Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are against the government Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to fix this aspect of the state RFRAs. There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? 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 http://sol-reform.com -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability. Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy)even when their faith does no require the discrimination. That decision went too far in my view, but we have it. Enough. As I have said before, the ship has sailed on trying to manufacture discrimination against homosexuals and same-sex couples as distinct from discrimination based on race. I will never forget a national leader of theanti-gay marriage platform telling a large group of like-minded folks that the best way to sell their agenda was to rely heavliy on the "ick factor." Why? Because they had nothing else to sell their public policy preferences to the people. They have failed in the public policy arena, and the animus has shown itself for what it is. 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 http://sol-reform.com -Original Message- From: Sisk, Gregory C. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 4:16 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Every sorry episode in the long American history of suppression of religious minorities has been justified by the undoubtedly sincere beliefs of the majority at the time that they are on the right side of history and that taking additional steps to force the minority to fall into line is merely to advance progress. More than a half century ago, the public demand for fealty to America in the face of external and internal threats of totalitarian ideologies imposed itself on religious communities who refused to engage in certain public displays of loyalty. Not too long ago, the War on Drugs was extended to prohibit ceremonial use of sacred substances. Quite recently, fears about terrorism have been used to adopt measures that target, profile, and denigrate persons of Muslim faith. And now an expansion of anti-discrimination laws to cover new categories of protected persons, to include new sectors of society, and to apply to new entities, has imposed itself with a heavy hand on certain traditionalist religious groups. In the past, we learned from mistakes in overreaching through policy and accepted accommodations to religious minorities that expanded freedom without substantially undermining key public policies. We need to search for that balance again. Vigilance in defense of religious liberty, especially when the majority is convinced of its righteousness (which is almost always), must be renewed in every generation. In sum, it is dangerous for anyone exercising political power to come too readily to the certain conclusion that they are not only absolutely correct about the right answer to every issue but absolutely entitled to use whatever means are possible to advance that right answer without any concern for the impact on those who sincerely disagree, with the presumption of every powerful elite that those who think otherwise should learn “to adjust.” To quote Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit that is not too sure that it is right.” Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:43 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses I don't have any desire for them to go out of "business," but if they are going to be in "business," they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals. Not requiring them to adjust when what they are doing is a
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. 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/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edu wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties.
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
I'm stumped by Mark's response. The courts have held that RFRA and RLUIPA are only good against the government. Due to its language and the state action doctrine generally. Are you saying that those cases don't exist, or are all uniformly wrongly decided? The state language indicates acknowledgement of those cases, no? I'm not trying to be provocative here. I'm sincerely asking. 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.com -Original Message- From: Steven Jamar stevenja...@gmail.com To: Law Religion Law List religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 12:21 pm Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the Commerce Clause powers of Congress. I had understood them to be under the 14th Amendment, in which case Congress can ONLY reach states and they cannot apply to private conduct. And, as we know, RFRA (federal), cannot apply to states either because of the narrowing of the grant of power to Congress adopted by the Court in Boerne. As to state RFRA, it would seem that a strong case can be made that they, being modeled after and inspired by the federal law, were intended to have essentially the same reach — prohibit states from intruding too far into religious exercise, not to prohibit private individuals from intruding on free exercise of another private person. Pardon my Fox News inspired hyperbole here, but all of this strikes me as a version of the shibboleth of the war on Christmas. Are laws are rife with exceptions and other accommodations for religious groups and individuals. Just take a look at the Civil Rights Act of 1964 prohibiting discrimination by private parties on the basis of religion and allowing various exceptions that in fact allow exactly that sort of discrimination on the basis of religion to take place for certain religious organizations. But now, the claim is being pushed that those willingly engaging in commerce as regular business are to be exempt from laws entirely based on a claim of burdening not exercise, but belief; on a claim not of a substantial burden on exercise, but solely on a questionable legal theory of “complicity”; and not on the basis of actual exclusion or persecution or discrimination against the religious adherent, but rather on the basis of excluding others based purely on a basis that is irrelevant to the business (photography, cake baking, lunch counter service, taxi riders, renting a hotel room, etc.). Some Arizona legislators are expressing “buyer’s remorse” because once they realized what they had done, they wished they hadn’t. I don’t expect any negative fallout for the governor on this. These sorts of laws are like the issue in Romer — just beyond the pail of normal legislation and actions by the government - by a lot. 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/ The only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr On Feb 27, 2014, at 11:57 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.com hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? 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 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's
Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses
No state has gone that far yet, because the civil rights groups that were initially in favor of RFRA (plus gay rights groups) are now lobbying against these new bills. As are many ministers, pastors, and business people who do not want to see the free market Balkanized or compartmentalized according to religion. 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.com -Original Message- From: James Oleske jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 11:49 am Subject: Same-Sex Marriage and Proposed Religious Exemptions for Businesses In light of the recent discussions of this issue on the list, and in light the various proposals percolating in the states, I've got a question for the group and a shameless plug. First, the shameless plug -- I've just posted a new piece on the issue to SSRN (it won't be in print until next year, so comments and suggestions would be very welcome): Interracial and Same-Sex Marriages: Similar ReligiousObjections, Very Different Responses http://ssrn.com/abstract=2400100 The article addresses two major questions that havegone largely unexamined in the literature to date: First, why has the legal academy been sosolicitous of religious objections to same-sex marriage when it was neverreceptive to similar objections to interracial marriage? Second, if a statewere to adopt the leading academic proposal for religious exemptions—a proposalthat would allow for-profit businesses to discriminate against same-sexcouples—would the exemptions be vulnerable to an equal protection challenge? The leading academic proposal I discuss is the Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal discussion of that proposal begins on page 35 of the draft. A more general discussion of exemptions for commercial businesses starts on page 27 of the draft. Second, the question for the group: What explains the recent pivot from the marriage specific proposals (e.g., proposed amendment to Minnesota's 2012 marriage recognition legislation; proposed amendment to Washington's 2012 marriage recognition legislation; proposed 2014 ballot initiative in Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to the expansion of RFRA rights proposals (Arizona, Missouri)? Is it an effort to tie into what is expected to be a victory for Hobby Lobby under the federal RFRA? - Jim P.S. My understanding is the same as Chip's -- no state has yet adopted marriage exemptions that extend to commercial vendors. Speaking of Chip, his article with Bob on this topic is essential reading (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp). On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu icl...@law.gwu.edu wrote: That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including
Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses
The either/or posited between secularism and faith is actually false as a sociological matter in the United States. What is happening is that conservative Christians and Jews who oppose gay marriage are now facing opposition from religious believers. Secularism is a small portion of the population. This is a fight between believers who are now lining up on both sides of the issue. Those opposed to gay marriage are losing ground and allies, and know statistically that the younger generation across all faiths do not agree with them. They are trying to co-opt the government to preserve the world they are losing, and will not get back. 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 http://sol-reform.com -Original Message- From: Hillel Y. Levin hillelle...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 12:05 pm Subject: Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses Jim is too humble to say so, but his article is required reading for anyone interested in the Hobby Lobby, Notre Dame, and related cases. Jim, this is necessarily speculative, but I think that some religious traditionalists/conservatives view themselves as under attack from secularist forces. These forces are at play in the same-sex marriage context, but also GLBT non-discrimination laws, the contraception mandate, and others to boot. In the face of this (real or perceived) broad-based attack, as well as perhaps the sense that public sentiment is moving towards secularism in general (and GLBT rights in particular), they may be trying to plant their flag right here in places that they still have a majority. This could be called cynical, but it could also be called wise. After all, it is extremely difficult to repeal a religious accommodation clause once it is enacted, even if the majority comes to regret having enacted it. On Wed, Feb 26, 2014 at 11:46 AM, James Oleske jole...@lclark.edu wrote: In light of the recent discussions of this issue on the list, and in light the various proposals percolating in the states, I've got a question for the group and a shameless plug. First, the shameless plug -- I've just posted a new piece on the issue to SSRN (it won't be in print until next year, so comments and suggestions would be very welcome): Interracial and Same-Sex Marriages: Similar ReligiousObjections, Very Different Responses http://ssrn.com/abstract=2400100 The article addresses two major questions that havegone largely unexamined in the literature to date: First, why has the legal academy been sosolicitous of religious objections to same-sex marriage when it was neverreceptive to similar objections to interracial marriage? Second, if a statewere to adopt the leading academic proposal for religious exemptions—a proposalthat would allow for-profit businesses to discriminate against same-sexcouples—would the exemptions be vulnerable to an equal protection challenge? The leading academic proposal I discuss is the Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal discussion of that proposal begins on page 35 of the draft. A more general discussion of exemptions for commercial businesses starts on page 27 of the draft. Second, the question for the group: What explains the recent pivot from the marriage specific proposals (e.g., proposed amendment to Minnesota's 2012 marriage recognition legislation; proposed amendment to Washington's 2012 marriage recognition legislation; proposed 2014 ballot initiative in Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to the expansion of RFRA rights proposals (Arizona, Missouri)? Is it an effort to tie into what is expected to be a victory for Hobby Lobby under the federal RFRA? - Jim P.S. My understanding is the same as Chip's -- no state has yet adopted marriage exemptions that extend to commercial vendors. Speaking of Chip, his article with Bob on this topic is essential reading (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp). On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu icl...@law.gwu.edu wrote: That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I am tracking the state RFRAs and proposals and commentary on my site www.RFRAperils.com I welcome any and all commentary to add to the site. 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 http://sol-reform.com -Original Message- From: Hillel Y. Levin hillelle...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 11:14 am Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote: The Kansas bill is very sex/gender specific, and it is not limited to weddings in any way. The rights it creates appear absolute -- no interest balancing. It would authorize all sincere religious objectors (persons and entities, including businesses) to treat same sex marriages/domestic partnerships, etc. as invalid, even if the 14th A required states to license and respect such weddings. It would authorize those objectors to refuse to provide goods and services to anyone celebrating such a wedding or commitment, and to deny employee spousal benefits to same sex spouses. The Arizona bill protects religious freedom generally, and the amendment extends the coverage explicitly to corporations.The same religious objections to same sex weddings, marriages, etc. could be made under the Arizona bill. The AZ bill permits a compelling interest defense (therefore more moderate?), but it also is far more sweeping because it might be invoked to justify religious discrimination against customers for all sorts of reasons of status and identity, not limited to sexual orientation. Unlike federal RFRA, which was a generic response to Smith and brought together a coalition of many faith groups and civil liberties groups, the amendments to Arizona RFRA are driven by exactly the same political forces as are driving the Kansas bill and others -- opposition to same sex marriage and same sex intimacy, and an assertion of rights of some business people to refuse to serve that population. So the good lawyers on this list can parse the differences in the bills, and we can debate which bill would do more harm or more good, if you think there is any good here to be done. But no one can credibly deny that all of these current legislative efforts are driven by the same political forces. Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for the past 5 years been pushing narrower versions of these bills in states that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) Those efforts have failed over and over again. Now that same sex marriage seems headed for the red states, we are just seeing broader, uglier, less nuanced versions of the same agenda. I hope and expect that Gov. Brewer will veto the AZ bill, and it's nice to see the fierce national pushback against these attempts to legitimate anti-gay bigotry, whatever its religious underpinnings in some cases. On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: That should have been much more moderate/less sweeping. Mark Mark S. Scarberry Pepperdine University School of y Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Scarberry, Mark Date:02/26/2014 6:47 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Marci's view of the rights of a Walmart under tha AZ bill, and likely even the Kansas bill, is simply wrong. The application in the AZ bill to private enforcement by way of lawsuit simply prevents the state from doing indirectly what it can't do directly, cf. NY Times v. Sullivan, and makes clear something that already should be the case under RFRAs, properly interpreted. It also is the case that the AZ bill is much more moderate/sweeping than the Kansas bill. Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Marci Hamilton Date:02/26/2014 5:09 AM (GMT-08:00) 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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34 AM To: Law Religion issues for Law Academics Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses That is my understanding, Hillel. If Doug, Rick, Tom, or others know of counterexamples, I'm sure they will bring them forward to the list. On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that none have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote: Hillel: The same sex marriage laws to which you refer do have exceptions, for clergy, houses of worship, and (sometimes) for religious charities and social services. Bob Tuttle and I analyze and collect some of that here: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp. There is plenty of other literature on the subject. What has happened in other states since we wrote that piece is quite consistent with the pattern we described. These laws do NOT contain exceptions for wedding vendors (bakers, caterers, etc.) or public employees like marriage license clerks. Those are the efforts that have failed, over and over. Chip (not Ira, please) On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com wrote: Ira: You say that these bills have failed over and over again. If I'm not mistaken, several states that recognize same-sex marriage and/or have non-discrimination laws protecting gays and lesbians do have religious exceptions (as does the ENDA that passed the senate not long ago, only to die in the House). Am I mistaken? Do you (or anyone else here!) know of any literature that canvasses the laws in this context? Many thanks. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives;
Statistics on believers and same-sex marriage
I thought list participants would find the statistics below interesting. This is what I meant when I said that opposition to same-sex marriage among believers is declining. It is even more stark when one asks only the younger generation. http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?ncid=tweetlnkushpmg0055 . ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these compromise exemptions have gone nowhere, and in this environment, I would wager that they won't. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protectingfor-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil. They don’t want personal services from that guy anyway. They want that guy to change his religious views or to go out of business. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 2:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Doug--What does such an exemption look like if it is available to anyone other than clergy or a house of worship? Or is that limitation what makes it reasonable? I take it that the Arizona law does not fit your well-drafted notion? well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:24 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Many state laws on sexual-orientation discrimination, and most laws on same-sex marriage, have exemptions for religious organizations. Some are broad; some are narrow. Some are well drafted; some are a mess. But they are mostly there. Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination. No one in the groups I have been part of has ever suggested such exemptions. Not even the Kansas bill provides such exemptions. Chip is correct that no state has explicitly exempted small businesses in the wedding industry, or in marriage counseling, from its same-sex marriage legislation. All those laws so far have been in blue states. The absurd overreach in the Kansas bill, and the resulting political reaction to the radically different Arizona bill, and some bills caught in the fire elsewhere with less publicity, may indicate that such exemptions will be hard to enact even in red states. Or maybe not, if someone offers a well drafted, narrowly targeted bill when or after same-sex marriage becomes the law in those states. I agree with Alan Brownstein that part of the problem in red states is that they want to protect religious conservatives without protecting gays and lesbians. Not only does Arizona not have same-sex marriage; it doesn’t have a law on sexual-orientation discrimination. The blue states are mostly the mirror image. More and more they want to protect gays and lesbians but not religious conservatives. Hardly any political actors appear to be interested in protecting the liberty of both sides. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 26, 2014 11:34
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
I don't have any desire for them to go out of business, but if they are going to be in business, they need to operate in the marketplace without discrimination. If the business they have chosen does not fit their belief, they need to adjust, or move on. No one is barring religious minorities from professions. What is being suggested is that believers cannot shape the business world and customers to fit their prejudices. The insidious notion that believers have a right not to adjust to the law is the most damaging element of the RFRA movement, not just to those harmed by it, but by the believers who are permitted to avoid dealing with the changes that increase human rights, and demand their consideration and accommodation. Believers have enthusiastically supported the subjugation of blacks, women, children, and homosexuals.Not requiring them to adjust when what they are doing is a violation of human rights is a disservice to all. It is an understanding of religion removed from history, which is false. The ship has sailed on distinguishing homophobic discrimination and race discrimination. Even if the compelling interest test can be overcome (assuming we are dealing with balancing and not an absolute right), the least restrictive means test remains, and that is the element that drives cases in favor of the religious actor and against those they burden and harm. 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.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 3:31 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses “He needs to change jobs.” As I said, what you really want is for these people to go out of business. Barring religious minorities from professions is a very traditional form of religious persecution. Reviving it here is not the solution to these disagreements over conscience. I think that race is constitutionally unique. And it is clear that in the comparable period with race discrimination laws, resistance was so geographically concentrated, and so widespread within those locations, that exemptions would have defeated the purpose of the law. The government would have had a compelling interest in refusing religious exemptions. I see no reason to think that we are in anything like that situation with respect to gay rights today. If it turns out that we are, then there will be a compelling interest. And under the legislative proposals we have offered, if all the wedding planners in a community refuse to do gay weddings, then all of them lose their exemption. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, February 26, 2014 3:19 PM To: religionlaw@lists.ucla.edu Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Would you suggest this if it were based on race rather than homosexuality? If the wedding photographer thinks what the couple is doing, as in getting married under the state's duly enacted laws, is seriously evil, he needs to change jobs. Become a school photographer, though I suppose then he would object to taking pictures of children from same-sex families. I get the clergy and house of worship exemption. I don't get the business exemption. As Chip has said, these compromise exemptions have gone nowhere, and in this environment, I would wager that they won't. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 2:56 pm Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses It would protect only very small businesses that are personal extensions of the owner, and where the owner must necessarily be involved in providing the services. We have suggested five or fewer employees as a workable rule that is in the right range. And it would have a hardship exception for local monopolies; ir you’re the only wedding planner in the area, you have to do same-sex weddings too. So it would guarantee that same-sex couples get the goods and services they need. It would not enable that couple to demand those services from the merchant who thinks that what they’re doing is seriously evil.
Re: The Arizona bill and Hobby Lobby
The difference is that in the Hobby Lobby cases, the Defendant is the government. In the AZ cases, both parties would be private, with the business being able to raise RFRA against the private actor. 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.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 3:35 pm Subject: The Arizona bill and Hobby Lobby Apologies in advance if someone has already made this connection: If I'm understanding it correctly, the effect of the Arizona bill would be to establish or confirm that the Arizona RFRA does exactly what Hobby Lobby and its amici are arguing the federal RFRA already does -- namely, extend protections to for-profit commercial operations. And the Republican establishment, including not only both Senator Flake and Newt Gingrich, but also John McCain, an amicus in Hobby Lobby, are strongly lobbying against it. And they are doing so, presumably, because the Arizona bill -- like the plaintiffs' argument in Hobby Lobby -- would pave the way for claims of entitlement to religious exemptions from anti-discrimination norms in the commercial setting. I say this not to accuse those Republican officials of hypocrisy -- I'm sure they have not made the association -- but merely to point out that if Hobby Lobby did not involve the incendiary combination of contraception and Obama, it's very unlikely that so many would be arrayed in support of the rule they are asking the Court to announce about RFRA. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Statistics on believers and same-sex marriage
The argument is the same for race and homosexual persons. For most of America at this point, discrimination based on sexual orientation is as ugly and wrong as discrimination based on race. Greg is correct-- the reasoning cannot be divorced. Also--your depiction of alternatives is in fact the very Balkanization I've been warning about. When the marketplace becomes segregated by faith, we all lose.The next step is intolerance and severe discord. 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.com -Original Message- From: Sisk, Gregory C. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 4:19 pm Subject: RE: Statistics on believers and same-sex marriage No such logic exists. Your inference omits my express reference to the requirement of a substantial burden and the omission of a compelling public interest. A return to racial segregation and inability to receive services on the basis of race would easily qualify as a compelling public interest. The narrow question presented in these cases is whether a religious minority may decline to participate in a ceremonial message with which they disagree, especially when alternative venues and services are readily available and thus no actual burden is imposed on anyone. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Greg Lipper Sent: Wednesday, February 26, 2014 2:55 PM To: Law Religion issues for Law Academics Subject: Re: Statistics on believers and same-sex marriage I appreciate your consistency – and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I’ve consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she regards the Catholic Church as oppressive). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Statistics on believers and same-sex marriage
Racism was supported and encouraged by believers. Religion and clergy played a critical role in making the Jim Crow south what it was. It wasn't just the state. It was the cooperation of racist believers and the government. 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.com -Original Message- From: tznkai tzn...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Feb 26, 2014 6:37 pm Subject: Re: Statistics on believers and same-sex marriage Racial segregation in America wasn't a simple matter of state governments enabling racists through carve outs or even a broad grant of rights. Racial segregation under Jim Crow involved the state forcing racist ideology. There is a colorable difference between allowing a minister or justice of the peace to opt out of marrying a couple and making it illegal to do so. If there is any danger (and I'm not convinced) in returning to segregation, it does not lie in the religious exemption, but granting that exemption to employers, which allows them to enforce that belief onto their employees, who will be left with the same out that Prof. Laycock finds so disturbing for small business owners: leave and find another. -Kevin Chen On Wed, Feb 26, 2014 at 4:17 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: No such logic exists. Your inference omits my express reference to the requirement of a substantial burden and the omission of a compelling public interest. A return to racial segregation and inability to receive services on the basis of race would easily qualify as a compelling public interest. The narrow question presented in these cases is whether a religious minority may decline to participate in a ceremonial message with which they disagree, especially when alternative venues and services are readily available and thus no actual burden is imposed on anyone. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Greg Lipper Sent: Wednesday, February 26, 2014 2:55 PM To: Law Religion issues for Law Academics Subject: Re: Statistics on believers and same-sex marriage I appreciate your consistency – and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I’ve consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she regards the Catholic Church as oppressive). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
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.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics 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.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.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.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Hamilton Sent: Tuesday, February 25, 2014 1:55 PM To: 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.com image001.jpg Championing Religious Freedom and Human Rights for All People of Faith From: 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.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 to refuse to accommodate the religious exercise of employees, or even terminate them on the basis of religious differences. The Hobby Lobby case may go a long way in showing what rights employers have, and it seems to be part of a general strike against the application of the Bill of Rights to the states (14th Amendment). Any time the principle argument in favor of a potentially dangerous law is, What's the worse that can happen? I think there's reason to get really nervous. There is probably an answer for those who don't want to violate their religious conscience by accommodating those members of protected classes that disagree with them, but this legislation is not it. Michael D. Peabody, Esq. Editor ReligiousLiberty.TV http://www.religiousliberty.tv ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To
Re: Kansas/Arizona statutes protecting for-profit businesses
The hysteria involves the capacity of the bill to permit restaurants, hotels, and other places of public accommodation to refuse service to homosexuals. How is it different from a Jim Crow law in that way? Don't forget the Jim Crow laws were supported by religious principles and believers as well. It was the entire southern society, including many clergy and believers, who were racist and didn't want to have to eat near or be with blacks. It is unconstitutional under the Romer reasoning, not because it is facially aimed at homosexuals, but rather because its only justification is hatred of homosexuals. As in the free exercise doctrine, facial neutrality is not enough to save a law that has no justification other than animus. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Penalver, Eduardo penal...@uchicago.edu Sent: Sat, Feb 22, 2014 10:14 am Subject: Re: Kansas/Arizona statutes protecting for-profit businesses You're not missing anything; you're failing to join in the hysteria. The Arizona bill leaves to the courts the questions whether assisting with a wedding you find sinful is a substantial burden and whether there is a compelling interest in making you do it anyway. It is in no way like the Kansas bill. Instead, it amends the Arizona RFRA to resolve two issues that have become the subject of dispute -- are people covered with respect to things they do in their businesses, and can you use RFRA as a defense when sued by a private citizens -- and some other tweaks that address no live issue that I'm aware of and don't seem to make much difference. On Sat, 22 Feb 2014 04:07:40 + Penalver, Eduardo penal...@uchicago.edu wrote: What's interesting about the Az bill is that it does not facially target same sex couples - it seems to just extend the state RFRA to disputes among private parties. I don't think Romer would really apply. On the other hand, it's not clear that it would accomplish what its proponents want. Am I missing something? On Feb 21, 2014, at 9:18 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: And a story out of Arizona . . . http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpwrref=politics Here's the bill (likely to be vetoed): http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Not so fast, Chip! The Kansas House passed it, but it appears that the Senate will not do so . . . despite a 32-8 Republican majority! http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story Even in red states, it's incredible how fast hearts and minds are changing . . . On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Look at the new Kansas law on the right of individuals and religious entities to discriminate against those in same sex marriages, domestic partnerships, etc.: http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf%5C Note the definitions in section 3 (a) which defines religious entity to include a privately-held business . . . (section 3(a)(3)). Perhaps this is the unfortunate wave of the future in red states, preparing for a 14th Amendment obligation to recognize same sex marriage. On Sun, Feb 16, 2014 at 2:01 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: On a quick read, it appears that neither of the state assisted suicide statutes is analogous, either. They merely confirm that although entities can assist suicides, no one is under any obligation to do so. No need for any exemption at all, since there's no duty in the first place. And thus, not surprisingly, no reference to religion at all, far as I could see. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546
Re: Kansas/Arizona statutes protecting for-profit businesses
I think we can all agree, as legal scholars, that religiously-based animus is still animus. See Loving v. VA; Bob Jones Univ. v. US The so-called hysterical parade of horribles is squarely included in the language of the law, no? Are we supposed to believe that religious believers will not use the law to the full extent of its language? What would be the reasoning behind that? That religious believers are inherently beneficial to society and, therefore, will always act in ways that are not hateful or dangerous or bad for society? 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 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Feb 22, 2014 12:40 pm Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The famous cases (Elane, etc.) which prompted this all involve same-sex ceremonies, not that parade of horribles Marci said. I hope all can agree opposition to same-sex marriage is not hatred of homosexuals. See this amicus brief: http://www.scribd.com/doc/206330147/13-4178-Amicus-Brief-of-Law-Professors On Sat, Feb 22, 2014 at 10:08 AM, hamilto...@aol.com wrote: The hysteria involves the capacity of the bill to permit restaurants, hotels, and other places of public accommodation to refuse service to homosexuals. How is it different from a Jim Crow law in that way? Don't forget the Jim Crow laws were supported by religious principles and believers as well. It was the entire southern society, including many clergy and believers, who were racist and didn't want to have to eat near or be with blacks. It is unconstitutional under the Romer reasoning, not because it is facially aimed at homosexuals, but rather because its only justification is hatred of homosexuals. As in the free exercise doctrine, facial neutrality is not enough to save a law that has no justification other than animus. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Penalver, Eduardo penal...@uchicago.edu Sent: Sat, Feb 22, 2014 10:14 am Subject: Re: Kansas/Arizona statutes protecting for-profit businesses You're not missing anything; you're failing to join in the hysteria. The Arizona bill leaves to the courts the questions whether assisting with a wedding you find sinful is a substantial burden and whether there is a compelling interest in making you do it anyway. It is in no way like the Kansas bill. Instead, it amends the Arizona RFRA to resolve two issues that have become the subject of dispute -- are people covered with respect to things they do in their businesses, and can you use RFRA as a defense when sued by a private citizens -- and some other tweaks that address no live issue that I'm aware of and don't seem to make much difference. On Sat, 22 Feb 2014 04:07:40 + Penalver, Eduardo penal...@uchicago.edu wrote: What's interesting about the Az bill is that it does not facially target same sex couples - it seems to just extend the state RFRA to disputes among private parties. I don't think Romer would really apply. On the other hand, it's not clear that it would accomplish what its proponents want. Am I missing something? On Feb 21, 2014, at 9:18 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: And a story out of Arizona . . . http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpwrref=politics Here's the bill (likely to be vetoed): http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Not so fast, Chip! The Kansas House passed it, but it appears that the Senate will not do so . . . despite a 32-8 Republican majority! http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story Even in red states, it's incredible how fast hearts and minds are changing . . . On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Look at the new Kansas law on the right of individuals and religious entities to discriminate against those in same sex marriages, domestic partnerships, etc.: http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf%5C Note the definitions in section 3 (a) which defines religious entity to include a
Re: Accommodation vs. the complicity theory
The state RFRAs and the First Amendment are raised in abuse and neglect cases ALL OF THE TIME. What is the least restrictive means of punishing a parent who lets a child die of a treatable ailment? Here is what they argue: civil penalties, rather than criminal. So let's not put parents in jail who watch their children die. Let them go home and care for their other children. The principled line that protects children (and others at risk) was enunicated plainly in Employment Div. v. Smith. The Coalition's no-exemption policy described by Doug in the CLS brief led to children's advocates being ignored in the state rfra proposals. But children don't vote. (Fortunately, it broke down in PA and they actually included a few exceptions, like crimes against children, but that is the exception that proves the rule, and did not extend to all actions that harm children in any event.) Finally, there are groups affected by the RFRAs that have political power, e.g., the gay rights/civil rights community and women's rights groups. Now, finally, the public is seeing these laws for what they are--extreme statutes that endanger the vulnerable. 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 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Feb 22, 2014 1:00 pm Subject: Re: Accommodation vs. the complicity theory I really have a hard time listening to a claim that RFRA supporters think that being required to not abuse children [is] an invasion of religious liberty. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 21, 2014, at 2:46 PM, Steven Jamar stevenja...@gmail.com wrote: I was, early on, generally a support of RFRA and thought the Smith rule went too far. I thought that the substantial burden would work out much as it has — courts have been reluctant to find a substantial burden very easily. But in the last decade, and in particular with the response of some religionites to laws prohibiting discrimination against gays, and pharmacists refusing to dispense legal drugs, and others claiming to be exempt from straight-up commercial regulation like the ACA — well, I am starting (gag) to think Scalia’s approach was more right than RFRA after all. Further proof, I guess, that even blind squirrels can find nuts sometimes. We have shifted heavily to an accommodationist model, away from a separationist model, away from a same-rules-for-everyone model toward a unit veto by religionites. Since when is a tax on doing business a substantial burden? Since when is paying a tax, some of which goes to fight wars, “complicity”? Since when is being required to not abuse children an invasion of religious liberty? Since when is requiring minimum wage compliance, OSHA compliance, environmental standards compliance causing “complicity”? Here’s hoping the complicity theory loses bigtime. Accommodating practices is one thing — accommodating all sorts of religious beliefs under a “complicity” theory — well, I think that was properly rejected in Reynolds in 1878. 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/ Nonviolence means avoiding not only external physical violence but also internal violence of spirit. You not only refuse to shoot a man, but you refuse to hate him. Martin Luther King, Jr. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Kansas/Arizona statutes protecting for-profit businesses
Michael-- Your assumptions and conclusions are wrong as a matter of empirical fact. 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.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Feb 22, 2014 3:00 pm Subject: Re: Kansas/Arizona statutes protecting for-profit businesses Not only are religious believers [] inherently beneficial to society, but that public opinion on same-sex couples is evolving so rapidly that most people will not discriminate against gays and lesbians except in the context of marriage. Just because something is legal doesn't mean people will use it. As to the Westboro Baptist Churches of the world, the public will have societal pressure on them while respecting their rights in the first amendment. And opposing same-sex marriage for religious reasons is not animus. On Sat, Feb 22, 2014 at 11:34 AM, hamilto...@aol.com wrote: I think we can all agree, as legal scholars, that religiously-based animus is still animus. See Loving v. VA; Bob Jones Univ. v. US The so-called hysterical parade of horribles is squarely included in the language of the law, no? Are we supposed to believe that religious believers will not use the law to the full extent of its language? What would be the reasoning behind that? That religious believers are inherently beneficial to society and, therefore, will always act in ways that are not hateful or dangerous or bad for society? 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 http://sol-reform.com -Original Message- From: Michael Worley mwor...@byulaw.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Feb 22, 2014 12:40 pm Subject: Re: Kansas/Arizona statutes protecting for-profit businesses The famous cases (Elane, etc.) which prompted this all involve same-sex ceremonies, not that parade of horribles Marci said. I hope all can agree opposition to same-sex marriage is not hatred of homosexuals. See this amicus brief: http://www.scribd.com/doc/206330147/13-4178-Amicus-Brief-of-Law-Professors On Sat, Feb 22, 2014 at 10:08 AM, hamilto...@aol.com wrote: The hysteria involves the capacity of the bill to permit restaurants, hotels, and other places of public accommodation to refuse service to homosexuals. How is it different from a Jim Crow law in that way? Don't forget the Jim Crow laws were supported by religious principles and believers as well. It was the entire southern society, including many clergy and believers, who were racist and didn't want to have to eat near or be with blacks. It is unconstitutional under the Romer reasoning, not because it is facially aimed at homosexuals, but rather because its only justification is hatred of homosexuals. As in the free exercise doctrine, facial neutrality is not enough to save a law that has no justification other than animus. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Penalver, Eduardo penal...@uchicago.edu Sent: Sat, Feb 22, 2014 10:14 am Subject: Re: Kansas/Arizona statutes protecting for-profit businesses You're not missing anything; you're failing to join in the hysteria. The Arizona bill leaves to the courts the questions whether assisting with a wedding you find sinful is a substantial burden and whether there is a compelling interest in making you do it anyway. It is in no way like the Kansas bill. Instead, it amends the Arizona RFRA to resolve two issues that have become the subject of dispute -- are people covered with respect to things they do in their businesses, and can you use RFRA as a defense when sued by a private citizens -- and some other tweaks that address no live issue that I'm aware of and don't seem to make much difference. On Sat, 22 Feb 2014 04:07:40 + Penalver, Eduardo penal...@uchicago.edu wrote: What's interesting about the Az bill is that it does not facially target same sex couples - it seems to just extend the state RFRA to disputes among private parties. I don't think Romer would really apply. On the other hand, it's not clear that it would accomplish what its proponents want. Am I missing something? On Feb 21, 2014, at 9:18 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: And a story out of Arizona . . .
Re: Leaving room for counter-cultural communities on contraception
I respect Greg's intent here. But, from where I am sitting, facts are more important than lofty goals when it comes to the protection of women from sex abuse and assaults. To the extent that Greg's reasoning is intended to imply that universities opposed to contraception are oases of protection for female students, I offer my justia.com column today. http://verdict.justia.com/2014/02/20/sex-assaults-evangelical-colleges-united-nations-vatican Facts matter in religious liberty debates. 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 http://sol-reform.com -Original Message- From: Sisk, Gregory C. gcs...@stthomas.edu To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu Sent: Tue, Feb 18, 2014 8:55 pm Subject: Leaving room for counter-cultural communities on contraception Following up on yesterday’s conversation, let me approach the question of Catholic resistance to the contraception mandate as a plea for something more than grudging tolerance of different opinion but rather a request for a more “liberal” acceptance of a community with an alternative view of the good life. At the outset, I emphasize that my primary purpose here is not to persuade you that this alternative view is better. I am not even arguing today that those who advocate for ready and cost-free access to artificial contraception should refrain from advancing that policy preference through political means. My aim of the moment is much more modest, which is to contend that in a free and diverse society, public policy should leave ample breathing room for a community with a counter-cultural understanding on these important questions. I appreciate that contraception is widely viewed throughout the academy as an unalloyed positive social good, even a “revolutionary” and necessary step for women’s equality. Indeed, it would not be an exaggeration to describe the pro-contraception position as the privileged narrative in the academy. The contrary view is seldom heard in the halls of the typical law school and not much respected on the irregular occasion that it is voiced. Those who resist the use of artificial contraception are regarded at best as being quaint or in need of consciousness-raising and are seen at worst as retrograde believers in a subservient role for women as incessant baby-makers. Through this post, I want to challenge this group of open-minded scholars to entertain the possibility that women and men of sound mind and good heart, many of “feminist” inclinations, can reasonably and even joyfully embrace an alternative worldview that embraces sexuality as a gift but excludes artificial contraception. The perspective that I sketch here, inartfully, is that shared with me by many friends, colleagues, and former students—Catholic women who accept the Church’s teaching on sexuality and contraception, not as a rigid doctrinal imposition, but as a gift. And these are successful professional women, who have satisfying careers as lawyers or law professors, which they have integrated with fulfilling personal and family lives. For on-line examples of these voices, although I do not know these women personally, I suggest these links: http://catholicmoraltheology.com/catholics-contraception-and-feminisms/ http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception For the orthodox Catholic women that I have known in professional settings, they have not experienced the ready availability of artificial contraception as liberating. Rather, they have seen the assumption that all women use (or should use) artificial contraception as serving to fuel the hyper-sexualized environment on college campuses, leading to the familiar “hook-up” culture and its devaluation of human sexuality and degradation of women. Rather than seeing contraception as enhancing equality, these women have seen the presumption of contraceptive use as encouraging men to behave irresponsibly and to treat women as sexual conquests. In sum, by resisting the contraception narrative, these women have set a different path for romantic relationships. They believe they have achieved healthier relationships with men. When these professional women marry, they engage in discourse and planning with their husbands about children, a dialogue that cannot be avoided because contraception is not used to make it possible to avoid the question. Contrary to the absurd suggestion that women who do not use artificial contraception typically have ten to twenty children, these women know that family planning and artificial contraception are not synonymous, and they insist that modern women have not lost all capacity for self-control. While they may choose to have larger families than the norm in some circles, the
RFRA/RLPA legislative history
Doug-- the floor debate on RLPA? It was never passed. And I don't know what you mean by both sides agreed. Many members agreed that it was a bad bill, which is why it didn't pass. Bobby Scott was adamantly opposed from day one, and raised every argument available to halt it, and succeeded. This is the worst of post-enactment legislative history. But I at least respect your argument for not trying to argue that RFRA when enacted was obviously intended to cover for-profit organizations. You need RLPA's legislative history to make the argument. No doubt about it. If the conservative Justices abandon their disdain for legislative history, not to mention, post-enactment legislative history in Hobby Lobby, it will be remarkable. 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thu, Feb 20, 2014 2:11 pm Subject: RE: recommended Hobby Lobby posts I assume that Marci wasn’t there for the floor debate. There were many statements, they were very explicit, both sides agreed. Corporations would be covered based on the religious views of their owners or senior management. What takes a tortured reading is not to take those statements at face value. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, February 20, 2014 1:49 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts As someone who was involved in RLPA in Congress from day one through many hearings, only a tortured reading of history supports the notion that Congress believed that its proponents believed RFRA should apply to for-profit organizations let alone that they intended it to. Given current deadlines I cannot add more , but I look forward to reading Jim's piece and will be doing something of my own closer to the argument. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 20, 2014, at 12:34 PM, James Oleske jole...@lclark.edu wrote: I have a short essay coming out next month that offers a considerably different take than Doug on both the legislative history of RLPA and the text of the 1999 version of RLPA as compared to RFRA. A draft of the essay is available here: Obamacare, RFRA, and the Perils of Legislative History http://ssrn.com/abstract=2398763 The relevant discussion can be found on pages 5-10 of the draft. My bottom-line conclusion is that the 1998 and 1999 debates over RLPA fall far short of demonstrating an 'undisputed public understanding that the language in RFRA protected for-profit corporations and their owners.' On the specific claim that the text of RFRA and RLPA were identical, I make the same point I see Marty has made in his separate response to Doug -- the 1999 RLPA has a broad construction provision that was in neither the 1998 RLPA or RFRA. Thus, the more relevant RLPA legislative history is the 1998 debate, not the 1999 debate Doug relies upon in the CLS amicus brief and his SCOTUS Blog post. And the 1998 testimony casts considerable doubt on the claim that large for-profit businesses are protected by RFRA. On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock dlayc...@virginia.edu wrote: I have not gone back to review all the RLPA testimony, but yes we did predict that large commercial businesses seeking religious exemptions from civil rights laws would generally lose. The context of that testimony was civil rights claims. And it was a prediction of what the courts would do in fact, not a judgment about what they should do. But I would probably be comfortable with most of the results we predicted. The kinds of civil rights claims RLPA’s supporters wanted to preserve mostly did not arise in business situations. Religious discrimination by religious
Re: Leaving room for counter-cultural communities on contraception
Greg: I agree that views on contraception have nothing to do with the sexual culture at a school. You wrote the following in which you suggest that a school that opposes contraception creates an oasis for male/female relations. Rather, they have seen the assumption that all women use (or should use) artificial contraception as serving to fuel the hyper-sexualized environment on college campuses, leading to the familiar “hook-up” culture and its devaluation of human sexuality and degradation of women. Rather than seeing contraception as enhancing equality, these women have seen the presumption of contraceptive use as encouraging men to behave irresponsibly and to treat women as sexual conquests. In sum, by resisting the contraception narrative, these women have set a different path for romantic relationships. They believe they have achieved healthier relationships with men. When these professional women marry, they engage in discourse and planning with their husbands about children, a dialogue that cannot be avoided because contraception is not used to make it possible to avoid the question. Contrary to the absurd suggestion that women who do not use artificial contraception typically have ten to twenty children, these women know that family planning and artificial contraception are not synonymous, and they insist that modern women have not lost all capacity for self-control. While they may choose to have larger families than the norm in some circles, the professional Catholic women that I know who joyfully follow Church teaching have families with children ranging in number from a single child to about half a dozen, with most in the two or three range. Now let us suppose that a particular Catholic community—a Catholic university, let us say—wishes to build an oasis in which young men and women have an alternative to the contraception culture that dominates most of society. This university builds single-sex dormitories and adopts what we’ll label “parietals” that call for person of the opposite sex to leave a student’s dorm room after a certain time each night. Every student admitted to the university (and every faculty or staff member employed by the university) is well aware of the Church’s teaching and of the university’s considered policies in accordance with that teaching. Patrick Henry College and Bob Jones University are right there with your hypothetical Catholic university on opposing contraception. Neither is the oasis you describe. Nor is Notre Dame, as you know. I am all in favor of counter-cultural communities on a wide range of issues, but I do not think that your linkage between contraception beliefs and healthier relationships with men holds water. 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 http://sol-reform.com -Original Message- From: Sisk, Gregory C. gcs...@stthomas.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thu, Feb 20, 2014 10:13 pm Subject: RE: Leaving room for counter-cultural communities on contraception I genuinely do appreciate the respect. I have been gratified by the surprisingly large number of encouraging private messages I have received from people of different views politically and about the value of artificial contraception. So I feel somewhat churlish in saying this, but I don’t see that Marci’s message is responsive to mine. Surely she does not mean to suggest that a university’s track record of addressing sexual violence has an empirical correlation to its position on the use of artificial contraception. And I don’t find any support for such a suggestion in the literature or her article. Indeed, reading Marci’s linked article, I find nothing that suggests an educational community’s decision to affirm young women and men in treating sexuality as a sacred gift and not to distribute contraception could somehow lead to sexual violence – indeed, the word “contraception” does not appear in her linked article at all. Nor does she discuss any university or college that advances the Catholic Church’s integrated teachings about human dignity and sexuality, much less consider the distinctly feminist character of the voices of Catholic professional women that I described. Moreover, as a leader in faculty governance and working directly on sexual assault policies on the university campus, I see nothing in the sobering statistics and episodes around the country supporting a policy conclusion that making contraception more available on a college campus is the answer to end sexual assaults. We cannot so easily avoid engaging with that problem. The problem of sexual violence on college campuses of all kinds and types – public and private, elite and regional, religious and non-religious, Catholic and secular –
Re: Notre Dame-- where's the complicit participation? Sincerity
Is Doug correct as a legal matter that the bishops speak for Notre Dame, as opposed to its officials, and the officials' actions are irrelevant? And that the actions of its co-religionist officials are irrelevant to proof of the organization's beliefs? Why don't the practices of Notre Dame's officials prove insincerity in this case? (I'm assuming that they don't have the 10-20 children typically incident to not using birth control and that they follow the vast majority of American Catholics in rejecting the belief against contraception). How can they claim a right not to provide contraception for their employees/students in their health plan because of complicity if they are using it themselves? To provide an analogy: In the prison cases, you can test a prisoner's sincerity when he demands kosher food (because it's better than the usual fare), and claims a conversion to Judaism, but they find pork rinds in his cell, it is assumed he is not sincere and does not receive the accommodation (a state prison general counsel provided this example for me) 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 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Sat, Feb 15, 2014 1:45 pm Subject: Notre Dame-- where's the complicit participation? Sincerity If any of the law professors who have been urging religious liberty protections in marriage bills had been involved in Kansas, it would have been a more sensible bill. The Kansas bill overreaches, in my view, most obviously by protecting businesses without regard to size or ownership and by providing no exception for cases of local monopolies. And quite possibly in other ways if I had time to study it carefully. In an ideal world, this academic would help them write a better bill. But there are only so many hours in a day, and it hasn’t happened. Nor have I ever assumed universal sincerity or anything like it. Asking the owners of Hobby Lobby about their birth control practices would almost certainly prove nothing, because they object only to emergency contraception and IUDs. Notre Dame is a harder case; its administration may feel obligated to follow the bishop’s teaching institutionally even though they feel no such obligation in their personal lives. The bishops speak for the Catholic Church, even when the lay people overwhelmingly disagree. I do think the Notre Dame lawyer overreached in his reading of Thomas v. Review Board. The wording of the opinion was strong, but it was in the context of a believer making an easily understandable distinction and a not very aggressive claim about the point at which his faith was burdened, and the state making silly arguments that could not withstand analysis. I don’t think the Court meant that no court can every question the existence or substantiality of a burden, and certainly lower courts have not read it that way, except possibly for a few of the opinions in the current round of litigation. Churches and believers explaining their faith and how it is burdened are entitled to some deference on that issue, but they are not entitled to judicial abdication. They have rarely gotten the abdication that Notre Dame seeks, and very often, they have gotten skepticism bordering on hostility instead of deference. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Saturday, February 15, 2014 11:16 AM To: religionlaw@lists.ucla.edu Subject: Re: Notre Dame-- where's the complicit participation? Sincerity Fair questions. Legal academics do not operate in an isolated ivory tower, but rather in the public sphere. Law professors, after all, are primarily responsible for crafting and supporting RFRA from an early stage until today, in their roles as professors and lawyers. Witness the law professor briefs submitted to the Court. And in fomenting the extreme RFRAs in the states that are now circulating, as evidenced by the letter submitted by professors as professors to the Texas legislature last year in support of a RFRA without substantial modifying burden. I have not yet investigated which law professors, if any, support the pending Kansas RFRA that will make it possible for businesses to reject homosexuals' business, but we shall see. We don't just discuss things, we directly affect public policy. As such, we have moral obligations to the larger society, which are rightly judged by history and the larger society. It is my view that religious liberty specialists tend to debate some
Re: Notre Dame-- where's the complicit participation? Sincerity
I am aware of that, Mark. I hope I have not offended Catholics on this list by raising this fact question. I married into a Philadelphia Irish Catholic family and have Catholic clergy on my father's side. I was speaking based on my experience with Catholic family, friends, neighbors. In the US, statistics about believers are indeed relevant, because religious belief belongs to the individual(s), not just the entities. 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 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Feb 16, 2014 6:32 pm Subject: RE: Notre Dame-- where's the complicit participation? Sincerity Let me add in response to Marci that the Catholic Church is not a democracy (let alone a New England style direct democracy), nor, of course, does the 1st Am. permit the government to treat it as a democracy. Statistics about beliefs of American Catholics are essentially irrelevant. Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Richard Dougherty Date:02/16/2014 2:07 PM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Notre Dame-- where's the complicit participation? Sincerity Two points of clarification that I think may be helpful: 1) One of the most important consequences of the HHS mandate is that a far greater number of Catholics now have a better idea of what the Church's teaching is on contraception and other life issues than they did before, which makes the imposition something of a mixed blessing. (Think here of Kelo and the sudden awakening to property rights on the part of some.) I don't know without looking it up the percentage of Catholics who know what the Church's teaching is on contraception, but it is quite low. That may raise other questions, though. 2) The absence of the use of contraceptives does not automatically produce 10-20 children in a marriage, even when the couple is open to that outcome. Almost never did before the introduction of contraceptives, and almost never does now. Richard Dougherty University of Dallas On Sun, Feb 16, 2014 at 3:20 PM, Marci Hamilton hamilto...@aol.com wrote: There is a doubt however about what American Catholics believe. They overwhelmingly reject the church teaching against contraception. They don't think they are sinners as Mark suggested. They reject it. Every poll supports that as does the fact that it is rare to find a Catholic family w 10-20 children in the US. The teaching is one thing: the belief is another in the US. This is not an idle observation. ND has inserted itself into the spotlight by asserting beliefs that most Americans know Catholics reject-in theory and in practice. On Marty's point--the fact that the government gives for-profits a pass on abortion does not show they have a conscience. It shows religious abortion opponents had political clout.Your reasoning strikes me as backward. I think Marty and the SG are on the stronger ground here If the Court finds they have such rights, the slippery slope is perpendicular to the ground. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 16, 2014, at 3:45 PM, Douglas Laycock dlayc...@virginia.edu wrote: No doubt the Board and senior administration speaks for Notre Dame. But on faith and morals, they may (and may be expected to or required to) take their guidance from the bishops. There is no doubt what the Church’s teaching is, and no doubt that teaching is sincere. What I said was that Notre Dame’s leadership may sincerely feel obliged to follow that teaching in their official capacity as leaders of a Catholic institution, whatever they may do in their private life. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that
Re: Notre Dame-- where's the complicit participation? Sincerity
With all due respect to those disputing the numbers, families of the size I mentioned were not uncommon before contraceptives were widely available, not just among Catholic families, but also other families. It was particularly common in Ireland, where the Catholic Church was part of the government. Contraception was a revolution for women. I will have nothing else to add on this issue. 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 http://sol-reform.com -Original Message- From: Richard Dougherty dou...@udallas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Feb 16, 2014 5:07 pm Subject: Re: Notre Dame-- where's the complicit participation? Sincerity Two points of clarification that I think may be helpful: 1) One of the most important consequences of the HHS mandate is that a far greater number of Catholics now have a better idea of what the Church's teaching is on contraception and other life issues than they did before, which makes the imposition something of a mixed blessing. (Think here of Kelo and the sudden awakening to property rights on the part of some.) I don't know without looking it up the percentage of Catholics who know what the Church's teaching is on contraception, but it is quite low. That may raise other questions, though. 2) The absence of the use of contraceptives does not automatically produce 10-20 children in a marriage, even when the couple is open to that outcome. Almost never did before the introduction of contraceptives, and almost never does now. Richard Dougherty University of Dallas On Sun, Feb 16, 2014 at 3:20 PM, Marci Hamilton hamilto...@aol.com wrote: There is a doubt however about what American Catholics believe. They overwhelmingly reject the church teaching against contraception. They don't think they are sinners as Mark suggested. They reject it. Every poll supports that as does the fact that it is rare to find a Catholic family w 10-20 children in the US. The teaching is one thing: the belief is another in the US. This is not an idle observation. ND has inserted itself into the spotlight by asserting beliefs that most Americans know Catholics reject-in theory and in practice. On Marty's point--the fact that the government gives for-profits a pass on abortion does not show they have a conscience. It shows religious abortion opponents had political clout.Your reasoning strikes me as backward. I think Marty and the SG are on the stronger ground here If the Court finds they have such rights, the slippery slope is perpendicular to the ground. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 16, 2014, at 3:45 PM, Douglas Laycock dlayc...@virginia.edu wrote: No doubt the Board and senior administration speaks for Notre Dame. But on faith and morals, they may (and may be expected to or required to) take their guidance from the bishops. There is no doubt what the Church’s teaching is, and no doubt that teaching is sincere. What I said was that Notre Dame’s leadership may sincerely feel obliged to follow that teaching in their official capacity as leaders of a Catholic institution, whatever they may do in their private life. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Notre Dame-- where's the complicit participation? Sincerity
Fair questions. Legal academics do not operate in an isolated ivory tower, but rather in the public sphere. Law professors, after all, are primarily responsible for crafting and supporting RFRA from an early stage until today, in their roles as professors and lawyers. Witness the law professor briefs submitted to the Court. And in fomenting the extreme RFRAs in the states that are now circulating, as evidenced by the letter submitted by professors as professors to the Texas legislature last year in support of a RFRA without substantial modifying burden. I have not yet investigated which law professors, if any, support the pending Kansas RFRA that will make it possible for businesses to reject homosexuals' business, but we shall see. We don't just discuss things, we directly affect public policy. As such, we have moral obligations to the larger society, which are rightly judged by history and the larger society. It is my view that religious liberty specialists tend to debate some issues while accepting taboos, like not questioning sincerity. That gives cover to disingenuous religious claimants and, again in my view, undermines the authenticity of their legal analysis, which rests on empirical assumptions that are counterfactual. By complicity here I mean that if academics are buying into and perpetuating the taboos on which religious lobbyists and leaders insist, they are partially responsible for the harm done. It is our job, in my view, to examine these issues with our intellects and to tell the public what our intellectual analysis yields. There are many Americans who would take a different view of a professor's work and public arguments if he or she were to disclose that she is assuming sincerity by all religious actors. I think I've made myself pretty clear that I think HL's and ND's positions are harmful to women and the larger society. 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 http://sol-reform.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: kurtlash2 kurtla...@gmail.com Sent: Sat, Feb 15, 2014 10:45 am Subject: Re: Notre Dame-- where's the complicit participation? Sincerity With respect, I do not understand the comment below about the “complicity” of legal academics in the legal wrongs perpetrated by religious institutions, or any institutions, that they study and think about. I am assuming that the institutions are engaged in legal wrongs in the cases we are now talking about (Notre Dame and Hobby Lobby), which is the assumption from which I’ll proceed for purposes of this comment. First, what is the meaning of “complicity” in this context? Is it a meaning like the meaning being pressed in the lawsuits—a religious meaning? Is it a meaning derived from criminal law—as in accomplice liability? I am not suggesting that anybody believes that law professors are criminally complicit; probably the statement refers to moral complicity. But that still leaves the problem of understanding the meaning of the word here. In criminal law, complicity generally requires sharing the purpose of the wrongdoer, or perhaps taking a view with the intention that it will enable or encourage the wrongdoer to continue doing wrong. If it is another meaning, what is it? Second, assuming the meaning is something approaching shared purpose, I do not understand how legal academics, by discussing various issues on a listserv or elsewhere and thinking through them, and (so far as I can see) disagreeing with one another, are complicit in the wrongdoing of the subjects that they study. It would be very unusual (and certainly not reflective of the ethos on the criminal law listserv to which I also subscribe) to describe a scholar of criminal law as complicit in the wrongdoing of a criminal defendant by taking positions that are protective of his rights under, e.g., the Fourth Amendment or the Sixth Amendment or a statute, notwithstanding overwhelming evidence of his guilt. Similarly, in evidence, there are all sorts of presumptions and privileges that work to protect people’s rights, sometimes at the expense of other values related to the question of liability or culpability. In other areas of law, legal scholars understand that evidence of guilt or liability is not the only thing that matters, and that there are limits beyond which a civilized society is not prepared to go because to do so would sacrifice other important values. This area should not be different. And law professors, in order to do what they have professional obligations to do (which does not include being original), need to be able to talk about and work through positions without the fear of being branded as themselves perpetrators of civil
Re: Posner on oral advocacy in religion caseesri
I think women do have a right here, which is the right not to be discriminated against on the basis of gender. We are way outside the bounds of Hosanna-Tabor, so the right not to be discriminated against based on gender stands. Marty's point is correct that there is global equal treatment here, which undermines ND's arguments based on precedent and common sense. But there is also a more specific equality argument. This is an attempt to force women to pay for their medical care, which is specific to women, while men are covered. As everyone knows, it's not simply medical care to avoid pregnancy, but also medical care for many ailments (some very painful), which require hormonal treatment. Whether it is $5/year or $2,000/year, misses the point. The govt's interest in ensuring that women, as a class, are not shortchanged in the health care system to their medical detriment must trump the de minimis burden on ND. 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.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: David Bernstein davidebernst...@aol.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: conlawprof conlawp...@lists.ucla.edu; zentner zent...@csusb.edu Sent: Fri, Feb 14, 2014 5:34 pm Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Courts and lawmaking
Eugene-- I am very familiar with your common law reasoning, which I do find persuasive in terms of explaining to students the incremental developments of constitutional law over time. I don't find it persuasive, however, in explaining institutional competence. I also don't find persuasive the idea that because the courts hve made rules in the past regarding judicial practice and procedure that they are therefore competent to decide broad-ranging public policy issues. I made the argument below in God vs. the Gavel in 2005, and will soon be publishing a follow-up to it, so I welcome responses. Courts are constrained by the records manufactured by the parties, and constrained from the broad-ranging fact and policy inquiry that legislators can do. In free exercise cases, in particular, the record typically excludes facts and policies that should be taken into account when exemptions are being considered. The federal courts are constrained from considering that larger public policy beyond the facts and parties of the case under the Case and Controversy Clause, which means that the courts are literally creating public policy without reference to the parameters necessary reach the correct decision. A great example of this is Yoder, where the Court was uninformed of the impact on Amish children who are under-educated, the number of children who later choose not to follow the religion, and, therefore for whom the agri-education is likely inadequate, and a background set of blind assumptions about the necessary goodness of Amish practices and traditions. The Court merriily embraced a halcyon vision of the beauty of the Amish way of life without reference to facts that would have clashed with the Court's uninformed assumptions. This extreme involvement by the courts in policy-making under RFRA, with the inadequate fact records developed (in part because the religious group demanding the exemption is the entity with the most knowledge regarding the negative aspects of the practice and with the strongest incentive to hide those negative realities) is also dangerous for the vulnerable. For example, the O Centro decision was decided with no consideration whether children are given the drugs, a fact confirmed to me by the group's leader in an email exchange, after I wrote critically of the decision. Had there been congressional hearings on the issue, rather than federal courts jumping in, we might have learned the realities of their practices, rather than the spruced-up version presented in court. Another recent example of the failure of judicial fact-finding to reach informed religious decisions is the hollywood-style polygamy case being litigated in Utah, where the court recently defanged the polygamy laws, because the facts of the case did not develop the reality of polygamy for most of the women and children in polygamous communities. It was not in the interest of a reality show polygamy family to disclose to the court precisely what happens in these communities, and the state completely fell down on the job. 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 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Dec 28, 2013 4:50 pm Subject: Courts and lawmaking I also used to think that RFRA calls for improper judicial lawmaking (though not unconstitutional lawmaking). But I then changed my views, for reasons I described in more detail in my Common-Law Model for Religious Exemptions piece, http://www.law.ucla.edu/volokh/relfree.pdf. Here's the short version: The problem with the Lochner line of cases isn't that courts were lawmakers. Most of American law -- tort law, contract law, evidence law, criminal law, and more -- was initially made by courts. (To be sure, they were mostly state courts, but federal courts created the federal law of evidence and civil procedure, developed federal admiralty law, developed and still develop criminal law defenses, and so on.) To this day, this judicial lawmaking continues. And sometimes Congress specifically authorizes courts to continue engaging in such lawmaking, most prominently in the federal law of evidentiary privileges, but also in fair use and some other areas. The key difference between this and Lochner is that courts are entitled to make the law, including by developing exceptions from statutory duties (e.g., criminal law defenses, testimonial privileges, and the like), but *with the possibility of legislative override*. RFRAs, federal and state, fit well within this mold. They involve a legislature's decision that, while the legislature is happy creating some generally applicable obligations, they want to leave it to courts to develop
Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature
Inevitable. 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 http://sol-reform.com -Original Message- From: Joel Sogol jlsa...@wwisp.com To: Religionlaw religionlaw@lists.ucla.edu Sent: Sun, Dec 8, 2013 9:24 pm Subject: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Satanists want statue beside Ten Commandments monument at Oklahoma Legislature http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The clergy-penitent privilege and burdens on third parties
With all due respect to this entire thread, how many people have actually read the state cases involving the priest-penitent privilege? There is a level of abstraction to this discussion that indicates to me probably not. As someone who has actively been involved in arguing the issue in court in the last year, I'd suggest that the law is more reticulated and specific. state-by-state, than the speculation going on here. It is state law, which means 50 states plus DC law, and it is a privilege that is not constitutionally required, particularly when the issue is whether the religious confessor or confessee engaged in illegal behavior. 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.com -Original Message- From: Christopher Lund l...@wayne.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Fri, Dec 6, 2013 10:06 am Subject: RE: The clergy-penitent privilege and burdens on third parties Again, I’m late—sorry about that. But honestly people, it’s shocking how many posts are written between the hours of 9 p.m. and 7 a.m. Who can keep up? So this may backtrack, but I’ve been thinking about the earlier posts in this thread. Say there are no secular analogies to the priest-penitent privilege. Does that, in itself, justify the conclusion that it is favoritism for religion? I don’t think so, or at least I’m not convinced of that right now. Some people are religious; some people are not. Some people feel a need to confess and receive absolution in return; others do not. The priest-penitent privilege only helps those in the former group. But that need not be favoritism. Sure, it’s differential treatment, but it might be justified because the people aren’t similarly situated in the first place. (And here this ties in to Greg Sisk’s earlier posts.) I think it helps that there are secular analogues, but I think it’s a mistake to require the secular analogues to match up perfectly with the religious one. I think it’s a mistake because it denies the reasons why we want to accommodate religion in the first place: Religion is different than other human needs. It may be analogous to them, but it’s never perfectly analogous; it inevitably differs in ways that require tailored treatment. The equality approach means that religious activities never get protection when there’s no exact secular parallel to them. If there’s no exact secular parallel to confession—and of course there isn’t!—then confession doesn’t get protected. More generally, I take this to be the central weakness of Smith (even for those who think Smith rightly decided). It is also why—to pick up Sandy’s train of thought below—Widmar ends up turning into Bronx Household. In Trammel, the Court goes through all the privileges in a sensible and attractive way. The attorney-client privilege helps you secure legal help; the physician privilege helps you secure medical help; later on, the psychotherapist privilege will help you secure emotional help; the clergy privilege helps you secure spiritual help. True enough that some don’t believe in spiritual help, because they think it’s bs. But some think psychotherapy is bs. If the priest-penitent privilege is conceptualized the way Sandy phrases it—as a “desire [of people] to unburden themselves to sympathetic listeners”—then the priest-penitent privilege looks terribly underinclusive. But that phrases the priest-penitent privilege at a high level of generality. And at that level of generality, all the other privileges become terribly underinclusive as well. The spousal privilege discriminates against the unmarried and against me if I confide in my best friend more than my wife. The psychotherapist privilege discriminates against sympathetic mothers, fathers, siblings, and bartenders. (This is one way Justice Scalia goes after the privilege in Redmond.) There’s also the spectre of discrimination against religion arising if, say, psychotherapists got a privilege and clergy didn’t. But I really think we might be better off not always thinking about this in terms of discrimination. Religion seems sui generis, and unique things must be treated in unique ways. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, December 05, 2013 5:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties My sense is that I (as someone who is irreligious) would get relatively little solace or even wise counsel from speaking to an average Catholic priest about my troubles and misdeeds, at least unless I was at least contemplating converting to Catholicism. Unsurprisingly, the priest would
Re: The clergy-penitent privilege and burdens on third parties
No question. They can be helped just as believers might not be! But that is separate from whether, as a legal matter, a privilege attaches. 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.com -Original Message- From: Steven Jamar stevenja...@gmail.com To: Law Religion Law List religionlaw@lists.ucla.edu Sent: Thu, Dec 5, 2013 10:09 pm Subject: Re: The clergy-penitent privilege and burdens on third parties Sandy and Marci, I agree my conversations were not and should not have been privileged. But it is not the case that non-believers cannot be helped by priests either in a priest/pentitent setting or less formally. 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/ “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis On Dec 5, 2013, at 5:44 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I’m sure there are some such situations, perhaps even quite a few. But I imagine there are quite a few situations where the priest would quite rightly not give me the advice that works for me given my philosophical worldview. The benefit of the clergy-penitent privilege to the religious is that they can generally get such advice, tailored to the particular religious belief system they follow. The irreligious, I think, don’t have that benefit, though they might get some second-best option for those situations where their worldview overlaps with a clergyman’s. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfSisk, Gregory C. Sent: Thursday, December 05, 2013 2:31 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties Actually, I think non-Catholics mostly would be pleasantly surprised, both on the receptivity of the priest-confessor and the wisdom of the response. To be sure, there are some misdeeds that are shared in confession that are understood to be such solely from the perspective of the Catholic believer (e.g., failed to attend mass, took the Lord’s name in vain, etc.), but most of what is shared with a priest are the kinds of faults to which all of us are prone and which all (or nearly all) of us regard as faults. And, following the confession, a good priest (which is to say, most priests) responds both in religious terms by pronouncing absolution and reconciliation with God, but also speaking about reconciliation with one’s neighbors and future personal growth. Indeed, in my own experience – and I do not go to confession nearly as often as I should (one more thing to confess, I guess) – is that the priest usually engages me in a common-sense and real-world dialogue about why I have fallen short, what are the obstacles in my path, and what steps I should take to overcome those obstacles. Penance may include prayer (the traditional, “say, ten ‘Our Father’s) but more and more often will include steps to compensate for harm to others, efforts to assist others in a similar situation, charitable activities, etc. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfVolokh, Eugene Sent: Thursday, December 05, 2013 4:17 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties My sense is that I (as someone who is irreligious) would get relatively little solace or even wise counsel from speaking to an average Catholic priest about my troubles and misdeeds, at least unless I was at least contemplating converting to Catholicism. Unsurprisingly, the priest would respond in a way that fits well the beliefs of Catholics, but not my own. (There might be some priests who are inclined to speak to the secular in secular philosophical terms, but I assume they aren’t the norm.) Religious people, then, have the ability to speak confidentially to those moral advisors whose belief systems they share. Secular people do not. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfPaul Horwitz Sent: Thursday, December 05, 2013 9:33 AM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all 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.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! 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.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- 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 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. 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.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all 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.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! 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.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- 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 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
Contraceptives objected to by claimants in contraception mandate claims
For those interested, the following is what I have been able to figure out with respect to what medications each of the challengers to the contraception mandate object to. Korte's objections are the broadest. Hobby Lobby and Conestoga Woods' objections are medications solely for females. Hobby Lobby (10th Cir), cert granted Plan B Ella IUDs Conestoga Wood (3d Cir), cert granted Plan B Ella Korte (7th Cir) Plan B Ella All FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.” 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.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- 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 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks Marty! 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.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- 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 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception Mandate
Brad-Is it your view that for-profit companies over 50 employees (those affected here), who are subject to Title VII, and may not discriminate on the basis of religion or gender, can tailor their salary and benefit plans according to religious beliefs and gender? Separately, what is your view on whether a Jehovah's Witness for-profit company can exclude blood transfusions as part of its benefits plan? Thanks 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 http://sol-reform.com -Original Message- From: Brad Pardee bp51...@windstream.net To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Nov 26, 2013 4:57 pm Subject: RE: Contraception Mandate There is a problem with using, as the article does, the quote from Justice Learned Hand that [t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities. If Hobby Lobby was stating that, because the owners oppose contraception, no employees are allowed to use contraception, then this would be a valid argument. That is not the case here, though. By being compelled to provide contraception coverage for their employees, the owners of Hobby Lobby are being forced to act in a way that is in direct opposition to the teachings of their faith. Nobody is arguing that, based on the owners' religious beliefs, the employees shouldn't be permitted to access contraception if that is their choice. By ruling against Hobby Lobby, the Court will be telling us that nobody who is pro-life can own a large company unless they are willing to check their faith at the door. I'm not sure that fits any definition of religious freedom that I'm aware of. Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 2:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm l Nelson Tebbe ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception Mandate
I'll wait for others to weigh in on the first, but with respect to the second, I thought the argument was that the employer can't be part of a system that involves acts by others that violate his religious beliefs. How does the cheap supplementary plan for transfusions solve the Jehovahs Witness's being part of a system that involves acts that violate his religious beliefs? Is Hobby Lobby willing to provide a supplementary, inexpensive plan for contraception? 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 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Nov 26, 2013 5:21 pm Subject: RE: Contraception Mandate I’m not Brad, but I thought I’d put my two cents’ worth in: Brad-Is it your view that for-profit companies over 50 employees (those affected here), who are subject to Title VII, and may not discriminate on the basis of religion or gender, can tailor their salary and benefit plans according to religious beliefs and gender? I should think that, whether the company is for-profit or non-profit (and corporation or sole proprietorship), the ban on discrimination might well impose a substantial burden on the employer -- if the employer feels a religious obligation to discriminate -- but would be upheld under strict scrutiny, no? But I take it that the case for the contraception mandate being narrowly tailored to a compelling government interest is different from the case for Title VII being thus narrowly tailored. Separately, what is your view on whether a Jehovah's Witness for-profit company can exclude blood transfusions as part of its benefits plan? There too the question -- whether as to a for-profit or a non-profit, and corporation or sole proprietorship -- would be whether the law is narrowly tailored to a compelling government interest, or whether the government has some other less restrictive means of serving the interest (e.g., offering what would likely be a very cheap supplementary insurance plan covering only blood transfusions, for anyone who has such an exclusion and who just needs the transfusions). Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception Mandate
Tom-- The employer is insisting that employees accept benefit plans tailored to his religious beliefs, even though they accepted employment, which under federal law prohibits the employer from discriminating on the basis of religion (or gender). Amos is irrelevant as a religious organization has an exemption that a for-profit corporation does not have under Title VII. 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 http://sol-reform.com -Original Message- From: Berg, Thomas C. tcb...@stthomas.edu To: religionlaw religionlaw@lists.ucla.edu Sent: Tue, Nov 26, 2013 5:27 pm Subject: RE: Contraception Mandate Thanks, Nelson. This is an interesting piece, and I respect the arguments on both sides. But I have a couple of critical reactions: 1. I wonder whether it's really helpful or effective to start by dismissing an argument as something off the wall that somehow, inexplicably, has gone mainstream. The judges on both sides of this issue have advanced serious arguments, and I'm more inclined to concentrate on their merits. Which you ultimately do (at least on some of the issues): so for me, at least, the it's radical pitch seemed simply to be preaching to the choir. 2. The meat of your argument that for-profit corporations cannot exercise religion is that allowing their claims would raise Establishment Clause problems because of effects on employees. But to me your argument here seems wrong, or at least far from clear. For one thing, even if the Establishment Clause does play a role here, that may be a reason why wecan countenance certain free exercise claims by for-profit corporations. If the Establishment Clause is available to limit the overreach of claims based on religious conscience—a unique limit on such claims and not on others—isn’t that a reason to bemore confident that in this context society would reach an accommodation that takes both important interests seriously? Moreover, you say that the fact that an exemption imposes costs on third parties is sufficient reason in itself to invalidate it under the Supreme Court's cases. But that is not the law. The Title VII exemption upheld unanimously in Amos could have been said to impose costs on employees. But as Justice Brennan later explained in the Texas Monthly case, the exemption was upheld, though it had some adverse effect on those holding or seeking employment with those organizations (if not on taxpayers generally), [because it] prevented potentially serious encroachments on protected religious freedoms. 489 U.S. at 18 n.8. The Court treats third-party effects as something to be weighed against the seriousness of the “encroachment on religious freedom”—an approach that makes sense, given that pretty much any employment regulation, and therefore any exemption from it, could be said to affect third parties. Your position, on the other hand, appears to be that effect on third parties is a reason to declare that no encroachment on religious freedom exists. If that is so, how can there be accommodations for religious organizations? Second, you quote Thornton v. Caldor's statement that “[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities” (a principle that you say matters here in a particularly powerful way). Now, I understand and am actually rather sympathetic to the idea that the contraception mandate increases the ability of women employees with modest incomes to afford contraception. But your phrasing does immediately trigger the response that the objecting employer is not, in fact, insisting that the employees “must conform their conduct to his own religious necessities.” The employer is not insisting that employees refrain from using contraception, or from obtaining it by means other than the insurance coverage. (In Thornton v. Caldor, note, the Connecticut law did actually require others to do something: the employer had to give the employee his Sabbath off, indeed without qualification or exception.) There are significant questions here about the baselines from which we determine or measure “effects on others”: who is burdening whom, and which effect is more serious on the whole, in quality or quantity? I acknowledge that there are also line-drawing issues that would arise were Hobby Lobby to win (the Jehovah’s Witness example that Marci raises, for example). But I don’t think those questions are answered simply by invoking the fact that exempting certain employers has some effect on employees as compared with regulating those employers. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400,
Re: RLUIPA and hair length in prison
I am on deadline here, so can't really pursue this, but I have to say that I do find it troubling that the fact question of penological interest is now being decided based on what another state does. It appears to me that RLUIPA has nationalized state prison system administration. Those representing the prisoners I'm sure find no problem with this as a result, but for me, the constitutional structural issues call out for more nuanced treatment. The Cutter court essentially says that the federal courts are to take penological interest seriously, as it is advanced by the administrators. Every prison system has its own issues and difficulties, ranging from age and quality of prisons, to types of prisoners, to types of gangs and terrorists behind bars, to state budgets. To say that if one (or several) prison systems has a permissive hair length policy means that every other system now bears a heavier burden on showing its penological interests strikes me as a large incursion into state authority over prisons. It makes me question Congress's power to enact RLUIPA on the prison side more than I have before. The operation of state prisons is part of the sovereign capacity of the state, and RLUIPA does not require those prisons to follow constitutional guarantees, which are either much more lax (Smith) or significantly more lax (Turner v. Safley) than RLUIPA's strict scrutiny, but rather imposes a much heavier burden. Apologies for my inability to jump back in very quickly, but will try to as my schedule permits this week. 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 http://sol-reform.com -Original Message- From: Dawinder S. Sidhu dsi...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Aug 5, 2013 2:02 pm Subject: Re: RLUIPA and hair length in prison Please forgive me for being late to the party here -- I drafted an amicus brief on behalf of the National Congress of American Indians in this case. Our argument was quite simple: that Alabama could restrict the right of the prisoners to grow their hair in accordance with their religious principles provided that they had individualized evidence that the prisoners in question gave rise to the penological concerns (e.g., need to ensure proper hygiene, need for easy identification in case of escape) justifying the restrictions. We pointed out how most prison systems, including the Federal Bureau of Prisons, do not have such restrictions, or make exceptions for medical and/or religious reasons, which we thought put the onus on Alabama to explain why the restrictions were necessary despite having penological interests identical to those of other jurisdictions. That is precisely what the Ninth Circuit did in Warsoldier, asking why prison systems with permissive grooming policies are able to meet their indistinguishable interests without infringing on their inmates' right to freely exercise their religious beliefs. The Justice Department has made this point as well. The Eleventh Circuit dismissed other jurisdictions' practices as effectively irrelevant, and found that the restrictions could be sustained by the general assertions of the prison authorities that the restrictions were necessary. In the end, I'm disappointed in, but not surprised by, the result in this case. The Eleventh Circuit precedent is quite clear in this context, and the panel here was unwilling to depart from the court's prior rulings despite what is taking place elsewhere. Perhaps the Supreme Court may be interested in weighing in: there is arguably tension between Warsoldier and Knight, the Court was uncomfortable with deference to institutions where heightened review is required (e.g., Fisher; though schools are different than prisons), and the Justice Department has been actively involved in these cases, perhaps highlighting their importance. Best, Dave -- Dawinder Dave S. Sidhu * Selected research: http://www.ssrn.com/Author_id=688955 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the
Re: Contraception mandate
With all due respect, Marc, RLPA was doomed by many forces, not just the civil rights community. The American Academy of Pediatrics, and many other leading organizations for the protection of children took a very strong stand. We lobbied Congress together as well (we didn't have chairs). The two sides were not in the same rooms at the same time, obviously. Your defense of Doug does not answer the factual questions I have posed. I have no idea what Doug has been saying to groups in private all these years, because, as I pointed out, those discussions have not been public, but rather behind closed doors among fellow lobbyists on that side. Where in the RFRA legislative history (which is the only one that can be taken into account on any issue other than land use or prisons), is there any mention of for-profit corporations obtaining its capacious rights? I also find it very surprising at the idea that the civil rights groups should be mollfied when told that their interests would be compelling interests, given that the least restrictive means test was still in play, and, as urged by most litigants on that side, virtually insuperable. 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 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:29 pm Subject: Re: Contraception mandate Doug and I chaired the drafting committee pushing RLPA. We also lobbied Congress and left wing groups together when the civil rights issued surfaced. Then and now the fight has also clearly been understood as between carving out civil rights laws entirely and leaving them in but acknowledging that in most cases -and certainly in regard to race-application of such laws would satisfy the act's compelling interest requirement. Had Doug ever accepted the civil rights carve out urged for example by leading. Democrats,and the ACLU et al, RLPA would today be law. In all the intervening years, doug has consistently adhered to the same position-that religious liberty standards apply to all claims but some are more likely to prevail than others. One can disagree with that position, but it is flat out wrong to accuse Doug of misleading anyone. Marc Stern From: Marci Hamilton [mailto:hamilto...@aol.com] Sent: Thursday, August 01, 2013 07:01 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements. I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske jole...@lclark.edu wrote: A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political
Re: Contraception mandate
Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. 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 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc From: Saperstein, David [mailto:dsaperst...@rac.org] Sent: Thursday, August 01, 2013 07:25 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.com wrote: I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske jole...@lclark.edu wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.edu wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters didnot say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especiallyThomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final
Re: Contraception mandate
I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? 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 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. 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 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Marriage -- the Alito dissent
I am not sure what Paul's reservation is with the concept that for First Amendment purposes, a belief is the belief being held right now by the believer, regardless of tradition or history. I had thought the courts had settled on that concept, and its adjunct theory, which is that no court can tell a religious believer that their belief is not religious or that it is not true. In any event, the opposition to same sex marriage has to be treated as sectarian, because it is. There are vanishingly few conservative Burkeans on this issue and an overwhelming majority of religious believers. While we can conjure up the secular monogamist, or two, this is a religious movement against gay marriage, as the history of Prop 8 so ably demonstrates. Not to mention that the criticism of the Court's decisions this week was loudest from Cardinal Dolan and Tony Perkins, among other religious leaders. It would be helpful for political scientists to add up the dollars spent on lobbying and by whom against gay marriage, because I suspect that would underscore my point. 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 http://sol-reform.com -Original Message- From: Paul Horwitz phorw...@hotmail.com To: Marci Hamilton hamilto...@aol.com Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; conlawprof conlawp...@lists.ucla.edu Sent: Sat, Jun 29, 2013 6:14 pm Subject: Re: Marriage -- the Alito dissent I'm not sure that the second sentence of Marci's comment below is correct for all constitutional purposes. But I think the first part of the first sentence can be true. A standard part of the story of religion and science as dual magisteria is that the domain of factual claims made by religion tends to recede as the domain of scientific explanatory claims expands. So a factual claim that was once generally accepted, such as claims about the origin of life or the age of the universe, can effectively move from non-sectarian acceptance to solely sectarian acceptance. Claims about male-female complementarity *might* fall into that category. That said, I don't think that renders all anti-SSM claims impermissibly sectarian. A Burkean conservative might plausibly believe that changing the scope of marriage in the face of what he believes to be a well-established and well-proven tradition is unwise, and that resistance to this change is prudent and rational. Or one might believe as a factual matter, rightly or wrongly (the latter, in my view), that children and society fare better under heterosexual family arrangements. These views might be wrong, but I don't see why they must be treated as sectarian, if that is even constitutionally relevant, just because the outcome they suggest is consistent with a prominent sectarian view. Paul Horwitz Sent from my iPhone On Jun 29, 2013, at 2:18 PM, Marci Hamilton hamilto...@aol.com wrote: Of course history (people) can make sectarian views nonsectarian and vice versa. A religious belief under the Constitution is what the religious believer says it is right now, not what history said it was or should be. Alito is following Vatican (religious) dogma. In current US society, the push against gay marriage is based on religious believers who believe it is sinful for same sex couples to marry. That is the discourse regardless of the source of their current beliefs. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, Doug, you might want to reread Thomas. He worked in the roll foundry, which closed. So he then asked to work in any other department. All of those departments involved parts for weapons. He could not do that he said, But he said that he would have been willing to create materials that then later were built into weapons. In the opinion's words: He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. So it is not nearly the complicity-with-evil case others have said it is. Thomas was objecting to having to work directly on weapons parts, not doing something that might ultimately produce something he disagrees with. I think Thomas could have sent his money into a fungible stream... The HHS regs situation is different. The employer has no belief against paying for health care. What he objects to is sterilization and contraception. He says he can't give money so that someone else might use it to do something he disagrees with. Yet, any use of the fungible funds is made completely independently of the employer -- under patient-doctor confidentiality and by a woman. On her side is Griswold, Title VII on gender discrimination, and doctor-patient confidentiality. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Thu, Oct 4, 2012 12:09 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci, you are arbitarily singling out different steps in a parallel sequence of events. Thomas was asked to help assemble tank turrets. Others would put the turrets into tanks. Still others, maybe, would use the tanks to kill people. Or maybe not. The bishops' view is that they are being asked to contract for and pay for policies that cover contraception and very early abortifacients. That is what they object to, whether or not anything happens thereafter. Other people will use those policies to pay for medical care. Maybe some of them will pay for contraception or emergency contraception. Or maybe not, although here the odds seem higher than with the tanks. But it doesn't matter. The objection is to contracting for and paying for the coverage. On Thu, 4 Oct 2012 11:44:49 -0400 (EDT) hamilto...@aol.com wrote: First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then. In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing personal religious requirements on others. It is a weaker claim than any yet brought against government regulations on free exercise grounds. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 2:47 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then. In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Oct 4, 2012 11:25 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci: As this thread has demonstrated, I certainly have concerns about the nature of the cooperation with evil theory of substantial burden being asserted here. But the theory is anything but new. It is also not based on the notion that others' use of contraception would violate the employers' religious liberty--indeed, I think most of these employers likely assume that their employees will continue to use contraception regularly in any event, albeit at a greater cost to the employees. The claim here is that the employer's involvement in allegedly facilitating the employees' conduct implicates the employers themselves in wrongdoing. As I've explained, I think this theory raises serious, difficult questions. But it's hardly novel. It was the theory in Thomas (he wasn't the one using the tanks to shot enemy soldiers). It's the theory we discussed on this list back in 1999-2000, when confronted by cases of landlords who didn't want to rent to unmarrieds. It's the theory raised in the Posner and related cases about police protection of abortion facilities. And it's the theory underlying the current disputes about proprietors -- BBs, florists, photographers, caterers, etc. -- who wish to discriminate against gay couples. Indeed, what makes it interesting and important is precisely that, post-Thomas, so many different religious liberty claims take this form. On Thu, Oct 4, 2012 at 11:08 AM, hamilto...@aol.com wrote: Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
A characterization of abortion as a killing, is a religious assessment, not a medical or constitutional category. A fetus is not a person for constitutional purposes. Even abortion foe Justice Scalia has publicly acknowledged that. Therefore, analyzing the cases as though abortion fits into killing cases is weaker than Doug has conceded. Moreover, in the conscientious objection cases, the religious objection on the part of Quakers is in favor of peaceful resolution of conflict, which is different from an objection to killing per se, and many COs are not objecting to war in general but rather a particular war. There is no justification for treating those who oppose the medical procedure of abortion on religious grounds any differently than any other religious objector to another medical procedure. For all the reasons that Native Americans cannot avoid the social security number requirement in the welfare context, the Amish cannot avoid Social Security taxes (absent an exemption), and Native Americans cannot force the federal government to use its property according to their beliefs, religiously affiliated employers cannot avoid a neutral, generally applicable requirement that medical insurance include the option, that is triggered solely the patient's decision in consultation with her doctor, of reproductive medical care. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 7:30 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden We have a long political tradition of treating objections to killing as a special claim, deserving special protection. We have exempted conscientious objectors in all our wars, even when national existence was on the line, and notwithstanding powerful incentives to dubious conversions or false claims. This protection has not been as broad as objectors would like; it is not immune to limitation when government chooses to assert its compelling interests. But it received very strong protection that grew stronger over time. In the war case, we all agree that draftees may be asked to kill other human beings, but the majority says these are lawful killings, and the minority says they are killings prohibited by God. In the abortion case, the majority believes it is not a killing of a human being; the conscientious objector believes it is. The disagreement over the nature of the killing comes at a slightly different point; I do not claim that the cases are identical. I do believe that there are sound reasons, reflected in our legal and political tradition, to give special deference to what the conscientious objector believes is a refusal to kill another human being. The cases also differ in the weight of the government's interest; it is almost never essential that an abortion be performed or assisted by a particular medical provider. On Mon, 1 Oct 2012 17:16:55 -0400 (EDT) hamilto...@aol.com wrote: In response to Rick, the answer to the question from my perspective is that a religiously affiliated organization (not a church) could be required to provide insurance that includes all possible medically feasible and advisable treatments. That is a classic, neutral, generally applicable law. Obviously, abortion is at times a medically feasible and medically advisable treatment. The employer buys an ombnibus insurance plan, and employers, consistent with medical advice and their own religious and personal views, choose what treatments they obtain. That seems to me constitutional. This is not distinguishable from the objections raised by Quakers having to pay taxes that support war or the Amish having to pay into social security that supports a set of relationships they believe are religiously wrong. I'm glad you asked this question, because it seems to indicate that the argument against the ACA at base appears to be that the belief against abortion is somehow more important than other beliefs. I don't see how the Establishment Clause permits that kind of religious belief prioritizing, or any of the free exercise cases either. No employer should be able to exclude blood transfusions, which are abhorrent to Jehovahs Witnesses, from medical coverage. I haven't heard anyone get behind such an exemption.But those opposing the ACA's reproductive health care provisions seem to be suggesting that somehow abortion opposition is a superior belief that deserves extra constitutional protection. 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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rick- Are you saying that RFRA stands for the proposition that there is a rebuttable presumption in favor of feasible accommodations? I hadn't heard it characterized in that way before. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Rick Garnett rgarn...@nd.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 8:19 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marty, For what it's worth, Doug states succinctly and well what is also my view (though, with respect to religious institutions, I believe that the mandate burdens religious freedom in the additional, integrity-compromising way that has been mentioned). I do not believe that our commitment to religious freedom means that we need to treat as burdens on that freedom (a) requirements that employers pay salaries to employees who might use the funds in ways to which the employer objects or (b) requirements that citizens pay taxes to governments who might use the funds in ways to which the taxpayer objects. (So, the whole it burdens the religious freedom of objectors for governments to provide scholarships to kids attending parochial schools line is, I think, misguided.) But, as others have pointed out, the compelled-insurance-coverage context is (the district court's ruling notwithstanding) at least distinguishable and, it seems to me, rises to the level of a substantial burden! -- even if, ultimately, one concludes that complying with the mandate does not amount to culpable cooperation with evil and even if, ultimately, one concludes that it is a justifiable and unavoidable (given the compelling interest, etc.) one. True, if one believes that, as a general rule, we should not accommodate religious believers and institutions who object to complying with duly enacted laws and promulgated regulations (at least some of the plaintiffs in the ACA cases have challenged the mandate on administrative-law grounds), then one is not going to think the argument for a broader exemption from the mandate is very strong. But, if one does believe that our commitments translate into at least a rebuttable presumption in favor of feasible accommodations, this strikes me as a good case for one. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 8:01 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 12:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose that is religiously objectionable, is a constitutionally cognizable burden on free exercise. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard time understanding too. A “burden” does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being “substantial”) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective “substantial” to require some sort of “material burden,” I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer *at least* one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It’s difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his “Failure of RFRA” piece, I think). But even if we thought that willingness to pay a fine would be a good test for substantiality (which I’ll admit doesn’t seem unreasonable to me, in some cases), I wonder about how this would work in practice. That is, how would we know that the plaintiff was really willing to pay a fine rather than be forced to do something alleged to violate religious conscience? What would be the proof? I’ll add that I am genuinely confused about the issue of substantiality of the burden, because it does seem to me to require more than something like subjective sincerity, but also to forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. If that is right, then what is left to determine the substantiality of the burden other than the degree
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.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 10:42 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci, read what you quoted. Read the passages I have boldfaced below. Bowen and Lyng were explicitly about government actions that required nothing of the plaintiffs. Those plaintiffs were not required to take any action at all. The government caused problems for plaintiffs’ religion, but it did not require them to do anything that violated their own understanding of their religion. A lot of people don’t like that distinction, but that’s what it was. The ACA plaintiffs are required to take action that violates their own understanding of their religious obligations. Many arguments remain beyond that point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were cases that did not reach that first step. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 9:44 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 12:38 pm
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug-- What is wrong, with all due respect, is treating the religious believer's characterization of the act as the legal characterization of it. The religious believer's belief that it is a killing does not make it one for purposes of legal analysis. That was my very simple point. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 10:43 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden One does not have to believe that early abortions kill human beings to recognize the profound significance of performing, assisting, or procuring an abortion to those who believe it is a killing of a human being. If we all took the same view of every issue, we would not need a regime of religious liberty. Religious liberty is a response to disagreement on issues that some people on both sides find non-compromisable. It is never an adequate response to a religious liberty claim to say that the claimant is just wrong in how he views the disputed issue. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 8:16 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden A characterization of abortion as a killing, is a religious assessment, not a medical or constitutional category. A fetus is not a person for constitutional purposes. Even abortion foe Justice Scalia has publicly acknowledged that. Therefore, analyzing the cases as though abortion fits into killing cases is weaker than Doug has conceded. Moreover, in the conscientious objection cases, the religious objection on the part of Quakers is in favor of peaceful resolution of conflict, which is different from an objection to killing per se, and many COs are not objecting to war in general but rather a particular war. There is no justification for treating those who oppose the medical procedure of abortion on religious grounds any differently than any other religious objector to another medical procedure. For all the reasons that Native Americans cannot avoid the social security number requirement in the welfare context, the Amish cannot avoid Social Security taxes (absent an exemption), and Native Americans cannot force the federal government to use its property according to their beliefs, religiously affiliated employers cannot avoid a neutral, generally applicable requirement that medical insurance include the option, that is triggered solely the patient's decision in consultation with her doctor, of reproductive medical care. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chip-- With respect to RFRA, substantial burden was adopted from the case law. Are you suggesting that it has evolved into a different standard? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 1:02 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Marci's distinction between substantial and incidental burdens goes to the question of the weight of the burden's materiality (penalty for noncompliance with government-imposed norms -- though sometimes financial harm is enough -- see Sherbert). I take her question in this regard to be a friendly addition to my own and to Marc's. I think the either/or choices I attributed to others on the list (self-declaration of burden vs. objective adjudication) go to the question of the religious character and significance of the burden (e.g., degree of complicity in evil from cooperation with the mandate). That's a different question. But I think RFRA is stunningly ambiguous on the issue of whether its focus is materiality, religious character, or some combination of the two. On Tue, Oct 2, 2012 at 12:08 PM, hamilto...@aol.com wrote: Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard time understanding too. A “burden” does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being “substantial”) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective “substantial” to require some sort of “material burden,” I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” (though I do
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Derek-- You don't mention, though, that the legislative history of RLUIPA is explicit that substantial burden means what it meant in the free exercise doctrine. You can't use the definition of religious exercise (which I view as reflecting Smith's dictum on the same) to alter the definition of substantial. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org To: Religionlaw Religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 12:42 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Chip, Thomas is not mentioned in the findings of RFRA, but it’s holding is certainly incorporated into the definition of religious exercise in RFRA (and RLUIPA). In fact, it seems to me that much of the discussion on this list and in the O’Brien case of whether there is a substantial burden in these contraception/abortifacient cases has failed to focus in on RFRA’s definition of religious exercise. Obviously, it is an important threshold issue to identify the precise religious exercise at issue before determining whether there is a substantial burden on that religious exercise. RFRA defines religious exercise (consistent with Thomas) as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5 There are three noteworthy things about this definition. First, like the text of the Free Exercise Clause itself, which does not limit the range or types of religious exercise eligible for protection, the Act's definition makes clear that “any” discrete instance of religious exercise is covered by the Act. Second, not only does RFRA’s definition of “religious exercise” provide that “any” religious exercise is protected, it also makes explicit that this protection is not limited to practices that are compelled by the individual's religion. Thus, religious exercise that some might claim is discretionary on the part of the believer--e.g., a Catholic's desire to pray the rosary, a Muslim's desire to utilize prayer oils during daily prayers, or a Jewish believer's decision to wear a yarmulke--is also protected and may not be substantially burdened. This aversion to adopting a requirement that religious exercise be mandated by a faith in order to be protected flows directly from the Supreme Court's holding in Thomas that “[c]ourts are not arbiters of scriptural interpretation.” To require a court to inquire into whether a particular religious practice is compelled by the believer's faith is to force a court into a role “not within the judicial function and judicial competence,” because it necessitates a judgment as to what a religion requires of its believers. If compulsion were a prerequisite, courts would soon be in the theological thicket as the state would seek to defeat a believer's claim of substantial burden by introducing testimony of another member of the believer's faith who opines that the particular practice is not mandated. Finally, RFRA’s definition of religious exercise also makes explicit that consideration of whether the religious exercise at issue in the case is “central” (or fundamental) to a particular religion is irrelevant. Accordingly, particular acts of religious exercise are protected from being substantially burdened under RFRA, regardless of whether a judge (or government official or law professor or anybody else) feels they are not of sufficient importance to a religion to be worthy of protection. With RFRA’s definition of “religious exercise” in mind, what is the precise religious exercise involved in O’Brien and in other cases challenging the contraception/abortifacient mandate? As I understand it, the religious exercise at issue is that the religious adherent (i.e., the employers in these cases) believes that it morally wrong to purchase a health care plan (in the case of a non-self insured employer) that includes contraceptives/abortifacients or to be forced to pay for contraceptives/abortifacients (in the case of an employer with a self-insured plan) As I understand it, there is no question in O’Brien (or any of the other cases) about the sincerity of this belief or that it is religiously based. Once the focus is placed on the actual religious belief that is being exercised here, the question is then whether the mandate substantially burdens this religious exercise. As I understand the mandate’s operation, it says either you comply with the mandate and pay for a plan (or provide coverage in the case of a self-insured plan) that includes contraceptives/abortifacients or pay a penalty. In other words, if the religious adherents here exercise their beliefs, they
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.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 12:50 pm Subject: FW: Court Rejects Religious LibertyChallenges 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.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 12:12 PM To: 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.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Steven Jamar stevenja...@gmail.com Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 10:16 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote: Steve's second point -- the difference between historic exclusion of Catholics as such and contemporary exclusion of those who adhere too strictly to certain Catholic teachings -- is just Smith's holding about generally applicable laws. The whole point of RFRA was to create statutory protection not restricted to that holding. Agreed. But that doesn't make the history of status-based exclusion controlling for what is and is not a substantial burden, or even particularly relevant. They are different types of exclusion. There are reasons to protect pure-belief-based actions even in the commercial secular marketplace, but that history is not one of them. The ACA and the contraceptive mandate also have exceptions that cover rens of millions of people, so it is far from clear that this is a neutral and generally applicable law. The no-burden holding also saves the court from having to address that issue. I am not overly fond of a number of substantial burden results. But the test is substantial burden, not merely burden, and the term substantial should mean something. I think it should mean something quite substantial and be something that really effectively prohibits the exercise of religion or really makes it so hard to practice one's beliefs that one has a hard time practicing them. I understand others think it should be subjective and controlled by the adherent and that we should take his or her word for the substantiality of the effect. You may believe that OSHA is the work of the devil. But that doesn't relieve you from compliance if you choose to engage in the sort of commerce that OSHA regulates. No one is making you do that sort of work. You have alternatives. Do we really want to say the subjective burden as felt by the adherent gets past the first hurdle and then have courts start expanding compelling state interest to uphold the myriad regulations on commercial establishments? That seems to me to be a greater mischief. Perhaps RFRA should be revisited to address the back-end standard to make the balancing more like EP intermediate scrutiny. Or to consider the substantiality of the burden, the importance of the state's interest, the effect on third parties (e.g. employees in an employer setting), and the effect of ruling one way or the other on all three -- what options are available for the religious adherent employer; what costs are there to society and the government in interests of equality, equity, administration of the laws; what options are there to the employee. But that opens quite another can of worms and gives huge discretionary power to the courts. Is that really what we want here? Or do we really want the unit veto for any and all government regulations short of human sacrifice and child abuse as compelling interests? Are we going to revisit the social security cases and now say they don't need to pay the tax? I think the judge got it right here and that the alternatives are not necessarily good for free exercise in the bigger picture. Steve On Sun, 30 Sep 2012 21:32:10 -0400 Steven Jamar stevenja...@gmail.com wrote: I was quite clearly talking about religious employers in secular commerce. The religious institutions engaging in secular/religious endeavors like religious schools and hospitals are different from someone making and selling widgets. There is also quite a difference
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Christopher Lund l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect. The notion that courts don't find substantial burden, because they are rooting for the government, which is Doug's explanation, is insupportable. Substantial burden is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title VII? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 1:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate I wonder what sort of evidence Marty is looking for. What arguments qualify as “serious” arguments? And “serious” for whom? A “serious” argument is not necessarily an argument that one finds persuasive, though that might be the standard. It could instead be an argument that one disagrees with but that one finds plausible. Or perhaps not outrageous. Or is it instead one which the religious claimant takes “seriously,” even if the court does not? How should one measure the standard for seriousness? The standard that RFRA sets is not whether a court believes that the argument raised by the objecting religious claimant is “serious.” It is whether the claimant has alleged a substantial burden. Alleging a substantial burden does not require that the court gauge the seriousness of the objector, or his or her objection, or the degree to which the argument has achieved theological consensus, or its importance or centrality within the overarching system of belief. It does not demand the assent of a selection of theologians. After all, other theologians, at other conferences, surely would disagree with the conclusions of the theologians at Marty’s conference, but I take it that their feelings are also not the gauge by which we measure whether a burden is substantial. One possibility is to demand some sort of pain threshold, as the Missouri court intimates, going so far as to suggest (in what I believe is a misreading of Wisconsin v. Yoder) that suffering a substantial burden may even require a willingness to suffer criminal prosecution. Putting aside the objection that there is of course a difference between a necessary condition and a sufficient condition, would the argument become a “serious” argument if the owner of the company would prefer to be prosecuted rather than to comply? Or to prefer to pay a fine? Or does the “seriousness” of the argument not depend at all on the degree of suffering that the claimant is willing to endure? Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.com wrote:
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
So long as an organization is hiring outside the faith, I think these cases should not go in favor of the religious organization. These arguments are religious liberty-creep arguments in that the argument is not that the believer will be forced to engage in conduct that violates his or her beliefs, or be stopped from advocating for his/her beliefs. The argument is that the religious believer feels burdened when others exercise their religious beliefs with the money or benefits obtained from the employer. This is an alarming slippery slope in my view. If there is a constitutionally cognizable burden on religious belief/conduct when a nonbeliever uses the employer's money according to the believer's own principle, the employer is obtaining a right to deter and burden (economically) differing believer employees. Lyng, Lee, and Bowen were not popular among legal scholars when decided, generally, but they have not been overturned, and their reversal is highly unlikely. (I agree with Sandy that is very hard to distinguish between the pacifist cases and the ACA case(s).) I do think they are as close to on-point as you can get, and with the believers losing in those cases, it is very hard to permit the believer to win in these cases. The key here in my view is that the religious believers lost the political battle and are trying to use the courts to obtain the exemptions they could not persuade Congress to include. They are not constitutionally mandated, nor are they cognizable under RFRA for lack of a substantial burden. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 4:17 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My explanation was not that the judges are rooting for the government, although sometimes they are. My explanation was that a finding of no burden makes hard cases go away. These cases involve direct regulation of religiously motivated behavior. The Court's point in Bowen and Lyng was that there was no regulation of the plaintiff's behavior at all. So the direct/indirect point has no purchase here. It is not at all clear to me that large commercial business should win these cases. That is partly because of government interests of the sort marci mentions, and partly because the connection to religious exercise becomes increasingly attenuated as the business grows, and especially as the number of owners increases. But religious institutions should win these cases, and probably very small businesses that are personal extensions of the individual owner. On Sun, 30 Sep 2012 14:26:07 -0400 (EDT) hamilto...@aol.com wrote: The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect. The notion that courts don't find substantial burden, because they are rooting for the government, which is Doug's explanation, is insupportable. Substantial burden is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Mark-- Should it matter whether we are talking about blood transfusions or abortion? If Catholic institutions can win in the ACA cases on abortion, then Jehovahs Witnesses should be able to not pay for coverage for blood transfusions for their employees. There is no persuasive distinction between the two that I've heard yet, but no one has made the foray beyond abortion/contraception on the list yet other than my earlier suggestion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 4:55 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate In case this was confusing to list members, my quick comment to which Marty replied was bounced by the list (because it had too many addressees). Obviously it got through to Marty. Perhaps someone who has more information about insurance policies will know whether they list particular matters that they cover, such as contraception. The point remains that to require someone to enter into a transaction by which the person agrees to pay for an action makes the person more complicit in the action than if the govt extracts the funds from the person and pays for the action itself. At least, it is quite reasonable to consider the entering into an agreement to subsidize an action to be a fairly direct connection to the action. I will also say that the shift from abortion to contraception, as Marty has shifted it, may affect our analysis emotionally. Conceptually, there is no difference in whether there is a substantial burden, whether the issue is agreement to subsidize contraception or agreement to subsidize abortion. That is, there is no difference unless we think that abortion should be a bigger matter for a religious person than contraception, and that the stronger objection to abortion is relevant to the analysis. Now in fact abortion is a bigger matter than contraception for Catholics and for just about everyone who has a problem with being required to subsidize contraception. [In case anyone cares, I don’t have a problem with my being required to subsidize contraception; I do have a problem with requiring people to subsidize it who have a sincere religious objection (which I do not have) to contraception.] But the law does not permit us to rely on the strength of the person’s religious objection – for example, an objection to the taking of human life that is stronger than an objection to sexual immorality – to decide whether there is a substantial burden. We know that centrality, which is a very similar concept, is not to be considered in determining whether there is a substantial burden, so there can be a substantial burden even if the issue is not at the top of the religious person’s list of religious moral concerns. It shouldn’t matter whether we are talking about abortions or contraception, but to the extent someone thinks it matters, some forms of contraception are considered by some religious persons to cause abortions by terminating rather than preventing pregnancies. Lots of us may disagree with that characterization, but even if the difference between abortion and contraception matters, our disagreement about whether particular conduct causes abortions is irrelevant. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 10:22 AM To: Scarberry, Mark Cc: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate I'm not sure why the existence of a contract would fundamentally alter the religious obligation question. But even if it did, the employer is not required to enter into a contract to provide contraception. It is required to offer its employees access to a health-insurance plan. To be sure, that obligation might, as a practical matter, mean that an employer might have to enter into a contract with an insurance company . . . but that contract would typically not mention contraception at all, let alone include a promise by the employer to provide reimbursement for contraception. The employer merely promises the insurance company that it will offer participation in the group plan to its employees, and perhaps also promises the insurance company that it will pick up a percentage of the premiums (not tied to whether any or all employees use contraception). On Sun, Sep 30, 2012 at 1:10 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: A very quick comment as I’m running out the door. There is a difference between a law that takes money from a person to pay for something and a law that requires the
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Alan-- These are public policy questions in my view, not constitutional or RFRA-related. As a policy matter, I would object to all 3. The first is an unreasonable life-and-death limitation to put on anyone's health insurance coverage. (Even Jehovah's Witnesses, who have in some cases, accepted the transfusion when faced with certain death.) I do not think employers, whether religiously affiliated or not, (other than religious institutions) should be able to use their religious beliefs to craft health benefits, which should be shaped by medical science instead. The second is pushing the cost of the employer's religious faith onto taxpayers, who don't necessarily share the faith. The third is yet another iteration of permitting the employer to shape the world according to his or her particular religious viewpoint. As a policy matter, I think we are playing with fire when we encourage religious believers to use government programs to impose their faith on others. Note that I did not say imposing their faith on non-believers--the issue here is one set of religious believers (employers) using their power in the marketplace to impose costs on other religious believers (employees).That is the path to Balkanization, civil war, and religiously- motivated violence. This issue is all about respecting the distance and difference between believers with different faiths, while encouraging peaceful coexistence. For-profit employers may not discriminate on the basis of religion, and that has led to a workplace where Christians, Muslims, and Jews can work together peacefully. It also has led to a system where employees are chosen based on their skills, as opposed to their faith. That is good for the marketplace and productivity, and for a peaceful society of diverse religious believers. But, as I say, these are policy judgments, not constitutional doctrinal analysis. Marci 1. It exempted the religious employer from a regulation requiring employers to pay for health insurance that covered blood transfusions. 2. It provided insurance coverage for employees working for exempt religious employers at the government’s expense so that no employee lost any insurance coverage as a result of the exemption. 3. It determined whether and to what extent the religious employer saved money as a result of the exemption from the health insurance coverage mandate and directed the employer to contribute that amount to a separate fund used by the government to further public purposes that are consistent with the employer’s faith – say providing food to hungry children. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Alan Brownstein aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 9:30 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate Marci, Would you object if the government created an exemption package that did three things. It exempted the religious employer from a regulation requiring employers to pay for health insurance that covered blood transfusions. It provided insurance coverage for employees working for exempt religious employers at the government’s expense so that no employee lost any insurance coverage as a result of the exemption. It determined whether and to what extent the religious employer saved money as a result of the exemption from the health insurance coverage mandate and directed the employer to contribute that amount to a separate fund used by the government to further public purposes that are consistent with the employer’s faith – say providing food to hungry children. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of hamilto...@aol.com Sent: Sunday, September 30, 2012 6:03 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate Mark-- Should it matter whether we are talking about blood transfusions or abortion? If Catholic institutions can win in the ACA cases on abortion, then Jehovahs Witnesses should be able to not pay for coverage for blood transfusions for their employees. There is no persuasive distinction between the two that I've heard yet, but no one has made the foray beyond abortion/contraception on the list yet other than my earlier suggestion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Steve's point, I believe, was simply that there is no constitutional right to hold a particular job or conduct a particular business, or business at all. That has been settled for decades, has it not? Religious believers sometimes have to make life choices that are narrower than others might choose, because of their faith. Is the point here that there is a constitutional right to avoid making such choices? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 10:11 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate I find Steve Jamar's post (No one needs to be an employer) puzzling. Could Congress enact a statute providing observant Roman Catholics (or Moslems, or Jews, or Seventh Day Adventists, or Mormons) may not be employers? Would such a statute be different, in its burden on such people, from a statute saying all employers must do X, when X is something that observant Roman Catholics (or Moslems, or Jews, or Seventh Day Adventists, or Mormons) cannot do? I'm not saying such a statute would be unconstitutional. I'm just asking if the burden would be different. Art Spitzer On Sun, Sep 30, 2012 at 9:50 PM, Steven Jamar stevenja...@gmail.com wrote: How about an employer being exempt from buying insurance, but then paying a tax that goes into a pool for the government to buy group insurance for those employees. How is that substantively different from just requiring the insurance benefit in the first place? And yet this sort of tax seemed ok to Mark. I don't see how this really insulates the employer from the complicity in evil through paying for it. Is the agreement (coerced agreement is agreement?) that different? Isn't the proper agreement the one between the employer and society that lets the employer exploit the economic system and all of its supports in exchange for doing business within the rules of commerce to be followed by everyone? That agreement may be one with the devil, but no one is making the person agree to it. No one needs to be an employer. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement. Albert Einstein ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: What religion is an 8-day-old?
With all due respect to Andrew, but in complete seriousness, religion is often not a good thing even under the law, and often a deadly and permanently disfiguring or disabling thing for children, the disabled, and emotionally disabled adults. A focus on religion as a good thing rather than a focus on the best interest of the child is precisely what has led to the deep suffering of far too many children. I find it astonishing that anyone would still be talking in this era in these generalities to protect religion when it is harming children. Now, if one wants to argue that religion is good when it is not harming the vulnerable, that is a different topic, but it has nothing to do with the circumcision debate that has gone on on this thread, which has revolved basically around a fact question: is it harmful, even though a fair amount of theory has surrounded this fact discussion. Having said that, I also agree that much of this discussion has had an unreal quality to it, but mainly because of my original point that these issues are best described and analyzed under a best interest of the child analysis, case-by-case, and simply not amenable to these theoretical generalities. And under our pre-existing criminal and tort laws. Those are the laws that have held religious organizations and leaders (e.g., Msgr. Lynn) to account for the cover up of serial child predators to protect religious identity, wealth, and power. These civil laws are the main reason we have any justice in this field. This law has not treated religion as valuable or good but rather as a no-good defense to harm. (Except in a diminishing number of states.) And it is no argument in response that no religious groups believe in child sex abuse. That is not true, e.g., Tony Alamo (yes, it's a cult, still a religion); FLDS, and the many religious organizations who have theological tenets requiring the cover up of abuse which then multiplies the number of victims by enabling predators. There are some legal areans where religion has been treated as good, e.g., NY state law on land use. But it is dangerous to legal analysis to take them at face value. As religious land use has changed and expanded, however, this presumption has become increasingly difficult to defend. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Andrew M M Koppelman akoppel...@law.northwestern.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Jul 9, 2012 10:42 am Subject: RE: What religion is an 8-day-old? This discussion is fascinating, but it has a curiously unreal quality, because everyone seems to want, in typically lawyerly fashion, to subsume under some broad and generally applicable principle a practice that is in fact unique and exceedingly unlikely to generate analogous cases. This is another case where I think it's helpful to recognize that American law treats religion as valuable, in a way that sometimes outweighs other considerations. I elaborate in my forthcoming book: http://www.hup.harvard.edu/catalog.php?isbn=9780674066465. If religion is a good thing, and two of the major religions of America practice circumcision, then we have a strong reason not to interfere. This, I think, is what is actually going on, not the application of some Wechslerian neutral principle about parental rights or individual religious rights or whatever. This discussion has made clear that neither of those principles fits the practice in question very well. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, July 09, 2012 9:12 AM To: Law Religion issues for Law Academics Subject: What religion is an 8-day-old? The theoretical principle behind my claim that, “As to ‘the sons' own interest in conforming to their religion,’ I don't think it's ‘their religion’ at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system),” is simply that, under the First Amendment and under equal protection principles, any special treatment of people based on their religion must stem from their religious beliefs – their own understanding of God’s commands – and not because of their bloodlines. First, the justifications for religious freedom have generally stemmed from the burden that is imposed on people when they are ordered by secular law to do something and feel ordered by their religious beliefs to do the opposite. And it is the individual’s beliefs that are important, not to the beliefs of the group to which society says he “belongs.” See, e.g., Thomas v. Review Bd. Second, claims that we should treat some people’s interests
Re: Parental rights and physical conduct
This kind of act-specific discussion on this thread misses the point in my view. There is a universe of existing law already can protect children and should be capable of being brought to bear against parents or guardians who negligently/recklessly/intentionally/knowingly harm/injure/kill their children, even if it happens for religious purposes. Criminal law and tort law and statutory law on abuse and neglect. So the parent who starves the infant for religious reasons should be capable of being prosecuted; same for the parents who permit their child to have oral suction in an Orthodox circumcision; and same for the parent who hits/sexually abuses the child for religious reasons. Ditto for civil claims. So why is harm to children in religious settings even an issue? (1) In part because Christian Scientists in the Nixon Administration fomented medical neglect exemptions in the states as a condition for federal funding and a number of states still have them. Medical neglect exemptions are not constitutionally required. (2) Christian Scientists and other religious lobbyists continue to lobby for the endangerment of children from medical neglect and even abuse. At one time, when children were treated as parental property and few children's groups had traction, legislators gave such religious lobbyists what they requested in a knee-jerk fashion. The rise in children's advocates and a greater sense of children as persons has changed that somewhat. But plenty of states still handcuff prosecutors when the child died or suffered for religious reasons. (3) Religious parents and their lawyers argue that the First Amendment and any rfra available protects the parent who harmed their child. Such defenses (even though meritless in my view) can dissuade prosecutors from investing resources, and give judges who are sympathetic to religion (or their religion) an opening to put roadblocks in the way of justice. (4) A romantic approach to religion in American culture. So the solution is the repeal of such exemptions, and apply the existing law to religious parents. I believe that is what Chip is suggesting, but this may go farther than he would. So how does this apply to circumcision? There should be no blanket exemption, and parents and religious leaders need to avoid negligent/reckless/wilful/knowing actions that harm a child. As research into the longterm effects of circumcision continues, the judgment on this may well change in particular cases. And if the evidence of harm becomes overwhelming (e.g., genital mutilation and polygamy), a blanket ban makes sense. If religious groups want to continue doing it, they will have to justify it. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Cardozo School of Law Yeshiva University I agree that the danger to infants from full immersion baptism is very low and perhaps zero; the hypothetical was that it happened in a handful of cases, but I think that's just a hypothetical. As to what burdens the government imposes to avoid a handful of deaths of infants, I think that varies from context to context. My sense is that there are quite a few safety regulations -- though generally not total bans -- that are indeed justified by the desire to avoid just a handful of deaths. On the other hand, circumcision involves not a very low risk of death, but a certainty of loss of part of the body, which in turn involves an uncertain possible health benefit and an unknown (and likely very hard to quantify) possibility of loss of some sexual function. That might well be a materially higher aggregate loss of utility, to borrow the economic term, than the loss of utility from playing football, even in Texas. Or it might not; again, much depends on the facts. Eugene Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jul 5, 2012 11:28 pm Subject: RE: Parental rights and physical conduct I agree that the danger to infants from full immersion baptism is very low and perhaps zero; the hypothetical was that it happened in a handful of cases, but I think that's just a hypothetical. As to what burdens the government imposes to avoid a handful of deaths of infants, I think that varies from context to context. My sense is that there are quite a few safety regulations -- though generally not total bans -- that are indeed justified by the desire to avoid just a handful of deaths. On the other hand, circumcision involves not a very low risk of death, but a certainty of loss of part of the body, which in turn involves an uncertain possible health benefit and an unknown (and
Re: Parental rights and physical conduct
Courts routinely rule that such an environment is in the best interests of the child. But specific practices need to be vetted under the standard. It is a fact question. Shared values and age-old historic traditions do not cut it, however. The Muslims who engage in genital mutilation satisfy that criterion; as do the FLDS who engage in widespread rape of girls and abandonment of boys; and the ultra-Orthodox rabbis who tell their believers not to go the authorities about child sex abuse. Many would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions-- The question is what is in the interest of this child today. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Friedman, Howard M. howard.fried...@utoledo.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jul 5, 2012 3:47 pm Subject: RE: Parental rights and physical conduct Many would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions-- that include circumcision or full immersion baptism or some other ritual that might create some small risk of injury (just as almost any activity might). The problem is, how do you decide whether or not this is in the child's best interest without a prior value judgment about the religious tradition involved? There is no reason to believe that it is in the best interest of the child to raise him or her in a cultural or moral vacuum, or devoid of traditions which can give structure to his or her life, until the child reaches 18. Of course there are some rituals that create an undue risk of harm-- and isn't the question one of how to identify those without imposing our own cultural or religious bias on the question of risk? Howard -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton Sent: Thu 7/5/2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I would like some clarification from those relying on purported parental rights. The use of the term parental right is freighted w social and cultural value but very little legal value. Pierce v Society of Sisters is balanced by Prince. So the use of right in this context is a dead end in my view. The best interest of the child is not in the context of parental rights as much as it is intended to treat the child as a separate person who deserves protection and respect even in opposition to a parent's demands or needs. Marci On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org wrote: Eugene -- I don't think this makes sense because it posits an impossible universe of zero-risk parenting. It is far riskier to drive your child on the freeway (not to mention take him/her skiing, or letting him/her play soccer, or play football (esp. in Texas)) than it is to baptize him/her. All those risks are well within the set of risks that parents take in the normal course of parenting. Indeed, for the state to interfere with the ability of parents to expose children to those risks would be a gross interference with parental rights. And I imagine that the danger to infants from either circumcision or full immersion baptism is far lower than driving them around town, though I claim no actuarial expertise on the matter. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, July 05, 2012 12:31 PM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct I appreciate Howard's point, but the question is: Why should some children who by definition do not share a religious belief drown - or otherwise be injured - for the sake of the beliefs of the adults who do have that belief (and even for the sake of those children who, later in life, will wish that they had been so baptized)? I have great sympathy for people's rights to risk their own lives (in the baptism example) or alter their own bodies (in the circumcision example) for the sake of their religious beliefs, or for that matter for the sake of their secular beliefs. But why does it follow that they should have the right to impose such risks on others, even others to whom they are genetically linked? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Thursday, July 05, 2012 8:52 AM To: Law Religion
Re: Religious exemptions in ND
Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Religious institutions are creating the conditions for abuse in MANY circumstances. That is the reality, and the notion they should be less culpable than the perpetrators in the endangerment of children does them and children no favors. Religious institutions should not have one iota more latitude to endanger children than anyone else. And any RFRA or First Amendment decision that decreases deterrents to abuse or lets off those responsible for endangering children is a mistake in my view. Not one other person on this listserv has endorsed exempting child safety from a RFRA. Rather, I've heard that the rfras don't affect these cases. As someone involved in dozens, and at times hundreds of these cases at once, I can tell you the rfras and First Amendment do affect these cases. For the record, I oppose any religious liberty decision or rfra that affects the safety of children. For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in California this week, and the jury served up 21 million in punitive damages. The evidence included a letter ordering keeping the abuse secret. Just one case out of thousands. Best to all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc Stern ste...@ajc.org To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu; 'lawyer2...@aol.com' lawyer2...@aol.com Sent: Fri, Jun 15, 2012 8:07 am Subject: Re: Religious exemptions in ND Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Friday, June 15, 2012 07:30 AM To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Please explain what is objectionable about that statement? Are you saying that religious groups do not endanger children? That is simply false. This is a law prof listserv where the discussion needs to focus on facts, doctrine, and policy. The mythology that religious groups always protect children or do not need the hand of the law to forestall harm is that -- mythology -- and not worthy of serious scholarly discussion. So do a lot of secular and individuals, but they are not capable of wrapping themselves in the mantle of claims for religious liberty or freedom. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: lawyer2974 lawyer2...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Jun 15, 2012 6:45 am Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large
Re: Religious exemptions in ND
Presumably the federal Establishment Clause would limit the reach of Measure 3. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: bob b...@jmcenter.org; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Jun 14, 2012 9:17 pm Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach erassb...@becketfund.org wrote: These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota
Nor for Native Americans abused by Catholic priests. For them, religious liberty has meant less freedom, not more. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 8:32 pm Subject: Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota Among many other reasons it may reflect hostility to Native Americans. Connected by DROID on Verizon Wireless -Original message- From: Douglas Laycock dlayc...@virginia.edu To: apos;Law Religion issues for Law Academicsapos; religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 20:49:25 GMT+00:00 Subject: PS RE: Defeat of RFRA constitutional amendment in North Dakota I meant to say that Vance’s point about the fears of Muslims and Sharia law is surely also part of the explanation. The evangelical rank and file conceives religious liberty mostly in terms of their own religious liberty – they are certainly not the only ones, but as Vance notes, they are an important voting block on this issue – and when attention is focused on religious liberty for Muslims instead, many of them will take a different view. So that no doubt affected some votes. But it was NARAL and Planned Parenthood that spent the money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota
Eugene's division of RFRA and non-RFRA jurisdictions is also oversimplified. There were RFRAs like Alabama's, where there is no substantial before burden (that was another fault with North Dakota's formulation). But as RFRAs developed, the dangers of permitting large classes of individuals to break the law simply because they are religious became apparent, pure RFRAs became a thing of the past. RFRAs started to include exemptions for arenas, e.g., in PA for crimes against children. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Vance R. Koven vrko...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 8:58 pm Subject: Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota I should clarify that I was not attempting to address the North Dakota vote specifically, which of course could have been influenced by a number of particularized factors, but was addressing Eugene's broader question of why the RFRA enactment engine nationally seems to be sputtering. On Wed, Jun 13, 2012 at 8:26 PM, Finkelman, Paul paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu wrote: Among many other reasons it may reflect hostility to Native Americans. Connected by DROID on Verizon Wireless -Original message- From: Douglas Laycock dlayc...@virginia.edu To: apos;Law Religion issues for Law Academicsapos; religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 20:49:25 GMT+00:00 Subject: PS RE: Defeat of RFRA constitutional amendment in North Dakota I meant to say that Vance’s point about the fears of Muslims and Sharia law is surely also part of the explanation. The evangelical rank and file conceives religious liberty mostly in terms of their own religious liberty – they are certainly not the only ones, but as Vance notes, they are an important voting block on this issue – and when attention is focused on religious liberty for Muslims instead, many of them will take a different view. So that no doubt affected some votes. But it was NARAL and Planned Parenthood that spent the money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Defeat of RFRA constitutional amendment in North Dakota
It opens the door to churches using RFRA as a defense to discovery, liability, and penalties in chid sex abuse cases. And that means less deterrence. Their lawyers embrace the First Amendment and RFRAs to avoid responsiblity for child sex abuse all the time. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Lawyer2974 lawyer2...@aol.com To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 5:21 pm Subject: Re: Defeat of RFRA constitutional amendment in North Dakota RFRA opens the door to child sex abuse or medical neglect? Really?! --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, hamilto...@aol.com writes: The truth is that gay rights and child protection communities went all out in North Dakota. Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA. The difference is public education Marci On Jun 13, 2012, at 4:39 PM, Douglas Laycock dlayc...@virginia.edu wrote: NARAL and Planned Parenthood spent a lot of money in a small market to defeat this. They did not spend that kind of money in Alabama, so far as I know. There have been shrill opponents in of state RFRAs in various legislatures, but I am not aware of this kind of effort by NARAL or Planned Parenthood. Why now and not before? The polarization over sexual morality is the larger cause, and the pending religious liberty claims specifically about contraception and emergency contraception are the most immediate and obvious cause. NARAL and Planned Parenthood now view religious liberty as a bad thing, because it empowers the enemy and puts outside limits on their agenda. Shameless plug: I wrote about this in general terms, pre North Dakota, in Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. Rev. 407 (2011): http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88id=417collection=usjournalsindex=journals/udetmr Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Wednesday, June 13, 2012 4:23 PM To: Law Religion issues for Law Academics Subject: Re: Defeat of RFRA constitutional amendment in North Dakota Behind NARAL's many inaccuracies lies a hint of what I believe may be the sociological basis for answering Eugene's question. What follows is purely speculative on my part, so just treat it as a hypothesis. The initial RFRA push was, speaking broadly, in line with a sense by evangelical Christians that their agendas, of various types, were threatened by secularists ascendant in Washington and among other political elites.That was then and this is now. Apart from liberal Connecticut and Catholic-dominated Rhode Island, most of the state RFRA enactments were in fairly conservative, heartland states. Since a lot of other states have achieved the same effect by judicial decision or existing constitutional provisions, the leftovers have to be looked at as a discrete grouping. The cross-hatched states, with the exception of New Hampshire, are all liberal, secularist places where you would expect Smith to be popular among policy-makers and not totally anathema to voters. The remaining states without any RFRA-like policies but that haven't firmly declared themselves as following Smith, with the exceptions of California, Hawaii and Vermont, are also mostly conservative heartland states, but they now have a different actuating fear, which I think is the fear (rational or not) of Islamic demands for religious-cultural exceptions from generally applicable laws. This fear directly offsets the fears of evangelical Christians, and is probably shared by a good number of them. NARAL's reference to domestic violence and child abuse look, in that context, like code words for the domestic-relations aspects of Sharia. Obviously, no RFRA statute immunizes domestic violence, but if NARAL said in so many words what it thought the voters really wanted to hear, its anti-Islamic thrust would be too obvious. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
Re: Defeat of RFRA constitutional amendment in North Dakota
I used to think that religious groups using the First Amendment as a defense in child sex abuse cases was breathtaking. It is just a fact. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Lawyer2974 lawyer2...@aol.com To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 10:27 pm Subject: Re: Defeat of RFRA constitutional amendment in North Dakota The sweeping generalities of these statements are breathtaking -Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 8:30:15 P.M. Central Daylight Time, hamilto...@aol.com writes: It opens the door to churches using RFRA as a defense to discovery, liability, and penalties in chid sex abuse cases. And that means less deterrence. Their lawyers embrace the First Amendment and RFRAs to avoid responsiblity for child sex abuse all the time. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Lawyer2974 lawyer2...@aol.com To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 5:21 pm Subject: Re: Defeat of RFRA constitutional amendment in North Dakota RFRA opens the door to child sex abuse or medical neglect? Really?! --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, hamilto...@aol.com writes: The truth is that gay rights and child protection communities went all out in North Dakota. Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA. The difference is public education Marci On Jun 13, 2012, at 4:39 PM, Douglas Laycock dlayc...@virginia.edu wrote: NARAL and Planned Parenthood spent a lot of money in a small market to defeat this. They did not spend that kind of money in Alabama, so far as I know. There have been shrill opponents in of state RFRAs in various legislatures, but I am not aware of this kind of effort by NARAL or Planned Parenthood. Why now and not before? The polarization over sexual morality is the larger cause, and the pending religious liberty claims specifically about contraception and emergency contraception are the most immediate and obvious cause. NARAL and Planned Parenthood now view religious liberty as a bad thing, because it empowers the enemy and puts outside limits on their agenda. Shameless plug: I wrote about this in general terms, pre North Dakota, in Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. Rev. 407 (2011): http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88id=417collection=usjournalsindex=journals/udetmr Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Wednesday, June 13, 2012 4:23 PM To: Law Religion issues for Law Academics Subject: Re: Defeat of RFRA constitutional amendment in North Dakota Behind NARAL's many inaccuracies lies a hint of what I believe may be the sociological basis for answering Eugene's question. What follows is purely speculative on my part, so just treat it as a hypothesis. The initial RFRA push was, speaking broadly, in line with a sense by evangelical Christians that their agendas, of various types, were threatened by secularists ascendant in Washington and among other political elites.That was then and this is now. Apart from liberal Connecticut and Catholic-dominated Rhode Island, most of the state RFRA enactments were in fairly conservative, heartland states. Since a lot of other states have achieved the same effect by judicial decision or existing constitutional provisions, the leftovers have to be looked at as a discrete grouping. The cross-hatched states, with the exception of New Hampshire, are all liberal, secularist places where you would expect Smith to be popular among policy-makers and not totally anathema to voters. The remaining states without any
Re: Defeat of RFRA constitutional amendment in North Dakota
In 3 states, the courts continue to give religious groups First Amendment protection from abuse claims. Missouri, Wisconsin, and Utah. A majority of states have rejected such arguments. A number have not yet ruled. The three states to embrace such a theory have misread the First Amendment, as I discuss in (shameless plug) my article on The Licentiousness in Religious Organizations... RFRA, as we all know, does not mirror the First Amendment, and the North Dakota RFRA would have triggered strict scrutiny even without a showing that the burden was substantial -- so we can be certain that it could be more problematic in child sex abuse and medical neglect cases. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 10:40 pm Subject: Re: Defeat of RFRA constitutional amendment in North Dakota Their lawyers embrace the First Amendment ... to avoid responsiblity for child sex abuse all the time. So should we repeal the First Amendment? Do courts accept these arguments? Art Spitzer On Wed, Jun 13, 2012 at 9:28 PM, hamilto...@aol.com wrote: It opens the door to churches using RFRA as a defense to discovery, liability, and penalties in chid sex abuse cases. And that means less deterrence. Their lawyers embrace the First Amendment and RFRAs to avoid responsiblity for child sex abuse all the time. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Lawyer2974 lawyer2...@aol.com To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Jun 13, 2012 5:21 pm Subject: Re: Defeat of RFRA constitutional amendment in North Dakota RFRA opens the door to child sex abuse or medical neglect? Really?! --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time, hamilto...@aol.com writes: The truth is that gay rights and child protection communities went all out in North Dakota. Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA. The difference is public education Marci On Jun 13, 2012, at 4:39 PM, Douglas Laycock dlayc...@virginia.edu wrote: NARAL and Planned Parenthood spent a lot of money in a small market to defeat this. They did not spend that kind of money in Alabama, so far as I know. There have been shrill opponents in of state RFRAs in various legislatures, but I am not aware of this kind of effort by NARAL or Planned Parenthood. Why now and not before? The polarization over sexual morality is the larger cause, and the pending religious liberty claims specifically about contraception and emergency contraception are the most immediate and obvious cause. NARAL and Planned Parenthood now view religious liberty as a bad thing, because it empowers the enemy and puts outside limits on their agenda. Shameless plug: I wrote about this in general terms, pre North Dakota, in Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L. Rev. 407 (2011): http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88id=417collection=usjournalsindex=journals/udetmr Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Wednesday, June 13, 2012 4:23 PM To: Law Religion issues for Law Academics Subject: Re: Defeat of RFRA constitutional amendment in North Dakota Behind NARAL's many inaccuracies lies a hint of what I believe may be the sociological basis for answering Eugene's question. What follows is purely speculative on my part, so just treat it as a hypothesis. The initial RFRA push was, speaking broadly, in line with a sense by evangelical Christians that their agendas, of various types, were threatened by secularists ascendant in Washington and among other political elites.That was then and this is now. Apart from liberal Connecticut and Catholic-dominated Rhode Island, most of the state RFRA enactments were in fairly conservative, heartland states. Since a lot of other states have achieved the same effect by
Re: Maine town: No parking lot taxes for charities…except for churches
Maine has a strong state establishment clause as I remember. Would that be the reason for the differential treatment? The question here is whether parsonages and church parking lots are similarly situated to charitable organizations. If so, there might be a claim. If not, it will be a tough slog for the ADF. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Rick Duncan nebraskalawp...@yahoo.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Apr 25, 2012 7:35 pm Subject: Maine town: No parking lot taxes for charities…except for churches FYI. ADF News Release: FOR IMMEDIATE RELEASE Maine town: No parking lot taxes for charities…except for churches ADF files lawsuit to challenge tax assessed against church but not other charitable groups Wednesday, April 25, 2012 KNOX, Maine — Alliance Defense Fund attorneys representing a Rockland church filed suit against the city Monday in Maine Superior Court in Knox. The city granted the church a property tax exemption for its building but not for its parking lot and parsonage even though the city attorney admitted that all three would be exempt if the church were strictly a charitable organization. The church makes its facilities available to a wide range of charitable and community groups and events. “Churches shouldn’t live in fear of being targeted by the government in ways other groups aren’t,” said ADF Senior Legal Counsel Joel Oster. “Churches are at a distinct disadvantage under the current law, which grants a tax exemption for the entire property of a non-church charitable group but only grants a partial exemption for churches. It’s unconstitutional to single out churches to be treated differently simply because they are churches while allowing virtually identical non-religious uses to have favorable tax treatment.” According to the complaint filed in state court, Aldersgate United Methodist Church should have had its parking lot and parsonage exemption request granted under the church tax exemption statute but nonetheless additionally qualifies as a charitable organization. “The Church qualifies as a charitable organization for all three of its properties because it provides education and religious instruction to the general public on how to live moral and healthy lives--lives that are not dependent on the government and that care for and help others in times of need,” the complaint states. “In addition, the Church makes its facilities available to a wide variety of public groups without charge, such as local orchestras, children’s development services, and branches of Alcoholics Anonymous and Narcotics Anonymous. The Church also provides financial support and volunteer assistance to local charities and ministry outreaches.” Nonetheless, the city assessor only granted a tax exemption for the church’s main building and grounds. The assessor denied exemptions for the parking lot and parsonage. In a brief filed with the Board of Assessment Review, the city attorney admitted, “Were Aldersgate also entitled to exemption as a charitable and benevolent organization, the entire property would be exempt from taxation.” The lawsuit, Aldersgate United Methodist Church v. City of Rockland, argues that the differential treatment between charitable institutions and churches is unconstitutional. Portland attorney Stephen C. Whiting, one of more than 2,100 attorneys in the ADF alliance, is serving as local counsel. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the
Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
The alternative is to focus on what is in the best interests of the child, e.g., education, health. Not being forced to get married at 13 and have children... Marci The religious status quo could also be a non-observant or explicitly atheistic r agnostic household, which would also have to be respected under the rule that ugene supports. The alternative is for the courts to determine which religions re extremist, a questionable role for the judiciary. Richard T. Foltin irector of National and Legislative Affairs ffice of Government and International Affairs : 202-785-5463, f: 202-659-9896 olt...@ajc.org Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Richard Foltin folt...@ajc.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Fri, Apr 20, 2012 8:32 am Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes The religious status quo could also be a non-observant or explicitly atheistic r agnostic household, which would also have to be respected under the rule that ugene supports. The alternative is for the courts to determine which religions re extremist, a questionable role for the judiciary. Richard T. Foltin irector of National and Legislative Affairs ffice of Government and International Affairs : 202-785-5463, f: 202-659-9896 olt...@ajc.org oin us at the AJC Global Forum 2012, May 2-4 in Washington, D.C. EGISTER NOW ake Action with AJC by visiting the Action Center OTICE his email may contain confidential and/or privileged material and is intended or the sole use of the intended recipient(s). If you are not the intended ecipient, please be advised that you have received this email in error and that ny use, disclosure, copying, distribution or other transmission is prohibited, mproper and may be unlawful. If you have received this email in error, you ust destroy this email and kindly notify the sender by reply email. If this mail contains the word CONFIDENTIAL in its Subject line, then even a valid ecipient must hold it in confidence and not distribute or disclose it. In such ase ONLY the author of the email has permission to forward or otherwise istribute it or disclose its contents to others. Original Message- rom: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] n Behalf Of Marci Hamilton ent: Friday, April 20, 2012 9:24 AM o: Law Religion issues for Law Academics c: Law Religion issues for Law Academics ubject: Re: Mothers leaving ultra-religious groups, and religious upbringing as factor in custody disputes I don't think it is a difficult question but disagree that the rule is sound. he standard should be the best interest of the child. Stability in an xtremist religion is often not in the child's best interest, especially if the hild is a girl. or example, the FLDS. The best interest of the child can also trump mainstream eligions depending on the facts of the case. The focus must be the child. This sort of assumption that religious status quo is a social good is an nconstitutional preference for religion. his is a good example of when the application of a neutral generally applicable rinciple can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton aul R. Verkuil Chair in Public Law enjamin N. Cardozo School of Law eshiva University ew York, NY 10003 On Apr 20, 2012, at 9:09 AM, Volokh, Eugene vol...@law.ucla.edu wrote: There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html hat faults the child custody law preference for stability of religious pbringing: When women leave arranged marriages in the ultra-Orthodox Jewish ommunity -- and leave ultra-Orthodoxy more general -- they may sometimes lose ustody of their children on the grounds that the person who remains within the ommunity is more able to provide stability of religious upbringing. I'm inclined to say that this rule (which of course could equally apply to athers who leave a religious community as well, though I don't know how elatively frequent such departures are) is a sound one, for children who are ld enough to have some experience with the religion and thus some stake in tability of religious upbringing. To be sure, the rule does create some ressure against departing the faith, since often someone who leaves the group an no longer raise the children in the same religious environment even if she's illing to, because the group might no longer accept her; but this seems in this ituation to be an acceptable and denominationally neutral rule (especially if t is equally applied to a parent who moves into a ultra-religious community hich disrupts the stability of the children's
Re: Court upholds prison no-pork policy against EstablishmentClause challenge
Chip is right, of course. But Eric's point requires a response. I don't I don't think PETA folks would appreciate having their sincere concerns about the humane treatment of animals traced to the Nazis. To say that humane treatment concerns are more often than not pretext and then to have as your example something out of the 1930s is singularly unpersuasive. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Apr 12, 2012 1:14 pm Subject: RE: Court upholds prison no-pork policy against EstablishmentClause challenge Chip is right that the supposedly inhumane methods of kosher/halal slaughter (something US law defines as humane, btw) is one of the main public justifications for banning the practice. But as our brief in the New Zealand kosher slaughter ban case pointed out -- http://www.becketfund.org/wp-content/uploads/2011/04/NZ-kosher-brief-FINAL.pdf -- more often than not this is pretext. For example, this was the same justification the anti-Semites of the 1930s used for banning the practice in several European countries. As we point out in our brief, one of the first things the Nazis did upon taking power was to pass a law banning kosher slaughter, supposedly in order to awaken and strengthen compassion as one of the highest moral values of the German people. I don't think it's too much of a stretch to guess that anti-Muslim sentiment may be a subterranean motivation for the humane practices argument in the Netherlands, France and elsewhere. The ironic part for me of the Mohr case was that my main experience of stand-alone prison pork bans is as a proposed compromise to settle kosher accommodation lawsuits. Of course pork bans don't work as a method of kosher accommodation, though prison administrators keep hoping that they do. In our now 6-year-old lawsuit against the Texas prison system (now on a return trip to the 5th Circuit), Texas at one point floated a pork ban as a solution, which only served to show that they didn't understand how kashrus works. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, April 12, 2012 10:39 AM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against EstablishmentClause challenge I think that at least part of the objections in Europe to serving only halal meat in some restaurants involves objections to methods of halal animal slaughter which (like kosher slaughter) may not be consistent with European standards for humane treatment of animals in their use as food. Halal only means all diners are complicit in the that particular slaughtering process. On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: It is interesting to compare reactions in Europe to similar situations. In 2010, French politicians strongly criticized a restaurant chain that decided to serve only halal meat in 8 of its restaurants with a large Muslim clientele. Agriculture Minister Bruno Le Maire said: When they remove all the pork from a restaurant open to the public, I think they fall into communalism, which is against the principles and the spirit of the French republic. See: http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html In 2007 in Britain, a primary school in Kingsgate attempted to accommodate religious needs of its growing Muslim student body by serving only Halal meat in its lunch menus. A number of parents objected, arguing that the school was forcing their children to to conform to someone else's culture. See http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html Howard Friedman messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Requirement that cabbies transport alcohol = tiny burden?
The cabbies no longer had a problem once the imams spoke, so your reference to their own religious understandings is nonsensical in this case. Just for the record, Doug, I actually know the doctrine, so I get that one can have a view different from one's religious leaders.I also read all of the cases saying that there is an absolute right to believe. I think there is real force to Steve's suggestion about common carrier rules and standards. No one defending the cabbies, particularly Doug, has adequately explained away the need for them. And I am not persuaded that this is not like the race cases. The point of the industry is to transport people, and the imposition of selection not related to travel is problematic. No one, including cabbies owns their industry. That is a rhetorical sleight of hand that attempts to build in some kind of right to choose any industry you want. The Court has assigned such interests the most deferential level of rationality review, so that is a true non-starter. Where is the concept of personal responsibility, personal choice, and accepting the consequences of one's beliefs? The world, particularly the transportation industry, should not have to be conformed to the views of any one religious set of actors. The Amish are not going after high-tech jobs and then arguing that they don't believe in high tech, are they? You tipped your hand when you referred to those whose religious world view permits alcohol consumption as looser and those who object as having more scrupulous morals. Your analysis appears to be more about your preferred public policy vision than the law. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Wed, Mar 7, 2012 8:13 am Subject: RE: Requirement that cabbies transport alcohol = tiny burden? The exemption with lights to alert passengers would not have changed the culture. It would not have significantly affected anyone’s right to drink alcohol, or to transport alcohol. It would have allowed the scrupulous Muslim cabbies to live their own religious values. Hostility to religious liberty for a group that is doing no one any harm very often reflects hostility to the group. Sometimes it reflects hostility to all religion or to all exemptions for religious liberty, which is not much better. But when there is a vast outpouring on a particular claim, disproportionate to the usual debate over religious exemptions, it is more sensible to infer the first explanation, hostility to the group. Perhaps some imams said the cabbies were misreading the Koran. Good for the imams. But not relevant to the cabbies’ understanding of their own religious obligations, unless the imams persuade the cabbies. The solution that Greg and Eugene describe was ingenious, and the reaction that Greg describes is appalling. The problem we have in so many of these various culture-war issues is that each side wants to write its own values into law, and insist that the other side conform in any interaction that is the least bit public. It is not enough that I can transport alcohol; Muslim cabbies must help me transport it or lose their jobs and be barred from their industry. We cannot restore social peace until we remember that in a regime of individual liberty, the goal is to let both sides live their own values. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 5:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci On Mar 6, 2012, at 4:48 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: As Eugene
Re: Cabbies vs. lawyers
I rarely if ever talk about nonbelievers because they are rare in the US. My point was that the cabbie was engaging in religious discrimination by refusing to carry someone whose conduct violated his religious beliefs. And that the one carrying the wine was operating in their own religious world view. The cabbie is like the employer who refuses to hire based on religion (his own). Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 10:29 pm Subject: Re: Cabbies vs. lawyers I apologize if I was too quick to generalize. Maybe you meant that it is OK to make religious judgments about nonbelievers, but forbidden to make religious judgments about drinkers. An implicit distinction that I completely missed. On Tue, 6 Mar 2012 22:15:53 -0500 (EST) hamilto...@aol.com wrote: Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits
Re: Cabbies vs. lawyers
That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. 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 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies
Re: Requirement that cabbies transport alcohol = tiny burden?
I disagree. I was in eastern Europe teaching students and talking to scholars from the Balkans in Budapest a little less than 20 years ago. Here is how it was described: There was a time when people would get on public transportation and no one was conscious of the religion of the person sitting next to you. They lived in a shared culture where one's religious beliefs were not a barrier to riding on public transportation together, and religion was not the only identity of each citizen. As religious identities developed between competing sects, though, people started to fear/distrust/hate the nonbeliever (the believer in another religious world view). Eventually, they would refuse to sit near a believer from another faith, until eventually they would only sit or stand near those of the same faith. In the end, you could not look at another person without first asking what their religion was. The culture fell apart on these faultlines. I also strongly disagree with the minority/majority talk about religion. It is neither accurate numerically nor is it indicative of how accommodations/exemptions occur. There is no majority religion in the US. Presbyterians are not Baptists are not Methodists, so Protestants is an artificial catch-all. The RCC is the largest religion but it does not have a majority of Americans within it. Exemptions are obtained by politically savvy/connected lobbyists for various religious entities and almost never reflect a majoritarian view. Christian Scientists have obtained exemptions from medical neglect statutes because they can work the system, not because their views reflect any majority anywhere. The Native American Church has been able to obtain exemptions for peyote use in virtually every state requested and they are not a majority in any sense. The key is the ability to work the political system to one's advantage, NOT how many there are of any one denomination. Marci In my judgment, Balkanization is much more likely to occur when religious minorities are told that the only way that the can obtain accommodations of theirreligious practices is by living in a community in which there are enough members of their faith to exercise significant political power. Religious accommodations allow people of different faiths to live together in religiously heterogeneous, integrated communities. The rejection of accommodationsnot only forces people to find another line of work. It persuades them that they need to find another place to live. That’s Balkanization. Alan Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Alan Brownstein aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 7:10 pm Subject: RE: Requirement that cabbies transport alcohol = tiny burden? In my judgment, Balkanization is much more likely to occur when religious minorities are told that the only way that the can obtain accommodations of their religious practices is by living in a community in which there are enough members of their faith to exercise significant political power. Religious accommodations allow people of different faiths to live together in religiously heterogeneous, integrated communities. The rejection of accommodations not only forces people to find another line of work. It persuades them that they need to find another place to live. That’s Balkanization. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that
Re: Cabbies vs. lawyers
Doug-- This is actually hilarious. Reread my previous posts. You are not even in the ballpark, as attested to your notion that I was ever discussing religious judgments about nonbelievers. I'm almost certain that I was talking about believers and believers. I haven't backed off of whatever you think I said, because I never said it. In any event, this horse is officially beaten in my view. Marci I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu; religionlaw religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 9:38 pm Subject: Re: Cabbies vs. lawyers I already said, in response to Sandy, that if a religious individual or group occupies a blocking position, the balance of interests changes. Whether they occupy such a position is a question of fact. You seem to assume axiomatically that they always prevent people from finding cab, or whatever other service we're talking about. But at least you seem to have backed off finding a problem with them making religious judgments about nonbelievers. On Tue, 6 Mar 2012 21:35:11 -0500 (EST) hamilto...@aol.com wrote: Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. 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
Re: Cabbies vs. lawyers
Doug-- I don't know who the royal we is in your comment, but I'm not making a complaint. I'm making what is surely an obvious philosophical, analytical point. The person carrying the wine is not being picked up because they are carrying wine, which presumably is permitted in their religious world view. If you are going to accommodate the religious cabbie, you are going to burden the religious passenger with wine, assuming a finite number of cabbies. That is why a neutral, common carrier rule is preferable to the religion-specific exemption from service you seem to be advocating. I assume you favor the federal civil right that forbids a private employer from discriminating on the basis of religion? How is this any different? A cab is not a religious organization. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Tue, Mar 6, 2012 9:15 pm Subject: Re: Cabbies vs. lawyers I thought we were concerned about people getting home from he airport. Now the complaint is that the cabbie is making a religious judgment about the passenger. A religious judgment is a form of belief, and I thought it was common ground that belief is protected absolutely, as the Court said in Cantwell v. Connecticut. Lord knows we are all making judgments about the cabbies. Those of us who drink, or who have looser standards on any other issue than more morally scupulous adherents of various religions, certainly cannot have a right for those more scuprulous souls not to make judgments about us. On Tue, 6 Mar 2012 20:52:35 -0500 (EST) hamilto...@aol.com wrote: That is, in my view, a misstatement of the facts. The person carrying the alcohol holds a religious worldview that permits them to drink, carry, and transport alcohol. The cabdriver refusing to transport them is making a religious judgment about the passenger. The only passengers you can be certain this cabdriver will always transport are those with the same religious worldview. Discounting the religious world view of the passenger leads to a one-sided analysis. Again, just as in the contraception context, the contemporary discourse generally has discounted the religious beliefs of the person who is affected by the accommodation. You aren't going to find many pairings of people in the US where both don't have some religious beliefs/world view. Religious claimants who want accommodation freight their arguments with claims of the religious vs. the secular, but that is a rhetorical ruse. In fact, a religious individual demanding an accommodation more often than not burdens someone who does not share their religious world view but who has a competing world view. 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 They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Mar 6, 2012 8:40 pm Subject: RE: Cabbies vs. lawyers They aren’t discriminating against anyone on the basis of that person’s religion. The cabbies’ own religious beliefs are leading them to discriminate against people who are openly carrying alcoholic beverages. I’m not sure I know of any religion that calls on its adherents to carry alcoholic beverages openly. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 5:18 PM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Are not the cabbies discriminating against customers on the basis of religion? Or is the alcohol proxy enough to remove that taint? Sent from my iPhone On Mar 6, 2012, at 7:38 PM, Volokh, Eugene vol...@law.ucla.edu wrote: In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies
Re: Supreme Court sides with church on decision to fire employee on religious...
Rick-- I hear you. The Court indicates that what is a minister will be fact intensive in each case. There are lay teachers in a wide variety of contexts and a wide variety of religious settings. It will be interesting to learn whether the courts treat, e.g., a coach who only coaches at a school (and does not teach during the day) as a lay teacher for these purposes. Marci Marci A. Hamilton 36 Timber Knoll Drive Washington Crossing, PA 18977 215-353-8984 Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 @Marci_Hamilton _www.facebook.com/professormarciahamilton_ (http://www.facebook.com/professormarciahamilton) In a message dated 1/12/2012 12:16:30 P.M. Eastern Standard Time, rgarn...@nd.edu writes: Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) _SSRN page_ (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235) Blogs: _Prawfsblawg_ (http://prawfsblawg.blogs.com/) _Mirror of Justice_ (http://www.mirrorofjustice.blogs.com/) _Law, Religion, and Ethics_ (http://lawreligionethics.net/) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 2:26 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds Rick--I meant by clergy whatever the Court is saying is a minister I did not intend ordained clergy. Do we still disagree? Marci inline: marci%20hamilton%20signature%20cropped.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hosanna-Tabor-- apologies
My apologies for inadvertently sending a private message to the group. So much sending emails from my new IPhone... Marci A. Hamilton 36 Timber Knoll Drive Washington Crossing, PA 18977 215-353-8984 Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 @Marci_Hamilton _www.facebook.com/professormarciahamilton_ (http://www.facebook.com/professormarciahamilton) In a message dated 1/12/2012 11:35:09 A.M. Eastern Standard Time, mae.kuykend...@law.msu.edu writes: I wonder if there are any data on employment by religious institutions, classified by rough job category. The nature of the problem relates to the scope of persons affected, as Ted explains. It could be large, it could be small. There must be a range of roles with clear connections to propagating the faith/doctrine and others that could not plausibly be so classified. Is there any statistical base to inform a judgment about scope? If we assume almost no one would suggest ministers are not appropriately exempt from state regulation (other than for bad acts that implicate criminal misconduct, and even there churches have been aggressive about seeking to avoid state jurisdiction), then the question becomes how many people have employment with religious institutions in ordinary jobs that might be re-characterized as ministerial by a clever church lawyer and how many (janitors?) might be, incontestably, outside that category. But suppose a church claims that janitors are trained in the proper godly approach to cleaning and are responsible for distributing appropriate literature throughout the building and serving as an example to their brothers and sisters in the flock? Might they be ministers? mk Theodore Ruger tru...@law.upenn.edu 1/12/2012 11:15 AM Coming late to this thread with some (too-long) thoughts about how this may play out in future litigation . . . I share Mike Dorf’s concern about the vagueness of the Court’s standard under which employees of religious organizations can now be classified as “ ministers” for the purposes of the exception, particularly given the unwillingness of lower court judges to seriously examine the claims about religious doctrine that churches make during this kind of litigation. (Speaking of which, was there any record evidence to support the Missouri Synod’s claim that as a matter of faith it “prefers to resolve disputes among Christians internally”, or did the district court accept it without inquiry? Can every religion invoke, ipse dixit, such a “spiritual” preference for internal dispute resolution, simply by virtue of being a religious group? What about those Catholic archdioceses whose bishops in 2004 announced often in the mainstream media that John Kerry was ineligible to receive communion because of his pro-choice views – in subsequent employment litigation should their schools be able to assert an absolute and unexamined spiritual preference for keeping disputes among Catholics private?) I suspect that federal courts will continue to be extremely deferential in scrutinizing such claims in litigation, which in turn creates strong incentives for religious groups and their attorneys to be extremely capacious after the fact about who they characterize as “ministerial” whenever an employment dispute arises. And such broad ex post characterizations will have the effect of substantially curtailing the employment rights of large numbers of employees who may not even know they are so classified, and certainly may not know about the effect of the classification on their workplace rights. This concern leads me to imagine two possible ex ante measures – one a reporting rule and one a disclosure requirement – that in my view would be both constitutionally permissible and sound policy, though I’m sure some will disagree on one or both counts. First, most of these religious organizations already file 501(c)(3) returns with the IRS each year – why shouldn’t the IRS require, among the many other disclosures on the return, a schedule of the organization's employees each year classified as “lay” or “ ministerial.” Minimally intrusive, serves a clear secular purpose in guiding the EEOC’s investigatory behavior should an employee in either category file a complaint, and would discourage churches’ ex post expansions of the category during litigation. More substantial would be a disclosure requirement imposed by federal or state law that would require religious organizations to provide all persons hired or reclassified as “ministerial” with prior notice that such status adversely effects their rights to sue as employees under current law. Such disclosure rules are commonly applied to non-religious employers (for instance when someone is hired under a contract that mandates arbitration to resolve
Re: Driveway Fee as Tax on Churches
Thanks for the explanation. I'm wondering what the argument would be to make property tax exemption constitutionally required. There is a growing movement against such tax breaks, which is supported by the economic situation of many local governments, so I would expect there will be an increasing number of political and court fights over the issue. 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 215-353-8984 In a message dated 11/6/2011 8:01:31 A.M. Eastern Standard Time, estan...@telladf.org writes: Marci: The main argument the City made in this case was that the assessment was a “fee” and not a “tax.” Kansas has good precedent about the distinction between fees and taxes and my main argument was that this was a tax and not a fee – and that it was specifically a property tax. As a tax, the City should have respected the uniform state law in Kansas that provides a property tax exemption for non-profit organizations. Instead, the City tried to subvert the property tax exemption provided for in state law by terming this a “fee” for services. I did not argue that the exemption was constitutionally required because the case did not require that argument (although I am still looking for a case where I can make that argument – this is an issue I believe will come to a head at some point in the near future). This was a straightforward application of state law and I think the City saw that its position was weak under state law – that’s why they settled. Best, Erik inline: marci%20hamilton%20signature%20cropped.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Driveway Fee as Tax on Churches
Erik-- Just so I understand the principle here. The city should have provided an exemption because the state law grants all religious organizations a property tax exemption? Or are you saying that the exemption was constitutionally required? Thanks--- 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 215-353-8984 In a message dated 11/3/2011 2:43:58 P.M. Eastern Daylight Time, ma...@law.villanova.edu writes: I litigated this case on behalf of two churches in Mission, Kansas (one Baptist and one Catholic). The City recently settled the case by providing an exemption in the ordinance for all organizations who hold a property tax exemption under state law. Here is a link to ADF’s press release on the settlement which also contains a link to the Complaint: _http://www.adfmedia.org/News/PRDetail/5112_ (http://www.adfmedia.org/News/PRDetail/5112) . Kansas has great precedent on the difference between a “tax” and a “fee.” This was plainly in the nature of a tax and the City should have provided an exemption in the first place. Erik Erik Stanley Senior Legal Counsel (913) 685-8000 (913) 685-8001 (fax) _EStanley@telladf.org_ (mailto:estan...@telladf.org) _www.telladf.org_ (http://www.telladf.org/) Truth is immortal Dr. Balthasar Hubmaier, 1527 inline: marci%20hamilton%20signature%20cropped.jpginline: image001.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hosanna-Tabor and the Ministerial Exception
Nelson-- Just a historical note-- there really is no church autonomy doctrine at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for autonomy under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of ordered liberty as opposed to autonomy. The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because church autonomy has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (probably very little). At the outset, I should say that my own views may be atypical, so I’m particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope—does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don’t believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable—so there’s no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it’s just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn’t believe in a categorical bar. If I understand the SG’s position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there’s a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as “older cases concerning church-property disputes” (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG’s brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich’s holding— which, I note parenthetically, is weird because (1) it’s just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG’s brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There’s this tension as to whether religion really is special that runs through the briefs on the plaintiffs’ side. On
Re: Hosanna-Tabor and the Ministerial Exception
Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What church autonomy means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the licentiousness interpretation of liberty firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for autonomy from the law in that case.) If they were arguing for a measure of autonomy in the courts, I would not feel so compelled to focus a light on its usage. Ordered liberty captures the notion of measured liberty or freedom far better than autonomy. Just a footnote on abortion. Women have not had autonomy from the medical establishment in the abortion context -- the right has always been mediated somewhat and never involved solely the question of a woman's power over her body. But that is for a different thread. Marci In a message dated 8/16/2011 10:58:45 A.M. Eastern Daylight Time, phorw...@hotmail.com writes: To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of ordered liberty doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hosanna-Tabor and the Ministerial Exception
If the Court upholds a ministerial exception, it is only fair for the federal government and the states to amend their anti-discrimination laws to require employers otherwise covered to disclose to their religious employees that they will not have the protection of the anti-discrimination laws if they accept the employment of this religious organization. We live in a culture where there is a basic assumption that it is wrong to discriminate. Employees in these cases are typically in shock that the religious organization could have a First Amendment or any other defense to otherwise illegal discrimination. I have never spoken to Ms. Perich, but I can imagine that it came as a surprise to her that her employer (1) would engage in disability discrimination against her, and (2) then raise the First Amendment to permit such discrimination. The same is true in the cases involving gender and race discrimination (especially where the original appointment had no gender/race requirement). (If anyone thinks that religious organizations do not engage in invidious gender or race discrimination not motivated by their religious beliefs, I would be happy to put you in touch with various victims who would say otherwise.) A disclosure requirement would be the least that would need to be done to level the playing field between religious organizations and their employees. Marci In a message dated 8/16/2011 4:28:59 P.M. Eastern Daylight Time, howard.fried...@utoledo.edu writes: As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Widmar v. Vincent redux, though in a traditional public forum?
Big surprise that I disagree with Marty on the Bronx Household of Faith case. The decision should stand. There was no targeting a la Lukumi. Instead, you have the question in the big picture whether public institutions must host weekly worship services for a religious group that turns the institution into a church 1 day/week. Not even remotely like the facts in Good News Club or Rosenberger in my view. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Marty Lederman lederman.ma...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 15 Aug 2011 08:07:01 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re:Widmar v. Vincent redux, though in a traditional public forum?Bronx Household
Apologies to Marty for overreading his reference to Lukumi. The facts of Bronx Household indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because Rosenberger was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship buildings and vice versa. Marci In a message dated 8/15/2011 11:04:20 A.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: I suppose I should have written religious worship services standing alone. If I recall correctly, the premise of the CTA2 decision in Bronx Household is that if -- unlike in Widmar -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious worship services, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the Widmar/Good News line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hosanna-Tabor and the Ministerial Exception
Preliminarily, let me say that I sincerely hope there is a wide variety of views among law professors on this issue, and most every other issue in our field. The issue in the Hosanna Tabor in my view is not whether there will be a ministerial exception, but, as Doug puts it, where to draw the line. There are many places to draw the line regardless of whether RFRA, Dale, and the prohibition on courts interpreting religious doctrine are in place. There are also the other relevant doctrines, e.g., courts may question sincerity, even if they may not question doctrine, and in many of these cases there are good reasons to question the sincerity of the proffered reason for the adverse employment action. There is also the question whether accommodation can be appropriate if the religious organization does not have a religious belief that is burdened. The Petruska case is a great example-- she was hired as a chaplain, and there was no prohibition on women chaplains at the Catholic university. Then she was told she was being fired because she was a woman. That is gender discrimination untethered to an actual religious belief involving gender. Judge Becker's original opinion in Petruska says that without an underlying religious belief, the ministerial exception is not legitimate. The subsequent panel opinion, which vacated his decision and was entered after he passed away, treats the issues as simply untouchable by the courts. The EEOC's brief is one of the most intelligently argued briefs filed in a religion case by the DOJ in recent memory, so there is a lot for the Court to consider, which makes it impossible to predict outcome. Marci In a message dated 8/15/2011 12:13:54 P.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: That's true -- that there should be no ministerial exemption at all is probably not the position of most professors who teach and work directly in law and religion. (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is a very different and nearly unanimous consensus about this case . . . ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Establishment Clause, equal access, and confusion
The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Establishment Clause, equal access, and confusion
I could have sworn Lee was about endorsement (characterized by J. Kennedy as coercion) and whether the listener felt disenfranchised by the govt's apparent endorsement of religion (whether the government intended to endorse it or not). Marci In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, dlayc...@virginia.edu writes: Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Interesting early W. Va. Att'y Gen. opinion on released time programs
Vance-- Small point-- Aren't you confusing originalist with textualist? I would have thought an originalist would be interested in the history behind the language as well as the language, while the textualist would eschew the history to focus on the language. 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 In a message dated 8/8/2011 11:12:52 A.M. Eastern Daylight Time, vrko...@gmail.com writes: What I think Mr. Ritter is missing is that the WV AG was not construing the Federal Constitution, but the West Virginia constitution, whose religion clause was a much more detailed paragraph than the First Amendment's. The AG mentions the First Amendment, but seems to do so in a way that does *not* consider it binding on the state, merely illustrative of a mode of analysis he favors. My point was that he completely neglected the text before him (which, as I understand it, is a large part of what Originalists like to focus on) and jumped in like Rosie Ruiz just before the finish line of his argument. An Originalist would have started with the text and then tried to ascertain what its drafters thought they were saying with the words they used. One consideration in that might be that if all they wanted to do was copy the Federal First Amendment, why did they indulge in such relative prolixity? But as I said, Originalism is a modern doctrine, and I'm not faulting the AG for not being an Originalist avant le lettre. I do fault him, though, for assuming his conclusion. Vance ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The religious exemptions in the new NY same-sex marriage law
It would be interesting if a gay marriage law made it easier for landlords to discriminate than before. Especially given how much non-religious property many religious entities own. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Ira Lupu icl...@law.gwu.edu Date: Sun, 26 Jun 2011 10:44:41 To: hamilto...@aol.com; Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: The religious exemptions in the new NY same-sex marriage law Whatever the current law in NY is, this doesn't change it. So if a religious organization owns and operates an assisted living facility, and it excludes occupants on religious grounds, and it preaches against same-sex intimacy, it probably would be free to exclude same-sex partners. Their marital status wouldn't change this. I very much doubt that the organization's power to discriminate extends to investment property. But that's a question of NY Human Rights law, and perhaps someone can enlighten on those details. The important point about the the same-sex marriage law is that it appears to leave that power to discriminate (whatever its scope) undisturbed. On Sat, Jun 25, 2011 at 4:49 PM, hamilto...@aol.com wrote: How do folks read the rental of housing language? What if a religious organization owns rental property as an investment--does this mean they can reject gay partners even if the property is not otherwise used for religious purposes? Does this differ from current law? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University Sent from my Verizon Wireless BlackBerry -Original Message- From: Marty Lederman lederman.ma...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Sat, 25 Jun 2011 16:24:50 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: The religious exemptions in the new NY same-sex marriage law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The religious exemptions in the new NY same-sex marriage law
Howard-- You say one merely preserves the existing exemption Do you know if that provision was ever used by a religious organization to refuse to rent to homosexuals in an apartment building owned by a religious institution but not otherwise devoted to religious use? I've never seen this rental of housing accommodations before. Given the nationwide push by the Catholic Conference and CLS, among others, to avoid having to rent to renters whose morals they disapprove, I wonder if this language aided such activity before or if it is a new possibility. The plain language does not preclude this scenario. Marci -Original Message- From: Friedman, Howard M. howard.fried...@utoledo.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Jun 26, 2011 7:57 pm Subject: RE: The religious exemptions in the new NY same-sex marriage law The new New York same-sex marriage bill has several different-- and apparently hastily drafted--exemptions. One merely preserves the existing exemption in NY Executive Law Sec. 296. Sec 296 provides: Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment or sales or rental of housing accommodations or admission to or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained. Another provision in the new same-sex marriage bill protects a long list of institutions if they deny services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage. One of the sets of organizations protected are those listed in New York's Benevolent Orders Law. That law lists 58 different organizations by name in Sec. 2. Presumably drafters were concerned with protecting Knights of Columbus from having to rent their halls for same-sex weddings. KofC is listed in Sec. 2. But so are numerous other organizations that are not religious in nature-- e.g. the American Legion which apparently now can refuse to rent out its facilities for same-sex ceremonies. Though I am not sure that any of these would have been considered a public accommodation subject to NY's anti-discrimination law in the first place. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Saperstein, David Sent: Sun 6/26/2011 3:30 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The religious exemptions in the new NY same-sex marriage law Marty, Are you suggesting there is no religious tenet component to the title Vii exemption? It is just on religious identity? And if a tenet component? How does it apply to this question? David Sent from my iPhone On Jun 26, 2011, at 2:24 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: A very small, peripheral point: Chip writes that under current NY law, if a religious organization owns and operates an assisted living facility, and it excludes occupants on religious grounds, and it preaches against same-sex intimacy, it probably would be free to exclude same-sex partners. I have no idea what the existing NY religious exemption looks like -- perhaps it simply exempts religious organizations from the antidiscrimination rules for assisted living facilities generally, in which case Chip's example is surely correct. But if, instead, such organizations only have an exemption to favor *coreligionists,* as under title VII -- i.e., in Chip's words, to exclude occupants on [certain] religious grounds, namely, that they are not coreligionists -- and *if* such an organization permits only its own coreligionists to live in the facilities (unlikely but not inconceivable), then it likely could not exclude same-sex partners who are of the favored religion. The coreligionists exception, that is to say, is not a license to discriminate on the basis of other prohibited criteria (race, sex, sexual orientation, etc.) merely because such discrimination is religiously motivated -- it only permits discrimination in favor of coreligionists. On Sun, Jun 26, 2011 at 10:44 AM, Ira Lupu mailto:icl...@law.gwu.eduicl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Whatever the current law in NY is, this doesn't change it. So if a religious organization owns and operates an assisted living facility, and it excludes occupants on religious grounds, and it preaches against
