a religious nonprofit refuses to hire a Jew or a 
Moslem, they may be doing so based on sincere beliefs about the need for, and 
obligations requiring, religious homogeneity in the work environment. Or they 
may be prejudiced. Either way, being denied a job you need that you are 
qualified to perform because of your religion is a hurtful experience.



Despite the harm caused by such discrimination, I think both as a 
constitutional matter and a statutory matter, we are willing to allow more 
exceptions, more accommodations of one kind or another, with regard to these 
other forms of discrimination  than we are with race. So yes I think race is 
different. I also do not think I am suggesting that discrimination against gays 
and lesbians does not involve serious harm when I suggest 

RE: bigotry and sincere religious belief

[Conkle, Daniel O.]

I don't pretend to have definitive answers to the questions that Chip Lupu and 
Kevin Chen are discussing.  But I think the proper resolution of this debate 
calls for sensitive judgments depending as much on history and prudence as on 
logic and prior precedent.  In my view, the history of the United States - 
including the institution of slavery, the Civil War, the post-Civil War 
Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a 
matter of special and distinctive concern.  Moreover, putting aside other forms 
of discrimination, opposition to same-sex marriage, including (as already 
noted) that of President Obama until very recently, cannot readily be equated 
with bigotry.  President Obama explained his 2012 change of heart as reflecting 
a new understanding of his Christian faith, suggesting that his prior position 
likewise was informed by his religion.  Religious perspectives change over 
time, and there is little doubt that they are changing quite rapidly - and will 
continue to change - in this context.

So, during a period of breathtakingly rapid shifts in societal opinion, is now 
the time to declare that this is like racial discrimination and simply should 
not be tolerated?  Or should religious objectors - at least for now, at least 
in the context of same-sex marriage - be given serious respect, as dissenting 
members of the community, including a presumption that their opposition is 
grounded in something other than bigotry?  I tend toward the latter view.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 27, 2014 12:15 PM
To: Law  Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

I'm very pleased that my former (and highly able) student Kevin Chen is now 
participating in the list discussion.  He wasn't shy about disagreeing with me 
in class, and his intellectual temperament has remained the same.  For now, I 
intend to wait for other answers (if any appear) to the bigotry vs. sincere 
religious belief problem before writing any more.  This is a delicate question, 
but it seems to me that it lies at the heart of discussions we have been having.

On Thu, Feb 27, 2014 at 10:39 AM, tznkai 
tzn...@gmail.commailto:tzn...@gmail.com wrote:
I'm not sure how easily it could be done, but we ought to try on some level to 
protect the sincere religious beliefs

Because attempts to enforce by legal sanctions, acts obnoxious to go great a 
proportion of Citizens, tend to enervate the laws in general, and to slacken 
the bands of Society. If it be difficult to execute any law which is not 
generally deemed necessary or salutary, what must be the case, where it is 
deemed invalid and dangerous? And what may be the effect of so striking an 
example of impotency in the Government, on its general authority?
Of course, the government may very well succeed in closing businesses and 
closeting anti-gay bigotry, but that may also be problematic. The sword of the 
state creates quite a mess when attempting to spread small-l liberal goals into 
illiberal communities of conviction, and illiberal factions often grow 
stronger, not weaker as a result. When that community is, say, an Amish 
community living mostly separate from wider society, the costs fall only within 
that insular community. When that community is a living, breathing part of our 
polity, the costs to us, as a whole are great.

Separating religion from culture is a difficult, if not foolish errand, and 
likewise we should not read genuine and free of conflating factors into 
sincere. Sincerity of belief is as simple as not lying, substantive burden is 
measured by the willingness of believers to pay the price of their beliefs. 
Pursuing comity in service of a just and stable society suggests we not ask 
believers to make the price of their conscience participation in our economy.

On the whole the current trends in protecting religious liberty are a cure 
worse than the disease however, because no good defense of religious liberty 
turns free of constraint into free of cost. The sin of Ollie (and that of David 
Green) is not following his conscience, but seeking full coverage under aegis 
of state laws without any compromise.

-Kevin Chen

On Thu, Feb 27, 2014 at 9:45 AM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
I think that the politics of the moment, and the conversations we have been 
having (including the reference to Jim Oleske's provocative article about 
religious objections to inter-racial marriage compared to religious objections 
to same sex marriage, Interracial and Same-Sex Marriages

RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[Conkle, Daniel O.]

Whether or not the bills are similar in political motivation or in potential 
impact, the media coverage of the Arizona bill – at least what I’ve seen – has 
been woeful.  Until reading the actual Kansas bill, I certainly thought that it 
was a specific accommodation for religious objectors to sexual-orientation 
discrimination claims and that its protection was absolute, not subject to 
balancing.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, February 26, 2014 8:07 AM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

They are similar in that both involve believers demanding a right to 
discriminate due to their religion. If Hobby Lobby wins, Walmart will have an 
argument to get around prohibitions based on race, gender, religion, alienage, 
and disability.
All they need is one owner or board member and they are good to go.

But here is the critical difference: The state amendment proposals are not 
moderate or almost identical.  Rfra applies only against the govt.  These bills 
bring private vs private disputes under its misguided, concocted standard.   
It's ugly.

Marci



Sent from my iPhone

On Feb 25, 2014, at 11:58 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
I have.  My point is your condemnation is not compelling to me when we disagree 
on a either more moderate or almost identical bill (depending on how Hobby 
Lobby comes out).

On Tue, Feb 25, 2014 at 8:55 PM, 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
Have you read anything I've written for the last 20 years?

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
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton

-Original Message-
From: Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 25, 2014 8:47 pm
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
Would you say the Federal RFRA is  egregious, Marci?

On Tue, Feb 25, 2014 at 6:38 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
I have read them and both are egregious.

Sent from my iPhone

On Feb 25, 2014, at 6:15 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
The Arizona bill and the Kansas bill are very different. I don’t have time 
right now to discuss this further, but all you have to do is to read the bills. 
If you do, you will see that the arguments equating the two are simply and 
egregiously wrong. I hope no one will comment in any strong way without 
actually reading them.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton
Sent: Tuesday, February 25, 2014 1:55 PM
To: mich...@californialaw.orgmailto:mich...@californialaw.org; Law  Religion 
issues for Law Academics
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

…and Alan has been championing this bill on the spot at the Arizona capitol. 
Sigh. I have fought him over it when he tried to push me into supporting the 
Idaho bill which was just as egregious as the Arizona bill, but perhaps more 
targeted.

Gregory W. Hamilton, President
Northwest Religious Liberty Association
5709 N. 20th Street
Ridgefield, WA 98642
Office: (360) 857-7040
Website: www.nrla.comhttp://www.nrla.com/

image001.jpghttp://www.nrla.com/

Championing Religious Freedom and Human Rights for All People of Faith

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Peabody
Sent: Tuesday, February 25, 2014 1:38 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

After reading the legislation, it's amazing how broadly it is drafted. It would 
seem to not only include permitting discrimination on the basis of sexual 
orientation or marital status, but also on the basis of religion.  It would 
make it very easy for any business with a religious inkling

RE: The ability to practice one's religion

[Conkle, Daniel O.]

These are fascinating questions.  Indeed, it may be that if the law prevents 
the exercise of conscience, then  - at least with respect to certain claims 
concerning complicity with evil - there is no violation of conscience after 
all.  Would conscience would demand civil disobedience and, if not, as Eugene 
suggests, is there nonetheless an injury (to conscience?) that we should 
recognize as a serious loss?

Speaking specifically on the question of Catholic opposition to the 
contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in 
the November 2012 issue of First Things, in an article that included the 
following observations (note the when possible and available steps caveats):

one principle is clear: We should always seek to withdraw support and reduce 
material cooperation when possible. The failure to do so sends a message. It 
suggests that our material cooperation flows from assent, all the more so when 
we do not take the available steps to disentangle ourselves.

Thomas Joseph White and R. R. Reno, A Mandate to Disobey, 
http://www.firstthings.com/article/2012/09/a-mandate-to-disobey

Dan Conkle
Maurer School of Law
Indiana University Bloomington

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 27, 2013 12:57 AM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: The ability to practice one's religion

Let me ask a different question about the contraceptive 
mandate, and one that I should stress is not relevant under RFRA; it's more a 
question of how exemptions should be crafted.

I often here variants of the following argument for Hobby Lobby 
and similar companies:  People shouldn't have to abandon their ability to 
follow their religions as a price of going into business.  And I sympathize 
with that argument at a general level.  I also think that, if an employer 
sincerely believes that it's wrong to even buy policies that coverage, say, 
abortifacents, then requiring the employer to do so imposes a substantial 
burden.  And this is so even if the employer doesn't believe that it's wrong to 
pay taxes that pay for abortions (as taxes do in some states, and I suspect in 
some measure at the federal level, too).  As Thomas v. Review Bd. made clear, 
religious observers necessarily draw lines about when participation in 
something becomes sinful complicity, and courts can't second-guess such sincere 
lines.

At the same time, the fact is that the law does require 
Americans to pay taxes.  People who really oppose abortion already have to 
somehow reconcile themselves to living in a country in which taxes sometimes go 
to pay for abortions.  They have to somehow reconcile themselves to the 
possibility that the salaries they pay their employees sometimes go to pay for 
abortions.

Indeed, I suspect that the lines that many opponents of abortion do draw are 
influenced by the places that they are told (by the law or by society) they 
cannot draw the line.  There aren't a lot of people who draw the line in a 
place which bans them from paying their taxes when those taxes can be used to 
help fund abortion; but maybe that's precisely because they know that, if they 
draw the line there, they'll go to jail.

I wonder whether, if employers were told that buying insurance policies for 
employees will be treated by the law the same as paying taxes - a 
government-imposed requirement to pay money - then nearly all employers would 
come around to drawing the line at a different place (e.g., at a place where 
they think it sinful to, for instance, perform abortions or allow abortions on 
their physical property, but not to buy insurance policies that cover 
abortifacents).  Should that matter to us?  Should we think that, just as not 
that much has been lost in forcing everyone (not just businesspeople but 
everyone) to pay taxes that go to things that they may see are sinful, not that 
much would be lost in imposing similar obligations to pay employee benefits 
that cover things that the employers may see are sinful?  Or should we think 
that a great deal has indeed been lost - though necessarily so - in denying 
exemptions to religious tax objectors, and that still more will be lots (and 
without as much pressing necessity) in denying exemptions to religious 
insurance payment objectors?

Eugene
___
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Contraception Mandate - Corporate Claims

[Conkle, Daniel O.]

Stephen Bainbridge, speaking from the standpoint of corporate law, has an 
interesting article in the current issue of The Green Bag (Vol. 16, No. 3, 
Spring 2013):  Using Reverse Veil Piercing to Vindicate the Free Exercise 
Rights of Incorporated Employers.

(The same issue has an article by Chip Lupu recounting some fascinating 
personal experiences that have informed his teaching of U.S. v. O'Brien.)


Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


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Same-Sex Marriage Cases: Amicus Brief re Religious Liberty

[Conkle, Daniel O.]

Doug Laycock, Marc Stern, and Tom Berg have filed an interesting amicus brief 
on behalf of the American Jewish Committee.  The brief argues in favor of a 
right to same-sex marriage even as it highlights the religious liberty issues 
that the recognition of such a right would entail.  Here's a link to the brief -

http://mirrorofjustice.blogs.com/files/marriage-cases-ajc-brief-final.pdf


Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu







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RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden

[Conkle, Daniel O.]

If I’m not mistaken, Marci, a majority of the justices in fact so indicated in 
Bowen.  It was a fractured decision.  Two justices thought the issue of whether 
Roy could be required to provide a number for his daughter was moot (since, as 
it happened, there already was such a number).  Of the seven justices who 
reached that issue, four would have required a free exercise exemption, and a 
5th (Justice Blackmun), indicated that he would have agreed if he had reached 
the merits.  Only three justices joined the plurality opinion’s rejection of 
both aspects of the free exercise argument.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Tuesday, October 02, 2012 2:32 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

Doug--Are you suggesting that Bowen would have come down differently, under the 
substantial burden analysis, depending on whether they, as the case started,
had to apply for a number, or, as the trial indicated, they had to live with 
one?   Why?

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: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Oct 2, 2012 12:50 pm
Subject: FW: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden
In Bowen, they discovered at trial that she already had a social security 
number By the time the case got to the Supreme Court, the claim was that the 
government could not use that social security number to maintain its records on 
the child.  Plaintiffs said that the government’s use of the number would sap 
the child’s spirit.

In Lyng, the government proposed to make noise that would disrupt religious 
mediation.

Neither case was about regulating the  religious believer’s behavior.  The ACA 
cases are about regulating the believer’s behavior.

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.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Tuesday, October 02, 2012 12:12 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting substantial burden

Doug--The government in Bowen required the applicant to obtain a social 
security number to obtain benefits.   They did not want to obtain it, because 
it would sacrifice their child's soul.  Looks like forced complicity with evil 
to me.   How does that work under your distinction?
I have to say it looks like a distinction without a difference to me.

Lyng is certainly relevant re: whether the subjective sense of the burden is 
relevant.  It is not.

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


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7th Circuit re High School Graduation in Church Sanctuary

[Conkle, Daniel O.]

In a decision announced yesterday, the en banc 7th Circuit has ruled, 7-3, that 
a public school district violated the Establishment Clause by holding its high 
school graduation in the sanctuary of a church.  Reversing a panel decision 
that had gone the other way, the court attempts to write a narrow opinion 
confined to the situation at hand and distinguishing, for example, the use of 
churches as voting places. There are dissenting opinions by Judges Ripple, 
Easterbrook, and Posner, which include strong criticisms of the Supreme Court's 
Establishment Clause doctrine.  (E.g., this from Judge Posner:  The case law 
that the Supreme Court has heaped on the defenseless text of the establishment 
clause is widely acknowledged, even by some Supreme Court Justices, to be 
formless, unanchored, subjective and provide no guidance.)

Here's a link to the decision, Doe v. Elmbrook School Dist - 
http://www.ca7.uscourts.gov/tmp/K20RFUIZ.pdf

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


.
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RE: A John Paul Stevens Puzzle

[Conkle, Daniel O.]

I assume Marci is referring to the separation of powers, Marbury v. Madison, 
elements of the opinion, which I think are properly confined to the 14th Am. 
Sec. 5 context and therefore to a federalist interpretation, but which could be 
read more broadly.

Dan Conkle

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, April 11, 2011 4:48 PM
To: Law  Religion issues for Law Academics
Subject: RE: A John Paul Stevens Puzzle

I'm puzzled by the statement that RFRA was not ... held 
unconstitutional solely on federalism grounds -- as I understand the majority 
opinion, it cited only the federalism objections to RFRA, and not the 
Establishment Clause.  (Justice Stevens' solo concurrence mentioned the 
Establishment Clause, but the five other Justices in the majority didn't 
endorse that opinion.)

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
 Sent: Monday, April 11, 2011 1:31 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: A John Paul Stevens Puzzle
 
 RFRA was not challenged nor held unconstitutional solely on federalism
 grounds. That is the post hoc explanation of its proponents.
 But you are correct that RFRA as app to federal law comes up through the
 courts without a constitutional angle because no party will challenge it.  It 
 is
 the latest example of what is wrong with a system that requires the AG
 Office to defend federal law without serious consideration of whether it is
 actually constitutional or not

Well, but at least following Cutter v. Wilkinson, doesn't it seem 
pretty likely that the RFRA is indeed actually constitutional against the 
federal government, just as RLUIPA was indeed upheld?

Eugene
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Religious Academics in Secular Public Universities

[Conkle, Daniel O.]

Could anyone recommend an article (or other publication) discussing how the 
law, including the First Amendment's speech and establishment clauses, protects 
and restricts religious academics who wish to display or discuss their faith in 
the setting of a secular public university?  I'm looking for something that 
would be accessible to non-lawyer academics, that would be relatively concise, 
and that ideally would be relatively neutral and objective, at least in its 
description of the governing law.

Private responses would be fine.  Thanks in advance.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


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RE: Federal Appeals Court Goes With 'God'

[Conkle, Daniel O.]

Capable of repetition yet evading review?  But is it?

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Thursday, December 10, 2009 3:14 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal Appeals Court Goes With 'God'

yes but there is no guarantee that future inaugurations will be the same as 
past ones.
Marc Stern


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Thursday, December 10, 2009 3:03 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal Appeals Court Goes With 'God'

The original complaint asked for a declaratory judgment that adding so help me 
God to the oath, and having clergy as part of the inaugural ceremony are 
unconstitutional. That would presumably apply to future inaugurations as well.  
Here is a link to the original complaint: 
http://www.humanistlegalcenter.org/cases/Invocation/Newdow_v_Roberts_D_DC_complaint_2008-12-29.pdf

Howard Friedman


From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Thu 12/10/2009 11:15 AM
To: Law  Religion issues for Law Academics
Subject: Re: Federal Appeals Court Goes With 'God'


Does anyone know why his case is not moot?

Quoting Joel Sogol jlsa...@wwisp.com:

  http://alm-editorial-us.msgfocus.com/c/1jdUyMEEiPtTMiYph Federal Appeals
 Court Goes With 'God'
 The National Law Journal

 Before every oral argument in the D.C. Circuit, a court clerk tells everyone
 to draw near and give their attention because the court is now sitting. The
 opening cry ends with the line God save the United States and this
 honorable court. Atheist lawyer and physician Michael Newdow filed a motion
 to block the clerk from referring to God next Tuesday when a panel takes up
 his case challenging the custom of concluding the presidential oath of
 office with the line So help me God. A panel rejected that request
 Wednesday.





 Joel L. Sogol

 Attorney at Law

 811 21st Avenue

 Tuscaloosa, Alabama  35401

 ph (205) 345-0966

 fx  (205) 345-0971

  mailto:jlsa...@wwisp.com jlsa...@wwisp.com



 Ben Franklin observed that truth wins a fair fight -- which is why we have
 evidence rules in U.S. courts.





Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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RE: City rejects atheist bus ad as too controversial

[Conkle, Daniel O.]

The bus operator's policy in Bloomington (my current stomping grounds!) is 
slightly less vague that Steve's posting might suggest, although vagueness 
remains a serious problem.  Citing its concerns about creating the appearance 
of favoritism and imposing controversial views on captive audiences, the policy 
limits ads to commercial ads, works of art, and noncontroversial public 
service announcements.  The policy specifically excludes political ads and ads 
containing statements of position in support of or in opposition to 
controversial public issues.  I assume the policy could be read to preclude 
not only atheistic messages but also sectarian religious appeals, although 
that's certainly not clear (which tends to support the ACLU's vagueness 
challenge).

Under a more clearly worded policy, could the bus operator exclude all 
political and religious advertising?  Cf. Lehman v. City of Shaker Heights.  Or 
would that be regarded as impermissible viewpoint discrimination, at least as 
to the religious messages?  Cf. Lamb's Chapel, Good News Club, Rosenberger, etc.

Dan Conkle

**
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu
**


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, May 15, 2009 1:12 PM
To: Religionlaw@lists.ucla.edu
Subject: City rejects atheist bus ad as too controversial

The Indiana Atheist Bus Campaign is seeking to buy advertising on municipal 
buses with the slogans In the beginning, man created God and You can be good 
without God.  The group explains on its web site (http://inatheistbus.org/), 
We want to let everyone know that it's all right not to believe in a deity, 
that you do not need to be 'saved,' and that you can be a good person without 
religion.  We hope that everyone will look at the facts and evidence before 
making life decisions, including religion.

The bus operator in Bloomington, IN (my old stomping grounds) refused to accept 
the You can be good without God ads because they were too controversial.  
The Indiana Civil Liberties Union has sued on behalf of the campaign.  See 
http://inatheistbus.org/2009/05/05/bloomington-rejects-you-can-be-good-without-god-lawsuit-underway/
 for links to the complaint and press release.

Bloomington Mayor Mark Kruzan (disclosure: one of my undergrad classmates and 
old friends) says the city legal department won't represent Bloomington 
Transit, which is a separate municipal corporation which contracts with the 
city legal department.  According to the Bloomington Herald-Times, Kruzan said 
having city legal defend BT in court would amount to 'promoting government 
sanctioned censorship' because the bus service gets city legal's services at an 
hourly rate less than that of a private law firm, which is in essence a partial 
taxpayer subsidy.


_

Steve Sanders

Attorneyhttp://www.mayerbrown.com/lawyers/profile.asp?hubbardid=S597744167, 
Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago

Co-editor, Sexual Orientation and the Law 
Bloghttp://lawprofessors.typepad.com/lgbtlaw/

Adjunct faculty, University of Michigan Law School (Winter term 2010)

Email: steve...@umich.edumailto:steve...@umich.edu

Personal home page: www.stevesanders.nethttp://www.stevesanders.net/





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Michael McConnell Resigning from 10th Circuit and Going to Stanford

[Conkle, Daniel O.]

For those who haven't seen this news:

http://abovethelaw.com/2009/05/musical_chairs_judge_michael_m.php


Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu



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Fr. Richard John Neuhaus dead at age 72

[Conkle, Daniel O.]

 
http://religionandpolicy.org/cms/index.php?option=com_contenttask=blogcategoryid=293Itemid=202

Dan Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail con...@indiana.edu 
*** 

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RE: 130 Muslim workers fired over unauthorized breaks during Ramadan

[Conkle, Daniel O.]

I tend to agree with Doug (which is generally a safe position to take), but 
Eugene's question is interesting.  Is it fair to describe the question as 
follows:  Is conduct that *facilitates* religious exercise properly protected 
no less than the religious exercise itself?  Perhaps only if the facilitative 
conduct is, in context, essential (or at least reasonably necessary) to the 
religious exercise?  In the free speech context, I think the S. Ct. has 
indicated that the First Am. provides no protection for facilitative conduct; 
see, e.g., Clark v. Comm. for Creative Non-Violence.  In the free 
exercise/RFRA/RLUIPA context, this question may intersect with the issue of 
substantial burden.  Cf. Lyng and the recent 9th Cir. Navajo case.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Friday, September 12, 2008 2:46 PM
To: religionlaw@lists.ucla.edu
Subject: Re: 130 Muslim workers fired over unauthorized breaks during Ramadan


So if they have already passed the point where they have a mandatory lunch 
break under federal law, even though none of them eat, a break at sunset would 
be a second break, with more than de minimis cost, and therefore not required 
under TWA v. Hardison, the leading case on Title VII accommodations.  
Unfortunate, but possibly true.

But if the shifts in this plant are anything like the US norm, that's not a 
problem.  The usual shifts are 8-4, 4-midnight, and midnight to 8, or sometimes 
minor variations of that, such as 7-3, 3-11, and 11-7.  There's nothing magic 
about that, but it puts one shift on people's normal daytime schedule.  
Assuming the shifts at Swift are something like that, then workers at sunset 
would be on roughly a 4-12 shift, and would be asking for an early lunch break 
rather than a federally forbidden late one.

Eugene asks a good question, but sunset in LA this time of year is nearly 13 
hours after sunrise.  The need for food after a 13-hour fast is sufficiently 
intense that there's not much difference between the need for food at sunset 
and the religious need to keep the fast.  A chance to eat at sunset is a 
reasoanble accommodation of the religious need to fast until sunset.

Quoting Alan Leigh Armstrong [EMAIL PROTECTED]:

 Swift also has a federal law and perhaps a state law problem.

 Federal law requires that employees who work a shift longer than 6
 hours must take a 30 minute lunch break. The lunch break cannot be
 more than 5 hours 30 minutes after they start. (I ran into this many
 years ago when i worked for the Navy. Some people would come in early
 saturday, work 8 hours then go home. They were told they had to take
 a 30 minute lunch break.
 Under federal law, they can work a 6 hour shift without a lunch break.

 Does Swift let the employees take 2 30 minute breaks? What does that
 do to production?
 Can Swift put them all on swing or graveyard shift so they are at
 work during the night and avoid the problem of lunch between sunrise
 and sunset?

 When reasonable accommodation hits federal law, which prevails?

 Alan Armstrong
 Huntington Beach California

 On Sep 11, 2008, at 12:03 PM, Douglas Laycock wrote:

 A typically garbled press account, with paragraphs that sound like
 they're from two different disputes.  So it's hard to tell what's
 really going on.

 But if the dispute is really just about a lunch break at sunset,
 it's a pretty straightforward Title VII accommodation claim.  Hard
 to imagine what Swift's undue hardship would be if that standard
 were taken seriously.  Hard to imagine even what a de minimis
 hardship would be if nearly the whole work force is Muslim.  If
 there are also lots of non-Muslim workers, Swift might claim it has
 scheduling problems.  It sounds like at this point they made no
 effort to accommodate and don't give a damn, but of course they
 don't have to explain their legal position to a reporter.

 Quoting Volokh, Eugene [EMAIL PROTECTED]:

  From
  http://www.rockymountainnews.com/news/2008/sep/10/swift-company-
 fires-10
  0-workers/:
 
  At least 130 Muslim workers at the north Greeley JBS Swift  Co.
 plant
  were fired Wednesday afternoon, apparently over a dispute involving
  breaks during Ramadan
 
  At issue is a request by Muslim workers to be able to take their
 lunch
  breaks at sunset to end their fast during Ramadan.
 
  United Food and Commercial Workers Local 7 spokesman Manny
 Gonzales said
  that between 130 to 150 workers from JBS Swift  Co. had been fired.
 
  The firings appear to be related to the walkout of as many as 300
 Muslim
  employees Friday. Many of the workers had been suspended after
 walking
  off the job before

RE: 130 Muslim workers fired over unauthorized breaks during Ramadan

[Conkle, Daniel O.]

Oops.  My reference to free exercise/RFRA/RLUIPA was mistaken, since this is a 
Title VII issue.  Sorry about that.  But I think the issues are similar.  - Dan 
Conkle


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O.
Sent: Friday, September 12, 2008 3:22 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: 130 Muslim workers fired over unauthorized breaks during Ramadan

I tend to agree with Doug (which is generally a safe position to take), but 
Eugene's question is interesting.  Is it fair to describe the question as 
follows:  Is conduct that *facilitates* religious exercise properly protected 
no less than the religious exercise itself?  Perhaps only if the facilitative 
conduct is, in context, essential (or at least reasonably necessary) to the 
religious exercise?  In the free speech context, I think the S. Ct. has 
indicated that the First Am. provides no protection for facilitative conduct; 
see, e.g., Clark v. Comm. for Creative Non-Violence.  In the free 
exercise/RFRA/RLUIPA context, this question may intersect with the issue of 
substantial burden.  Cf. Lyng and the recent 9th Cir. Navajo case.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Friday, September 12, 2008 2:46 PM
To: religionlaw@lists.ucla.edu
Subject: Re: 130 Muslim workers fired over unauthorized breaks during Ramadan


So if they have already passed the point where they have a mandatory lunch 
break under federal law, even though none of them eat, a break at sunset would 
be a second break, with more than de minimis cost, and therefore not required 
under TWA v. Hardison, the leading case on Title VII accommodations.  
Unfortunate, but possibly true.

But if the shifts in this plant are anything like the US norm, that's not a 
problem.  The usual shifts are 8-4, 4-midnight, and midnight to 8, or sometimes 
minor variations of that, such as 7-3, 3-11, and 11-7.  There's nothing magic 
about that, but it puts one shift on people's normal daytime schedule.  
Assuming the shifts at Swift are something like that, then workers at sunset 
would be on roughly a 4-12 shift, and would be asking for an early lunch break 
rather than a federally forbidden late one.

Eugene asks a good question, but sunset in LA this time of year is nearly 13 
hours after sunrise.  The need for food after a 13-hour fast is sufficiently 
intense that there's not much difference between the need for food at sunset 
and the religious need to keep the fast.  A chance to eat at sunset is a 
reasoanble accommodation of the religious need to fast until sunset.

Quoting Alan Leigh Armstrong [EMAIL PROTECTED]:

 Swift also has a federal law and perhaps a state law problem.

 Federal law requires that employees who work a shift longer than 6
 hours must take a 30 minute lunch break. The lunch break cannot be
 more than 5 hours 30 minutes after they start. (I ran into this many
 years ago when i worked for the Navy. Some people would come in early
 saturday, work 8 hours then go home. They were told they had to take
 a 30 minute lunch break.
 Under federal law, they can work a 6 hour shift without a lunch break.

 Does Swift let the employees take 2 30 minute breaks? What does that
 do to production?
 Can Swift put them all on swing or graveyard shift so they are at
 work during the night and avoid the problem of lunch between sunrise
 and sunset?

 When reasonable accommodation hits federal law, which prevails?

 Alan Armstrong
 Huntington Beach California

 On Sep 11, 2008, at 12:03 PM, Douglas Laycock wrote:

 A typically garbled press account, with paragraphs that sound like
 they're from two different disputes.  So it's hard to tell what's
 really going on.

 But if the dispute is really just about a lunch break at sunset,
 it's a pretty straightforward Title VII accommodation claim.  Hard
 to imagine what Swift's undue hardship would be if that standard
 were taken seriously.  Hard to imagine even what a de minimis
 hardship would be if nearly the whole work force is Muslim.  If
 there are also lots of non-Muslim workers, Swift might claim it has
 scheduling problems.  It sounds like at this point they made no
 effort to accommodate and don't give a damn, but of course they
 don't have to explain their legal position to a reporter.

 Quoting Volokh, Eugene [EMAIL PROTECTED]:

  From
  http://www.rockymountainnews.com/news/2008/sep/10/swift-company-
 fires-10
  0-workers/:
 
  At least 130 Muslim workers at the north Greeley JBS Swift  Co.
 plant
  were fired Wednesday afternoon, apparently over a dispute involving
  breaks during Ramadan

October Term 2008

[Conkle, Daniel O.]

Apart from Summum (concerning the claim of a minority religious group to an 
equal access right to place its religious monument in a city park), are there 
other religion-related cases in the pipeline that are likely or possible 
candidates for cert. in the upcoming term?

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***
___
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RE: Religious freedom and 42 USC 666

[Conkle, Daniel O.]

Actually, I think the same combined elements were present in Bowen, even with 
the social security number already in the government's hands - the claimant 
objected to participating in the program by applying for and receiving benefits 
that would, in his view, rob the child's soul because the government would be 
using a social security number and not her name.  So, in effect, he was  
objecting to what was being demanded of him - applying for at least receiving 
benefits, cashing checks, using the money, etc. - in light of what the 
government was doing internally.  Right?

That said, I think Doug's explanation of the internal operations cases is quite 
cogent.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, August 01, 2008 10:59 AM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

Doug:  I much appreciate your responses, and you may well be right.  But 
I'm just not quite sure about the distinction between an objection to any 
behavior demanded of him and an objection to the government's behavior.  As 
I understand it, his objection is to both, or rather to the latter through the 
former.  He says, I object to your demanding that I go along with these things 
that are pursuant to 42 USC 666.  He's not just saying that there's something 
wrong with the government's keeping records on him in room 666; he's saying 
that he refuses to go along with what the government demands of him, because 
the demand is made under 42 USC 666.  Indeed, in the process he's objecting to 
the government's behavior, but the root of it is precisely the objection to 
what's demanded of him -- something that wasn't the case in what remained of 
Bowen, or for that matter in Lyng.

Eugene

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Thursday, July 31, 2008 7:51 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Religious freedom and 42 USC 666


I understand that difference. It shows that the line is not perfectly clean.  
few lines are.

But fundamentally, this guy's religious objection is not to any behavior 
demanded of him.  It is to the government's behavior.  He says, I'll pay my 
child support if you the government renumber your statutes.  It is the 
government's behavior that has to change to put him in compliance with his 
alleged religious beliefs, not his own behavior.  Government wants him to pay 
$X to his wife, and he says he is perfectly willing to pay $X to his wife.  But 
first, the government has to do something that he says is required by his 
religion.

That is the essence of Lyng and Bowen.  He is not trying to insulate his own 
behavior from regulation; he is trying to control the government's behavior.



Quoting Volokh, Eugene [EMAIL PROTECTED]:

 Well, I thought about Bowen v. Roy, but my sense is that the
 internal procedures point there was that the Roys weren't required to
 actually do anything that violated their religious beliefs (the
 government had stopped demanding that they provide Roy's social security
 number, and five Justices took the view that the government indeed had a
 constitutional obligation to so stop).  The Roys just thought that the
 government's practice of giving Roy a number was spiritually harmful.

 Here, the claimant seems to be arguing not that it's bad for the
 government to have a section 666 in its statutes, but that it violates
 his religion to comply with orders issued under that section.
 Presumably, if the government copied or moved this to section 777, then
 he'd be OK with complying, not because the government changed its
 internal procedures, but because the action that he would be required to
 do would no longer be pursuant to a statute numbered with the number of
 the beast.  So that seems different from Bowen v. Roy, no?

 Eugene

 Tom Berg writes:

 To the extent that he objects to paying the support even if
 the provision is renumbered, because the requirement is of
 the antichrist and the 666 simply evidences that, then I
 assume most courts would hold there's a burden but it's
 overcome by a compelling interest.  To the extent he says his
 objection would be cured by renumbering the provision, then
 doesn't this seem like Bowen v. Roy -- and therefore not a
 cognizable burden -- in that the numbering of a statute is a
 matter of the government's internal procedures like the
 assignment of a social security number in Roy?  If
 renumbering the provision would meet the objection, then the
 objection seems separable from the payment requirement itself
 and thus (arguably) concerns

RE: Religious freedom and 42 USC 666

[Conkle, Daniel O.]

As Eugene suggests, I think the burden, in reality, is indeed no different than 
in other contexts.  What's different is the unmanageability of such claims, so 
it's something of a legal fiction to say that there is no burden.  Better, 
perhaps, to say that there is no *constitutionally cognizable* burden, which is 
language the Supreme Court itself has used, if I'm not mistaken.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***





From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, August 01, 2008 11:42 AM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

Perhaps Doug, Dan, and others are right that the case is enough like Bowen 
v. Roy to be disposed of by that precedent.  But it seems to there is a 
specific religious exercise being burdened, in the sense of a specific 
religious prohibition that Sherrod doesn't want to violate:  He thinks it's 
wrong for him to comply with orders issued under the Beast-numbered section, 
just as Thomas thought it was wrong for him to work on producing munitions, or 
Sherbert thought it was wrong for her to work on Saturdays.  It's true that 
this is interference with a negative command (don't participate in 
Beast-authorized things) and not a positive command (do perform this particular 
ritual), but that distinction has rightly never made a difference in religious 
accommodation cases.  Or am I missing something here?

Eugene


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach
Sent: Friday, August 01, 2008 8:19 AM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666


Might it not be helpful in this context to look first at what the specific 
religious exercise is that is being burdened?  That has the virtue of focusing 
the court's analysis while avoiding the vice of a forbidden centrality 
analysis.  See Greene v. Solano County Jail, 513 F.3d 982, 988 (9th Cir. 2008).



In Sherrod's case, I don't see any specific religious exercise that he can 
claim is being burdened.  In the Lyng-like Navajo Nation case currently before 
the Ninth Circuit en banc, by contrast, I think the Navajo have a stronger 
claim than Sherrod does, since they have described specific religious exercises 
that are burdened by the government's action in allowing reclaimed sewage to be 
sprayed on mountains where they conduct religious ceremonies.



Re Tom's question earlier, if San Francisco passed a law (rather than a 
resolution) saying Santeria is a false religion then I think the 9th Circuit 
said in AFA v SF that it might have decided it the other way.  And under Lukumi 
it seems fairly clear that any such law would give rise to a colorable Free 
Exercise claim based on intentional discrimination.




From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, August 01, 2008 10:59 AM
To: Law  Religion issues for Law Academics
Subject: RE: Religious freedom and 42 USC 666

Doug:  I much appreciate your responses, and you may well be right.  But 
I'm just not quite sure about the distinction between an objection to any 
behavior demanded of him and an objection to the government's behavior.  As 
I understand it, his objection is to both, or rather to the latter through the 
former.  He says, I object to your demanding that I go along with these things 
that are pursuant to 42 USC 666.  He's not just saying that there's something 
wrong with the government's keeping records on him in room 666; he's saying 
that he refuses to go along with what the government demands of him, because 
the demand is made under 42 USC 666.  Indeed, in the process he's objecting to 
the government's behavior, but the root of it is precisely the objection to 
what's demanded of him -- something that wasn't the case in what remained of 
Bowen, or for that matter in Lyng.

Eugene

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Thursday, July 31, 2008 7:51 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Religious freedom and 42 USC 666

I understand that difference. It shows that the line is not perfectly clean.  
few lines are.

But fundamentally, this guy's religious objection is not to any behavior 
demanded of him.  It is to the government's behavior.  He says, I'll pay my 
child support if you the government renumber your statutes.  It is the 
government's behavior that has to change to put him in compliance with his 
alleged religious beliefs, not his own behavior.  Government wants him to pay 
$X to his wife, and he says he is perfectly willing to pay $X to his wife

RE: Political divisions along religious lines

[Conkle, Daniel O.]

Agreed.  My point is simply that wherever the line is drawn, folks on both 
sides will test the line, and, in terms of Chris Lund's earlier post, someone 
in the government (whether the courts or otherwise) will have to decide what 
gets said and who gets to say it.  I'm not sure that moving the line in one 
direction or the other is likely to alleviate divisive battles and the need, in 
the end, for the courts to make decisions that will please some folks and 
embitter others.  Perhaps keeping the line somewhere in the middle is best for 
this particular purpose, but there of course are other considerations as well, 
maybe more important than this one.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: Douglas Laycock [mailto:[EMAIL PROTECTED]
Sent: Friday, July 25, 2008 5:35 PM
To: Law  Religion issues for Law Academics; Christopher Lund
Cc: Conkle, Daniel O.; [EMAIL PROTECTED]; 'Law  Religion issues for Law 
Academics'
Subject: RE: Political divisions along religious lines


Either religious or sacreligious.  Either meant to be taken literally and 
seriously, or meant to invoke God's name in vain.  But the Court will never be 
absolutist about this, and these slogans are in no danger.

Quoting Christopher Lund [EMAIL PROTECTED]:

 Responding to Professor Conkle's post, there certainly are
 definitional problems.  For me the hardest are the symbol cases *
 does the Ten Commandments along with a number of secular displays
 really convey a religious message?  Doug Laycock's amicus brief in
 Van Orden, I think, is the best attempt I've seen to draw that line.
 (He says yes.)

 But some of your examples I think are pretty easy.  When the
 government message either says or must inherently assume that God
 exists - that seems like an religious message.  That goes for the
 Pledge, In God We Trust on the coin, and God Save the United
 States.  I'm not saying that all should be struck down.  The costs
 of striking them down might well outweigh the benefits to religious
 liberty, especially with the possibility of constitutional
 amendments.  But that's a separate inquiry * I think they're pretty
 clearly religious statements.

 Christopher C. Lund
 Assistant Professor of Law
 Mississippi College School of Law
 151 E. Griffith St.
 Jackson, MS  39201
 (601) 925-7141 (office)
 (601) 925-7113 (fax)

 [EMAIL PROTECTED] 7/25/2008 3:35 PM 

 Chris Lund writes in part as follows:  if the Supreme Court lets
 government speak religiously, there is a natural push for people to
 want it to speak religiously as much as possible, and in the
 particular way they want.  Eventually, someone in the government
 (whether the courts or otherwise) will have to decide what gets said
 and who gets to say it.

 But this is inevitable, isn't it?  There will be definitional or
 categorization issues regardless of whether a prohibition on the
 government speaking religiously is construed broadly or more
 narrowly.  E.g., under a broad prohibition on government religious
 speech, what about In God We Trust or God Save the United States?
  Religious speech and therefore invalid?  Christmas displays that
 include religious symbols along with other symbols?  Christmas
 displays without such symbols but nonetheless celebrating Christmas?
 An invocation--whether or not so designated--that speaks in general
 terms about faith and hope but not about God?  Would it matter if the
 speaker is a member of the clergy?

 Perhaps a broad prohibition would minimize the
 definitional/categorization issues, but I'm not entirely sure about
 that.

 Dan Conkle
 ***
 Daniel O. Conkle
 Robert H. McKinney Professor of Law
 Indiana University School of Law
 Bloomington, Indiana  47405
 (812) 855-4331
 fax (812) 855-0555
 e-mail [EMAIL PROTECTED]
 ***



 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Christopher
 Lund
 Sent: Friday, July 25, 2008 4:03 PM
 To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu
 Subject: RE: Political divisions along religious lines

 It's true that the battles over the secondary questions have been
 limited (although some, like Hinrichs v. Bosma, have been the source
 of some controversy).  But part of it may be that nothing has reached
 the Supreme Court yet, and so there's no nation-wide, high-profile
 definitive rule that people read about in the papers.  Say the
 Supreme Court takes the case, and holds legislative prayer in Jesus'
 name unconstitutional.  This would cause a serious culture war
 problem too, wouldn't it, maybe on the order of striking down
 legislative prayer altogether?  Committing it all to the political
 branches is the other

RE: Political divisions along religious lines

[Conkle, Daniel O.]

Chris Lund writes in part as follows:  if the Supreme Court lets government 
speak religiously, there is a natural push for people to want it to speak 
religiously as much as possible, and in the particular way they want.  
Eventually, someone in the government (whether the courts or otherwise) will 
have to decide what gets said and who gets to say it.

But this is inevitable, isn't it?  There will be definitional or categorization 
issues regardless of whether a prohibition on the government speaking 
religiously is construed broadly or more narrowly.  E.g., under a broad 
prohibition on government religious speech, what about In God We Trust or 
God Save the United States?  Religious speech and therefore invalid?  
Christmas displays that include religious symbols along with other symbols?  
Christmas displays without such symbols but nonetheless celebrating Christmas?  
An invocation--whether or not so designated--that speaks in general terms about 
faith and hope but not about God?  Would it matter if the speaker is a member 
of the clergy?

Perhaps a broad prohibition would minimize the definitional/categorization 
issues, but I'm not entirely sure about that.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***



-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund
Sent: Friday, July 25, 2008 4:03 PM
To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu
Subject: RE: Political divisions along religious lines

It's true that the battles over the secondary questions have been limited 
(although some, like Hinrichs v. Bosma, have been the source of some 
controversy).  But part of it may be that nothing has reached the Supreme Court 
yet, and so there's no nation-wide, high-profile definitive rule that people 
read about in the papers.  Say the Supreme Court takes the case, and holds 
legislative prayer in Jesus' name unconstitutional.  This would cause a serious 
culture war problem too, wouldn't it, maybe on the order of striking down 
legislative prayer altogether?  Committing it all to the political branches is 
the other solution.  It would keep the problems and divisions local and out of 
the public limelight -- but they will still exist.  Minority listeners 
attending meetings will still feel aggrieved; perhaps candidates in local 
elections would start to run on prayer-related questions.

I didn't mean to suggest that striking down legislative prayer was the least 
controversial of the Court's options.  But I do think that if the Supreme Court 
lets government speak religiously, there is a natural push for people to want 
it to speak religiously as much as possible, and in the particular way they 
want.  Eventually, someone in the government (whether the courts or otherwise) 
will have to decide what gets said and who gets to say it.

And I can't help but think that if we didn't let government speak religiously, 
people wouldn't expect it to.  Maybe this is utter foolishness, but I reread 
Simpson (the case of the Wiccan woman being excluded from being able to offer a 
legislative prayer) last week.
Chesterfield County didn't have legislative prayer until 1984, when in the wake 
of Marsh, it decided to do so.  It was the judicial ratification of legislative 
prayer that prompted Chesterfield County to adopt it.

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
 [EMAIL PROTECTED] 07/25/08 1:16 PM 
But the battles over secondary questions, as best I can tell, tend to 
be quite low-profile.  A few people care fairly deeply; most don't.  What's 
more, the battles happen in relatively few places.  A Supreme Court decision 
invalidating legislative prayer everywhere in the country, notwithstanding the 
tradition going back to the First Congress, would become notorious and would 
continue to be notorious -- like the school prayer decision, but probably more 
so, because the contradiction with the revealed views of the Framers would be 
even stronger.  Like a decision striking down the Pledge of Allegiance, it 
would become an emblem of the culture wars, and something that I suspect would 
substantially exacerbate those culture wars.

Eugene


 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Christopher
 Lund
 Sent: Friday, July 25, 2008 10:26 AM
 To: Volokh, Eugene; religionlaw@lists.ucla.edu
 Subject: Re: Political divisions along religious lines

 I agree with this, but your account only talks about the divisions
 caused by the first decision.  Striking down legislative prayer would
 indeed be controversial, more so than approving it.  I think

RE: Lee v. Weisman and compulsion to photograph a religious ceremony

[Conkle, Daniel O.]

One possible distinction, at least if one accepts Justice Kennedy's rationale 
in Weisman:  It might be less likely that the photographer, who is attending to 
perform a special service, would be perceived to be participating in or 
approving the worship activity in question.  Cf. Weisman:  There can be no 
doubt that for many, if not most, of the students at the graduation, the act of 
standing or remaining silent was an expression of participation in the rabbi's 
prayer. That was the very point of the religious exercise. It is of little 
comfort to a dissenter, then, to be told that for her the act of standing or 
remaining in silence signifies mere respect, rather than participation.  What 
matters is that, given our social conventions, a reasonable dissenter in this 
milieu could believe that the group exercise signified her own participation or 
approval of it.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, April 15, 2008 9:55 AM
To: Law  Religion issues for Law Academics
Subject: Lee v. Weisman and compulsion to photograph a religious ceremony

Last week, the New Mexico Human Rights Commission held that Elane 
Photography (a husband-and-wife photography business for which the primary 
photographer is the wife, Elaine Huguenin) violate New Mexico public 
accommodation discrimination law by refusing to photograph a same-sex 
commitment ceremony.  The Commission ordered the Huguenins to pay $6600 in 
costs and attorney fees.  (For more, see 
http://volokh.com/posts/chain_1207764182.shtml .)

People have discussed elsewhere the compelled speech dimension of the 
case, and in January we discussed on the list the New Mexico RFRA issues.  But 
let me ask a different question:  I've just learned that the ceremony that 
Huguenin would have had to photograph was likely a religious ceremony -- it was 
conducted by a minister, so I take it that it likely had some religious 
dimension, even if only a modest one -- though the record is silent on whether 
it would have been performed in a church.  Would imposing such a requirement on 
someone constitute impermissible coercion to participate in religious activity 
under Lee?
(I realize that this argument would not apply to a requirement to photograph 
the secular reception.)

Of course, having to photograph a religious ceremony doesn't involve 
having to say a prayer or perform any ritual.  But likewise having to stand 
silent (even if that was coerced) during a prayer also doesn't involve having 
to say a prayer or perform any ritual (unless silent standing is seen as a 
ritual during a prayer can be seen as a ritual, but then why wouldn't silent 
standing during a religious wedding be seen the same way?).  I tend to think 
that Scalia was right in his Lee dissent to say that no religious activity was 
actually coerced there
-- but given the majority's contrary conclusion, how would we resolve the 
question related to a requirement that one attend and photograph a religious 
wedding?

Eugene
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RE: Cert Grant in Summum

[Conkle, Daniel O.]

Another twist on this issue is Justice Breyer's controlling opinion in Van 
Orden, which relied in part on the private donation of the Ten Commandments 
monument as support for his determination that the monument did not violate the 
Establishment Clause:  The tablets, as displayed on the monument, prominently 
acknowledge that the Eagles donated the display, a factor which, though not 
sufficient, thereby further distances the State itself from the religious 
aspect of the Commandments' message.  Van Orden v. Perry, 545 U.S. 677, 701-02 
(2005) (Breyer, J., concurring in the judgment).

It seems that for Breyer, the private donation--and the notation thereof on the 
monument itself--made the government less than fully responsible for the 
content of the display, even though, by every indication, the display had 
become largely the government's expression and responsibility.  So, not private 
speech, but not fully governmental speech either?  I.e., not sufficiently 
private to trigger 1st Am. forum analysis, but partially private nonetheless, 
i.e., private enough to help insulate the government from an Establishment 
Clause challenge?

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan
Sent: Tuesday, April 01, 2008 12:17 PM
To: Law  Religion issues for Law Academics
Subject: RE: Cert Grant in Summum

Leaving aside the specifics of the Summum litigation, I think there are some 
interesting issues raised by this case. When the government accepts permanent 
structures from private groups to be placed on public property, can these 
decisions ever be evaluated under forum analysis? Would the government's 
decisions ever create a designated limited public forum? If not, would it ever 
be proper to characterize these decisions and the display of the structures as 
a nonpublic forum subject to the prohibition against viewpoint discrimination. 
If the answer to these questions is at least yes, in some circumstances, then 
we have to figure out how we  distinguish those situations in which forum 
analysis is appropriate from those in which it is not.
Certainly, the question of whether or not you can ever have a forum of 
permanent displays is an open one for the lower federal courts. There are 
several cases challenging content and viewpoint based restrictions on the 
donation of tiles and bricks for the halls and walkways of public schools. The 
tiles and bricks are clearly intended to be permanent, not temporary. There is 
no clear consensus among the courts that have adjudicated these cases as to the 
proper analysis to be applied.
The Summum case may be much easier to resolve because there were so few 
displays accepted by the government for the area at issue - the alleged forum. 
But that still leaves open the question of whether the government's acceptance 
of a sufficiently large number of private permanent displays can ever implicate 
free speech concerns.
Alan Brownstein
UC Davis School of Law


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher Lund
Sent: Monday, March 31, 2008 1:40 PM
To: religionlaw@lists.ucla.edu
Subject: Cert Grant in Summum

The Supreme Court today granted cert in an unusual Ten Commandments case, 
Summum v. Pleasant Grove City.  The case was brought by a religious 
organization that wanted to put up its own religious monument in a city park, 
given that there was already a Ten Commandments display there.  The Tenth 
Circuit found for the plaintiffs, agreeing with them that the park was a 
traditional public forum from which the plaintiffs could only be excluded upon 
the showing of a compelling interest.  The panel's decision seems pretty 
dubious - I imagine the Supreme Court will reverse, with a logic along the 
lines of Judge McConnell's dissent from denial of rehearing en banc.

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
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RE: Shielding child whose mother is Catholic from father's Wiccan lifestyle?

[Conkle, Daniel O.]

Ordinarily, the government, including judges, properly has little or no say in 
parental decisionmaking, lifestyle choices, etc., even if those parental 
choices or activities might not (in the view of the government, including 
judges) be in the best interests of the child.  It seems to me that the 
difficulty in the particular context of custody and visitation is that the 
government, through judges, necessarily involves itself in these matters.  The 
question then is whether or to what extent the religious aspects or elements of 
particular parental choices or activities should render them immune from the 
best interest evaluation that otherwise would be applicable in this specific 
corner of the law.

I think Carl Schneider has written helpfully on these questions.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***



From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven
Sent: Thursday, January 24, 2008 7:53 AM
To: Law  Religion issues for Law Academics
Subject: Re: Shielding child whose mother is Catholic from father's Wiccan 
lifestyle?

Shouldn't the issue be framed as whether the judge is granting greater 
solicitude to religious aspects of the child's upbringing than to non-religious 
ones of comparable influence? If the father had suddenly developed an extreme 
interest in, say, raucous rock concerts (weird people, drums, dancing), 
contrary to the household ambiance when the parents were married, would an 
order such as this seem so exceptional?

I think in a lot of these cases, where post-divorce one parent undergoes a 
lifestyle transformation (in either direction--harking back to the original 
case of the father who became ultra-Orthodox or the mother who recanted 
orthodoxy), the court is saving the parent from him- or herself by limiting the 
child's exposure while the child could develop a strong aversion to the wayward 
parent. Older children, of course, are well-versed in rolling their eyeballs at 
their parents' idiosyncrasies (though I wonder if that too is a feint).

Vance

On Jan 23, 2008 7:14 PM, Ed Brayton [EMAIL PROTECTED]mailto:[EMAIL 
PROTECTED] wrote:
The more I dig into cases similar to this the more I think that judges
should not be allowed to consider religion at all. It's just too ripe for
abuse, too open for a judge to be prejudiced against one party to the case
because of their religion or (more commonly) their lack of it. I am
astonished at the fact that appeals courts have refused to overturn such
rulings even when they've been outrageously wrong.

Ed Brayton

-Original Message-
From: [EMAIL PROTECTED]mailto:[EMAIL PROTECTED]
[mailto: [EMAIL PROTECTED]mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, 
Eugene
Sent: Wednesday, January 23, 2008 4:22 PM
To: Law  Religion issues for Law Academics
Subject: Shielding child whose mother is Catholic from father's Wiccan
lifestyle?

   A recent New York state appellate court decision upheld a father's
petition for overnight visitation, but stressed that this was done only
because the father and his fiancee agreed to refrain from exposing the
child to any ceremony connected to their religious practices, and because
the Family Court could mandate, in the visitation order, protections
against her exposure to any aspect of the lifestyle of the father and his
fiancée which could confuse the child's faith formation.

   I tracked down the trial court decision, and it turns out the
father's and his fiancée's lifestyle and religious practices were
Wiccan.  The trial court concluded that the child (age 10 at the time of the
appellate court's decision) is too young to understand that different
lifestyles or religions are not necessarily worse than what she is
accustomed to; they are merely different.  For her, at her age, different
equates to frightening.  So when her father and her father's fiancé[e] take
her to a bonfire to celebrate a Solstice, and she hears drums beating and
observes people dancing, she becomes upset and scared.  There was no
further discussion in the trial court order of any more serious harm to the
child, though of course there's always the change that some evidence was
introduced at trial but wasn't relied on in the order.

   Given this, should it be permissible for a court to protect the
child from becoming upset and scared by ordering that a parent not
expos[e the child] to any aspect of [the parent's] lifestyle ... which
could confuse the child's faith formation?

   Eugene
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RE: Shielding child whose mother is Catholic from father's Wiccan lifestyle?

[Conkle, Daniel O.]

Maybe I wasn't clear.  I wasn't suggesting how these cases should be decided, 
but only attempting to highlight what I think to be the underlying issue or 
problem.  (Maybe my point was so obvious that it could have gone without 
saying.)

I haven't studied this particular area with care, but I'm inclined to agree 
with what Vance writes in most recent posting.

Dan Conkle


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven
Sent: Thursday, January 24, 2008 8:44 AM
To: Law  Religion issues for Law Academics
Subject: Re: Shielding child whose mother is Catholic from father's Wiccan 
lifestyle?

I'm a bit confused by Prof. Conkle's last sentence. The judges have been 
explicitly ruling based on the best interests standard, which is the only one 
they are permitted to apply. The question is not whether religion should be 
exempt from the standard, but whether religion should be a favored or 
disfavored component of it. In the case Eugene brought up, it seems that the 
judge was very explicitly evaluating the impact of the father's religious 
conversion on the child's personality formation, which is quite appropriate. 
That such evaluations can serve as a subterfuge for a judge's personal 
predilections is certainly a danger that should be guarded against, but not at 
the cost of removing religious factors entirely from the evaluation; they 
should be part of the consideration, to the same extent as anything else that 
might affect the welfare of the child.

On Jan 24, 2008 8:19 AM, Conkle, Daniel O. [EMAIL PROTECTED]mailto:[EMAIL 
PROTECTED] wrote:
Ordinarily, the government, including judges, properly has little or no say in 
parental decisionmaking, lifestyle choices, etc., even if those parental 
choices or activities might not (in the view of the government, including 
judges) be in the best interests of the child.  It seems to me that the 
difficulty in the particular context of custody and visitation is that the 
government, through judges, necessarily involves itself in these matters.  The 
question then is whether or to what extent the religious aspects or elements of 
particular parental choices or activities should render them immune from the 
best interest evaluation that otherwise would be applicable in this specific 
corner of the law.

I think Carl Schneider has written helpfully on these questions.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]mailto:[EMAIL PROTECTED]
***


From: [EMAIL PROTECTED]mailto:[EMAIL PROTECTED] [mailto:[EMAIL 
PROTECTED]mailto:[EMAIL PROTECTED]] On Behalf Of Vance R. Koven
Sent: Thursday, January 24, 2008 7:53 AM

To: Law  Religion issues for Law Academics
Subject: Re: Shielding child whose mother is Catholic from father's Wiccan 
lifestyle?

Shouldn't the issue be framed as whether the judge is granting greater 
solicitude to religious aspects of the child's upbringing than to non-religious 
ones of comparable influence? If the father had suddenly developed an extreme 
interest in, say, raucous rock concerts (weird people, drums, dancing), 
contrary to the household ambiance when the parents were married, would an 
order such as this seem so exceptional?

I think in a lot of these cases, where post-divorce one parent undergoes a 
lifestyle transformation (in either direction--harking back to the original 
case of the father who became ultra-Orthodox or the mother who recanted 
orthodoxy), the court is saving the parent from him- or herself by limiting the 
child's exposure while the child could develop a strong aversion to the wayward 
parent. Older children, of course, are well-versed in rolling their eyeballs at 
their parents' idiosyncrasies (though I wonder if that too is a feint).

Vance

On Jan 23, 2008 7:14 PM, Ed Brayton [EMAIL PROTECTED]mailto:[EMAIL 
PROTECTED] wrote:
The more I dig into cases similar to this the more I think that judges
should not be allowed to consider religion at all. It's just too ripe for
abuse, too open for a judge to be prejudiced against one party to the case
because of their religion or (more commonly) their lack of it. I am
astonished at the fact that appeals courts have refused to overturn such
rulings even when they've been outrageously wrong.

Ed Brayton

-Original Message-
From: [EMAIL PROTECTED]mailto:[EMAIL PROTECTED]
[mailto: [EMAIL PROTECTED]mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, 
Eugene
Sent: Wednesday, January 23, 2008 4:22 PM
To: Law  Religion issues for Law Academics
Subject: Shielding child whose mother is Catholic from father's Wiccan
lifestyle?

   A recent New York state appellate court decision upheld a father's
petition for overnight visitation, but stressed that this was done only

RE: Of Phelps and Persecution

[Conkle, Daniel O.]

Thanks as always to Alan for his thoughtful posts, including his response to my 
question.  I'm not entirely sure, but I could very well be persuaded to adopt 
Alan's approach.  In any event, I agree that the Skokie situation can be 
distinguished on the grounds that Alan proposes.  That said, Blackmun's 
suggestive comment in Smith v. Collin, which I quoted before (see below), 
suggests that Alan's approach - like any context-specific, open-ended balancing 
analysis - creates questions of degree and therefore creates risks of unduly 
restrictive applications that are not presented by stronger, brighter-line 
rules.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan
Sent: Wednesday, November 07, 2007 6:29 PM
To: Law  Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

Great question, Dan. And I actually gave some thought to Skokie when I wrote my 
post. I would argue that the Skokie situation does not fit my framework.  In 
Skokie, Jews (some of whom were concentration camp survivors) were part of the 
general population of a community. They were part of the public at large that 
the Nazis were addressing with their march through the city's streets.  Holding 
a march expressing a racist message down the main streets of a community with a 
significant black population or holding a march expressing an anti-Semitic 
message in a town where many Jews live  does not present a sufficiently focused 
location/context/message to trigger my balancing analysis. Similarly, if Phelps 
and his crowd hold a march through the main streets of a town near a military 
base or pro-life protestors hold a march through a town where many women have 
had an abortion, I don't think my balancing analysis would apply either.

I think a protest adjacent to and during the burial service of a soldier and a 
ring of protestors outside a clinic a patient is entering for medical services 
can be distinguished from a march down the main public streets of a community 
at a time of no particular significance that is deeply offensive to many of the 
people who live in that community - even if the town was selected as the site 
for the march precisely because of the demographics of its population.  The 
message would be offensive to the part of the community it insults wherever it 
was expressed. And I don't think the feelings associated with Not in my town 
can be equated with Not at the burial service of my son.

Basically, I think a protest by Nazis outside the cemetery that disrupts the 
burial services of concentration camp survivors is different than the Nazis 
march through the main streets of Skokie. Do you disagree and believe that 
there isn't any meaningful difference between these two events for free speech 
purposes, Dan? (Needless to say, the Nazis are fascist scum in either case, but 
that doesn't decide the constitutional question.)

Alan Brownstein





From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O.
Sent: Wednesday, November 07, 2007 2:32 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Of Phelps and Persecution

Under Alan's approach, I wonder whether the Nazis could have properly been 
denied the right to march in Skokie?  Would the proposed Nazi march at least 
have triggered Alan's balancing analysis, on the ground that the Nazis would 
have chosen a location/context/message that targets an audience that will 
suffer unique and especially hurtful injuries as a result of  the demonstrators 
expressive activities?  Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) 
([W]hen citizens assert, not casually but with deep conviction, that the 
proposed demonstration is scheduled at a place and in a manner that is taunting 
and overwhelmingly offensive to the citizens of that place, that assertion, 
uncomfortable though it may be for judges, deserves to be examined.).


Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***


From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan
Sent: Wednesday, November 07, 2007 1:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution
In the overwhelming majority of cases involving demonstrations communicating 
with the public at large, I would argue that the demonstrators should be free 
to say what they want, in the location they choose, subject to reasonable 
content neutral time, place

RE: Of Phelps and Persecution

[Conkle, Daniel O.]

Under Alan's approach, I wonder whether the Nazis could have properly been 
denied the right to march in Skokie?  Would the proposed Nazi march at least 
have triggered Alan's balancing analysis, on the ground that the Nazis would 
have chosen a location/context/message that targets an audience that will 
suffer unique and especially hurtful injuries as a result of  the demonstrators 
expressive activities?  Cf. Smith v. Collin (1978) (Blackmun, J., dissenting) 
([W]hen citizens assert, not casually but with deep conviction, that the 
proposed demonstration is scheduled at a place and in a manner that is taunting 
and overwhelmingly offensive to the citizens of that place, that assertion, 
uncomfortable though it may be for judges, deserves to be examined.).


Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***



From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan
Sent: Wednesday, November 07, 2007 1:09 PM
To: Law  Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

In the overwhelming majority of cases involving demonstrations communicating 
with the public at large, I would argue that the demonstrators should be free 
to say what they want, in the location they choose, subject to reasonable 
content neutral time, place and manner regulations. If the demonstrators choose 
a particular location because it is likely to attract public attention and the 
media, they should be protected in their choice. If, however, the demonstrators 
have chosen a location/context/message that targets an audience that will 
suffer unique and especially hurtful injuries as a result of  the demonstrators 
expressive activities, courts should evaluate the harm that the demonstration 
causes against the free speech rights of the demonstrators. That balance would 
include the conventional factors that courts consider - the importance of the 
state's interest, the availability of alternative avenues of communication 
through which the speakers could express their message to the public without 
causing so much harm etc. Pursuant to that analysis, the fact that the 
demonstrators are trying to persuade a particular audience to change their 
beliefs or behavior and that the injuries their speech may cause is an 
inescapable consequence of the demonstrators' attempt to fulfill that 
expressive mission counts in favor of the demonstrators free speech rights.  
(That's the anti-abortion protest outside of a clinic example.)

If the demonstrators have chosen a location/context/message that targets an 
audience that will suffer unique and especially hurtful injuries as a result of 
 the demonstrators expressive activities and there is no particular reason that 
furthers free speech values why they should be in that place/ expressing that 
message/in that context - that is, there is no special reason why they should 
be directing their message to the public at large to the direct and immediate 
audience of the mourners at a funeral - then I would assign less weight to 
those demonstrators free speech claims. If the demonstrators have chosen that 
location/context/message because the injuries their speech will cause to the 
targeted audience is what attracts media attention to their message, I would 
assign less weight to those demonstrators' free speech claims as well. (This is 
the protests at the soldier's funeral example) In these situations, in my 
judgment, the demonstrators have plenty of opportunities to communicate their 
message to the public without causing unique and especially hurtful injuries to 
a targeted audience. And I do not assign substantial free speech value to their 
attempt to leverage the harm their speech causes to a targeted audience in 
order to amplify their message.

But this analysis only comes into play when the location/context/message causes 
unique and especially hurtful injuries. Under the free speech clause, as I 
understand it, all protected speech is presumed to have sufficient value to 
outweigh the normal costs of permitting it to be expressed (offense, attenuated 
influence on unlawful behavior etc.). It is only when those costs come close to 
crossing a threshold that puts the question of whether the speech should be 
protected in doubt, that I would draw a distinction between persuasive speech 
directed at an audience to change its beliefs and behavior and other speech in 
context that does not serve core free speech values.

Alan Brownstein

From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 06, 2007 8:30 PM
To: Law  Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution

Alan:  I appreciate your argument, and I sympathize

RE: Speech and conduct

[Conkle, Daniel O.]

I'm largely (90%?) in agreement with Eugene, but I'd add a slight caveat.  I 
think that some (small?) part of the offensiveness or invasion of privacy 
here is, indeed, the mere presence of strangers in close proximity to the 
funeral - an event that, as a matter of social custom, decency, and respect for 
the dead and their families, ordinarily is confined to those who are in some 
broad sense invited guests who wish to participate in or observe the ceremony.

Compare Frisby on targeted picketing.  If my house is the target of picketing, 
I think that some (small?) part of the offensiveness or invasion-of-privacy 
concern is that a stranger is persistently standing right in front of my house 
- even though he is on public property and is not legally trespassing.  It 
bothers me simply that he is *there*; that he's not moving on.  (I'd be 
concerned even if the person carried a blank picket sign or carried no sign at 
all and said nothing at all.)

To this limited extent, in both Frisby and in the funeral context, the harm is 
grounded in part on an intangible privacy concern about the presence of 
strangers, which might be characterized as a concern about conduct and which is 
independent of any message.

Dan Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***



-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Friday, November 02, 2007 2:43 AM
To: Law  Religion issues for Law Academics
Subject: Speech and conduct

Setting aside all the other factors for now, I hope we could
agree that viewing this sort of picketing as conduct is the wrong way
for courts to go.  The picketing is offensive precisely because of the
message it communicates.  The noncommunicative components (the presence
of people, the fact that they occupy space on the sidewalk, the fact
that they carry signs on sticks) are irrelevant here (unless the
picketing somehow blocked the driveway into the cemetery or some such,
which I don't believe it did).

Treating this speech as conduct works as poorly, I think, as
Justice Blackmun's view in Cohen v. California that Cohen's absurd and
immature antic ... was mainly conduct and little speech.  Whatever the
bottom line, it seems to me that courts should confront the true nature
of what's going on here, and what's going on here is speech that's
offensive precisely because it's speech.

Eugene


Alan Brownstein writes:

I think Eugene is right. This is, at its core, a content-based
restriction on speech. The context, in my judgment, is primarily
relevant to three questions: whether the penalty on speech can be
justified because of the consequences of the speech, whether the context
is such that we want to view this expression as something other than
speech (some kind of conduct) or  whether we view this as some kind of
speech that is not protected by the first amendment. It is never been
clear to me which of these reasons explains why certain kinds of
expressive activities can be punished as harassment - but clearly it is
permissible to punish harassment in certain circumstances. The tort of
IIED raises a similar mystery. I'm not suggesting that there isn't an
answer that justifies at least some applications of the cause of action.
But I don't think courts have told us what that answer is yet.

I would prefer that the situation in this case (and others like
it) be resolved by statutory limits on disruptive speech on public
property adjacent to places like cemeteries, funeral homes, hospitals
etc..  The benefit of a statute is that it can designate the contexts
which we consider totally inappropriate for extremely hurtful speech at
specific times and places. IIED leaves that question up to the
discretion of juries.

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RE: IIED and vagueness

[Conkle, Daniel O.]

As for Eugene's models 1 and 2, and his preference for model 1, I think of two 
examples I often use in teaching Hustler:  (a) suppose Falwell's mother had 
been the IIED plaintiff in the Hustler case with respect to the very same 
parody (unlike Falwell, not a public figure plaintiff, but presumably still a 
matter of public concern) and (b) a New York case (I can't remember the name) 
permitting IIED liability against radio disc jockeys for broadcasting the name 
and place of employment of a young woman whose wedding picture had run in the 
local newspaper and whom the disc jockeys declared the winner of their ugly 
bride contest (not a public figure plaintiff, and not a matter of public 
concern).  I assume Eugene would preclude liability in each case, including the 
ugly bride case; model 2, by contrast, would permit liability in the ugly 
bride case but not in favor of Falwell's mother.  It strikes me that model 2 
is preferable; why shouldn't the alleged ugly bride be pe!
 rmitted recovery for the disc jockeys' outrageous (and heartless) speech at 
her expense?

Dan
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***



-Original Message-
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Thursday, November 01, 2007 6:16 PM
To: Law  Religion issues for Law Academics
Subject: RE: IIED and vagueness

I think that (1) otherwise protected speech (i.e., speech that falls 
outside the exceptions, and any new strict-scrutiny-justified
exclusions) should be as immune from IIED liability as from other liability.  
But (2) as a fallback, I would say that at the very least speech on matters of 
public concern should be so protected.  I think item 1 is preferable for 
various reasons, including how hard it is to enunciate any rule distinguishing 
speech on matters of public concern from speech on matters of private concern, 
and in particular how badly the Court has botched past decisions applying this 
(e.g., Connick, Dun  Bradstreet, the dictum in Bartnicki which says that trade 
secrets are not matters of public concern).  But 2 is the least that should be 
provided.

My sense, incidentally, is that the dominant (in my view,
correct) view among the lower courts is that otherwise protected speech on 
matters of public concern should be protected against IIED liability; the view 
(in my view, incorrect) among the few lower courts that have considered the 
question as to private-concern speech is that private concern speech should not 
be so protected -- so the emerging pattern in lower courts is 2.

As to telephone harassment laws, it depends on the law; but as a 
general matter, I think there's some room for the Rowan exception -- when the 
speech is said to a particular person, who has already said he doesn't want to 
hear it or (perhaps) who almost certainly doesn't want to hear it even if he 
hasn't said so, that person should be entitled to cut off communication to him 
so long as this doesn't cut off communication to others.  I don't think this 
should apply as to speech in public places that is visible by all passersby; 
and even if it is so applicable, and a law restricting such speech would be 
constitutional, it would have be framed to be limited to such speech, rather 
than using the broad terms of the IIED tort.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
 Alan
 Sent: Thursday, November 01, 2007 2:31 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: IIED and vagueness

 Just to be clear here, Eugene. Leaving vagueness aside for the moment:

 Are you arguing that all IIED decisions holding defendants liable are
 unconstitutional unless they fall within the conventional categories
 of unprotected speech (or since they are content-based, unless they
 can satisfy strict scrutiny)

 Are you arguing that all IIED cases holding defendants liable are
 unconstitutional unless they fall within the conventional categories
 of unprotected speech (or since they are content-based, unless they
 can satisfy strict scrutiny) -- but only if they involve speech on
 matters of public concern.

 Would an IIED claim be constitutional if it did not involve a matter
 of public concern?

 Do you think the same analysis applies with regard to harassment
 statutes (such as telephone harassment statutes)?

 I don't have an easy answer to these questions, but I admit that that
 I am wary of having too much turn on whether speech is on a matter of
 public concern and on declaring all IIED claims and harassment
 prohibitions unconstitutional.

 Alan Brownstein



 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
 Eugene
 

7th Circuit Taxpayer Standing Decision

[Conkle, Daniel O.]

The 7th Circuit, 2-1 (majority opinion by Judge Ripple, joined by Judge Kanne), 
has extended Hein v. Freedom from Religion Foundation to a case involving a 
claim of *state* taxpayer standing.  The case involves a taxpayer challenge to 
sectarian legislative prayer in the Indiana House of Representatives.  The 
plaintiffs earlier had won a district-court injunction against this practice, 
and the 7th Circuit had tentatively agreed in denying a stay, but the 7th 
Circuit now concludes that Hein, combined with DaimlerChrysler Corp. v. Cuno, 
calls for dismissal for lack of standing.

Judge Wood dissents, arguing that the majority misreads Hein.  Judge Wood also 
suggests that proper plaintiffs would not be difficult to find, based on more 
direct encounters with the prayers, etc., but she argues that the existing 
taxpayer plaintiffs should themselves have been permitted to proceed.

Hinrichs v. Speaker of the House of Representatives,  
http://www.ca7.uscourts.gov/tmp/7S0THZZJ.pdf

Daniel O. Conkle
***
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
***
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Prison Book Purge

[Conkle, Daniel O.]

Assuming the media reports are accurate, I think the government's purge
of religious books is outrageous.  That said, I'm wondering about the
legal framework for analysis.  Doug is quoted in the N.Y. Times as
saying that the government's justification must be compelling.  I can
see how that might be the test, assuming RFRA is triggered, but I wonder
if there is a substantial burden in not being provided with a religious
library with a particular set of books?  (I take it that prisoners who
can afford them can buy additional books on their own.)  Is the claim of
substantial burden enhanced by a claim of religious
discrimination--i.e., the government's picking and choosing of religious
texts--potentially implicating the Free Exercise Clause itself,
notwithstanding Smith?   Cf. Lukumi; but cf. Locke v. Davey.  Also,
thinking of some of Alan Brownstein's previous postings to the list, I
wonder if any claim under RFRA or under the Free Exercise Clause should
be considered in light of more general Free Speech doctrine, as applied
in the prison setting.  If Pico suggests that public school libraries
can remove library books limited only by a prohibition on narrowly
partisan decisionmaking (that's how I read the case, although I could be
mistaken), then what is the proper standard for a prison library?  Or is
the argument here that the government is essentially deciding what
counts as good religion, at least for prisoners, implicating the
(Establishment and/or Free Exercise) principle that the government
cannot itself resolve theological questions?
Dan Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
*** 

 
 
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RE: Mormon Student, Justice, ACLU Join Up

[Conkle, Daniel O.]

With apologies for the self-serving plug, I've written in some sympathy
with what I take to be David's position, suggesting that, indeed, there
are important similarities between certain types of closed-minded
religious believers and certain types of closed-minded secularists.
Under the framework I suggest, the most important difference between the
two competing perspectives is what falls within the zone of permissible
argument/discourse/source of truth and what falls outside it:
 
Daniel O. Conkle, Secular Fundamentalism, Religious Fundamentalism, and
the Search for Truth in Contemporary America, 12 Journal of Law and
Religion 337-70 (1995-96) (also available in Law and Religion: A
Critical Anthology (Stephen M. Feldman, ed.; NYU Press 2000) and at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=911647) 
 
Daniel O. Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
*** 

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn
Sent: Friday, September 07, 2007 9:32 AM
To: Law  Religion issues for Law Academics
Subject: RE: Mormon Student, Justice, ACLU Join Up


I believe this distinction to be incorrect.  Both atheists and
evangelicals adhere to particular ideological perspectives.  The
atheist, as you posit him or her, does not believe in god because god
cannot be proven by empirical means (i.e. sufficient evidence.)  True.
But that assumes that science can either prove or disprove god.  That is
like saying science (in the hard, empirical, lab-experimental sense) can
prove or disprove love or morality or some other complex social
phenomena.  It is not enough to say that the default in the absence of
proof must be disbelief.  At best it should be agnosticism at something
that is posited to exist outside of the materialist paradigm.  That is
not the position atheists like Dawkins take.
 
I should add, my posts are not directed at an abstract, theoretical
atheist, but rather at the public discourse surounding the neo-atheists
(Harris, Dawkins, etc.)
 
David







From: [EMAIL PROTECTED]
Date: Fri, 7 Sep 2007 07:57:10 -0400
Subject: Re: Mormon Student, Justice, ACLU Join Up
To: religionlaw@lists.ucla.edu



David E. Guinn wrote:
 
Third, to say atheists are not evangelical ignores the passion
and furor around Harris, Dawkins, Hutchens et. al. and the best selling
books they have written.
 
 
The distinction between evangelism and atheism should
not be collapsed because both exhibit passion or that there is furor
surrounding the work of some atheists.  The distinction is that the
former eschews the kind of evidence that everyone, including
evangelicals, rely upon in everyday dealings, personal and professional
relationships, business, politics, and of course science. A principled,
thoughtful atheist will renounce his or her position when confronted
with sufficient evidence.  Evangelicals relying upon faith will not, or
at least they claim that they will not because nothing for them can
constitute sufficient evidence.
 
Bobby
  
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware

Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/
http://ratiojuris.blogspot.com/ 
Essentially Contested America, Editor-In-Chief
http://www.essentiallycontestedamerica.org/
http://www.essentiallycontestedamerica.org/ 






Get a sneak peek of the all-new AOL.com
http://discover.aol.com/memed/aolcom30tour/?ncid=AOLAOF0002000982
.




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RE: Indiana License Plates

[Conkle, Daniel O.]

I see Steve's point, but I'm not sure I agree.  Other things equal, I
would think that the existence of choice (even if skewed to a degree)
would make the establishment clause claim weaker, not stronger.
Likewise, the existence of choice suggests that there is an element of
personal speech here, which likewise might tend to counteract an
establishment clause argument.  I wonder if the problem--if there is
one--is the prominence and the novelty of the license plate displays,
which are partly personal but largely governmental speech and which
arguably go beyond the bounds of the tradition that supports the
national motto in other contexts.

Dan Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
*** 
  

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steve Sanders
Sent: Friday, March 23, 2007 12:48 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Indiana License Plates

Were Indiana to put this same motto on all standard license plates, and 
not offer its citizens any choice in the matter, I think the analogy to 
the currency would be perfectly apt.

But this seems different.  In Indiana, there's a standard plate and 
various optional plates.  If you choose an optional plate to express 
your support for your university, or veterans, or the national guard, 
or DARE, or even our troops, you pay an extra fee.  But choose the 
optional plate on which you display the government's endorsement of 
God, and the government in effect gives you a subsidy for agreeing to 
propagate that particular religious message.


Quoting Volokh, Eugene [EMAIL PROTECTED]:

   Well, to the same extent that the motto on currency is
 establishment, or the phrase Let this be our motto, In God Is Our
 Trust in our national anthem is establishment -- which is to say,
given
 the courts' caselaw on this, not establishment.

 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley
 Sent: Thursday, March 22, 2007 10:10 PM
 To: Law  Religion issues for Law Academics
 Subject: Indiana License Plates

 Specialty plates cost money;  But not if you want to proclaim
 your religiosity on the rear bumper of your car in Indiana.

 http://fauxrealtho.com/2007/03/22/in-god-indiana-trusts/

 The author brings up a very good point:  Indiana has a number
 of specialty license plates available, but the In God We
 Trust plates don't carry the extra fees that all the others
 do.  Why should those who identify with religion do so at
 taxpayer's expense?

 It smacks of establishment of religion, to me.

 Jean Dudley


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_

Steve Sanders
E-mail:  [EMAIL PROTECTED]
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RE: Locke v. Davey Analysis

[Conkle, Daniel O.]

To the extent that the decision in Locke is
a product of general themes in Rehnquists constitutional jurisprudence,
I think the theme of states rightsmentioned earlier by Rick
Tepkershould not be overlooked. Rehnquist wrote a series of important
Establishment Clause opinions upholding indirect funding programs that included
religious beneficiaries (Mueller, Zobrest, Zelman), citing the importance of neutrality
and private choice. And yet he rejected the Free Exercise argument in Locke
even though the program at issue there was not neutral and did not honor the private
choice of those wishing to pursue religious careers. In each context,
however, Rehnquist was according discretion to the states by interpreting the First
Amendment narrowly. I analyze Rehnquists role in the indirect
funding cases--both the Establishment Clauses cases and Locke--in a book
chapter in The Rehnquist Legacy (Craig Bradley ed., Cambridge 2006). 

Daniel O. Conkle 
*** 
Daniel O. Conkle 
Robert H. McKinney Professor of Law 
Indiana University School of Law 
Bloomington, Indiana 47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
*** 





-Original Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Sunday, October
 01, 2006 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Locke v. Davey
Analysis



Locke v. Davey does not
announce a requirement of anti-religious motive, as I show in a
sentence-by-sentence parsing of the opinion in the Harvard Law Review in
2004. It is primarily a burden opinion: refusal to fund does not
impose a significant burden, which was indeed a longstanding Rehnquist
theme. There is also talk about the importance and narrowness of the
state's interest in not funding clergy -- at one point he says the
only interest at issue here is the interest in not funding the
training of clergy -- and other talk that would seem to make the state's
interests irrelevant and universalize the rule that refusal to fund is not a
burden.

Sherbert is distinguished as a
burden opinion, not as a motive opinion. It is true that judges deciding
or defending Employment Division v. Smith
have characterized Sherbert
as a discrimination case. But that is not at all the same as finding bad
motive behind that discrimination. Locke
v. Davey itself was clearly a discrimination case, and yet the
Court found no bad motive. Rehnquistalso distinguishes the case
striking down rules barring clergy from the legislature (Pate?), which were enacted in 1796; no
one has claimed that that was a motive case. Rehnquist takes up the
question of motive only in response to Scalia's dissent, and only after
distinguishing cases of burdensome regulation and of regulation that
intereferes with political rights.

Quoting Gary McCaleb [EMAIL PROTECTED]:

 I will weigh in but briefly--I'm spending my Saturday dealing with the
 Ninth Circuit's wayward First Amendment analyses on another case--but
 note this as background to Davey. I litigated the case at district
 court and on some of the appeal work before I left ACLJ.

 The scholarships were awarded based on satisfying three criteria: a
 defined level of academic success; a defined level of financial need
 based on family income; and intent to attend a qualifying Washington
 university (including private, pervasively sectarian universities).
 Davey could have taken exactly the same courses he would take as a
 theology major simply by selecting a major that would not have
made
 the nature of his coursework evident, but to put it simply, Mr. Davey
 wasn't that kind of guy. It was a classic situation
religion-neutral,
 need/performance driven scholarship system that was driven by a purpose
 statement of preparing Washington students for a productive future.
How
 the state's interest in non-appropriation of state funds for theology
 training plays into that, I don't know. Its hyper-separation on
 steroids.

 As to Rehnquist's apparent need to discern animus to justify a
free
 exercise claim, that seems to be far outside the four corners of the
 simple text of the free speech clause and leaves the government with
 rather broad authority to chill religious _expression_ based on little
 more than notional interests. Certainly, I think animus in Davey
could
 be properly inferred from the program's purpose statement, as the state
 was making a value judgement that being a pastor would not be a
 productive role for a Washington citizen.

 Anyway, this is off the top of my head--gotta get back to briefing.
 Sour grapes here? Well...sure. I could barely recognize the
case when
 I read the opinion.my sense is the Court picked the wrong vehicle to
 draw a line, and ran over both the Constitutiona and a sterling young
 man in the process.

 /S/ Gary S. McCaleb
 



   Gary S. McCaleb
   Senior Counsel
   (480) 444-0020 ext. 8046
   (480

Removing Purpose-Prong Taint

[Conkle, Daniel O.]

Title: Removing Purpose-Prong Taint






I've been asked the following question and don't have a good answer: 

Do you know of a case from any court where a government's action was struck down as violating Lemon's purpose prong but the same act later permitted as no longer evidencing an impermissible purpose? 

Does anyone know of any such cases?


Dan Conkle

**

Daniel O. Conkle

Professor of Law

Indiana University School of Law

Bloomington, Indiana 47405

(812) 855-4331

fax (812) 855-0555

e-mail [EMAIL PROTECTED]

**






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Dover Intelligent-Design Case

[Conkle, Daniel O.]

NPR is reporting that the district court's decision is expected today.

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
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RE: indana legislative prayer

[Conkle, Daniel O.]

Title: Message



Not 
surprisingly, this decision is getting a lot of attention here in the 
heartland. Both the Republican Speaker of the Indiana House (the defendant 
in the case) and the Democratic minority leader are strongly critical of the 
ruling, calling itinconsistent with longstanding tradition, religious 
freedom, the free speech of the invited ministers, etc.

For myself, I 
think Judge Hamilton's opinion generally is quite thoughtful and 
well-reasoned

Even so, I 
had a few questions after reading the opinion:

(1) Is Judge 
Hamilton's ruling affirming taxpayer standing well-grounded, even though there 
is no specific governmental expenditure that is directly linked to impermissible 
*sectarian* as opposed to permissible *nonsectarian* prayer? (I think 
there may be a "level of generality" sort of issue here.)

(2) On the 
merits, is judicial relief appropriate only because the prayers have been 
predominately sectarian? Or could a similar injunction properly be issued 
against other legislatures or city councils, etc.,based on a far less 
pervasive problem, e.g., on evidence that an occasional prayer by an invited 
clergy person has been concluded "in the name of Jesus," 
etc.?

(3) Is 
the opinion a bit overbroad in barring all prayers that "us[e] Christ's name 
or title or any other denominational appeal"? 

Dan Conkle ****** Daniel O. Conkle Professor of Law Indiana University School of Law 
Bloomington, Indiana 
47405 (812) 
855-4331 fax (812) 
855-0555 e-mail 
[EMAIL PROTECTED] ** 


-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Marc SternSent: Thursday, December 01, 2005 11:47 
AMTo: Law  Religion issues for Law AcademicsSubject: 
indana legislative prayer

  
  Attached is the 
  decision invalidating Indianas legislative prayer on the ground 
  that it was too sectarian.
  Marc 
  Stern
  
  
  
  
  
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RE: indana legislative prayer

[Conkle, Daniel O.]

Title: Message



It's the 
first opinion on the following web site:

http://www.insd.uscourts.gov/

The case 
isHinrichs v. Bosma.

Dan 
Conkle


  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of JoelSent: Thursday, December 01, 2005 12:52 
  PMTo: 'Law  Religion issues for Law 
  Academics'Subject: RE: indana legislative 
  prayer
  
  I am unable to open 
  the attachment. Could you provide a site?
  
  
  Joel L. 
  Sogol
  Attorney at 
  Law
  811 21st 
  Ave.
  Tuscaloosa, Alabama 35401
  ph: 
  205-345-0966
  fx: 
  205-345-0971
  email: [EMAIL PROTECTED]
  
  
  Ben Franklin observed 
  that truth wins a fair fight -- which is why we have evidence rules in 
  U.S. 
  courts.
  
  
  
  
  From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Marc 
  SternSent: Thursday, 
  December 01, 2005 10:47 AMTo: Law  Religion issues for Law 
  AcademicsSubject: indana 
  legislative prayer
  
  Attached is the 
  decision invalidating Indianas legislative prayer on the ground 
  that it was too sectarian.
  Marc 
  Stern
  
  
  
  
  
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NY Times Article on Intelligent Design versus Evolution

[Conkle, Daniel O.]

Title: NY Times Article on  Intelligent Design versus Evolution 






Today's NY Times provides an in-depth account of the intelligent design versus evolution debate in a form that is accessible to non-scientists: 

In Explaining Life's Complexity, Darwinists and Doubters Clash, by Kenneth Chang



http://www.nytimes.com/2005/08/22/national/22design.html?hpex=1124769600en=0ca73531c0586b08ei=5094partner=homepage


Dan Conkle

**

Daniel O. Conkle

Professor of Law

Indiana University School of Law

Bloomington, Indiana 47405

(812) 855-4331

fax (812) 855-0555

e-mail [EMAIL PROTECTED]

**




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Justice O'Connor Says She Will Retire

[Conkle, Daniel O.]

Title: Justice O'Connor Says She Will Retire






http://www.nytimes.com/2005/07/01/politics/01cnd-oconnor.html



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Legislative Prayer Revisited

[Conkle, Daniel O.]

Title: Legislative Prayer Revisited






The Indiana Civil Liberties Union has sued state lawmakers for exceeding the limits of Marsh by frequently offering prayers that are explicitly Christian. The prayers sometimes are offered by individual lawmakers and sometimes by volunteer clergy. The Speaker of the Indiana House has offered a free speech defense, claiming that prayers may be offered by persons of various faiths and that there are no content restrictions. I think this defense is a loser, but I'm wondering if others might disagree, at least to the extent that the prayers are offered by individual lawmakers--apparently on a rotating and volunteer basis.

http://www.southbendtribune.com/stories/2005/06/01/local.20050601-sbt-LOCL-A1-ICLU_wants_Jesus_out.sto


Dan Conkle

**

Daniel O. Conkle

Professor of Law

Indiana University School of Law

Bloomington, Indiana 47405

(812) 855-4331

fax (812) 855-0555

e-mail [EMAIL PROTECTED]

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RE: More Discrimination Against Wiccans

[Conkle, Daniel O.]

Title: Message



Aren't these 
cases rather different? The Indiana case involves a judicial intrusion 
into the private religious decisionmaking of parents (in the absence of any 
dispute between them). The 4th Cir. and the 10 commandments cases raise 
the very different issue of governmental speech relating to 
religion.I think one can supportthe permissibility of 
generalized governmentalstatements about religion, and 
even"Judeo-Christian" prayersinthe Marsh tradition, without 
accepting the Indiana decision trumping private religious/parental rights. 
(Needless to say, one also can reject the permissibility of generalized 
governmental statements about religion or argue more specifically against the 
4th Circuit ruling or against the posting of the 10 commandments, etc., 
butI do think that those cases raisedifferent 
questions.)

Dan Conkle ****** Daniel O. Conkle Professor of Law Indiana University School of Law 
Bloomington, Indiana 
47405 (812) 
855-4331 fax (812) 
855-0555 e-mail 
[EMAIL PROTECTED] ** 


 

 
-Original 
Message-From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of 
[EMAIL PROTECTED]Sent: Thursday, May 26, 2005 10:33 
AMTo: religionlaw@lists.ucla.eduSubject: Re: More 
Discrimination Against Wiccans

  
  Isn't it fairly obvious what this judge and the domestic relations person 
  were thinking? They were thinking that this is a "Christian" country, 
  just as the 4th Cir was when it approved legislative prayers that include 
  monotheism and exclude Wiccans. The "system" requires faiths that are 
  consistent with Christianity, and those that are not, can be excluded, on this 
  reasoning.
  
  This isa direct result ofthe current,though 
  misguided,cultural pressure to "reclaim" the country for Christians, is 
  it not? If there were two states, other than Alabama, where we were 
  going to see this play out, it would be Virginia and Indiana. 
  
  My question is if this case were to go up, which side would the DOJ take, 
  given its position in the Ten Commandments and Pledge of Allegiance 
  cases? 
  
  
  Marci 
  
  
  In a message dated 5/26/2005 10:54:45 A.M. Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  Marty 
Lederman wrote: 

  
  

  According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of 
  divorced parents from exposing their 9-year-old son to Wiccan beliefs and 
  rituals. Both parentspractice Wicca, and both 
  strongly oppose the court's restriction. The court's order 
  apparently was based on the recommendation of a domestic relations bureau, 
  which was concerned about the "discrepancy between Ms. Jones and Mr. Jones' lifestyle 
  and the belief system adhered to by the parochial school [that the 
  child attends]. . . . Ms. Jones and Mr. Jones display little 
  insight into the confusion these divergent belief systems will have upon 
  (the boy) as he ages," the bureau said in its 
  report.I just wrote about this 
on my blog. It's the most obvious and blatant free exercise violation I can 
ever recall seeing. What on earth was this judge thinking?Ed 
Brayton
  
  
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RE: Locke v. Davey follow-up

[Conkle, Daniel O.]

As I read the opinion, Locke v. Davey applied a sort of balancing test.
As Mark notes, the Court found a strong and historically recognized
antiestablishment interest on the part of the state.  At the same time,
the Court also found the free exercise burden, if any, to be slight.
The Court concluded that the state's disfavor of religion was minimal
and did not suggest hostility.  The Court might well find a greater
burden--and perhaps increased evidence of hostility--if a state were to
bar welfare recipients from using their benefits for religious
instruction.  Note that Davey could have kept his scholarship and used
it to study devotional theology, as long as he did not declare that
field as his major.

If I'm right, the balance tips differently in Eugene's hypothetical for
each of two reasons:  the state's antiestablishment interest is weaker
and the burden on free exercise is greater.

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark
Sent: Tuesday, May 03, 2005 12:09 AM
To: 'Law  Religion issues for Law Academics '
Subject: RE: Locke v. Davey follow-up


Here are some preliminary thoughts on Eugene's question.

Though I think Locke v. Davey was incorrectly decided, it is at least
plausible to say that a government education grant that can be used for
clergy training involves government in supporting the training of
clergy.
Because direct government support for religious training -- and
especially
for the training of clergy -- is a high voltage historical issue that
has
been controversial since the Founding, the Court allowed Washington to
steer
clear of it in a way that discriminates against religion. 

But the notion that a government grant program that is not specifically
for
education implicates Establishment concerns when the recipient chooses
to
use the money for some religious purpose does not have historical
resonance.
Indeed, since it is likely that many people at the time of the Founding
tithed (perhaps the historians can tell us whether that is true), the
idea
would have been outrageous that a recipient of government money (such as
the
salary of a federal employee or a payment to a federal contractor) could
not
use some of that money for religious purposes. It would have meant that
many
religious persons could not have been government employees or
contractors.
Cf. the prohibition on religious tests for federal office. 

Since we don't have a high voltage historical Establishment controversy,
the
usual rule should apply, that discrimination against religious uses of
such
grants violates the Free Exercise Clause. That is not to say that a
grant of
money for purchase specifically of food could not contain a condition
requiring that it be used only for food; consider the food stamp
program.
But if the recipient is entitled to use the money for purposes chosen by
the
recipient, there should be no discrimination against religious purposes.
And
a fungibility approach -- saying, for example, that no one who gets food
stamps can give any money to a church, because money is fungible and it
might as well be the government money that is being used -- would
similarly
discriminate against religion. Can you imagine such a program
comprehensively governing the spending of a recipient? No Playboy
magazines
to be purchased with other money? No concerts? No newspapers? Such
regulation would violate other parts of the First Amendment, wouldn't
it?

Mark Scarberry
Pepperdine
 

-Original Message-
From: Volokh, Eugene
To: Law  Religion issues for Law Academics
Sent: 5/2/2005 9:33 PM
Subject: RE: Locke v. Davey follow-up

I may be mistaken, but I've never heard of AFDC statutes
limiting the use of the money to food, shelter, and the like; as best I
can tell, recipients are free to spend the money on anything, including
education.  But since I didn't want to assume anything about the federal
AFDC scheme, I asked about a state general relief or disability plan.

So let me ask again, though with this point clarified:  Say that
the Washington Legislature is bothered by reports that welfare
recipients under some state law welfare program (general relief,
disability, etc.) are spending some of their payments on Bible Study
classes.  It therefore provides that welfare benefits -- which are
otherwise usable by the recipient for any other purpose -- may not be
used to pay for any theological education, whether a degree program
(such as the one Davey wanted to use) or just an informal study program.

Is this prohibition constitutional under Locke?  Is it unconstitutional,
because Locke is somehow different?  I'd love to hear what people think.
Thanks,

Eugene

 -Original Message-
 From

RE: Locke v. Davey follow-up

[Conkle, Daniel O.]

Needless to say, the precedential effect of Locke v. Davey is
unclear--that's what makes the hypothetical interesting--but I believe
that the holding can reasonably and properly be confined in the manner I
have suggested.  The Court emphasized that the burden on Davey was
minimal, and it also emphasized that the state had distinctive
antiestablishment concerns that were linked to historical disputes about
state-funded clergy.

Dan Conkle

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, May 03, 2005 11:22 AM
To: Law  Religion issues for Law Academics
Subject: RE: Locke v. Davey follow-up


I wonder:  Would it indeed, given Locke, be unconstitutional for
the state to bar all studies which in effect are focused on devotional
theology, setting aside the major?  (Imagine a cap on the number of such
classes you could take.)  It would surprise me if major became a
constitutionally significant category.

As to the state's antiestablishment being weaker, why?  In both
instances, the state is claiming an interest in keeping tax money from
flowing, even as a result of private choice, to religious education (or,
in Alan's modification, in which the state barred the religious donation
or tithing of aid money, to churches).  Why can't the state assert that
its interest is identical, and identically strong, in both contexts?

Eugene

Dan Conkle writes:

 As I read the opinion, Locke v. Davey applied a sort of 
 balancing test. As Mark notes, the Court found a strong and 
 historically recognized antiestablishment interest on the 
 part of the state.  At the same time, the Court also found 
 the free exercise burden, if any, to be slight. The Court 
 concluded that the state's disfavor of religion was minimal 
 and did not suggest hostility.  The Court might well find a 
 greater burden--and perhaps increased evidence of 
 hostility--if a state were to bar welfare recipients from 
 using their benefits for religious instruction.  Note that 
 Davey could have kept his scholarship and used it to study 
 devotional theology, as long as he did not declare that field 
 as his major.
 
 If I'm right, the balance tips differently in Eugene's 
 hypothetical for each of two reasons:  the state's 
 antiestablishment interest is weaker and the burden on free 
 exercise is greater.
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RE: Locke v. Davey follow-up

[Conkle, Daniel O.]

Title: Message



I think you 
had it right the first time, Eugene:At least as a general 
proposition, weindeed ought to ask the justices to be logical and 
principled in the sense you have in mind, and they should be subject to 
criticism when they are not. (I say "at least as a general proposition" to 
leave room for the possibility of prudentially justified 
exceptions.)

Dan 
Conkle

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Volokh, EugeneSent: Tuesday, May 03, 2005 2:54 
  PMTo: Law  Religion issues for Law 
  AcademicsSubject: RE: Locke v. Davey follow-up
   Touche; I should have said that there ought 
  to be logic at least to our theories of what the right rule here should be, 
  and to the frameworks that we propose as tools for organizing the caselaw and 
  for deciding future cases..
  

-Original Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty 
LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: Law 
 Religion issues for Law AcademicsSubject: Re: Locke v. 
Davey follow-up
"Finally, as to looking to the principles 
actually used by the Court, I would have thought that we ought to ask them 
to be logical -- perhaps not perfectly crisp and clear in all instances, but 
still generally logical."

Eugene, Eugene: Surely you jest. 
Don't forget to take a look at the very first line of the opinion: 
"CHIEF JUSTICE REHNQUIST delivered the opinion of 
the Court." As with most CJ opinions, especially those involving 
difficult constitutional questions, the whole objectiveis to 
ensure that there is no internal "logic" at all, so that the Court is free 
to decidethe next cases any way it wishes. (Another classic in 
this vein: the indefensible Boy Scouts v. Dale, which makes 
no doctrinal sense and that can be read either to make mincemeat of 
a long line of previous cases, or as a one-time ticket good for this day and 
this train only --probably best viewed as the latter, as the Solomon 
Amendment case will demonstrate.) Indeed, much to what I imagine is 
Eugene's chagrin, it turns out that the entire Court is becoming 
much less doctrinal in recent Terms when it comes to constitutional 
decisions, and much more, shall we say, discursive, in a 
Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter 
and Thomas might be exceptions. But surely, the Chief's opinions are, 
quite intentionally, the most inscrutable of all.

Locke v. Davey 
is a Chief Special.It goes out of its way to throw 
together, willy-nilly,a bunch of different variables and factors, any 
one (or two, or three) of which could be ignored, or embraced, next time 
around. That's no accident -- it's how he designs 
it. Just take a look at the one-sentence footnote 4, which 
apparently purports to resolveseveral inscrutable constitutional 
questions -- concerning unconstitutional conditions, and the "segregation" 
requirements of, e.g., Rustand LWV -- that many very 
bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in 
his Harvard piece) have spent hundreds upon hundreds of pages trying to 
unravel (and that we struggled with for weeks on this list prior to the 
Court's decision).

The judgment 
in Locke can be defended. But in order to do so, one needs a 
much richer account than Rehnquist would ever dream of providing with 
respect to at least two things: (i) an explanation of exactly 
why Washington might wish not to fund divinity studies (or why the 
state in your hypo, Eugene, would single out religion for restriction) -- by 
which I mean something much more than the simple and unhelpful "because 
there's atradition of not using government fundsto subsidize the 
church"; and (ii) a more fullsome understanding of which sorts of government 
reasons for singling out religion are, and are not, constitutionally 
problematic.

I'm working on it -- 
and I'll get back to you in a few years . . . .  



- Original Message - 
From: "Volokh, Eugene" [EMAIL PROTECTED]
To: "Law  Religion issues for Law 
Academics" religionlaw@lists.ucla.edu
Sent: Tuesday, May 03, 2005 2:09 
PM
Subject: RE: Locke v. Davey 
follow-up
I don't quite understand this. Steve himself says "A state 
maynot want to use public funds to support religion and religious 
training.And it can constitutionally do so." In my hypothetical, 
that is*precisely* what the state is trying to do.Now perhaps 
Steve's "unreality" point is simply that theprovision is unlikely to be 
enacted. That's hard to tell; the U.S. is abig country, and lots 
of things that are unlikely generally may getenacted in one or another 
location under one or another 

RE: Locke v. Davey follow-up

[Conkle, Daniel O.]

Title: Message



Good 
question, Marty. I'd be interested to hear what others might have to say, 
both concerning the Rehnquist opinion in Locke v. Davey, his opinions more 
generally, and also the more general trend of opinion-writing that you describe 
in your previous post.

I think 
there's probably a law review article in my parenthetical comment. As you 
said in your previous post, I'll get back to you in a few 
years!

Dan 
Conkle


-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 3:15 
PMTo: Law  Religion issues for Law AcademicsSubject: 
Re: Locke v. Davey follow-up

  Just curious: If the opinion is 
  intentionally "underreasoned" in order to (i) keep the Court's docket running 
  smoothly; and (ii) readily bring on board seven votes; and (ii) leave open for 
  further cases those difficult questions -- not presented in the case itself -- 
  that might divide the seven-Justice majority . . . is that a prudentially 
  justified exception?
  
- Original Message - 
From: 
    Conkle, Daniel 
O. 
To: Law  Religion issues for Law 
Academics 
Sent: Tuesday, May 03, 2005 4:09 
PM
Subject: RE: Locke v. Davey 
follow-up

I think 
you had it right the first time, Eugene:At least as a general 
proposition, weindeed ought to ask the justices to be logical and 
principled in the sense you have in mind, and they should be subject to 
criticism when they are not. (I say "at least as a general 
proposition" to leave room for the possibility of prudentially justified 
exceptions.)

Dan 
Conkle

  
  -Original Message-From: 
  [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, 
  EugeneSent: Tuesday, May 03, 2005 2:54 PMTo: Law 
   Religion issues for Law AcademicsSubject: RE: Locke v. 
  Davey follow-up
   Touche; I should have said that there 
  ought to be logic at least to our theories of what the right rule here 
  should be, and to the frameworks that we propose as tools for organizing 
  the caselaw and for deciding future cases..
  

-Original Message-From: 
[EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty 
LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: 
Law  Religion issues for Law AcademicsSubject: Re: Locke 
v. Davey follow-up
"Finally, as to looking to the principles 
actually used by the Court, I would have thought that we ought to ask 
them to be logical -- perhaps not perfectly crisp and clear in all 
instances, but still generally logical."

Eugene, Eugene: Surely you 
jest. Don't forget to take a look at the very first line of the 
opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ 
opinions, especially those involving difficult constitutional questions, 
the whole objectiveis to ensure that there is no internal 
"logic" at all, so that the Court is free to decidethe next cases 
any way it wishes. (Another classic in this vein: the 
indefensible Boy Scouts v. Dale, which makes no 
doctrinal sense and that can be read either to make mincemeat of a long 
line of previous cases, or as a one-time ticket good for this day and 
this train only --probably best viewed as the latter, as the 
Solomon Amendment case will demonstrate.) Indeed, much to what I 
imagine is Eugene's chagrin, it turns out that the entire Court is 
becoming much less doctrinal in recent Terms when it comes to 
constitutional decisions, and much more, shall we say, 
discursive, in a Rehnquist/O'Connor/Kennedy sort of way. 
Scalia and (sometimes) Souter and Thomas might be exceptions. But 
surely, the Chief's opinions are, quite intentionally, the most 
inscrutable of all.

Locke v. 
Davey is a Chief Special.It goes out of its way to 
throw together, willy-nilly,a bunch of different variables and 
factors, any one (or two, or three) of which could be ignored, or 
embraced, next time around. That's no accident -- it's how 
he designs it. Just take a look at the one-sentence 
footnote 4, which apparently purports to resolveseveral 
inscrutable constitutional questions -- concerning unconstitutional 
conditions, and the "segregation" requirements of, e.g., 
Rustand LWV -- that many very bright folks 
(e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his 
Harvard piece) have spent hundreds upon hundreds of pages trying to 
unravel (and that we struggled with for weeks on this list prior to the 
 

RE: God in the Constitution

[Conkle, Daniel O.]

In reading Kramnick and Moore, you might also wish to read Scott C.
Idleman, Liberty in the Balance: Religion, Politics, and American Constitutionalism,
71 Notre Dame L. Rev. 991 (1996),
which offers some critical commentary on the claims that they advance.



Dan Conkle











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]
Sent: Sunday, January 30, 2005
12:10 PM
To: Religionlaw@lists.ucla.edu
Subject: God in the Constitution







Was
the omission of any mention of God in the Constitution an issue discussed
during the ratification debates? Is there literature discussing whether this
omission was used as an argument against ratifying the
Constitution? Thanks.











Bobby











Robert
Justin Lipkin
Professor of Law
Widener University School
of Law
Delaware








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Jefferson Quotation

[Conkle, Daniel O.]

Today's New York Times includes a political advertisement by the
Catholic League for Religious and Civil Rights.  Among other things, the
ad contends that despite his famous metaphor about church-state
separation, Jefferson said that it was a 'lie' attributed to him by his
foes that he wanted a 'government without religion.'

Does anyone know the source and/or historical context of this quotation,
assuming it is accurate?

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**

  
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RE: Under God

[Conkle, Daniel O.]

Alan, a question of clarification:  Is your argument limited to the
public school context?  I notice that you didn't respond to the question
about Jefferson's Bill for Religious Liberty.

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Thursday, April 01, 2004 1:25 PM
To: Law  Religion issues for Law Academics
Subject: RE: Under God


I appreciate Tom's timely response -- but I'm certainly willing to wait
for 
a response to this post until Tom completes his travels.

I have considerable sympathy for Tom's suggestion that if including
under 
God in the pledge is unconstitutional,  we ought to consider
alternatives 
like a pause to
allows students (with their parents' guidance) to add the phrase they
feel 
is appropriate rather than just striking under God from the pledge.
(I 
have made analogous suggestions regarding the issue of religious
messages 
and prayers at graduation ceremonies.)

Putting doctrine aside for the moment, I think the goal of the public 
schools should be to provide an environment where children of different 
religious faiths and no faith can study and learn together on the basis
of 
equal worth and mutual respect. Patriotic exercises in school should be 
accessible to children who do not believe in G-d and cannot in good 
conscience affirm G-d's existence and children who cannot pledge
loyalty 
to the nation without explicitly stating that it is under God.  I
mooted 
Mike Newdow twice before the oral argument and pressed him hard on how 
schools could direct a patriotic exercise that worked for both believers

and non-believers.

But I think the question of religious rationales is another matter. With

respect, I'll ask Tom again to clarify for me what he means when he says

that the state can communicate a religious rationale for its laws. Or
more 
precisely, exactly what does the religious rational mean? Is it
declaring a 
religious truth that serves to justify the law? (The government finds as

fact that there is a transcendent reality that confers inalienable
rights 
on individuals.) Is this the official position of the government on a 
religious question? Or does the religious rational describe the fact
that 
many of the legislators who voted for the bill believe in a transcendent

reality on which basic rights are grounded?

If the answer to the first two questions is Yes, the next question is 
whether that fact or government position can be taught in the public 
schools. Let us leave aside the question of whether students can be 
directed to personally affirm their belief in or acceptance of these 
statements, for the moment. May students be taught as fact that there is
a 
transcendent reality that confers rights on individuals or that the 
government has an official position on this religious question?

Most importantly, if the government can teach this religious assertion
as 
truth or take an official position on this religious question, to what 
extent can the government teach other religious truths or take other 
official positions on religious matters. I do not raise this question
for 
slippery slope purposes. As our list moderator has demonstrated in a
very 
good article, the persuasiveness of slippery slope legal arguments vary
a 
great deal. I want to get a picture of what is permitted under this 
analysis and that means I need to know the criteria that should be used
to 
determine which religious truths may be taught in public schools and
which 
are the religious disputes on which the government can take an official 
position.

Alan Brownstein
UC Davis



At 10:12 AM 4/1/2004 -0600, you wrote:
Quick response to Alan while I'm traveling -- quicker than he deserves
--
but I don't want delay to worry him about my position!   :)

I think that the general, cryptic nature of under God arguably helps
it
(as I've said, I'm ambivalent about some of these points) because it
fortifies the idea that the state is essentially making a political
statement about human rights (liberty and justice) and offering no
more of
a religious rationale than is necessary to express the basic idea that
these
rights are grounded in some transcendent reality.  The state is
pointing
toward someting that it acknowledges it cannot describe the specific
reality
of -- and must leave that to individuals and private groups.  But it
does go
far enough to acknowledge some reality of higher status that limits it
and
confers on human beings an inalienable dignity.

If it is unconstitutional for the state to express such a view, then I
would
ask Alan too whether such an expression in the findings of the Civil
Rights
Act would be invalid.  Or to reiterate Dan Conkle's question, is
Jefferson's
Religious

RE: Under God

[Conkle, Daniel O.]

I've read Mark's forthcoming article in draft, and I find it very
interesting and provocative.  I do wonder about the limits and scope of
the argument.  To test these limits, let's go to back to Jefferson's
famous Bill for Religious Liberty.  If you're right, Mark, does
Jefferson's Bill for Religious Liberty (still on the books in Virginia)
violate the Establishment Clause?  Recall that the legislatively adopted
preamble expressly declares a religious justification, that Almighty
God hath created the mind free and that compelled religion is a
departure from the plan of the Holy Author of our religion, who, being
Lord both of body and mind, yet chose not to propagate it by coercions
on either, as was in his Almighty power to do.
 
Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**

   
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Mark
Modak-Truran
Sent: Wednesday, March 31, 2004 6:06 PM
To: [EMAIL PROTECTED]
Subject: RE: Under God


As Tom indicated, his article covers both sides of the Pledge question. 
I am focusing here on his argument which questions the neutrality of
taking under God out of the pledge because some people could not
affirm the Pledge without a recognition that their allegiance to the
state is limited by their allegiance to God (Mark Scarberry has also
made this point) and his comment that it would be insincere for
legislators who believe this (and that human rights require a religious
justification) to leave out under God in the pledge.

1) To support his argument on the false neutrality of taking out
under God, Tom argues that the most important historical
justification in American for religious freedom and other liberties--and
still a substantial justification today--is a religious argument that
the state is limited and rights have a transcendent source.  Id. at 75.
 If we assume that the drafters of the Pledge accepted this religious
justification, then why would they leave out under God in the
original pledge.  Since the original pledge did not include under
God, we can assume that they did not think saying the pledge was
inconsistent with a religious justification for limited government. 
They could respond that the original pledge (I pledge allegiance to
the flag of the United States of America, and to the Republic for which
it stands, one Nation, indivisible, with liberty and justice for all)
is not inconsistent with a religious justification for limited
government because it does not require allegiance to any other god (like
the Romans did with respect to the Emperor as a god) or mandate
ultimate allegiance to the state (nationalism as a religion or ultimate
concern).  

2) Assuming that the drafters of the pledge (or the wider American
public at the time it was drafted) accepted the religious
justification for a limited government, it would also not be
dishonest or insincere to leave out under God.  The pledge of
allegiance (even with under God) is not a justification of the
legitimacy of the United States' democratic form of government or the
values or rights of liberty and equality.  Saying the pledge constitutes
an affirmation of loyalty (in some general or vague sense) to the United
States and to the values of liberty and equality.  It does not require
citizens to accept a certain account or justification of the state or
those values.  I agree with Tom that a full justification of fundamental
rights requires a religious justification (see my forthcoming article in
Catholic University Law Review), but the Establishment Clause precludes
the state from making that justification.  In the Pledge case, this
would prevent the state from adopting a religious justification of
limited government and fundamental rights or any other comprehensive
justification of limited government and fundamental rights.  For
example, the state cannot alternatively say that fundamental rights are
only political not metaphysical (ala John Rawls or some other form of
comprehensive liberalism).  The Establishment Clause establishes a full
and free debate about matters of ultimate justification by precluding
the state from settling that debate (even if it thinks it has the only
or best justification of those rights).
   
The questions I am raising with respect to Tom's forthcoming article
(available at https://webspace.utexas.edu/starrbd/articles/Berg.pdf )
should not be taken to undermine his arguments or the merits of his
article.  It is one of the only things I have read on the Pledge issue
that seems to have some sophistication about religion and law, and I
strongly recommend it to anyone interested in this topic.  

Mark


Mark Modak-Truran, J.D., Ph.D.
Associate Professor of Law
Mississippi College School of Law
151 East Griffith Street 
Jackson, MS 39201
(601) 925

RE: Locke v. Davey

[Conkle, Daniel O.]

[I sent the following message to the list 2 hours ago, in response to
Stuart Buck's message, but my message never appeared, leading me to
conclude that it might be lost in cyberspace.  My apologies for any
duplicate posting, especially since Marty's intervening message made a
point very similar to mine.]

I think a lot - and perhaps too much - work is being done by footnote 4
of the Court's opinion, which is attached to the Court's claim that the
scholarship condition does not require students to choose between their
religious beliefs and receiving a government benefit.

Footnote 4 reads as follows:  Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution from
where they are studying devotional theology.

Something of a thin reed, perhaps, but it appears that this point
permits the Court to conclude that this is not an unconstitutional
condition and that Sherbert is distinguishable on this basis.  

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Stuart BUCK
Sent: Wednesday, February 25, 2004 1:40 PM
To: [EMAIL PROTECTED]
Subject: Re: Locke v. Davey


The central portion of the opinion is also the weakest:

QUOTE: We reject his claim of presumptive unconstitutionality, however;
to 
do otherwise would extend the Lukumi line of cases well beyond not only 
their facts but their reasoning. In Lukumi, the city of Hialeah made it
a 
crime to engage in certain kinds of animal slaughter. We found that the
law 
sought to suppress ritualistic animal sacrifices of the Santeria
religion. 
508 U.S., at 535. In the present case, the State's disfavor of religion
(if 
it can be called that) is of a far milder kind. It imposes neither
criminal 
nor civil sanctions on any type of religious service or rite. It does
not 
deny to ministers the right to participate in the political affairs of
the 
community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not 
require students to choose between their religious beliefs and receiving
a 
government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm'n of

Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment 
Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398
(1963). 
The State has merely chosen not to fund a distinct category of
instruction.



The program does not require students to choose between their religious

beliefs and receiving a government benefit?  Huh?  What if someone
thinks 
that his religious beliefs require him to study theology? It's not so 
far-fetched a possibility, after all, that someone's religious beliefs
might 
have something to do with theology.  But if he follows that particular 
religious belief, he is suddenly ineligible for the scholarship program
that 
is available to everyone else for every other course of study.  Assuming

that the Court is not going to inquire in the genuineness or sincerity
of 
the plaintiff's religious belief, the case is identical to Sherbert,
which 
the Court apparently still purports not to have overruled.

In fact, the *very next paragraph* of the opinion immediately reverses 
course, hinting that it would be problematic to fund theology study 
precisely *because* such a course of study arises from religious belief:

QUOTE: Training someone to lead a congregation is an essentially
religious 
endeavor. Indeed, majoring in devotional theology is akin to a religious

calling as well as an academic pursuit. See Calvary Bible Presbyterian 
Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193
(1967) 
(holding public funds may not be expended for that category of
instruction 
that resembles worship and manifests a devotion to religion and
religious 
principles in thought, feeling, belief, and conduct); App. 40 (Davey 
stating his religious beliefs [were] the only reason for [him] to seek
a 
college degree).


I don't see how those two paragraphs can be squared with each other.  If
a 
theological course of study is akin to a religious calling for
purposes of 
whether the state give a nod to Establishment Clause concerns, then it
is 
also akin to a religious calling for purposes of whether the state can

deny a generally-available benefit.

Best,
Stuart Buck

From: Marty Lederman [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
[EMAIL PROTECTED]
To: Law  Religion issues for Law Academics
[EMAIL PROTECTED]
Subject: Re: Locke v. Davey
Date: Wed, 25 Feb 2004 10:28:06 -0500

Here's the opinion:  
http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html


   - Original Message -
   From: Marty Lederman
   To: Law  Religion issues for Law Academics
   Sent: Wednesday, February 25, 2004 10:22 AM
   Subject: Re: Locke v

RE: Locke v. Davey -- the Equal Protection Question

[Conkle, Daniel O.]

I see Alan's concern, and this may be semantics on my part, but I would
read both the Establishment Clause (Larson) and the Free Exercise Clause
(note Lukumi's citation to Larson in discussing the religious
gerrymander point) to directly forbid, directly and virtually
absolutely, any type of sectarian discrimination between or among
religions -- without any need to cite or rely upon the Equal Protection
Clause.  I don't think Locke v. Davey changes that.  More generally, I
think the Religion Clauses are properly understood to forbid various
other types of religion-based discrimination -- the purposeful favoring
of religion in general or the purposeful disadvantaging of religion in
general, with various exceptions, nuances, etc.  Cf. Locke v. Davey,
which adds a new wrinkle.  In other words, I think the constitutional
policy of nondiscrimination *as to religion* -- whatever its precise
contours -- is best traced to the constitutional language that addresses
religion as such, and not to the more generic language of equal
protection.  But, as I say, this may be semantics.

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Wednesday, February 25, 2004 6:42 PM
To: Law  Religion issues for Law Academics
Subject: RE: Locke v. Davey -- the Equal Protection Question


I think that argument probably works if one reads the Establishment
Clause 
broadly to prohibit discrimination among religious communities. But 
certainly, the anti-discrimination concerns of the equal protection
clause 
extend far beyond what the free exercise clause requires. For example, 
imagine a city ordinance that prohibits any non-Christian house of
worship 
from being constructed that is taller than the highest church in town.
This 
doesn't violate the free exercise clause rights of anyone (It is
doubtful 
that anyone's religion requires them to build a house of worship of a 
particular height -- relative to other houses of worship in town.) If it

violates the Establishment Clause, it is only because the Establishment 
Clause is being interpreted to subsume the equal protection clause's 
anti-discrimination principles.

Alan Brownstein
UC Davis



At 02:21 PM 2/25/2004 -0500, you wrote:
content-class: urn:content-classes:message
Content-Type: multipart/alternative;
 boundary=_=_NextPart_001_01C3FBD4.8FEADE9C

I'm inclined to think that the answer to Marty's question is - or
should 
be - that if the Religion Clauses (and free speech principles) are not 
offended by a religious classification, then the Equal Protection
Clause 
should not be offended either, because any equal protection argument is

simply piggy-backing on the constitutional policies of the Religion 
Clauses (and/or free speech principles).   On this view, a religious 
classification is - or should be - constitutionally suspect if, but
only 
it, it (presumptively) violates the principles and values of the First 
Amendment.  Right?

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**
-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Wednesday, February 25, 2004 1:58 PM
To: Law  Religion issues for Law Academics
Subject: Re: Locke v. Davey -- the Equal Protection Question

Very minor question about a potentially important footnote point in 
Davey.  The Court holds in footnote 3 that where the Free Exercise
Clause 
is not violated, religious discrimination is subject only to 
rational-basis scrutiny under the Equal Protection Clause -- citing 
Johnson v. Robison, which suggested the same thing.  Is this correct?
Is 
there a theory of the 14th Amendment that would suggest otherwise?

The Court has often indicated that religious discrimination is subject
to 
strict scrutiny under the EPC -- without ever, as far as I know,
issuing a 
holding that depended on such a conclusion.  But cf. Fowler, 345 U.S.
at 
527-28 (Frankfurter, J., concurring).  Of course, many of us have been 
wary of this equal protection argument because to take it seriously
would 
be to call into question religious accommodations.  But assume for the 
moment that religious discrimination is generally subject to strict 
scrutiny under the EPC.  If so, is there any good reason why the
scrutiny 
should diminish in the absence of a Free Exercise violation?  In other 
words, should there ever be a case in which the Equal Protection Clause

prohibits a form of religious discrimination that the FEC permits?


- Original Message -
From: mailto:[EMAIL