Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
They are similar in that both involve believers demanding a right to discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- does the AZ bill permit discrimination on gender and race by private businesses? The RFRAs say explicitly they are good against the govt. expanding to private parties is a huge leap. Remember RFRAs are supposedly the return to constitutional protections. The Constitution requires state action but the RFRAs are explicit in the need for a govt defendant. It's not NYT v Sullivan Marci Sent from my iPhone On Feb 26, 2014, at 9:45 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: 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 discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.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
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark-- please elaborate. Can a Biblical white supremacist make an argument to refuse to serve a black person under the AZ bill? How about the KS bill? And while we're at it, how about the GA bill? I understand that the defenders of these bills have a long standing policy of not wanting to explain the details pf how the bill will work in operation, but that gambit is unethical in my view. The burden is on the defenders of these new bills to explain how they improve our society by increasing opportunities to discriminate by religious actors. As I have said before the supporters of extreme religious liberty are morally responsible for the consequences of these laws/bills. Marci Sent from my iPhone On 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 discriminate due to their religion. If Hobby Lobby wins, Walmart will have an argument to get around prohibitions based on race, gender, religion, alienage, and disability. All they need is one owner or board member and they are good to go. But here is the critical difference: The state amendment proposals are not moderate or almost identical. Rfra applies only against the govt. These bills bring private vs private disputes under its misguided, concocted standard. It's ugly. Marci Sent from my iPhone On Feb 25, 2014, at 11:58 PM, Michael Worley mwor...@byulaw.net wrote: I have. My point is your condemnation is not compelling to me when we disagree on a either more moderate or almost identical bill (depending on how Hobby Lobby comes out). On Tue, Feb 25, 2014 at 8:55 PM, hamilto...@aol.com wrote: Have you read anything I've written for the last 20 years? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.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
Re: The Arizona bill and Hobby Lobby
These are not speech cases -- they are conduct cases. RFRA explicitly says against the govt. it was never intended in text or meaning to apply between private parties and I do not understand why anyone would want to foment such discord. What RLUIPA has done to residential neighborhoods on that score is enough Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 26, 2014, at 4:52 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: So is it wrong that the constitutional malice standard from NY Times v. Sullivan applies not just when the government is a party, and not even just when there is a government official who is a party, but even where the plaintiff is a public figure who is not a government official? Under current doctrine, the 1st Am applies when a non-government party is trying to use the state judicial system to enforce state law against a non-government party by suing that person for engaging in offensive speech. On a related note, how about use of the IIED tort to recover for “blasphemy” that is outrageous under current norms of religious tolerance and that causes and is intended to cause serious emotional distress to the believer? The state shouldn’t be able to do indirectly, by way of creation of a private cause of action, what it can’t do directly. 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 hamilto...@aol.com Sent: Wednesday, February 26, 2014 12:48 PM To: religionlaw@lists.ucla.edu Subject: 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. ___ 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
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.
RLPA history for RLUIPA
on religious exercise within the meaning of RFRA (I think the RFRA claims are strong) makes me think that the following blog post, by our colleague Alan Brownstein, is well worth a read and reflection: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html Some on this list have shared their view that ND's claim is implausible, or disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most of us are not sympathetic, even if we are open in principle to religious accommodations. Alan's post - which, as one would expect, is fair, charitable, and thoughtful - is (among other things) an invitation to law-and-religion folks to use the Town of Greece and HHS cases as an occasion to ask ourselves why we sometimes dismiss as insubstantial (or worse) claims of religion-related harm or burdens on religious exercise that we do not understand or that we are not willing to accommodate. I admit: I am probably as mystified by the hostile reactions of those who are mystified by ND's claims (which doesn't mean I think the ultimate question is easy) as they are by those claims. I have long been underwhelmed by the allegations of injury in religious-symbols cases. And, I regard the notion that ND's claims are - in a world where one's irritation at the prospect that, somewhere, a disadvantaged kid is using a voucher to attend a parochial school amounts to a standing-creating wound to conscience - bizarrely outside the realm of possibility (or worse!) as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry Solum would say - highly recommended. Best, Rick Sent from my iPad On Feb 14, 2557 BE, at 3:38 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I know I’ve made this point before, but I still don’t see the difference between the “setting in motion” that is generated by sending in the form and the “setting in motion” that occurs when one pays, under penalty of law, one’s taxes that can then be used for all sorts of immoral purposes according to the tenets of one or another religion. If I didn’t know better, I’d simply describe this claim as “frivolous,” but I do realize that people I respect apparently take it seriously. But isn’t it a recipe for the kind of Scalian anarchy that he warned about in Smith? It is a sad truth that out everyday acts of compliance with the law, including tax law, serves to enable the state to do things we (perhaps justifiably) don’t like. I really don’t see how one can distinguish Notre Dame’s claim from the refusal of a postal worker to deliver mail to an abortion clinic on the grounds that it enables their wicked handiwork. I don’t think Barnette applies to this case, since the kids in that case were being forced to proclaim their allegiance, which they treated as an act of idolatry. And, for what it is worth, the Court was crystal clear in viewing it as a Free Speech, not a freedom of religion, case. From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scot Zentner Sent: Friday, February 14, 2014 3:21 PM To: conlawp...@lists.ucla.edu Subject: RE: Posner on oral advocacy in religion caseesri I am not sure, but is it not the case that ND's precise claim is that the exemption part of the form is not the problem, but the fact that the form is also an instrument that sets in motion the provision of contraceptive services by the third party? So ND's objection is that the employee would not have contraceptives but for the provision of insurance by ND and its signing of the form. Scot Zentner Professor Political Science CSU, San Bernardino From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilton.ma...@gmail.com] Sent: Friday, February 14, 2014 12:46 PM To: Marty Lederman Cc: conlawp...@lists.ucla.edu Subject: Re: Posner on oral advocacy in religion caseesri I don't want to put too fine a point on this, but this entire line of reasoning by ND is utter insanity. The good news is that the religious groups have gotten too clever by half and awakened the women and civil rights groups in the country who did not understand how RFRA operates against the vulnerable. It is, however, the natural end point of the likelihood that believers and institutions would try to exploit RFRA to its absolute maximum limits. Every group/individual is likely to exploit the power they have. That is one of the most important principles the US is built on. But the people, the Constitution, and the state constitutions are supposed to guard against such overreaching. If this is what RFRA requires, it is a violation of the Establishment Clause. All that is left is for someone to claim that their religious
Re: RLPA history for RLUIPA
And under your reading of the Hobby Lobby situation, if the owners of a major residential developer were to believe that contraception is sinful (and therefore there should be more housing for large families than small families), they should be able to use that belief to trump the zoning laws and change the land use plan to make all housing single family rather than multi family? Or let's say we have a developer whose fellow believers believe in having many children for purposes of populating heaven but don't believe in working so as to have more time For religious study, so that developer invokes RLUIPA to change all single family zoning to more affordable multi-family. These hypos are on all 4s w Hobby Lobby--for-profit organization, w owners w specific beliefs, imposing its beliefs on others. Congress did not even understand that the vast majority of the burdens of RLUIPA would be imposed on residential neighborhoods. This scenario was not on the table. Nor should it be as it violates the Establishment Clause. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 21, 2014, at 10:37 AM, Douglas Laycock dlayc...@virginia.edu wrote: Did you really think I don’t know that? There is the Kennedy-Hatch Manager’s Statement on RLUIPA in the Senate, but the great bulk of RLUIPA’s legislative history is the hearings, committee report, and floor debate on RLPA. For-profit land developers are persons under RLUIPA. But they would have to show that they are developing the property for the purpose of religious exercise and that they use or intend to use the property for religious 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 Marci Hamilton Sent: Friday, February 21, 2014 9:16 AM To: Law Religion issues for Law Academics Subject: RLPA history for RLUIPA Doug-- as a point of information-there is no specific RLUIPA history. RLPA history is used. Does the CLS brief argument mean that for-profit land developers w religious owners can use RLUIPA to get around the zoning laws? If not, what is the distinction? Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 15, 2014, at 9:11 AM, Ira Lupu icl...@law.gwu.edu wrote: I too found Alan Brownstein's post, which Rick put up at MOJ and linked in his post here, quite thoughtful and provocative. I am not a Catholic, so I do not feel like I have a basis for judgment about Notre Dame's arguments that rest on ideas of both complicity and scandal (as I understand the latter, which I probably don't, it involves institutional responsibility to avoid active participation in a sinful enterprise). Part of the problem with RFRA, in its incorporation of pre-Smith free exercise principles, is the Thomas v. Review Board doctrine that believers self-declare the religious substantiality of their own burdens. Judges can weigh the secular cost (fines, prison, etc.) of compliance with faith but cannot evaluate the religious cost of complying with the law. On that latter question, believers are judges in their own cause. But I have a deeper problem with Alan's post and Rick's reaction to it. Rick seems to be one who has trouble seeing the burdens of publicly sponsored prayer in Town of Greece, or seeing the problem of public financing of religious education, through vouchers or otherwise. Rick frequently expresses doubt, sometimes tied to ideas of standing, about the injury associated with these practices. With all respect to Rick and Alan, I think the equation of Town of Greece with Hobby Lobby (or Notre Dame) rests on a profound category mistake. The free exercise clause (and RFRA) protects those who believe and practice their faiths (individual and institutional actors). The establishment clause is aimed primarily at polity harms, not injuries to individuals. Judge Calabresi, in Town of Greece, did not focus on coercion of those who attended Town Board meetings; the vice of the prayer practice, he wrote, was that it aligned the Town with Christianity. This would be a constitutional wrong even if every person in the Town was a committed Christian who explicitly consented to the prayers. Our constitutional philosophy includes a commitment that the government will not take on a religious identity -- this protects liberty, yes, but it also protects against the long-term harm to the political community that is generated by government adoption of a religious identity. An analogy might be to the Town giving up democracy and turning over all power to govern
Re: RLPA history for RLUIPA
I disagree. Hobby Lobby is not required to sell arts and crafts. My developer is not required to build anything. He just wants to build what he wants but the govt requires him to do it in certain zones. Hobby Lobby is required to operate its chosen business with restrictions on discrimination against women and on religion. I think it is all 4s. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 21, 2014, at 11:55 AM, Michael Worley mwor...@byulaw.net wrote: I think the hypotheticals Marci poses are much closer to United States v. Lee. The case on all fours with Hobby Lobby would be if the developer was required to build multi-family (or single-family) housing (as opposed to leaving the property vacant) with government funding. On Fri, Feb 21, 2014 at 9:46 AM, Marci Hamilton hamilto...@aol.com wrote: And under your reading of the Hobby Lobby situation, if the owners of a major residential developer were to believe that contraception is sinful (and therefore there should be more housing for large families than small families), they should be able to use that belief to trump the zoning laws and change the land use plan to make all housing single family rather than multi family? Or let's say we have a developer whose fellow believers believe in having many children for purposes of populating heaven but don't believe in working so as to have more time For religious study, so that developer invokes RLUIPA to change all single family zoning to more affordable multi-family. These hypos are on all 4s w Hobby Lobby--for-profit organization, w owners w specific beliefs, imposing its beliefs on others. Congress did not even understand that the vast majority of the burdens of RLUIPA would be imposed on residential neighborhoods. This scenario was not on the table. Nor should it be as it violates the Establishment Clause. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 21, 2014, at 10:37 AM, Douglas Laycock dlayc...@virginia.edu wrote: Did you really think I don’t know that? There is the Kennedy-Hatch Manager’s Statement on RLUIPA in the Senate, but the great bulk of RLUIPA’s legislative history is the hearings, committee report, and floor debate on RLPA. For-profit land developers are persons under RLUIPA. But they would have to show that they are developing the property for the purpose of religious exercise and that they use or intend to use the property for religious 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 Marci Hamilton Sent: Friday, February 21, 2014 9:16 AM To: Law Religion issues for Law Academics Subject: RLPA history for RLUIPA Doug-- as a point of information-there is no specific RLUIPA history. RLPA history is used. Does the CLS brief argument mean that for-profit land developers w religious owners can use RLUIPA to get around the zoning laws? If not, what is the distinction? Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 15, 2014, at 9:11 AM, Ira Lupu icl...@law.gwu.edu wrote: I too found Alan Brownstein's post, which Rick put up at MOJ and linked in his post here, quite thoughtful and provocative. I am not a Catholic, so I do not feel like I have a basis for judgment about Notre Dame's arguments that rest on ideas of both complicity and scandal (as I understand the latter, which I probably don't, it involves institutional responsibility to avoid active participation in a sinful enterprise). Part of the problem with RFRA, in its incorporation of pre-Smith free exercise principles, is the Thomas v. Review Board doctrine that believers self-declare the religious substantiality of their own burdens. Judges can weigh the secular cost (fines, prison, etc.) of compliance with faith but cannot evaluate the religious cost of complying with the law. On that latter question, believers are judges in their own cause. But I have a deeper problem with Alan's post and Rick's reaction to it. Rick seems to be one who has trouble seeing the burdens of publicly sponsored prayer in Town of Greece, or seeing the problem of public financing of religious education, through vouchers or otherwise. Rick frequently expresses doubt, sometimes tied to ideas of standing, about the injury associated with these practices. With all respect to Rick and Alan, I think the equation of Town of Greece with Hobby Lobby
Re: Kansas/Arizona statutes protecting for-profit businesses
It is unconstitutional under Romer v Evans. If they override the veto they are asking to underwrite federal litigation Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 21, 2014, at 10:14 PM, Marty Lederman 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.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.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\ 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.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.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: 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 organizations setting their criteria for membership, as in CLS v. Martinez, is rarely a legitimate business interest. Sex and marital-status discrimination in the ordination of a celibate male clergy is not a business interest. The existing examples at the time were the landlord-tenant cases, all of which involved small landlords. People could envision issues with kosher butchers and Christian bookstores, and with the broad reach of some state civil rights laws. Some state laws prohibit discrimination on the basis of “any lawful off-the-job activity.” Think the church secretary moonlighting in an abortion clinic, or a strip club, or any other business that is lawful but disreputable in the view of some. Same-sex marriage was on the far horizon; I don’t recall anyone thinking about wedding photographers and the like. I believed that as the business grows, it becomes less plausible to view it as a personal extension of the owner. Mrs. Smith with two duplexes may feel morally responsible for every unit, and she may be doing all the work of leasing and maintenance herself. A landlord with multiple apartment complexes is less likely to feel that moral responsibility, and less likely to persuade a court that he does. He certainly does not have to become personally involved with what he considers the immoral use of his property by particular tenants. And as the business grows, the government’s interest grows. I did not envision at the time, and I don’t know that anyone else did, a case like Hobby Lobby. Here the business is large, but it is closely held by devoutly religious and religiously unanimous owners. The government is demanding a decision that must be made at the level of senior management for the entire corporation; in 1998 and 99, people were thinking about issues posed by one customer somewhere, to be dealt
Re: Notre Dame-- where's the complicit participation? Sincerity
Just to clarify for the latecomers and then I will not be returning to this -- My point was not that believers who have failed to live up to their beliefs are vulnerable to a sincerity attack. My point, which is based on multiple polls and my own direct, personal knowledge of many American Catholics, is that many reject the Church's teaching on contraception. They simply don't believe it. That makes Alan's hypo and Mark's analysis off-point. FWIW, I think Marty is correct such inquiries will work themselves out on substantial burden analysis, not sincerity. My interest is the gap between facts, public perception, and doctrine. I have a book deadline and so will not be checking the listserv again for at least a week. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 16, 2014, at 10:07 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I thought there was a great deal of merit in Mark Scarberry's earlier post and I appreciate the distinctions that Marty draws between lack of sincerity and lack of depth and substantiality of religious belief. I have three thoughts. First, since I know very little about Catholic theology or the institutional structure of Catholic institutions such as Notre Dame, let me pose a hypothetical based on religious beliefs and institutional frameworks with which I am more familiar. Let us assume that a small group of Reform Jews lives in a community. Assume further that most of them do not keep Kosher kitchens in their homes. Because they are too small a group to develop a house of worship, they meet in people's homes for services, notwithstanding the lack of Kosher facilities. Later, the group constructs a small building to use as a place of worship. There are limited kitchen facilities. Some attempt is made to adhere to Jewish dietary laws, but it is haphazard at best. Eventually, the community grows to a size that enables it purchase a complex of buildings including both a sanctuary and a social hall. Through a generous donation, it is able to construct a new kitchen in the social hall. The Synagogue Board, most of the directors of which do not keep Kosher homes themselves, agree that the new kitchen should be strictly Kosher. The great majority of members of the congregation also do not keep Kosher homes. The town passes a law that has the incidental effect of requiring the Synagogue's kitchen to violate Jewish dietary laws (I know that is unlikely, but bear with me.) The Synagogue challenges the ordinance under a state RFRA. The town argues the Synagogue's claim should be barred because the history of the congregation and the Synagogue, and the personal conduct of the Board and congregation members, demonstrate either a lack of sincerity or religious convictions of insufficient depth and substantiality to justify any burden of justification on the town. On these facts, should the town be required to justify its law and its refusal to exempt the Synagogue from the law's operation. Second, I think most of us are in various relationships -- with spouses, children, parents, employers, voluntary associations -- which are the source of obligations we take very seriously. I also suspect that many of us would be vulnerable to challenges based on the inconsistency and incoherency of our conduct. If we really cared deeply about our (fill in the blanks) we might be asked, why did we sometimes act in ways that seem contrary to these commitments that we claim to respect, to which we claim to adhere. I think it would be a mistake, however, to leap to quickly to the conclusion that these commitments and obligations lack substantiality or depth. Third, and finally, to go back to the very beginning of the thread in which it was asked -- why do we assume good faith and sincerity on the part of religious individuals and institutional claimants. I suppose one general answer is that we are typically discussing more abstract doctrinal questions and do not know enough about the facts to impugn anyone's integrity. But the more experience based answer, at least for me, is that I presume as a fact that the claimant seeking an exemption is sincere because most of the time it is true. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, February 16, 2014 1:10 PM To: Law Religion issues for Law Academics Subject: Re: Notre Dame-- where's the complicit participation? Sincerity I may have more to say on this point later, but for now this'll have to suffice: First, Doug may be correct that there is no doubt about what the Church's teaching is about the morality of contraception use. But there sure is plenty of doubt, as Eduardo noted, about whether the Church, or Notre Dame, or
Re: Notre Dame-- where's the complicit participation? Sincerity
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 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Sunday, February 16, 2014 3:14 PM To: religionlaw@lists.ucla.edu Subject: 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 ___ 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: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
It looks like the Court told them to do what they said they didn't want to do. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 5:28 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: The Supreme Court today extended the injunction pending appeal in Little Sisters of the Poor case, but with unusual conditions-- see http://religionclause.blogspot.com/2014/01/supreme-court-enjoins-enforcement-of.html ___ 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: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
What exactly is the burden on the Little Sisters again? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 6:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Friday, January 24, 2014 2:45 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Does anyone have a copy of the government-prescribed form that the Court said the Little Sisters didn’t have to use? 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 Marc DeGirolami Sent: Friday, January 24, 2014 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Nope. It looks like the Court told them to send the government a copy of their complaint. From: Marci Hamilton hamilto...@aol.com Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Friday, January 24, 2014 at 5:32 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: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case It looks like the Court told them to do what they said they didn't want to do. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 5:28 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: The Supreme Court today extended the injunction pending appeal in Little Sisters of the Poor case, but with unusual conditions-- see http://religionclause.blogspot.com/2014/01/supreme-court-enjoins-enforcement-of.html ___ 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
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
To follow up on Marty's last point --In the Milwaukee Archdiocese bankruptcy, the AD is arguing that the religious exemptions in the federal bankruptcy code trigger strict scrutiny. I agree w Marty's implicit point -- that makes little sense. Our opening briefs to the 7 th Cir are due on Wed. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 11, 2014, at 7:54 AM, Marty Lederman lederman.ma...@gmail.com wrote: Just a quick point to quibble with the factual premises of the selectivity argument. Plans offered by small business do have to include the relevant preventive services, including -- but hardly limited to -- contraception services. (The services also include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents; specified annual well-woman visits; gestational diabetes screening; HPV DNA testing; testing for sexually transmitted diseases and HIV screening and counseling; breastfeeding support, supplies and counseling; and domestic violence screening and counseling.) Likewise, the so-called grandfathering exception is merely an ordinary phasing in, or timing, provision, which allows a transition period for compliance with several of the Act's requirements until the plans otherwise make one of several specified changes. The employees of such plans will eventually receive the preventive care coverages (not only contraception -- all those listed above). The only real carve-out -- the only one that would result in employees not receiving contraceptive coverage -- is HHS's own exemption for churches and their auxiliaries. And if that religious accommodation is what triggers Lukumi, well . . . On Fri, Jan 10, 2014 at 9:37 PM, James Oleske jole...@lclark.edu wrote: The opening brief for Conestoga Wood Specialties Corp. has been filed, and I believe this may be the first time the Supreme Court has been presented with an argument in a party's merits brief as to the scope of the so-called Sherbert-exception to Smith -- the idea expressed in both Smith and Lukumi that although the Free Exercise Clause does not require religious exemptions to be made from uniform legal obligations, religious exemptions may be required when other exemptions to a law are available. In an article last year, I suggested that there remain at least five major unresolved questions about the selective-exemption rule: 1. What is the purpose of the rule: is it designed to guard against the danger of intentional discrimination or to address the adverse impact on religious minorities of unintentional neglect or indifference? 2. Does the rule only apply when a law allows for ad hoc, individualized exemptions to an obligation (e.g., discretionary excuses under a good cause or necessary standard), or does it also apply when the government makes select categorical exemptions to a law? 3. If the rule applies when categorical exemptions are made, how should courts determine whether an existing categorical exemption to a law is sufficiently analogous to the requested religious exemption to be deemed a relevant comparator? 4. How many comparable categorical exemptions must exist before the selective-exemption rule is triggered by the denial of a religious exemption? 5. What is the appropriate level of judicial scrutiny to be applied once the selective-exemption rule is triggered? Conestoga's positions on questions #2 and #5 are what you would expect. On #2, it argues that the selective-exemption rule extends to situations involving categorical exemptions (in this case, the ACA's exemptions for small businesses and grandfathered plans). On #5, it argues for strict scrutiny (which is what the Court indicated in both Smith and Lukumi applies to individualized-exemption situations). Conestoga's brief does not contain much argument relevant to questions #3 and #4. As for #1, I found the most relevant passage in Conestoga's brief to be quite surprising. Usually, advocates of a broad reading of the selective-exemption rule make a point of contending that the rule is not limited to situations involving the danger of discriminatory intent. Yet, Conestoga's brief quotes a portion of the Third Circuit's decision in Fraternal Order of Police Newark Lodge v. Newark that speaks directly to discriminatory intent and is not usually quoted by advocates of a broad reading of the rule: Providing secular exemptions 'while refusing religious exemptions is sufficiently suggestive of discriminatory intent as to trigger heightened scrutiny under Smith and Lukumi.' Br. at 46 (quoting Newark Lodge at 365). As it turns out, this is the very same
Re: The nonprofit contraception services cases
This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, January 03, 2014 1:42 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else
Re: The nonprofit contraception services cases
Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can
Re: The nonprofit contraception services cases
Is the ND rule students can't use it --or can't get it under student insurance --or can't get it from student health services? Or a combination? It would also be interesting what their policy was before and after the ACA was enacted. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:35 PM, Marty Lederman lederman.ma...@gmail.com wrote: Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.com wrote: And here's a post that (in part) responds to Kevin -- although my principal point is the Little Sisters case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress either to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . or to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, January 03, 2014 1:42 PM To: Law Religion
Re: The nonprofit contraception services cases
This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because
Re: The nonprofit contraception services cases
Ok-- I am confused. Is Derek saying federal funds subsidiz Notre Dame's health care system? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 8:45 PM, Gaubatz, Derek dgaub...@imb.org wrote: It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides.Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires.So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School ___ 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
Re: RFRA's constitutionality
. Jon On 2014-01-04 11:29, Marci Hamilton wrote: Marty-- I apologize for missing this because I think it raises an important distinction. Thanks for raising it. I am saying in part that Smith supports a reading of beyond the judicial ken, but I was basing my argument more on the Court's structural jurisprudence (which Boerne fits squarely into) where the branches (and state vs fed govt) have distinguishable stronger and weaker capacities (which may overlap in some instances). In my view courts legitimately take over the primary legislative role of policy setting (which is what strict scrutiny is) in cases where there is strong suspicion of a constitutional violation, eg, race based distinctions or a law that is not neutral or generally applicable. It is illegitimate for them to take over the legislative role when the law does not create a strong suspicion of a constitutional violation, eg, a neutral, generally applicable law. In the RFRA, RLUIPA cases, we routinely see federal courts answering questions they have no capacity to answer, either from judicial inexperience (land use in particular) or because the parties and rules of evidence and their own institutional restrictions make it impossible to build a record that will yield a well-reasoned or at least informed public policy. If we were in a civil court system, or courts could hold open hearings, or have a free-ranging discussion unrestricted to the parties' facts and agendas, and most importantly. had no case or controversy clause, I might think differently. But I think all of those entrenched features of the federal court system make RFRA and RLUIPA toxic to sound public policy. I do not think that O Centro speaks to this at all and actually Cutter cuts in my direction in my view, because the Court was so careful to explain that the prison provisions apply to the most possible severe deprivations of religious liberty, plainly limited its reasoning to both the Establishment Clause in cases where there is an extreme deprivation and explicitly said it was not addressing the land use side. In addition, J Thomas's concurrence implicitly invites structural or congressional power attacks. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 7:18 PM, Marty Lederman lederman.ma...@gmail.com [2] wrote: See http://www.jstor.org/stable/1073407 [1] Of course, if a statute incorporates a constitutional test that, according to the Court, had required it to do things no article III court could do -- which is one reading of Smith, namely, that application of the Sherbert/Yoder test was beyond the judicial ken -- then the statute is unconstitutional for having borrowed the constitutional test. That was, as I recall, Marci's reading of Smith -- and not an unreasonable reading, given Scalia's rationale. But I think it fair to say that the Court rejected that reading of Smith -- and of the Court's own alleged institutional disability -- in Cutter, and implicitly in O Centro. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton Links: -- [1] http://www.jstor.org/stable/1073407 [2] mailto:lederman.ma...@gmail.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: RFRA's constitutionality
That reality is compounded by the presence of sibling incest and the community's choice to stand behind the boy and expel a girl who tells on the boy. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 5, 2014, at 4:21 PM, Judy Baer j-b...@pols.tamu.edu wrote: Marci, I share your discomfort with Yoder. Martha Nussbaum wrote that the impact of Yoder was worse for Amish girls than for Amish boys, because the boys learned marketable skills and the girls did not. So it was harder for girls to leave the community. Judy Baer Sent from my iPhone On Jan 5, 2014, at 11:41 AM, Marci Hamilton hamilto...@aol.com wrote: Michael-- My answers are interlineated below 1. Congress never debated the contraception mandate as part of Obamacare. Thus the religious right never lost in Congress, I do not think this meets my point. The paid lobbyists for many religious groups watched this statute closely and let their views be known. You don't need a floor debate to lose in Congress. In fact, that describes most legislation. Moreover, if they hadn't been paying attention, that is a political loss in our system. 2. Are there any reports of any women objecting formally? I understand they are the group that you claim are harmed, but surely they could sue and properly bring this issue. In reality, the vast majority of women will either receive coverage or continue to buy ella and Plan B (for-profit cases rarely oppose traditional contraception.) Sandra Fluke will get her contraception-- she's not working for one of the few companies impacted. It makes no sense to risk your job until the courts rule on whether employers have RFRA rights to carve up health plans according to their religious lights. We shall see what is really at stake once the Court rules. 3.The Establishment Clause sheds light on this because the contraception mandate pushes some religions out of a debate that has been very real on the value of contraception. You are assuming contraception helps women, and undoubtedly it helps many. But that is a value judgement, and the administration is using a regulation to try and end a debate on this (as I noted above, without Congress's approval. As a scientific matter, fully supported by many scientists, contraception helps the entire society by reducing health costs, freeing women to choose when to have children (ie, releasing them from biological determination), treating rape victims, and treating many serious illnesses including endometriosis. Those are facts, which are included in the women's health care study which was basis of the contraceptive mandate. 4. There are only about 50 for-profit cases in a nation of hundreds of thousands of for-profit businesses. As of today, the exemption being argued for is extremely narrow, and it is unfair to say this is a vast war on women when this is a lot like Yoder, where few will want this exception. The exemption being requested has no meaningful boundary. The argument applies equally to emergency contraception and blood transfusions. In my view, treatment of a rape victim is as compelling an interest as a blood transfusion (treatment a Jehovah's Witness employer would object to). If these employers win, I expect children's vaccinations are next. Yoder opened the door for the many parents who claim a religious reason not to send their children to school, to the detriment of those children.I am not nearly as sanguine about Yoder as others, because my focus is on the needs of each and every child. Marci On Sun, Jan 5, 2014 at 7:13 AM, Marci Hamilton hamilto...@aol.com wrote: Well-said! The irony w RFRA is that it is a majoritarian statute parading as a minority rights statute. In the US, religious lobbyists are some of our most powerful. Their political purse, will,and power is extraordinary. RFRA plays to their worst instincts by giving them a second, large bite of the apple. As the Hobby Lobby cases illustrate so well: having lost the anti-contraception battle in Congress, and the executive branch, despite their enormous power especially when they band together, individual religious actors can then go into a federal court w a standard designed to hand-tailor the law to each of them. Who are the losers this time? Those traditionally oppressed or ignored, women. Next time it will be children (clergy abuse/ medical neglect/abandonment in polygamous marriages). Or unorganized taxpayers (RLUIPA). Or unpaid creditors (diocesan bankruptcies). It is no answer to say the govt has a compelling interest vis a vis even children, because the least restrictive means invites the uninformed/misinformed judge to carve up the law to the benefit of the believer. Marci Marci A. Hamilton Verkuil
Re: RFRA's constitutionality
Jon-- I do not believe you can separate those realities. The law is just a line drawn around conduct. RFRA and Yoder move that line. When the line is moved, we must ask as a civilized society who is harmed. In the case of Yoder, more Children are harmed with the movement of that line. It is simply a fact. And once again, children and females are the ones who pay the price Same is true for polygamy. Off list topic--Hundreds of social science studies disprove the assumption that child abuse is overreported. Quite the opposite in fact Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 5, 2014, at 5:49 PM, mallamud malla...@camden.rutgers.edu wrote: I have reservations about equating the decision in Yoder with the endorsement of the specific practices that make Judy, Marci and others uncomfortable. A short answer is the same as I would give for polygamy. There are less restrictive means of dealing with the evils than outlawing the legitimate religious aspects of a long-existing community. Allowing exceptions from some child-protective laws (such as school attendance) does not mean not policing abuses. Rather than a freedom of religion question, these concerns raise the issue of how far the state should intrude into domestic life. While we all do not like to see children harmed, what justifies state intrusion raises substantial issues of what it means to live in a free country. I fear that child abuse reporting laws, giving immunity for reporting child abuse, have been abused and certainly give rise to the potential for abuse. But we also have many egalitarian and intentional and utopian communities both religious ! and not based on religion. This this takes me off list and this is really beyond the scope of religion law, I just want to say that I would not judge the wisdom of the decision in Yoder by the fact that one can find abusive practices in Amish communities. Jon On 2014-01-05 16:56, Marci Hamilton wrote: That reality is compounded by the presence of sibling incest and the community's choice to stand behind the boy and expel a girl who tells on the boy. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 5, 2014, at 4:21 PM, Judy Baer j-b...@pols.tamu.edu [16] wrote: Marci, I share your discomfort with Yoder. Martha Nussbaum wrote that the impact of Yoder was worse for Amish girls than for Amish boys, because the boys learned marketable skills and the girls did not. So it was harder for girls to leave the community. Judy Baer Sent from my iPhone On Jan 5, 2014, at 11:41 AM, Marci Hamilton hamilto...@aol.com [13] wrote: Michael-- My answers are interlineated below 1. Congress never debated the contraception mandate as part of Obamacare. Thus the religious right never lost in Congress, I do not think this meets my point. The paid lobbyists for many religious groups watched this statute closely and let their views be known. You don't need a floor debate to lose in Congress. In fact, that describes most legislation. Moreover, if they hadn't been paying attention, that is a political loss in our system. 2. Are there any reports of any women objecting formally? I understand they are the group that you claim are harmed, but surely they could sue and properly bring this issue. In reality, the vast majority of women will either receive coverage or continue to buy ella and Plan B (for-profit cases rarely oppose traditional contraception.) Sandra Fluke will get her contraception-- she's not working for one of the few companies impacted. It makes no sense to risk your job until the courts rule on whether employers have RFRA rights to carve up health plans according to their religious lights. We shall see what is really at stake once the Court rules. 3.The Establishment Cla because the contraception mandate pushes some religions out of a debate that has been very real on the value of contraception. You are assuming contraception helps women, and undoubtedly it helps many. But that is a value judgement, and the administration is using a regulation to try and end a debate on this (as I noted above, without Congress's approval. As a scientific matter, fully suppor cientists, contraception helps the entire society by reducing health costs, freeing women to choose when to have children (ie, releasing them from biological determination), treating rape victims, and treating many serious illnesses including endometriosis. Those are facts, which are included in the women's health care study which was basis of the contraceptive mandate. 4. There are only about 50 for-profit cases in a nation of for-profit businesses. As of today, the exemption being argued for is extremely narrow, and it is unfair
RFRA's constitutionality
Marty-- I apologize for missing this because I think it raises an important distinction. Thanks for raising it. I am saying in part that Smith supports a reading of beyond the judicial ken, but I was basing my argument more on the Court's structural jurisprudence (which Boerne fits squarely into) where the branches (and state vs fed govt) have distinguishable stronger and weaker capacities (which may overlap in some instances). In my view courts legitimately take over the primary legislative role of policy setting (which is what strict scrutiny is) in cases where there is strong suspicion of a constitutional violation, eg, race based distinctions or a law that is not neutral or generally applicable. It is illegitimate for them to take over the legislative role when the law does not create a strong suspicion of a constitutional violation, eg, a neutral, generally applicable law.In the RFRA, RLUIPA cases, we routinely see federal courts answering questions they have no capacity to answer, either from judicial inexperience (land use in particular) or because the parties and rules of evidence and their own institutional restrictions make it impossible to build a record that will yield a well-reasoned or at least informed public policy. If we were in a civil court system, or courts could hold open hearings, or have a free-ranging discussion unrestricted to the parties' facts and agendas, and most importantly. had no case or controversy clause, I might think differently. But I think all of those entrenched features of the federal court system make RFRA and RLUIPA toxic to sound public policy. I do not think that O Centro speaks to this at all and actually Cutter cuts in my direction in my view, because the Court was so careful to explain that the prison provisions apply to the most possible severe deprivations of religious liberty, plainly limited its reasoning to both the Establishment Clause in cases where there is an extreme deprivation and explicitly said it was not addressing the land use side. In addition, J Thomas's concurrence implicitly invites structural or congressional power attacks. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 7:18 PM, Marty Lederman lederman.ma...@gmail.com wrote: See http://www.jstor.org/stable/1073407 Of course, if a statute incorporates a constitutional test that, according to the Court, had required it to do things no article III court could do -- which is one reading of Smith, namely, that application of the Sherbert/Yoder test was beyond the judicial ken -- then the statute is unconstitutional for having borrowed the constitutional test. That was, as I recall, Marci's reading of Smith -- and not an unreasonable reading, given Scalia's rationale. But I think it fair to say that the Court rejected that reading of Smith -- and of the Court's own alleged institutional disability -- in Cutter, and implicitly in O Centro. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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 nonprofit contraception services cases
Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ 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
: courts and lawmaking Subject: Re: courts and lawmaking From: phorw...@hotmail.com Date: Sat, 28 Dec 2013 23:17:10 -0500 To: religionlaw@lists.ucla.edu CC: religionlaw@lists.ucla.edu Although I don't share this orientation, this is certainly an interesting discussion. I'm wondering how New York Times v. Sullivan and Roe v. Wade would fare under this standard, and possibly Baker v. Carr or Miranda. On Dec 28, 2013, at 10:51 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical. You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden, so generally you are talking about cases where the federal courts are engaging in statutory interpretation. As such, they are not making law in the first instance, but rather according to canons of statutory construction. I think you have fundamentally confused the role of the courts with the results of particular decisions. I also think the state and federal courts cannot be equated in terms of their roles, so I am focussing on federal courts. You also have not responded to any of my concrete examples of how courts have gone wrong in religion cases because they lack critical facts where the fact record is manufactured by self-interested parties. Given the incontrovertible record of harm religious entities have inflicted on vulnerable populations, and the fact courts cannot pierce their self-serving crafting of the record in most circumstances, the role of the courts you describe is likely to harm minorities, children, the disabled, and women. Not to mention employees generally in light of Hosanna Tabor (remember employees are almost always vulnerable to employer acts unless protected by statute). For all of these reasons, I am not persuaded that your description of federal court lawmaking is accurate, and I continue to believe that RFRA puts federal courts in a role where they are institutionally incompetent. Their incompetence was clear in the Lochner cases. The religion cases and recent history do not make the courts anymore defensible as policymakers. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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. Links: -- [1] http://sol-reform.com/ [2] https://www.facebook.com/professormarciahamilton?fref=ts [3] https://twitter.com/marci_hamilton ___ 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: courts and lawmaking
Actually Boerne says Congress does not have the power (govts don't have rights) to do whatever it wants for anyone it wants. As does the Establishment Clause, among other limits. Cutter is only an Establishment Clause challenge to the prison side of RLUIPA. the court explicitly does not address the land use side let alone RFRA's broad coverage. Cutter does not address Congress's power. So not on point It is simply a fact that religious entities and believers have a history of harming vulnerable populations. They are humans.Smith and Lukumi protect religion while also protecting the vulnerable. RFRA gives religious believers a hammer against others. Hobby Lobby has extraordinary power as compared to its employees who presumably need the job. But religious entities don't only seek to overcome laws that protect the vulnerable so my reference to the vulnerable was only meant to be an example of RFRA's folly, not a comprehensive explanation of its unintended consequences. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 1:31 PM, Michael Worley mwor...@byulaw.net wrote: The only time RFRA comes into effect at all is when the religion, corporation or individual asserting a RFRA right is also in a minority. In the Hobby Lobby case, the issue is not the individual workers suing (perhaps why the Court shouldn't entertain the Gedicks and Van Tassel theory this time), but a minority religious belief suing. Marci claims RFRA is a means for religious groups to undermine minorities and vulnerable populations, but in reality the government has every right to give these minorities and vulnerable populations every right the government wishes too (hence why RFRA is not an argument used in Windsor, or one that could be used if someone tried to overturn Griswold). The only thing it cannot do is force other individuals to violate their conscience. As Cutter said about RLIUPA, RFRA alleviates exceptional government-created burdens on private religious exercise. In Cutter, we had government officers seeking to nullify RLIUPA by hurting the religious in prison. Likewise, in Hobby Lobby we have government officers seeking to ignore RFRA by enlisting religious believers to assist them by doing what the government was already doing without free exercise issues. On Mon, Dec 30, 2013 at 10:08 AM, Marci Hamilton hamilto...@aol.com wrote: There needs to be more precision in the use of the term rights. RFRA is in fact an attempt by Congress to amend the Free Exercise Clause by simple majority vote. For Congress, Smith was not the final word on the interpretation of free exercise; instead it inserted Yoder as its preferred interpretation, at the behest of political pressure from religious groups and at the time severely misguided civil rights groups who have finally come to their senses and understand that RFRA is a means for religious groups to undermine minorities and vulnerable populations. RFRA employs a constitutional standard of review that references constitutional cases. It is disingenuous to treat it as anything other than it is. As Boerne pointed out in a fn, as an amendment to the First Am, it violates Art V's amendment requirements. If RFRA is, alternatively, a statutory rights statute, the courts have no special role and are simply interpreting congressional intent,which undermines Mark's points in my view. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 12:11 PM, mallamud malla...@camden.rutgers.edu wrote: Mark's point makes sense to me: As is often the case, courts have to do what they can, despite institutional difficulties, to protect rights, whether constitutional or statutory. One important aspect of the division of power between courts and the legislature is that when important decisions do not get made politically, the Supreme Court often can save the day. Brown for example although I prefer to use cases like the Nixon tapes case where the Court made a narrow decision, recognizing an executive privilege subject to an exception for the production of material to the grand jury in a criminal case in which the President is an unindicted coconspirator. But I disagree with Mark on RFRA. I think that Smith was correct and I think that the Congress, driven by political and majoritarian considerations should not try to make constitutional law. Justice Douglas said that it took five years or so for a new Justice to develop an approach to judging. I always understood that to mean that a person comes to the Court with a perspective and understanding honed in particular contexts and that the Court took a unique and different view of things because they saw
Re: courts and lawmaking
legitimate for Congress to authorize federal courts to develop, in common-law-like fashion, religious exemptions to various laws, just as federal courts have long developed, in common-law-like fashion, defenses to criminal laws. 5. I haven’t responded to “concrete examples of how courts have gone wrong in religion cases because they lack critical facts” because that doesn’t tell us what’s constitutional and what’s not. Surely legislatures have often gone wrong in a wide range of cases, including religious exemption cases, because they lack critical facts because they have been lobbied by self-interested lobbyists; but that doesn’t make legislative decisionmaking unconstitutional. Likewise, federal courts’ decisionmaking in antitrust cases, admiralty cases, privilege cases, fair use cases, and more might be said to lack critical facts for similar reasons, but that doesn’t make such judicial decisionmaking unconstitutional. Similarly, legislatures’ letting courts recognize religious exemptions isn’t made unconstitutional by the fact that courts will sometimes err in such recognition. 6. That some Congressionally prescribed allocation of decisionmaking authority is said by some to on balance harm “minorities, children, the disabled, and women” (a position that seems to me far from clear, given that “minorities” includes religious minorities) doesn’t make it constitutionally impermissible. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, December 28, 2013 5:29 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: Re: courts and lawmaking Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical.You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden, so generally you are talking about cases where the federal courts are engaging in statutory interpretation. As such, they are not making law in the first instance, but rather according to canons of statutory construction. I think you have fundamentally confused the role of the courts with the results of particular decisions. I also think the state and federal courts cannot be equated in terms of their roles, so I am focussing on federal courts. You also have not responded to any of my concrete examples of how courts have gone wrong in religion cases because they lack critical facts where the fact record is manufactured by self-interested parties. Given the incontrovertible record of harm religious entities have inflicted on vulnerable populations, and the fact courts cannot pierce their self-serving crafting of the record in most circumstances, the role of the courts you describe is likely to harm minorities, children, the disabled, and women. Not to mention employees generally in light of Hosanna Tabor (remember employees are almost always vulnerable to employer acts unless protected by statute). For all of these reasons, I am not persuaded that your description of federal court lawmaking is accurate, and I continue to believe that RFRA puts federal courts in a role where they are institutionally incompetent. Their incompetence was clear in the Lochner cases. The religion cases and recent history do not make the courts anymore defensible as policymakers. 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. ___ 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
Re: Are large employers really better off dropping health insurance?
The holidays have made it difficult to keep up but I did want to respond to Michael. The notion that the distinguishing of Sherbert and Yoder were pure legal fictions in Smith is unpersuasive.With respect to Sherbert, the Court's reasoning is actually accurate and reflects the Court's understanding of Smith as a case of first impression as the Justice's Conference notes show. The distinguishing of Yoder is unpersuasive but it appears the Court was reinforcing what Yoder was until RFRA -- an outlier. Literally the only case to apply strict scrutiny to a neutral, generally applicable law, with little or no precedential value. Its value is even more questionable today when children's interests would have to be taken into account and, therefore, Douglass's view would likely change the result, especially now that we have strong evidence of the harm done to Amish children by the failure to educate them. All of this matters, because it is my view that RFRA in these cases is as unconstitutional as it was in Boerne. The Court did not limit its reasoning to state law and relied explicitly on separation of powers. Politics, not the Court, transformed Boerne into a decision only relevant to state law.As I have said before, and may have missed either Eugene's or Marty's responses over the holiday, their debate is one the courts are ill-suited to decide. If the Court takes this approach, the mandate cases will be an excellent example of how RFRA turns courts into legislatures and makes them lawmakers (in the tradition actually of the Lochner cases where strict scrutiny was employed to permit the courts to second guess employment laws), without the competence to do so. The problem of course is that the DOJ has failed to attack RFRA's constitutionality but that is, once again, politics, not constitutional analysis. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 4:54 PM, Michael Worley mwor...@byulaw.net wrote: You have a fair point; I'm uncomfortable with Reynolds, but that doesn't mean there weren't less protections for religion pre-incorporation. However, the distinguishing of Yoder and Sherbert (not to mention Cantwell) in Smith is just a legal fiction Scalia made up. The Law Review article by James D. Gordon III Free exercise on the Mountaintop illustrates well the problems with the theory that Smith was right On Wed, Dec 18, 2013 at 2:37 PM, Marci Hamilton hamilto...@aol.com wrote: This reasoning is based on the mythology created around the free exercise clause by the reactions to Smith and the misrepresentations about the doctrine to Congress. It is quite remarkable this many years later so many continue to parrot what is in fact untrue. Yoder was an outlier and Sherbert was not applied outside unemployment. And the Justices thought in those terms during the Term Smith was decided. Now folks may well want a different regime than pre-Smith but it would be refreshing to see at least scholars (if not litigators) accurately discuss the actual doctrine and not the doctrine they prefer. The New York ACA case yesterday including indefensible reasoning on what RFRA is and what the doctrine was before. For example, the court cites to Michael mcConnell's article, for the proposition that mandatory exemptions were common at the time of the framing, a theory the Justices have rejected and Ellis West and Philip Hamburger have shown to be deeply flawed historically. In my own work on liberty vs licentiousness, it is abundantly clear the framers were far closer to the Smith way of reasoning than mandatory accommodation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 9:45 AM, Michael Worley mwor...@byulaw.net wrote: And yet, without some form of heightened scrutiny, the free exercise clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing right (I could make that argument, but I'm not), I'm saying that we have to let judges do this balancing in some way. Otherwise the Free Exercise Clause will become as important as the Ninth Amendment is to contemporary jurisprudence. And Employment Division's principles apply to churches, not just the litigants in this set of cases. There are plenty of 14th Amendment cases (think Brown and subsequent busing cases in lower courts) where judges have acted as super-legislatures. Why? To protect rights! Michael On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton hamilto...@aol.com wrote: This exchange, which shows both Marty and Eugene's high qualifications for public service, underscores how RFRA (and RLUIPA) turn federal courts into super legislatures and violate the separation of powers -- as Boerne ruled. No court in my
Re: courts and lawmaking
Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical.You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden, so generally you are talking about cases where the federal courts are engaging in statutory interpretation. As such, they are not making law in the first instance, but rather according to canons of statutory construction. I think you have fundamentally confused the role of the courts with the results of particular decisions. I also think the state and federal courts cannot be equated in terms of their roles, so I am focussing on federal courts. You also have not responded to any of my concrete examples of how courts have gone wrong in religion cases because they lack critical facts where the fact record is manufactured by self-interested parties. Given the incontrovertible record of harm religious entities have inflicted on vulnerable populations, and the fact courts cannot pierce their self-serving crafting of the record in most circumstances, the role of the courts you describe is likely to harm minorities, children, the disabled, and women. Not to mention employees generally in light of Hosanna Tabor (remember employees are almost always vulnerable to employer acts unless protected by statute). For all of these reasons, I am not persuaded that your description of federal court lawmaking is accurate, and I continue to believe that RFRA puts federal courts in a role where they are institutionally incompetent.Their incompetence was clear in the Lochner cases. The religion cases and recent history do not make the courts anymore defensible as policymakers. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 28, 2013, at 5:53 PM, Volokh, Eugene vol...@law.ucla.edu wrote: But courts have made rules in the past regarding substantive law as well -- what shall be a crime, what shall be a tort, what constitutes a contract, what property rights are recognized, and so on. They continue to make such rules in many areas, less so with regard to substantive criminal law but, in many jurisdictions, as to criminal law defenses. These decisions often involve broad-ranging public policy issues, such as what product liability regime to have, whether to recognize various limitations on duty (such as social host rules), whether the heart balm torts should be abrogated, whether the criminal law necessity defense is recognized, and so on. To be sure, they might err on this, partly because their factfinding sources are more limited, but the legislature can step in to correct those errors. Each branch has its own limitation, but the American tradition is that they have made law together. And this tradition has included the federal courts. It’s true that in diversity cases there is no general federal common law, and that common law crimes were rejected by federal courts long before the penal codes were codified in the states. But in those areas where the federal government has broad authority -- such as admiralty law, federal enclaves, or substantive defenses to federal crimes -- federal courts have unsurprisingly followed much the same path as state courts. I don’t see why legislative authorization to federal courts to engage in such continued decisionmaking -- whether as to judicial practice and procedure (evidence), substantive copyright law (fair use), implicitly as to substantive criminal law defenses, or as to a newly statutory religious objection defense (the best way of viewing RFRA, I think, and analogous to fair use and the criminal law defenses) -- is at all unconstitutional, whether done by state legislatures using state RFRAs or by Congress using the federal RFRA. If Congress or a state legislature doesn’t like a specific exemption granted under a RFRA, it can legislatively exclude that subject from the RFRA, and if it generally doesn’t like judicial decisionmaking under RFRAs, it can repeal the RFRA. But there is no basis, I think, for courts to say that it’s unconstitutional for
Re: Are large employers really better off dropping health insurance?
This exchange, which shows both Marty and Eugene's high qualifications for public service, underscores how RFRA (and RLUIPA) turn federal courts into super legislatures and violate the separation of powers -- as Boerne ruled. No court in my view is institutionally competent to make these assessments and no judge, who is unaccountable to the electorate, should. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 17, 2013, at 9:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The heart of Marty’s argument (I focus for now on item 1 below) is, I think, an empirical claim: Large employers such as Hobby Lobby would be better off just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of [the] enormous cost savings” to compensate employees for the lost coverage, thus keeping the employees happy, and then pocketing the rest of the “enormous cost savings.” (Indeed, if employees grumble over the inconvenience or just the change, the employers can split some of the rest of the enormous cost savings with the employees -- a win-win proposition for employers and employees.) And, if Marty is right, this would be true for employers generally, not just religious employers. We should thus expect a large fraction of savvy employers to take advantage of this option, purely out of respect for Mammon quite regardless of God. But I wonder whether this is empirically likely to be true, given not just the nondeductibility of the tax, but also other factors, such as payroll taxes on the compensation payment to the employees. It’s not surprising that the Justice Department hasn’t made this argument, since the Administration has long argued (unless I’m mistaken) that large employers won’t drop employer-based health insurance. And the Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, likewise took the view that only a tiny percentage of employers would drop their health insurance, because “the legislation leaves in place substantial financial advantages for many people to receive insurance coverage through their employers, and it provides some new incentives for employers to offer insurance coverage to their employees.” Now of course that was in 2011, and perhaps the analysis today would be different. But the CBO’s estimates still give me pause. And if the CBO is right, and large employers generally would lose financially -- rather than gain from capturing some of the “enormous cost savings” -- by dropping health insurance and adequately compensating employees, then I would think Hobby Lobby and others would be in the same position. The mandate, even enforced as a tax, thus would be a substantial burden. Am I mistaken in this? Marty, do you have any pointers to studies that support your sense of the money flows on this, and contradict what I see as the CBO’s view? Eugene Marty writes: 1. On your first point, even if the 4980H(a) tax were the equivalent of a $3000 assessment (because it's paid with after-tax dollars), the average cost for providing health insurance to employees is, as I understand it, closer to $10,000, so the employer would save about $7000 per employee. (In any event, there are no allegations in these cases that HL or CW is significantly differently situated than a typical employer, e.g., that they have a workforce comprised of almost all single employees with no family coverage.) In order to remain competitive for recruiting or retaining most of their employees, the plaintiffs wouldn't have to kick in any extra money in salary, because the employees would have their exchange-purchased plans subsidized by the federal government (both in terms of the cost-savings realized by virtue of the exchanges themselves as well as the government's premium tax credits and cost-sharing reductions. To be sure, some of their more well-compensated employees might have paid less in premiums for the HL plan than they would to purchase a plan on the exchange (maybe -- again, there's no allegation or evidence of that here). But to make up that hypothetical shortfall, and attract those employees, HL need only use some of its enormous cost savings to sweeten their salaries. (This is presumably what the many large employers who do not provide plans will do.) For all these reasons, it is difficult to imagine HL or CW --or, more to the point, the average large employer -- being financially worse off if it pays the assessment. (And again, there's no allegation of facts that would alter that conclusion here, in any event.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Are large employers really better off dropping health insurance?
This reasoning is based on the mythology created around the free exercise clause by the reactions to Smith and the misrepresentations about the doctrine to Congress. It is quite remarkable this many years later so many continue to parrot what is in fact untrue. Yoder was an outlier and Sherbert was not applied outside unemployment. And the Justices thought in those terms during the Term Smith was decided. Now folks may well want a different regime than pre-Smith but it would be refreshing to see at least scholars (if not litigators) accurately discuss the actual doctrine and not the doctrine they prefer. The New York ACA case yesterday including indefensible reasoning on what RFRA is and what the doctrine was before. For example, the court cites to Michael mcConnell's article, for the proposition that mandatory exemptions were common at the time of the framing, a theory the Justices have rejected and Ellis West and Philip Hamburger have shown to be deeply flawed historically. In my own work on liberty vs licentiousness, it is abundantly clear the framers were far closer to the Smith way of reasoning than mandatory accommodation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 18, 2013, at 9:45 AM, Michael Worley mwor...@byulaw.net wrote: And yet, without some form of heightened scrutiny, the free exercise clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing right (I could make that argument, but I'm not), I'm saying that we have to let judges do this balancing in some way. Otherwise the Free Exercise Clause will become as important as the Ninth Amendment is to contemporary jurisprudence. And Employment Division's principles apply to churches, not just the litigants in this set of cases. There are plenty of 14th Amendment cases (think Brown and subsequent busing cases in lower courts) where judges have acted as super-legislatures. Why? To protect rights! Michael On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton hamilto...@aol.com wrote: This exchange, which shows both Marty and Eugene's high qualifications for public service, underscores how RFRA (and RLUIPA) turn federal courts into super legislatures and violate the separation of powers -- as Boerne ruled. No court in my view is institutionally competent to make these assessments and no judge, who is unaccountable to the electorate, should. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 17, 2013, at 9:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The heart of Marty’s argument (I focus for now on item 1 below) is, I think, an empirical claim: Large employers such as Hobby Lobby would be better off just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of [the] enormous cost savings” to compensate employees for the lost coverage, thus keeping the employees happy, and then pocketing the rest of the “enormous cost savings.” (Indeed, if employees grumble over the inconvenience or just the change, the employers can split some of the rest of the enormous cost savings with the employees -- a win-win proposition for employers and employees.) And, if Marty is right, this would be true for employers generally, not just religious employers. We should thus expect a large fraction of savvy employers to take advantage of this option, purely out of respect for Mammon quite regardless of God. But I wonder whether this is empirically likely to be true, given not just the nondeductibility of the tax, but also other factors, such as payroll taxes on the compensation payment to the employees. It’s not surprising that the Justice Department hasn’t made this argument, since the Administration has long argued (unless I’m mistaken) that large employers won’t drop employer-based health insurance. And the Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, likewise took the view that only a tiny percentage of employers would drop their health insurance, because “the legislation leaves in place substantial financial advantages for many people to receive insurance coverage through their employers, and it provides some new incentives for employers to offer insurance coverage to their employees.” Now of course that was in 2011, and perhaps the analysis today would be different. But the CBO’s estimates still give me pause. And if the CBO is right, and large employers generally would lose financially -- rather than gain from capturing some of the “enormous cost savings” -- by dropping health insurance and adequately compensating employees, then I would think Hobby Lobby and others would be in the same position. The mandate, even
Re: The clergy-penitent privilege and burdens on third parties
Richard's point is fair so let me provide some more context that perhaps would be helpful. Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 6, 2013, at 11:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: As I’ve said earlier, I’m sympathetic to Richard’s argument inasmuch as confession is in fact part of a complex (required) sacramental process. But the point is that (I think) that’s relatively unusual, certainly not present, so far as I am aware, in Judaism, for example. Am I correct in believing that the ingestion of peyote was in fact a sacramental aspect of the Native American church? sandy From: religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu [mailto:religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu] On Behalf Of Richard Dougherty Sent: Friday, December 06, 2013 6:09 PM To: Law Religion issues for Law Academics Subject: Re: The clergy-penitent privilege and burdens on third parties I will confess to not having read the state cases, or at least not most of them. But isn't the question whether the privilege is constitutionally required? (Perhaps the fact that it is referred to as a privilege muddies the waters.) If free exercise of religion includes receiving a sacrament, then why is compelling violation of the privilege not a constitutional issue? Indeed, I wonder why a recent discussion suggested stronger free speech claims than free exercise claims; does the First Amendment make that distinction? I have no doubt courts have read it that way, but that's partly why we get distortions of free exercise claims masquerading as free speech claims. Richard Dougherty University of Dallas On Fri, Dec 6, 2013 at 1:17 PM, hamilto...@aol.com wrote: 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
Re: The clergy-penitent privilege and burdens on third parties
In my view, there should be no privilege for criminal acts. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 7, 2013, at 12:12 PM, Richard Dougherty dou...@udallas.edu wrote: I much appreciate Marci's comments. From the point of view of the free exercise of religion, the question for the believer, in my view, is what the effect of the revelation of confidential information is on the soul of the penitent, not what the legal consequences might be. Obviously the state has other concerns, but they need not clash, except at the margins (though that's what really counts). I agree that the fall-out of the abuse crisis in the Catholic Church has seen some try to claim privilege where no legitimate claim of privilege seems to be at stake. The dangers of doing so are multiple -- most importantly, more people are put at risk of future abuse, but it also undermines legitimate claims of privilege, as those entrusted with making judgments about its legitimacy find it harder to distinguish the genuine from the spurious. I'm not convinced that discussions in diocesan chanceries about how to avoid losses in court are part of the free exercise of religion. The abuse crisis in contemporary America (not, of course, confined to the Catholic Church) is painful for what it has done to so many who have suffered, and it has been devastating for the Church. Almost all of what I have seen has nothing to do with Confession or free exercise of religion, though, and here I support Marci's strong view of holding responsible those who have enabled abusers; while this would likely prevent subsequent abuse -- the most important consequence -- it would have the side effect of calling Catholics to abide by their own beliefs. Richard Dougherty University of Dallas On Sat, Dec 7, 2013 at 7:45 AM, Marci Hamilton hamilto...@aol.com wrote: Richard's point is fair so let me provide some more context that perhaps would be helpful. Privileges are concoctions of positive law dealing w what information can be excluded in the judicial process. The confessional privilege is no different than the attorney client privilege or the spousal privilege on that score. Every faith invokes it or tries to to avoid disclosing legally damaging evidence in the judicial process. The RCC and LDS are the most active in lobbying to expand it in the state legislatures. It is always invoked in clergy sex abuse cases and to avoid mandatory reporting of child sex abuse. Courts have had to struggle w the distinction between counseling and confession for salvation purposes, because when laws are violated, the exclusion of relevant evidence is to be avoided. The privilege, depending on the state, belongs to the confessor or confessee and always can be waived but how differs state to state. It is routinely waived if the content is disclosed outside the one-on-one confession. It is also routinely invoked to conceal information that was obtained outside the confessional. It is my view that there should be an exception to it that parallels the attorney client exception for future crimes or fraud. And that it should not be an exception to mandatory reporting of child sex abuse. The privilege is a permissive accommodation that we have learned has a corrosive effect on children, families, churches, and society. Under Smith it is not required and under a RFRA analysis it should not overcome the needs of the judicial process or mandatory reporting laws. I offer these examples to contextualize the discussion. It only matters when it is alleged a law has been broken so that law should be the starting point for discourse. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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
It depends on the state actually. But generally the confession must be for spiritual/salvation purposes Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 5, 2013, at 12:32 PM, Paul Horwitz phorw...@hotmail.com wrote: Is that accurate? It may vary, but I thought the privilege could be claimed for any confidential communication made to a clergy member in his/her professional capacity as a spiritual advisor. The person seeking that counsel need not necessarily be a co-communicant. I don't think this is just hair-splitting. It's not analogous to a statement that men as well as women can seek medical care for pregnancy. On Dec 4, 2013, at 10:56 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Free speech doctrine, for better or worse, presumably protects (almost) everyone. What is distinctive about the “clergy-penitent privilege” is that it protects only a particular subset of people, i.e., those who claim some religious identity, as against secularists who have the same desire to unburden themselves to sympathetic listeners but can’t assume that it is protected in the same way. Aren’t we back to the conundra involving “conscientious objection” and the Seeger and Welch cases. There the Court could adopt Paul Tillich and say that secularists, too, have “ultimate concerns” equivalent to religious commitments. Can one imagine a similar move with regard to clergy privileges? I support such cases as Rosenberger (assuming, at least, one version of the facts in that case, which may or may not be entirely correct) and Widmar v. Vincent on “equality” grounds, i.e., those who are religious should not be selected out for worse treatment than those who are secular. If I can use a facility for meetings of my philosophy club, then I think that others should be free to use the facility for meetings of the “Good News Club.” But it is telling that we’re talking about a “privilege” that is denied to each and every secular person (unless they can afford a shrink, though even there the privilege is significantly more constrained than is the case with a priest), and “equality” arguments go by the boards. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, December 04, 2013 11:35 PM To: Law Religion issues for Law Academics Subject: RE: The clergy-penitent privilege and burdens on third parties Much of free speech law involves protecting speech that burdens third parties; for example, the victims of hate speech suffer emotional distress as do the mourners at funerals tormented by the Westboro Church, and speech that does not quite violate Brandenburg can incite violence. Further, the cost to the public in protecting speech can be extraordinarily high. cities incurred tens of thousands of dollars in police and other costs while trying to maintain order during Operation Rescue protests. Criminal procedure rights can make it more difficult to apprehend and punish people who commit crimes. Property rights can make it more difficult to protect the environment. Rights have always been expensive politcal goods. It is true that the Establishment Clause imposes some constitutional constraints on the costs government may incur or impose on third parties in protecting religious liberty. Arguing that free exercise rights or statutory religious liberty rights should only be protected in situations in which doing so imposes virtually no costs on either the public or third parties, however, would treat religious liberty differently than almost all other rights and dramatically undermine their utility for people attempting to exercise such rights. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Wednesday, December 04, 2013 5:53 PM To: 'Law Religion issues for Law Academics' Subject: RE: The clergy-penitent privilege and burdens on third parties I think Marc’s point is solid and underappreciated. Following up on it, does anyone know of any literature that tries to think about “burdens on third parties” across constitutional rights? We accept such burdens as a matter of course with defamation law, as Marc notes. Yet we also accept them in other contexts. Guns would be one obvious example. But also think of, for example, busing during the Civil Rights Era. White suburban families had to accept busing of their kids to distant and sometimes difficult schools, because desegregation was that important. Or think about abortion: I think the Court was right to hold spousal consent and notification laws unconstitutional, but there are real issues of third-party harms there too. Best, Chris ___ To
Re: Warner v. City of Boca Raton
I find it interesting that Doug concedes in this thread that results in RFRA cases turn on the judge's predilections on religious liberty regardless of the law's language. I have witnessed this lack of neutrality in several cases, most notably the ruling by Judge Randa in the Milwaukee bankruptcy case. (Full disclosure-- I represent the creditors' committee composed mostly of sex abuse victims in that case.) RFRA seems to invite a lack of neutrality despite its language saying the Establishment Clause is to be unaffected. The results as described by Doug and Chris strike me as involving judges who are being encouraged to and who do violate the Establishment Clause and their code of judicial ethics. I am interested in others thoughts on this. I would appreciate no ad hominem responses to these factual observations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 10:46 AM, Douglas Laycock dlayc...@virginia.edu wrote: Michael cites Warner v. Boca Raton, 887 So.2d 1023 (Fla. 2004), as an example of a case where the word “substantially” was critical to the result. And that is what the court says. But it is quite obviously not true. The Florida court read “substantially” to mean that only those practices that were required by a faith were protected by Florida RFRA. The Florida legislature had attempted to specifically negate any such requirement, as the court recognized. The statute defined “exercise of religion” as “an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief.” The Florida court’s interpretation of “substantially burden” negated this definition and read back into the statute a requirement that religious exercise be compulsory to be protected. The statutory definition of religious exercise will never again matter to a Florida RFRA case; only a subset of religious exercise as defined will ever be protected. This opinion is plainly driven not by the word “substantially,” but by the court’s disagreement with the scope of the statute. Full disclosure: I argued the case for the plaintiffs. Here is what the court said about the statutory definition, just before it turned to the meaning of “substantially burden”: “The FRFRA includes several important definitions: * * * (3) “Exercise of religion” means an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief. § 761.02, Fla. Stat. (2003). * * * The protection afforded to the free exercise of religiously motivated activity under the FRFRA is broader than that afforded by the decisions of the United States Supreme Court for two interrelated reasons. First, the FRFRA expands the free exercise right as construed by the Supreme Court in Smith because it reinstates the Court's pre-Smith holdings by applying the compelling interest test to neutral laws of general application. Second, under the FRFRA the definition of protected “exercise of religion” subject to the compelling state interest test includes any act or refusal to act whether or not compelled by or central to a system of religious belief. The legislative history of the FRFRA suggests that in order to state a claim that the government has infringed upon the free exercise of religion, a plaintiff must only establish that the government has placed a substantial burden on a practice motivated by a sincere religious belief.” 887 So.2d at 1031-32 (emphasis in original). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter Sent: Monday, December 02, 2013 8:44 PM To: Law Religion issues for Law Academics; Christopher Lund Cc: Law Religion issues for Law Academics Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The adjective substantial must do some work. For one state case so holding, see Warner v. City of Boca Raton, 807 So. 2d 1023, 1033-1034 (Fla. 2004): Accordingly, we conclude that the narrow definition of substantial burden adopted by the Fourth, Ninth, and Eleventh Circuits is most consistent with the language and intent of the FRFRA. Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. See Mack, 80 F.3d at 1178. We acknowledge that
Re: RFRA, the Establishment Clause, and saving constructions
Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:03 AM, Ira Lupu icl...@law.gwu.edu wrote: I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something that would often have to be done in any event given the large variety of religious views, including nontheistic ones. As to “crackpot philosoph[ies],” “crackpot” religious objections -- including idiosyncratic ones -- are already covered under RFRA. Moreover, since the great majority of Americans consists of religious believers, most philosophical objections can be tied by at least some of the objectors to their religious beliefs, especially since all that is required is sincerity of belief and not the sharing of the belief by a larger group. Yet RFRA has not been terribly burdensome for the government, as best I can tell. Why would allowing similarly crackpot (or noncrackpot) secular philosophical objections to be covered suddenly cause much bigger problems? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, December 03, 2013 7:45 AM To: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions The reason not to construe RFRA to apply to all secular philosophical objectors is that it's just plain crazy as a matter of policy. RFRA (which we would have to rename FRA after such a construction) applies to all of federal law. So this construction would give the holder of every crackpot philosophy about the limited role of government the legal leverage of requiring strict scrutiny as to why he or she should not be exempted from the reach of federal law. (Title VII is only about the employment relation, and the duty of accommodation is limited to de minimis burdens on employers. RFRA, or your FRA, would extend to everything.) So if construction to avoid constitutional doubt is what we are looking for, the only sensible move is to keep the R -- that is what Congress was doing in 1993 -- and to construe RFRA so as to avoid significant third party harms (in this case, to employees). On Mon, Dec 2, 2013 at 11:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate Jim’s argument, and also the arguments that the problem with the exemption isn’t discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.) But as to the point below -- and assuming that a RFRA employer mandate exemption that covers secular conscientious objectors is as constitutional as the conscientious objector draft exemption -- wouldn’t the canon of interpreting statutes to avoid unconstitutionality (even setting aside constitutional “doubt”) be relevant here? It’s true that RFRA generally endorses Sherbert and Yoder and other federal cases, and in the absence of an Establishment Clause objection it might well be interpreted to apply only to religious objectors. But if indeed such an
Re: RFRA, the Establishment Clause, and saving constructions
Religion is in the title. The only testimony supporting it or RLUIPA was by religious folks. Congress had no basis to enact and NEVER would have enacted a law subjecting every law in the country to strict scrutiny triggered by every imaginable belief. That statute is actually irrational. It is a statute and its title is clear. If this is to be its interpretation repeal should not be far behind. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, December 03, 2013 8:14 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: RFRA, the Establishment Clause, and saving constructions Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 3, 2013, at 11:03 AM, Ira Lupu icl...@law.gwu.edu wrote: I'm happy to let others answer the question of why Eugene's FRA would be crazy (and profoundly contrary to the statute Congress enacted in 1993). If Eugene is not persuaded, so be it. On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Why is it so crazy? If, for instance, religious objectors to abortion get exemptions from having to participate in abortion, conscientious secular philosophical objectors would get such exemptions, too. That seems fair, and is indeed the rule both under various abortion-specific conscience clauses and, as I noted, as to Title VII -- which is narrower than RFRA in some ways, but broader in another very important way (since it applies to private employers). Nor has the interpretation of Title VII to which I point been seen by courts as removing the “religious” from “religious accommodation”; it just follows cases such as Welsh in treating deeply held conscientious philosophical beliefs similar to religious beliefs, something
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas 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-
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: 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 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
It has certainly made a difference in RLUIPA cases. I have to say I find it a little hard to believe these cases can be generalized across states given how few there are and how different each state operates procedurally, but I look forward to reading your article and will keep an open mind. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 1:18 PM, Christopher Lund ed9...@wayne.edu wrote: Again I have not seen any evidence that differences in phrasing--burden, substantial burden, restriction on religious liberty,--have caused any differences in result (or even reasoning). If you have examples, I'd love to know about them. If not, it suggests the differences in phrasing don't matter. That's my intuition from the cases I've read. But it may be wrong, and I'd like to know if it is. On Dec 2, 2013, at 12:44 PM, Marci Hamilton hamilto...@aol.com wrote: Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas 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 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
What they had was the reality of politics and the forces arrayed against them. As one said to me, if it doesn't make a difference why try for a constitutional amendment to delete it and fix it permanently? In federal court, substantial burden has been a difficult hurdle for claimants. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:09 PM, Christopher Lund ed9...@wayne.edu wrote: Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--burden, substantial burden, or restriction on religious liberty,--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if I am. But I have seen no evidence that these differences have practical payoff. On Dec 2, 2013, at 1:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: 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/texasreligfreedamdt2013senat ___ 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
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz phorw...@hotmail.com wrote: I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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: Sex discrimination and objections to apparently abortifacent contraceptives
Few quick observations and then my work through of the Title VII and RFRA factors. These employers oppose sterilization, not just medicines. Does that affect Eugene's analysis? Also--Is there a sincerity point to be raised given they are religiously opposed to all contraception but basing these claims on a subset? Does anyone have a site or list of each of the medications each of the various plaintiffs in the ACA cases objects to? what they believe is an abortifacient will not make it medically true. The courts must take their beliefs as sincere (if they are) but not as medical fact. In any event, I think Eugene is missing the discrimination point. The discrimination is based on gender. Women don't have privacy rights against these employers. They have rights against gender and religious discrimination under Title VII. This is gender discrimination. And the only reason is religion which does not fly under Title VII . So the employers lose under Title VII. RFRA kicks in (assuming a for profit co was intended to be covered by RFRA which is far-fetched-- will leave to the side for now the Citizens United issues) No substantial burden. Under settled benefits law, these companies are fiduciaries of their employees' compensation benefits plan. They must manage that plan SOLELY for the benefit of employees. Not providing women these accepted and safe medical treatments hurts individual women and all participants in the plan because it increases overall costs significantly. If the employer has moral or other objections to the benefit plan that would not be in the interest of plan beneficiaries, they are required by law to hand administration to a neutral beneficiary who will oversee the plan in the employees sole interest. That means there is no substantial burden. Assuming they could prove substantial burden, they can't win on compelling interest. Gender discrimination under Title VII obviously serves a compelling interest. There is an added compelling interest in foreclosing violation fiduciary of duties w respect to benefit plans in light of the many contemporary examples of underfunding pension plans. If the law doesn't deter profit-seeking entities from abandoning their fiduciary obligations to their employees' benefit compensation packages the court would be undermining a century of legal developments protecting employees against self-serving employers. LRM also fails because there is no LRM here other than enforcing the discrimination laws and fiduciary laws against for profit cos. congress considered a religious exemption for these companies and rejected it and religious exemptions for fiduciary obligations don't exist and would open a Pandora's box for employees. The court would be acting as a super legislature to wipe out these settled laws for religious employers where 80% are religious believers of some sort. If gender discrimination is ok then race and religion will be too. Happy days for white supremacists and for-profit cos who only want their own believers working near and with them. The RFRA claim loses and women's civil rights are preserved. Gotta get started on Thanksgiving dinner!! Hope everyone has a wonderful day w family and friends! Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 28, 2013, at 1:34 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Though I think the ACA regulations should be seen as substantially burden the plaintiffs’ exercise of religion, I think the strict scrutiny argument is much harder to analyze, and perhaps the government should indeed win under strict scrutiny. And I can see the appeal of the sex discrimination argument. Nonetheless, I wonder how this fits within the Court’s broader abortion jurisprudence. I realize that people (including Justice Ginsburg) have argued that abortion bans should indeed have been viewed as presumptively unconstitutional sex discrimination, but my sense is that there aren’t five votes for that on the Court. After all, under this view any restrictions on abortion (including ones that Justice Kennedy would be prepared to accept as not “undue burdens”) would be presumptively unconstitutional, and subject to near-strict scrutiny. If I’m right, and abortion restrictions aren’t treated as sex discrimination when imposed by the government, would refusals to pay for certain contraceptives – based on the objector’s view that the contraceptives are actually abortifacents – be treated as sex discrimination for RFRA purposes? 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
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Chip-- it might be a standing issue regarding the religious discrimination but I still think it has legs because, eg, a Presbyterian is having her job benefits limited solely according to religion that she doesn't share, in contravention of both economics and health standards. Shaping a compensation package to reflect one religion strikes me as similar the argument raised by the woman who challenges the employer who forbids the wearing of a headscarf. Why doesn't a woman's religious beliefs that require family planning and even abortion particularly where her health and life are implicated have a Title VII claim? How is this different from the woman who demands the right to wear a headscarf on the reasoning of those who back RFRA and expansive religious liberty? On another extremely important pr-- I would also point out that benefits law is relevant here and not yet mentioned by anyone -- employers are under a fiduciary duty to handle their employees health benefits plans solely for the benefit of the employees. If they cannot do so for ethical or other reasons, they must step aside and put the benefits into the hands of a fiduciary who will handle the benefits in the interest of the employees. This attempt to imprint their benefits compensation package according to their religion is a violation of their fiduciary duty. I wonder whether the lawyers for the companies involved or the bishops are advising these companies that they are teeing themselves up for potentially ruinous lawsuits by female employees for breach of fiduciary duty and explicit gender discrimination? On this point-- the least restrictive means is to appoint an outside plan administrator. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Marty- one addition --women will also have to pay for oral contraceptives to stop excessive bleeding, cramps, and hormone- triggered acne. I think this discussion needs to factor in the medical uses beyond contraception for millions of women over the course of their lives. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
I certainly hope they will rely on these statutes which are evidence of (1) the ingrained and ongoing persistence of gender discrimination across society and in private institutions; (2) the need to be vigilant as these hard-fought rights can be compromised at any time; and (3) this religious liberty argument is in fact an argument that necessarily disables women's equality and bodily integrity. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, James Oleske jole...@lclark.edu wrote: There is at least one district court decision upholding the EEOC's view of the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001): Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory. Marty is correct that the government is relying on women's equality, but their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC interpretation, or Erickson in support of the equality interest. In retrospect, that strikes me as a big oversight. But I must admit that I hadn't thought of the argument until one of my seminar students made it in a paper they are writing about Hobby Lobby. On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- -- From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun
Re: Contraception Mandate
This isn't lunch-- it is medical treatment for women. (Contraceptive meds may work against some Catholics' beliefs but they are often taken for non-contraceptive reasons, so the contraception label for this is religio-centric). And women have a civil right against these employers not to be discriminated against on gender or religion. A benefit plan that carves out medical treatment based on the employer's religious beliefs and that only applies to women is discriminatory. Let's say that the employer believes that all women should have their heads covered because of religious belief . Again, discrimination based on religion and gender in violation of Title VII. Or how about an employer who believes women belong in the home taking care of their kids, and therefore scales salary to deincentivize women and drive them from the workplace. ( the answer that these employers wouldn't hire women is a factual dodge, that avoids the legal issue). Same problem Or let's say that a religious company owner learns that an employee had an abortion (which is consistent w her religious beliefs) and fires her for doing what he believes is murder. Discrimination on religion and gender. In each of these cases I think the govt has a compelling interest in protecting women against such discrimination in these workplaces and that there is no less restrictive means than requiring cos covered by Title VII to cover women's health care, period. Given that the woman makes an intervening choice whether to use it, burden on the employer is de minimis. (I know that there is a claim that the very payment for the plan that includes contraception violates beliefs but the question is LRM and this is it) Brad throws in a red herring -- the believer need not choose to have a for-profit company with over 50 employees. Heading up a nonprofit or a smaller company escapes these civil rights. There is no constitutional right to make money and engage in gender and religious discrimination. Having said all that, the problem here is really RFRA, but I have written extensively on its shortcomings and won't belabor the point here. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 26, 2013, at 5:52 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I don’t see that at all. Say the government requires employers to buy lunch for their employees, and a religiously vegetarian employer orders only vegetarian food. I don’t think that somehow constitutes the employer discriminating based on religion against people who don’t share his beliefs. Now say that the government requires employers to buy lunch for their employees, and include meat (since that’s what the government sees as part of a healthy, balanced lunch), but has an exemption for religious employers. I don’t think that would somehow violate the Establishment Clause, on a Thornton theory. Unlike in Thornton, the exemption wouldn’t impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a believer’s action (Amos’s explanation of Thornton). It would simply -- like in Amos or in Cutter, which are indeed relevant for purposes of understanding the boundaries of Thornton -- exempt the employer from a government-imposed requirement, and indeed a requirement that (more so than in Amos) involves a government-imposed burden on the employer’s religious practice. That the employees no longer get a government-mandated benefit does not make the exemption unconstitutional. So I don’t think there’s an Establishment Clause problem with such exemptions, and likewise there wouldn’t be with any such exemption recognized under RFRA. To be sure, this doesn’t tell us whether the exemption should still be denied, on the theory that the denial is necessary to serve a compelling government interest. But that’s a separate question from whether the exemption would be outright unconstitutional. Eugene Marci wrote: 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). ___ 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: Contraception Mandate
There is nothing in title VII that governs all of the companies involved here that involves food, lunch, or children. These issues are about adult women employees who are protected by Title VII from employers who make religion a prerequisite to employment or who, in my view, craft benefits and/or salaries based on religion or gender. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 26, 2013, at 6:59 PM, Michael Worley mwor...@byulaw.net wrote: Obviously, I'm not degrading the interest in contraception; I just think saying this isn't lunch is a weird thing to say given the importance of food. On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley mwor...@byulaw.net wrote: Marci-- Would you think that a mandate that all (private, for-profit) schools buy lunch for their students be more compelling than this case? In both cases, the third parties can buy food or contraception outside of the employer/school relationship? You say This isn't lunch-- it is medical treatment for women. In essence, which is more essential-- free food or free contraception? Michael On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton hamilto...@aol.com wrote: This isn't lunch-- it is medical treatment for women. (Contraceptive meds may work against some Catholics' beliefs but they are often taken for non-contraceptive reasons, so the contraception label for this is religio-centric). And women have a civil right against these employers not to be discriminated against on gender or religion. A benefit plan that carves out medical treatment based on the employer's religious beliefs and that only applies to women is discriminatory. Let's say that the employer believes that all women should have their heads covered because of religious belief . Again, discrimination based on religion and gender in violation of Title VII. Or how about an employer who believes women belong in the home taking care of their kids, and therefore scales salary to deincentivize women and drive them from the workplace. ( the answer that these employers wouldn't hire women is a factual dodge, that avoids the legal issue). Same problem Or let's say that a religious company owner learns that an employee had an abortion (which is consistent w her religious beliefs) and fires her for doing what he believes is murder. Discrimination on religion and gender. In each of these cases I think the govt has a compelling interest in protecting women against such discrimination in these workplaces and that there is no less restrictive means than requiring cos covered by Title VII to cover women's health care, period. Given that the woman makes an intervening choice whether to use it, burden on the employer is de minimis. (I know that there is a claim that the very payment for the plan that includes contraception violates beliefs but the question is LRM and this is it) Brad throws in a red herring -- the believer need not choose to have a for-profit company with over 50 employees. Heading up a nonprofit or a smaller company escapes these civil rights. There is no constitutional right to make money and engage in gender and religious discrimination. Having said all that, the problem here is really RFRA, but I have written extensively on its shortcomings and won't belabor the point here. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 26, 2013, at 5:52 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I don’t see that at all. Say the government requires employers to buy lunch for their employees, and a religiously vegetarian employer orders only vegetarian food. I don’t think that somehow constitutes the employer discriminating based on religion against people who don’t share his beliefs. Now say that the government requires employers to buy lunch for their employees, and include meat (since that’s what the government sees as part of a healthy, balanced lunch), but has an exemption for religious employers. I don’t think that would somehow violate the Establishment Clause, on a Thornton theory. Unlike in Thornton, the exemption wouldn’t impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a believer’s action (Amos’s explanation of Thornton). It would simply -- like in Amos or in Cutter, which are indeed relevant for purposes of understanding the boundaries of Thornton -- exempt the employer from a government-imposed requirement, and indeed a requirement that (more so than in Amos) involves a government-imposed burden on the employer’s religious practice. That the employees no longer get a government-mandated benefit does not make the exemption unconstitutional
Re: A right not to be compelled to create expression?
Point of law-- Most freelancers are subject to work for hire agreements that divest copyright and make the purchaser the owner of the speech for all purposes. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some selectivity. (Indeed, Huguenin says that there are other photography commissions she won’t take, such as for pornography, horror films, and the like, though chances are that she won’t even be approached for them in the first place. Conversely, my sense is that many freelance writers who offer to hire themselves out to the public will take the great majority of jobs that come their way, even though they too would draw the line somewhere.) So I can’t see how such freelance writers would be immune. But in any event, even if a freelance writer or photographer is unselective, I can’t see how that person’s expression isn’t “her own.” To be sure, the public might not see an unselective photographer’s/writer’s speech as equally expressing her own ideology. But the writer or photographer would still be creating the expression herself, using her own artistic and literary creative judgment. The question, then, is: Should people have a right not to be compelled to create expression they think is wrong, just as they have a right not to be compelled to distribute expression they think is wrong? It seems to me that the logic of Wooley should extend equally to both rights. If Maynard can’t be required to carry the motto “Live Free or Die” on his car, then a Maynard who is a generally will-take-most-commissions freelance writer can’t be required to write a press release or organizational newsletter that expresses the view “Scientology is good.” Indeed, the requirement to actually create expression seems much more burdensome than simply the requirement to carry a slogan on one’s car. Finally, note that the New Mexico Supreme Court expressly disclaimed any argument that mere wedding photography is just too banal to be expressive for purposes of this analysis (not that Eduardo so argued below, but I’ve seen that argument elsewhere). “This determination [that Elane Photography is subject to the public accommodations law] has no relation to the artistic merit of photographs produced by Elane Photography. If Annie Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, they would be subject to the provisions of the NMHRA.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo Sent: Friday, August 23, 2013 12:23 AM To: Law Religion issues for Law Academics Subject: Re: New Mexico decision and other First Amendment expression It seems to me, the more selective they are, (1) the less likely they are covered by the statute (the predicate for the 1A claim) and (2) the more the speech is their own (which does seem relevant to a compelled speech claim). On Aug 22, 2013, at 11:23 PM, Volokh, Eugene vol...@law.ucla.edu wrote: My sense is that many freelance writers are indeed pretty unselective. But, in any event, why should the writer’s or photographer’s selectivity or unselectivity affect the First Amendment compelled speech analysis? I would think that a freelance writer who picks and chooses – but absolutely refuses to write things for the Church of Scientology – and the freelance writer who takes 99% of his commissions but thinks that the Church of Scientology is just beyond the pale should have the same First Amendment rights not to create expression that they think is wrong (or maybe that they think is just too far wrong). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo Sent: Thursday, August 22, 2013 9:05 PM To: Law Religion issues for Law Academics Subject: Re: New Mexico decision and other First Amendment expression Not necessarily. I don't think your hypothetical writer would necessarily count as having held himself out as open to the public to ply his trade as you've described it. That is, I don't think that advertising by itself would be enough
Re: A right not to be compelled to create expression?
I advise such all the time. Those conditions are almost always met. Freelancers of all sorts are treated terribly by the copyright system. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 4:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, August 24, 2013 10:26 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Point of law-- Most freelancers are subject to work for hire agreements that divest copyright and make the purchaser the owner of the speech for all purposes. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some selectivity. (Indeed, Huguenin says that there are other photography commissions she won’t take, such as for pornography, horror films, and the like, though chances are that she won’t even be approached for them in the first place. Conversely, my sense is that many freelance writers who offer to hire themselves out to the public will take the great majority of jobs that come their way, even though they too would draw the line somewhere.) So I can’t see how such freelance writers would be immune. But in any event, even if a freelance writer or photographer is unselective, I can’t see how that person’s expression isn’t “her own.” To be sure, the public might not see an unselective photographer’s/writer’s speech as equally expressing her own ideology. But the writer or photographer would still be creating the expression herself, using her own artistic and literary creative judgment. The question, then, is: Should people have a right not to be compelled to create expression they think is wrong, just as they have a right not to be compelled to distribute expression they think is wrong? It seems to me that the logic of Wooley should extend equally to both rights. If Maynard can’t be required to carry the motto “Live Free or Die” on his car, then a Maynard who is a generally will-take-most-commissions freelance writer can’t be required to write a press release or organizational newsletter that expresses the view “Scientology is good.” Indeed, the requirement to actually create expression seems much more burdensome than simply the requirement to carry a slogan on one’s car. Finally, note that the New Mexico Supreme Court expressly disclaimed any argument that mere wedding photography is just too banal to be expressive for purposes of this analysis (not that Eduardo so argued below, but I’ve seen
Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
Wedding photography is speech for money, and a lot of it. The photographer who depicts the wedding in a non- joyous manner is not going to get paid, is going to receive terrible reviews online, and even be boycotted. She or he will find themselves with no wedding jobs. The photographer who shows up unhired (to express himself) to depict the wedding negatively is trespassing, and the Fred Phelps of weddings. The fact they are not making the big money is because they engage in invidious discrimination. I understand these times are difficult for those who are having to adjust to the civil rights of homosexuals, but adjust they must. They have lost the war on all fronts --medical, moral, and public policy It isn't remotely compelled speech. It is a chosen career. The photographer of today in New Mexico who objects to same-sex wedding jobs is identical to the photographer after Loving objecting to mixed race marriages. Out of luck. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 23, 2013, at 2:47 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: To follow up on Will's point, would the photographers violate the law, or the contract the law requires them to make, if they did not attempt to portray the wedding as a joyous celebration? I presume they would at least violate the implied terms of the contract that is forced upon them. If so, then the law is not just requiring artists (and wedding photographers are artists) to create art with a particular content, but also requiring them to express a viewpoint that is not theirs. It is puzzling to me, and disheartening, that list members do not seem to think that this is coerced speech. Of course the auto mechanic's work is not generally expressive -- almost never even rising to the level of symbolic speech. A photographer creates art; the photographer's work is inherently, traditionally, and (in the case of a wedding photographer) inescapably expression, fully protected, except, it seems, in New Mexico, by the First Amendment. Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone ___ 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: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
And if the NYT refused to include same- sex couples in its wedding section, it would be sued. Or mixed race couples. Or to sell to same-sex couples. Except for the narrow issue in Hosanna Tabor, First Amendment rights do not immunize you from the civil rights laws. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 23, 2013, at 4:07 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course it's also very clear that getting paid for your expressive efforts doesn't reduce the level of 1st Am protection you are entitled to. The NY Times, for example, still sells a few papers, and they charge for on-line access, too, as my monthly credit card statement attests. Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Brad Pardee bp51...@windstream.net Date: 08/23/2013 12:44 AM (GMT-08:00) To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Subject: RE: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays We may have to agree to disagree on the role of the wedding photographer. My wife and I both considered the wedding photographs to be part and parcel of the event and the photographer to be a member of the wedding party who was most assuredly there to celebrate with us. We would not have chosen a photographer who would not see their role that way. The same would be true of the wedding planner, who is also providing a service for a fee. I have not the faintest idea what you are talking about with regards to the nature landscape or wildlife photographers or how that ties in to the subject at hand. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Friday, August 23, 2013 2:28 AM To: Law Religion issues for Law Academics Subject: Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays On Aug 22, 2013, at Thu, Aug 22, 9:06 PM, Brad Pardee bp51...@windstream.net wrote: This is not correct. The issue is neither the customers' identity or the free market. It is about the merchant being required to participate in events that they cannot participate in by virtue of the tenets of thier faith in order to engage in commerce. Speaking as a photographer (although not a wedding photographer) you are not participating in the wedding. You are providing a service for a fee. A participant is a member of the wedding party. You are not there to celebrate, you are there to do a job. A photographer isn't standing there with a drink in one hand, and a piece of cake in the other. A photographer has a light meter in one hand, and a cable release in the other. Eventually, the photographer has their hand out for the check. Wedding photography is a business. If you are constrained by your religion to refuse to do business based on sexual orientation, that is discrimination. That's against the law. BTW, I know of no nature/landscape/wildlife photogs who refuse to do their job because trees have orgies in the spring, mountains refuse to multiply and be fruitful, or swans are known to engage in lifelong same sex pairings. ___ 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: New Mexico decision and other First Amendment expression
Where is the potential civil rights violation in this hypothetical? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 23, 2013, at 8:45 AM, Michael Worley mwor...@byulaw.net wrote: Are people who support the decision in New Mexico also willing to support a law forcing photographers who object to war to take pictures of army battle drills if hired by a government contractor? If not, what is the difference? On Thu, Aug 22, 2013 at 10:20 PM, Volokh, Eugene vol...@law.ucla.edu wrote: My sense is that many freelance writers are indeed pretty unselective. But, in any event, why should the writer’s or photographer’s selectivity or unselectivity affect the First Amendment compelled speech analysis? I would think that a freelance writer who picks and chooses – but absolutely refuses to write things for the Church of Scientology – and the freelance writer who takes 99% of his commissions but thinks that the Church of Scientology is just beyond the pale should have the same First Amendment rights not to create expression that they think is wrong (or maybe that they think is just too far wrong). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo Sent: Thursday, August 22, 2013 9:05 PM To: Law Religion issues for Law Academics Subject: Re: New Mexico decision and other First Amendment expression Not necessarily. I don't think your hypothetical writer would necessarily count as having held himself out as open to the public to ply his trade as you've described it. That is, I don't think that advertising by itself would be enough to count as holding oneself out. Here, the photographer did just that - held herself out as open to all comers (except the disfavored group) at a price. Apart from same sex couples, there's nothing in the opinion suggesting much selectivity in her business model. Her holding out was an essential premise underlying the court's decision. She did not contest her status as a public accommodation, after all. On Aug 22, 2013, at 10:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: A quick question, focusing on the compelled speech side of the issue rather than just the RFRA side. The court’s logic isn’t limited to sexual orientation discrimination (as opposed to other kinds of discrimination) or to photographers (as opposed to other creators of protected expression). Say that a freelance writer, who advertises himself to the public at large, is asked by the Church of Scientology (or the LDS Church or any other religious group) to write promotional material for it. He says no: He refuses to create speech that he views as being factually or morally false, for instance by glorifying as right, worthy, holy, or beautiful that which he believes is morally corrupt. Following Solzhenitsyn, he wants to “Live Not by Lies” – to “not write, not sign, not print through any means even a single phrase that distorts, in his opinion, the truth,” to not, “in painting, sculpture, photography, music, or through technological means” “depict, accompany, or retransmit even a single lying thought, not a single distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s “Live Not by Lies” essay). The Scientologists then sue him for his discriminating against them based on religion. Am I right in thinking that, under the New Mexico Supreme Court’s reasoning, requiring him to pay damages would be seen as constitutionally permissible, and as not being an unconstitutional speech compulsion? If so, is that a constitutionally sound result? 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. -- Michael Worley BYU Law School, Class of 2014 ___ To post, send message to
Re: New Mexico decision and other First Amendment expression
Let me clarify: the issue in New Mexico is a conflict between the civil rights of same sex couples and for-profit photographers who hold themselves out as a public accommodation.The govt does not have civil rights. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 23, 2013, at 8:45 AM, Michael Worley mwor...@byulaw.net wrote: Are people who support the decision in New Mexico also willing to support a law forcing photographers who object to war to take pictures of army battle drills if hired by a government contractor? If not, what is the difference? On Thu, Aug 22, 2013 at 10:20 PM, Volokh, Eugene vol...@law.ucla.edu wrote: My sense is that many freelance writers are indeed pretty unselective. But, in any event, why should the writer’s or photographer’s selectivity or unselectivity affect the First Amendment compelled speech analysis? I would think that a freelance writer who picks and chooses – but absolutely refuses to write things for the Church of Scientology – and the freelance writer who takes 99% of his commissions but thinks that the Church of Scientology is just beyond the pale should have the same First Amendment rights not to create expression that they think is wrong (or maybe that they think is just too far wrong). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo Sent: Thursday, August 22, 2013 9:05 PM To: Law Religion issues for Law Academics Subject: Re: New Mexico decision and other First Amendment expression Not necessarily. I don't think your hypothetical writer would necessarily count as having held himself out as open to the public to ply his trade as you've described it. That is, I don't think that advertising by itself would be enough to count as holding oneself out. Here, the photographer did just that - held herself out as open to all comers (except the disfavored group) at a price. Apart from same sex couples, there's nothing in the opinion suggesting much selectivity in her business model. Her holding out was an essential premise underlying the court's decision. She did not contest her status as a public accommodation, after all. On Aug 22, 2013, at 10:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: A quick question, focusing on the compelled speech side of the issue rather than just the RFRA side. The court’s logic isn’t limited to sexual orientation discrimination (as opposed to other kinds of discrimination) or to photographers (as opposed to other creators of protected expression). Say that a freelance writer, who advertises himself to the public at large, is asked by the Church of Scientology (or the LDS Church or any other religious group) to write promotional material for it. He says no: He refuses to create speech that he views as being factually or morally false, for instance by glorifying as right, worthy, holy, or beautiful that which he believes is morally corrupt. Following Solzhenitsyn, he wants to “Live Not by Lies” – to “not write, not sign, not print through any means even a single phrase that distorts, in his opinion, the truth,” to not, “in painting, sculpture, photography, music, or through technological means” “depict, accompany, or retransmit even a single lying thought, not a single distortion of the truth, that he recognizes” (quotes are from Solzhenitsyn’s “Live Not by Lies” essay). The Scientologists then sue him for his discriminating against them based on religion. Am I right in thinking that, under the New Mexico Supreme Court’s reasoning, requiring him to pay damages would be seen as constitutionally permissible, and as not being an unconstitutional speech compulsion? If so, is that a constitutionally sound result? 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: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
That's right, Brad, if you want to have a for-profit company in a free market economy, you shouldn't be able to choose your customers based on race, gender, sexual orientation, or religion. Isn't that how the market works best-- being fueled by products and price, rather than purchaser's or seller's identity? The market driven by religion that Hobby Lobby and Elane's Photography would like to occupy is driven by identity, not the fair market. A Christian Scientist can't be a doctor. If you can't fulfill the obligations of a trade due to your religious beliefs, you can't. That is not an infringement of liberty by the state; it is an infringement of liberty by the religious belief/organization. No constitutional violation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 22, 2013, at 10:36 PM, Brad Pardee bp51...@windstream.net wrote: The problem with this rationale is that the religious liberty issue is about being forced to be an active participant in a specific event. If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination. But a wedding photographer is an active member of the wedding party and an active participant in the wedding activities. The parallel to a wedding between people of different races is flawed because discriminating against people whose skin is a different color makes no more sense than discriminating between people whose hair is a different color or whose eyes are a different color. The difference between males and females, however is quite substantive and not merely a matter of appearance. It's the same situation as in the recent story out of Oregon where the state Attorney General is investigating a bakery that would not make a wedding cake for a lesbian couple. Unless the bakery refused to sell cookies, pies, other cakes, etc. to homosexuals, there might be a question of discrimination. But, much like the wedding photographer, the bakery that provides the wedding cake is an active participant in the wedding activities. We have now established that, if your faith does not allow you to be a participant in a same-sex wedding, you are not permitted to be a wedding photographer for anybody. You are not permitted to bake wedding cakes for anybody. We had a lengthy discussion here some time back about a woman who was, if I recall correctly, kicked out of a graduate psychology program because of what her faith teaches on the subject of sexual orientation. And this is what passes for religious freedom in today's climate. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sent: Thursday, August 22, 2013 2:28 PM To: religionlaw@lists.ucla.edu Subject: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays Jonathan Higbee | August 22, 2013 The New Mexico state Supreme Court has ruled against a photography business that refused to photograph a gay couple's commitment ceremony because THE BIBLE. Advertisement From an ACLU press release: The New Mexico Supreme Court ruled today that Elane Photography illegally discriminated against a same-sex couple by refusing to photograph their commitment ceremony due to the business owner’s religious beliefs. The opinion stated: “We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races.” “When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs,” said Louise Melling, deputy legal director of the American Civil Liberties Union. “The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people.” - See more at: http://instinctmagazine.com/post/new-mexico-supreme-court-rules-against-wedding-photographer-who-discriminated-against-gays#sthash.NqCIsH37.dpuf 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
Re: New Twist On Challenge to ACA Contraceptive Mandate
The pill is widely prescribed for serious medical problems as I delineated earlier. And the decision of when to have children is not remotely limited to pleasure. The govt has a compelling interest in ensuring the maximal availability of birth control for these medical reasons and to shore up the right of women to choose. The govt also has a compelling interest in treating men and women equally. There is a strong argument by women that a health care system that does not include reproductive health care is discriminating against women. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 18, 2013, at 12:54 PM, mallamud malla...@camden.rutgers.edu wrote: Marci, I have trouble seeing the compelling nature in the government's interest to provide contraception. The cost is too low, and basically, contraception allows for pleasure and the enhancement of interpersonal relationships. The health justification comes closer, but compared to the provision of needles for drug use (I do not know if that is a compelling interest), there is certainly not generally addiction involved. Even with abortion, government does not need to fund it--the compelling interest is in not making it illegal. Jon On 2013-08-17 10:57, Marci Hamilton wrote: I agree w Chip and Jim on the baseline issue, but also the previous point about the point of the Religion Clauses is not just rights for the believer but also the path to peace in a diverse religious culture. Lee and Bowen v Roy stand for the proposition that if one chooses to employ or to take advantage of govt benefits, the Free Exercise Clause does not provide a way out of the obligations that come w the voluntary decision made by the believer. RFRA opens a door for believers to get past these sensible decisions, but I do not think that even if the parent who voluntarily chooses to cover his children over the age of majority could prove substantial burden, the govt does have a compelling interest in giving women the most realistic opportunity to choose for themselves whether to use contraception for any reason and to make sure those choices are as unhindered as men's decisions to pursue their own choices. The women are being protected by the govt from coercion by employers and parents. The govt also has a compelling interest in keeping health care costs under control. Chip mentions unwanted pregnancy; I mentioned some of the medical reasons reproductive health services are needed, which can affect GDP if untreated. And finally, there is the govt's legitimate compelling interest in ensuring the health care system does not discriminate on the basis of gender or religion and does enable women's choices. There is no less restrictive means of giving each woman her own choice regarding reproductive health than giving her a choice. The abortion decisions to date have all been about what the state can do to restrict women's rights. But those restrictions are not constitutionally required. Just because the government is not required to pay for reproductive health care does not mean the govt does not have a compelling interest in providing it. This is a new scenario where the govt is on the side of women and reproductive rights, which entails new ways of thinking. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 17, 2013, at 8:54 AM, James Oleske jole...@lclark.edu [8] wrote: Eugene, No federal or state law required the Amish farmer in Lee to employ workers, but once he made that choice, the Supreme Court used the federal requirements governing employment benefits as the baseline for evaluating externalities (Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.). Likewise, although no federal or state law requires parents to put their adult children on their insurance, once they make that choice, the argument is that federal requirements governing health benefits should be used as the baseline for evaluating externalities. Of course, it's certainly possible to argue that the baseline should be set in a different place in parent/adult-child context than in the employer/employee context, or in the health insurance context than the employment context, but I think Chip is right that -- wherever one ultimately comes out -- this is a classic baseline problem. - Jim Jim Oleske Lewis Clark Law School SSRN Page: http://ssrn.com/author=357864 [3] Faculty Page: http://law.lclark.edu/faculty/james_oleske/ [4] On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene vol...@law.ucla.edu [5] wrote: But wait: How can you read ACA as setting a baseline that _the parents _should guarantee their adult children a full
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
Thanks, Ellis, for your valuable post. Let's also add that the framing generation understood and articulated a distinction between liberty and licentiousness, as I have written before. And set a boundary on religious liberty of safety and the public good. Indeed, pastors preached abiding by the law from the pulpit. The principle was ordered liberty from the beginning, not what I have come to think of as narcissistic liberty, which is that liberty that is supposed to be judged only from the inside of the believer's head and world view and fails to take truly seriously the culture's, third-party, and historical limits. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 16, 2013, at 3:54 PM, West, Ellis ew...@richmond.edu wrote: I fear that many of you will think I am pompous, if not arrogant, in saying what follows, but I feel compelled to respond to Brad Pardee's post. For years now, I have been reading all the posts on this blog, most of which have dealt with the issue of when, on the basis of religious liberty, persons have a right to be exempt from having to obey valid secular that persons generally have to obey. Recently, I find myself just shaking my head, because the debate goes on and on, and will continue to do so, because there is simply no clear answer to the question. The sad thing about the debate is that as it has been structured, it is so unnecessary. Of course, if legislatures want to exempt certain persons from certain laws on the basis of certain criteria, that is their prerogative. The debate on this blog, however, has been based on the assumption that religious freedom, at least under certain circumstances, gives persons a right to be exempt from obeying valid civil laws. More specifically, too many entries assume, along with Brad, that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government and [t]hat's certainly at the heart of free exercise. If, however, Brad is referring to the free exercise of religion guaranteed in the First Amendment, then his understanding of religious freedom is way off base. Based on a thorough review of the historical evidence, I am finishing a book on the original meaning of the free exercise clause, and I have yet to find any early American advocate of religious liberty, except for some Quakers, who understood it as meaning that persons could not be forced to choose between obeying their God and obeying their government. (There may be such persons, but I have not found them.) The issue of religion-based exemptions from valid laws was simply not on their minds, and they did not address it explicitly. Rather the all-consuming issue was that of establishments of religion, and freedom of religion meant freedom from such establishments and all laws associated with them, i.e., freedom from laws whose primary purpose was to favor one religion, religious belief or practice, over another or to discriminate for and against persons because of their religion. Stated differently, the no establishment and free exercise clauses were simply two different ways of saying the same thing. To the extent that early Americans implicitly addressed the issue, they emphasized that religion could not be used as an excuse for obeying valid civil laws. Only some Quakers would have agreed with Brad's understanding of religious freedom, but as I showed years ago in an article in the Journal of Law and Religion, when they attempted to get Pennsylvania to add a provision to its constitution that would reflect their understanding, it was rejected. Finally, contrary to what Brad says, the philosophy behind religious freedom is not the same as the philosophy behind conscientious objection. The former pertains to what the government should not do, whereas the latter pertains to whether an individual should follow his conscience regardless of what others, including the government, may do to him or her. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee Sent: Friday, August 16, 2013 2:36 PM To: 'Law Religion issues for Law Academics' Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate) I'm not certain that this is a correct understanding of the purpose of freedom of religion. It's always been my understanding that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government. That's certainly at the heart of free exercise, where the government ought not to have a blank check to
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
But if you take the restoration part of RFRA seriously, Lee and Bowen are the lead cases in these scenarios. I don't think you can have it both ways that RFRA restores the prior case law and it requires radical new ways of reasoning w respect to large federal or state administrative programs. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 16, 2013, at 4:21 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I agree with Ellis that the Free Exercise Clause shouldn't generally be read as mandating religious exemptions. But the debate these days (at least on this blog) is usually not about the Free Exercise Clause but about RFRAs, which do involve legislatively created exemptions (albeit ones created in bulk rather than on a statute-by-state basis). The ACA debate is mostly about the federal RFRA. The Missouri legislator would, I assume, be claiming the protection of the Missouri RFRA. And those statutes do seem to take the view that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government and [t]hat's certainly at the heart of free exercise” as secured by the statutes, if not by the federal Free Exercise Clause. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Friday, August 16, 2013 12:55 PM To: Law Religion issues for Law Academics Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate) I fear that many of you will think I am pompous, if not arrogant, in saying what follows, but I feel compelled to respond to Brad Pardee's post. For years now, I have been reading all the posts on this blog, most of which have dealt with the issue of when, on the basis of religious liberty, persons have a right to be exempt from having to obey valid secular that persons generally have to obey. Recently, I find myself just shaking my head, because the debate goes on and on, and will continue to do so, because there is simply no clear answer to the question. The sad thing about the debate is that as it has been structured, it is so unnecessary. Of course, if legislatures want to exempt certain persons from certain laws on the basis of certain criteria, that is their prerogative. The debate on this blog, however, has been based on the assumption that religious freedom, at least under certain circumstances, gives persons a right to be exempt from obeying valid civil laws. More specifically, too many entries assume, along with Brad, that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government and [t]hat's certainly at the heart of free exercise. If, however, Brad is referring to the free exercise of religion guaranteed in the First Amendment, then his understanding of religious freedom is way off base. Based on a thorough review of the historical evidence, I am finishing a book on the original meaning of the free exercise clause, and I have yet to find any early American advocate of religious liberty, except for some Quakers, who understood it as meaning that persons could not be forced to choose between obeying their God and obeying their government. (There may be such persons, but I have not found them.) The issue of religion- based exemptions from valid laws was simply not on their minds, and they did not address it explicitly. Rather the all-consuming issue was that of establishments of religion, and freedom of religion meant freedom from such establishments and all laws associated with them, i.e., freedom from laws whose primary purpose was to favor one religion, religious belief or practice, over another or to discriminate for and against persons because of their religion. Stated differently, the no establishment and free exercise clauses were simply two different ways of saying the same thing. To the extent that early Americans implicitly addressed the issue, they emphasized that religion could not be used as an excuse for obeying valid civil laws. Only some Quakers would have agreed with Brad's understanding of religious freedom, but as I showed years ago in an article in the Journal of Law and Religion, when they attempted to get Pennsylvania to add a provision to its constitution that would reflect their understanding, it was rejected. Finally, contrary to what Brad says, the philosophy behind religious freedom is not the same as the philosophy behind conscientious objection. The former pertains to what the government should not do, whereas the latter pertains to whether an individual should follow his conscience regardless of what others,
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
Reread the entirety of the memorial. Madison was very concerned about the abusive power of the clergy. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 18, 2013, at 6:20 PM, Richard Dougherty dou...@udallas.edu wrote: I would think that this would be a matter of significance only for those who afford some degree of significance to a jurisprudence of original intent. But if one does take such matters seriously, I would suggest that it is hard, indeed impossible, to read James Madison's Memorial and Remonstrance as not protecting the free exercise of religion, and not simply against the interference of what one might consider liberty-denying religion. Just one passage, from the first paragraph: We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. Richard Dougherty On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis ew...@richmond.edu wrote: I fear that many of you will think I am pompous, if not arrogant, in saying what follows, but I feel compelled to respond to Brad Pardee's post. For years now, I have been reading all the posts on this blog, most of which have dealt with the issue of when, on the basis of religious liberty, persons have a right to be exempt from having to obey valid secular that persons generally have to obey. Recently, I find myself just shaking my head, because the debate goes on and on, and will continue to do so, because there is simply no clear answer to the question. The sad thing about the debate is that as it has been structured, it is so unnecessary. Of course, if legislatures want to exempt certain persons from certain laws on the basis of certain criteria, that is their prerogative. The debate on this blog, however, has been based on the assumption that religious freedom, at least under certain circumstances, gives persons a right to be exempt from obeying valid civil laws. More specifically, too many entries assume, along with Brad, that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government and [t]hat's certainly at the heart of free exercise. If, however, Brad is referring to the free exercise of religion guaranteed in the First Amendment, then his understanding of religious freedom is way off base. Based on a thorough review of the historical evidence, I am finishing a book on the original meaning of the free exercise clause, and I have yet to find any early American advocate of religious liberty, except for some Quakers, who understood it as meaning that persons could not be forced to choose between obeying their God and obeying their government. (There may be such persons, but I have not found them.) The issue of religion-based exemptions from valid laws was simply not on their minds, and they did not address it explicitly. Rather the all-consuming issue was that of establishments of religion, and freedom of religion meant freedom from such establishments and all laws associated with them, i.e., freedom from laws whose primary purpose was to favor one religion, religious belief or practice, over another or to discriminate for and against persons because of their religion. Stated differently, the no establishment and free exercise clauses were simply two different ways of saying the same thing. To the extent that early Americans implicitly addressed the issue, they emphasized that religion could not be used as an excuse for obeying valid civil laws. Only some Quakers would have agreed with Brad's understanding of religious freedom, but as I showed years ago in an article in the Journal of Law and Religion, when they attempted to get Pennsylvania to add a provision to its constitution that would reflect their understanding, it was rejected. Finally, contrary to what Brad says, the philosophy behind religious freedom is not the same as the philosophy behind conscientious objection. The former pertains to what the government should not do, whereas the latter pertains to whether an individual should follow his conscience regardless of what others, including the government, may do to him or her. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee Sent: Friday, August 16, 2013 2:36 PM To: 'Law Religion issues for Law Academics' Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate) I'm not certain that this is a correct understanding of the purpose of freedom of religion. It's always been my understanding that the essence of
Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
As I have said repeatedly, I strongly disagree with the notion that Smith created a new regime. It was an accurate statement of the existing case law. RFRA is a new regime parading as a restoration.Applying Sherbert or the other unemployment compensation case to any other scenario is inconsistent w the prior case law. So we have the Sherbert/Yoder standard being bandied about for facts that never would have received it. That is why we have these strands of discussion that are incoherent at times. Historical limits on free exercise provide a robust limitation to the current push for religious liberty, which is unprecedented in history. My view is heavily influenced by Levy, who brilliantly showed how the Religion Clauses evolved over time to a stronger and stronger separation principle. Therefore, wherever we started, it is not that the doctrine has naturally evolved to religious narcissism, but rather to concept of separation. So original intent, read in light of the working out of the Religion Clauses, works against the RFRA/religious-believers-should win-all-(or most)-arguments approach. That is why RFRA could only happen legislatively --- and not through the courts. And why, in my view, it is unconstitutional and illegitimate. I assume, though, that Mark's point was directed at the notion that substantive due process is a new right. Speaking as a woman and a supporter of the Federalists' perspective at the framing, I don't think these rights are new but rather rights over our bodies that appropriately are recognized today. The Federalists were correct that the problem w a Bill of Rights is that it would be assumed that all rights were therefore enumerated, but it was humanly impossible to do so. Their most important insight was that the Framers were fallible humans who could not possibly enumerate all rights. Or fully comprehend how this governing system would work out over time and how rights would need to be defined over time. Their bedrock belief that they could see only through a glass darkly is critical to understanding how the status and role of women could work itself out over time. The bedrock principles were there even if the rights holders (slaves and women) were not apparent! at the time. This is at base a Hegelian approach toward the working out of rights, but one that in my view takes the best account of the many factors at play. I apologize for going off topic, but thought I might as well explain myself. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 18, 2013, at 6:54 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: In response to Marci, who has expressed strong support on this list for abortion rights: It is very difficult to square her commitment to historical limits on individual rights with any robust version of abortion rights, as against state laws. Historical limits provide much less of a barrier to (or more likely a boost to) robust protection of religious freedom (such as the protection given by federal and state RFRAs, and to some degree by the Constitution, even under the highly-restrictive post-Smith regime). Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Sunday, August 18, 2013 3:03 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate) Thanks, Ellis, for your valuable post. Let's also add that the framing generation understood and articulated a distinction between liberty and licentiousness, as I have written before. And set a boundary on religious liberty of safety and the public good. Indeed, pastors preached abiding by the law from the pulpit. The principle was ordered liberty from the beginning, not what I have come to think of as narcissistic liberty, which is that liberty that is supposed to be judged only from the inside of the believer's head and world view and fails to take truly seriously the culture's, third-party, and historical limits. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ 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
Re: New Twist On Challenge to ACA Contraceptive Mandate
I agree w Chip and Jim on the baseline issue, but also the previous point about the point of the Religion Clauses is not just rights for the believer but also the path to peace in a diverse religious culture. Lee and Bowen v Roy stand for the proposition that if one chooses to employ or to take advantage of govt benefits, the Free Exercise Clause does not provide a way out of the obligations that come w the voluntary decision made by the believer. RFRA opens a door for believers to get past these sensible decisions, but I do not think that even if the parent who voluntarily chooses to cover his children over the age of majority could prove substantial burden, the govt does have a compelling interest in giving women the most realistic opportunity to choose for themselves whether to use contraception for any reason and to make sure those choices are as unhindered as men's decisions to pursue their own choices. The women are being protected by the govt from coercion by employers and parents. The govt also has a compelling interest in keeping health care costs under control. Chip mentions unwanted pregnancy; I mentioned some of the medical reasons reproductive health services are needed, which can affect GDP if untreated. And finally, there is the govt's legitimate compelling interest in ensuring the health care system does not discriminate on the basis of gender or religion and does enable women's choices. There is no less restrictive means of giving each woman her own choice regarding reproductive health than giving her a choice. The abortion decisions to date have all been about what the state can do to restrict women's rights. But those restrictions are not constitutionally required. Just because the government is not required to pay for reproductive health care does not mean the govt does not have a compelling interest in providing it. This is a new scenario where the govt is on the side of women and reproductive rights, which entails new ways of thinking. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 17, 2013, at 8:54 AM, James Oleske jole...@lclark.edu wrote: Eugene, No federal or state law required the Amish farmer in Lee to employ workers, but once he made that choice, the Supreme Court used the federal requirements governing employment benefits as the baseline for evaluating externalities (Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.). Likewise, although no federal or state law requires parents to put their adult children on their insurance, once they make that choice, the argument is that federal requirements governing health benefits should be used as the baseline for evaluating externalities. Of course, it's certainly possible to argue that the baseline should be set in a different place in parent/adult-child context than in the employer/employee context, or in the health insurance context than the employment context, but I think Chip is right that -- wherever one ultimately comes out -- this is a classic baseline problem. - Jim Jim Oleske Lewis Clark Law School SSRN Page: http://ssrn.com/author=357864 Faculty Page: http://law.lclark.edu/faculty/james_oleske/ On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene vol...@law.ucla.edu wrote: But wait: How can you read ACA as setting a baseline that the parents should guarantee their adult children a full bundle of health services? The ACA doesn’t require parents to do this. It allows parents to do this, and many parents do indeed do this, but adult children have no right vis-à-vis the parents to get insurance coverage. The father is free to just tell his children, “Sorry, I won’t get you health coverage”; that’s not “taking” health coverage from them, it’s just choosing not to give health coverage to them. How is it “taking” for him to offer to give less than complete health coverage to them? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, August 16, 2013 6:07 PM To: Law Religion issues for Law Academics Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate Eugene and I agree that this legislator is not substantially burdened in his religious freedom, because he is under no duty to buy a family policy. He can avoid the burden without the government penalizing him. So he is in a different position than employers, like Hobby Lobby, who will have to pay a penalty if they drop their health coverage of employees. But the question of imposing costs on his daughters is not as simple as Eugene and others seem to want to make it. This is a classic baseline problem. If the baseline for the daughters is no insurance
Re: New Twist On Challenge to ACA Contraceptive Mandate
I was not suggesting only the burden on taxpayers, though when it comes to a national scheme of healthcare, I think the compelling interest standard is met by women's reproductive health. I was also suggesting the govt has a compelling interest in (1)ensuring women have reasonable means of obtaining reproductive health care and (2) supporting women's constitutional right to choose by (a) making such health care affordable and (b) protecting women from being coerced in such decisions by their for-profit employers or parents. It is not that the woman has a constitutional right to the health care coverage per se, but rather the govt has a compelling interest in creating the conditions where women will be able to exercise their choices over their bodies. Sherbert and Yoder would have come out differently I believe if the Court had found the govt's interest was compelling. W Sherbert, the interest wasnt persuasive because of the other secular exemptions. I think the Court was just wrong in its compelling interest analysis of Yoder, but it is not the Interest at stake here. Also-- this thread takes us back to the RFRAs' built-in constitutional defects. The discussion about how Lee, Sherbert, and Yoder should control RFRA interpretation reinforces the argument (whether under the federal or state constitutions) that RFRA is nothing more than a constitutional amendment to the First Am passed via a simple majority without the obligations imposed by Art V (see the footnote in Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 17, 2013, at 11:57 AM, Volokh, Eugene vol...@law.ucla.edu wrote: That is a different argument, and potentially a plausible one. The concern isn’t that the parent is trying to force his religion on his daughters, but rather that taxpayers will be left holding the bag. (I don’t think the “temptation” argument suffices, at least under the strict scrutiny test, but the burden on taxpayers one is different.) But doesn’t Sherbert suggest that (assuming a substantial burden is present), avoiding any burden – even a relatively slight one – on taxpayers is not necessarily a sufficient government interest? Likewise, doesn’t Yoder suggest that claims of burden on taxpayers have to be demonstrated to a significant degree, and considered together with any countervailing fiscal benefits that the group’s practices might have? (The question of the net fiscal cost of unwanted pregnancy, for instance, is complicated; unwanted children cost the government money for prenatal care, and may burden the social welfare system, but they may also grow up to be taxpayers who help fund that social welfare system.) One merit of a pure Smith regime is that courts don’t have to get in to these questions of deciding what is and what isn’t an externality, and what the empirical effects of particular conduct are. But if we are to have a RFRA regime, then there has to be a limit to these sorts of externalities-on-taxpayers arguments, it seems to me, at least if Sherbert and Yoder are among the cases being “restored.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Saturday, August 17, 2013 5:32 AM To: Law Religion issues for Law Academics Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate The baseline set by the ACA is NOT a matter of obligation between parents and children. In that regard, the parent has no obligation to obtain health coverage for his non-minor daughters (although the 12 year old, either now or sometime later but before the age of majority, might need emergency contraception for health reasons, and then the parent might indeed have some obligation to cover or pay for the service). The baseline is the minimum coverage requirements (essential services, which include pregnancy prevention services) for policies that will satisfy the ACA. In the Missouri case, allowing the parent to buy a policy that excludes those services puts the insured daughters at increased risk of unwanted pregnancy. And I'm sure we all agree that unwanted pregnancies impose substantial costs (many of which are not covered by health insurance) on third parties, including but not limited to the women who experience such pregnancies. Here's another analogy -- a parent wants to buy her non-minor child a car, but the parent makes a religious freedom argument that she should be free to buy a car without seat belts. (Assume this is a sincere religious claim.) The parent of course has no obligation to buy the car at all, but if we allow that exemption, we allow the parent to put the child at increased risk of serious injury. Of course, we could frame the objection in terms of the government's compelling interest in reducing the risk of that kind of
Re: New Twist On Challenge to ACA Contraceptive Mandate
I assume they were serious and hope they were. If you are a woman with unstoppable bleeding as part of your periods, or excruciating cramps, this is medication and treatment that is indeed compelling. If you cannot go to work for 5 days every month because of the severity of your periods, there is a compelling interest for the employer, employee, and the govt to make such treatments available. If your religious beliefs preclude you from having a family you cannot support, or if you carry a gene that could lead to devastating illness and disability in your child, and your religious beliefs counsel against pregnancy, there is also a compelling interest In all 3. Apologies to those who are squeamish about what we are really talking about, but the abstract quality of the legal discourse largely carried on by men needs a reality check. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 15, 2013, at 11:53 AM, Tracey, Timothy ttra...@avemarialaw.edu wrote: I hope that neither you nor Eduardo are serious in your responses. The government's interest in ensuring basic medical care and lifesaving measures is significantly different than whatever interest the government has in forcing religious organizations to supply coverage of contraception, sterilizations, and abortion. The government obviously has a compelling interest in the former but certainly not in the latter. Timothy J. Tracey Associate Professor of Law Ave Maria School of Law On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote: Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a health insurance policy from his employer that does not cover vaccinations or other medications, or surgery, but only covers healing prayer. From: Eduardo Penalver penal...@uchicago.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, August 15, 2013 11:06:49 AM Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate Next up, a lawsuit demanding to be paid in currency that can't be used to buy contraception. Eduardo From: Friedman, Howard M. howard.fried...@utoledo.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Thu, 15 Aug 2013 13:52:52 + To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: New Twist On Challenge to ACA Contraceptive Mandate In an interesting new lawsuit, a Missouri legislator (suing as an employee of the state) seeks on religious liberty grounds the ability to obtain a health insurance policy from his employer that does not cover contraception, sterilization or abortifacients. He particularly objects to coverage of these in his policy for his 3 daughters, age 12, 18 and 19. More on Religion Clause blog-- http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html Howard Friedman ___ 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. CONFIDENTIALITY NOTICE: This e-mail transmission is the property of Ave Maria School of Law and may contain confidential or privileged information. It is intended only for the addressee(s) named above. If you receive this e-mail in error, please do not read, copy or disseminate it in any manner. If you are not the intended recipient, any disclosure, copying, distribution or use of the contents of this information is prohibited and may be unlawful. Please reply to the message immediately by informing the sender that the message was misdirected. After replying, please erase it from your computer system. Your assistance in correcting this error is appreciated. If you or your employer does not consent to internet e-mail messages of this kind, please notify us immediately. All reasonable precautions have been taken to ensure no viruses are present in this e-mail. Our company cannot accept responsibility for any loss or
Re: New Twist On Challenge to ACA Contraceptive Mandate
Well, we are debating the contents of the plan, equality, and fundamental fairness. Those opposed to the mandate are arguing for a health system that excludes coverage for women's reproductive health needs, which are often compelling. Were there no comprehensive plan as backdrop, we would have a different discussion. The question is whether women employees of employers who are already not permitted to discriminate in hiring on the basis of religion and gender can discriminate in their health care plans on the basis of religion and gender. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 15, 2013, at 12:57 PM, Michael Worley mwor...@byulaw.net wrote: If we were debating banning contraception, Marci's argument would work and make perfect sense. We are, instead, debating government-mandated funding of contraception. Michael On Thu, Aug 15, 2013 at 10:52 AM, Michael Worley mwor...@byulaw.net wrote: As far as I understand the situation, no one legally objects to the health (unrelated to reproduction) use of the pill. As to those whose religion requires contraception, religious adherents cannot force the government to buy for them wine for sacraments, or even bandaids for cuts, even if they are mandated by religion. We do not have laws forbidding reproduction by certain couples if there is a risk of disability-- thus, while we approach the issue from different angles, Marci's compelling interest arguments do not strike me as plausible given present jurisprudence. Unjust from a point of view, sure, but hardly a compelling interest by the government-- certainly a personal compelling interest, but so is three meals a day. We don't have a constitutional right to food (though government programs thankfully assist with this). To state someone's personal compelling interest in purchasing a product translates to the state's compelling interest in providing a product is not supported by case law. Personal interests provide governmental rational basis, of course, but not a governmental compelling interest. Just my 2¢, Michael -- Michael Worley BYU Law School, Class of 2014 On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton hamilto...@aol.com wrote: I assume they were serious and hope they were. If you are a woman with unstoppable bleeding as part of your periods, or excruciating cramps, this is medication and treatment that is indeed compelling. If you cannot go to work for 5 days every month because of the severity of your periods, there is a compelling interest for the employer, employee, and the govt to make such treatments available. If your religious beliefs preclude you from having a family you cannot support, or if you carry a gene that could lead to devastating illness and disability in your child, and your religious beliefs counsel against pregnancy, there is also a compelling interest In all 3. Apologies to those who are squeamish about what we are really talking about, but the abstract quality of the legal discourse largely carried on by men needs a reality check. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 15, 2013, at 11:53 AM, Tracey, Timothy ttra...@avemarialaw.edu wrote: I hope that neither you nor Eduardo are serious in your responses. The government's interest in ensuring basic medical care and lifesaving measures is significantly different than whatever interest the government has in forcing religious organizations to supply coverage of contraception, sterilizations, and abortion. The government obviously has a compelling interest in the former but certainly not in the latter. Timothy J. Tracey Associate Professor of Law Ave Maria School of Law On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote: Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a health insurance policy from his employer that does not cover vaccinations or other medications, or surgery, but only covers healing prayer. From: Eduardo Penalver penal...@uchicago.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, August 15, 2013 11:06:49 AM Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate Next up, a lawsuit demanding to be paid in currency that can't be used to buy contraception. Eduardo From: Friedman, Howard M. howard.fried...@utoledo.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Thu, 15 Aug 2013 13:52:52 + To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: New Twist On Challenge to ACA Contraceptive Mandate In an interesting new lawsuit, a Missouri legislator (suing as an employee
Re: Contraception mandate
My point yesterday is that the Coalition am the ACLU are not both sides. Far from it Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 12:09 PM, James Oleske jole...@lclark.edu wrote: Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit corporations can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was not a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ___ 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
Here are some unassailable facts about RFRAs enactment that make 1997 too late to bring for profit corps under RFRAs intended reach 1. The vast majority of RFRA's Legis history is not about its actual content but rather testimony critical of Smith and the Supreme Court. 2. The Coalition had an express agreement not to tell members or the press what particular laws each hoped to overcome. They needed to stay mum on their individual agendas to remain at the table together. 3. The abstract constitutional law level of scrutiny formula drove discussion away from specifics. 4. No one remotely hinted that it would be applicable to for-profit corporations or that there was any corporation in the US intent on avoiding laws through RFRA 5. Had the ACLU, Americans United, and People for the American Way and the Democrats understood RFRA at the time as the anti-civil rights bill the 10th Cir found it to be, it would have gone nowhere. Inconceivable. One of its virtues for members was anything loved by the left and right had to be good. 6. RFRA's feel-good, opaque formula led members not to challenge the lobbyists to explain its actual impact. The few examples involved a minyan and autopsies. Nothing in this history supports a claim that RFRA was intended to cover for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 12:09 PM, James Oleske jole...@lclark.edu wrote: Marci - I agree that if one side or the other in the 1997 debate was attempting to make after-the-fact legislative history for RFRA, that history would be of marginal value. But that's not the theory of relevance that Doug offers in his article and that I asked about yesterday. Doug offered the theory that, if both sides in the 1997 had a common understanding about the language common to RLPA and RFRA, that would be relevant to interpreting RFRA. What's wrong with that theory as a general matter? To be sure, on the specific issue of whether for-profit corporations can invoke a defense under the language, the 1997 legislative history indicates that there was not a common understanding. But in cases where there was a common understanding on the record (as appears there might have been concerning individual landlords), I'm not sure why that common understanding wouldn't be a relevant interpretive tool (not the only tool, of course, but one such tool). Marc - Prior to reading the ACLU testimony yesterday, I would have been inclined to agree with your suggestion. But the ACLU testimony actually puts the issue in precisely the same terms we seem to be discussing it today (The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense.). So I'm inclined to think the 1997 legislative history is relevant to our discussion of cases like Hobby Lobby case precisely because it shows that there was not a common understanding about RFRA protecting for-profit corporations, but there may have been a common understanding about RFRA protecting individuals engaged in commercial activity. On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton hamilto...@aol.com wrote: Except that 1997 itself is an irrelevant date. The relevant dates are 1990-93, during the enactment of RFRA. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 2, 2013, at 10:30 AM, Marc Stern ste...@ajc.org wrote: IS it possible that the search for legislative history on the question of whether in 1997 Congress thought corporations could benefit from religious liberty provisions is anachronistic .Today, that question is colored by one’ s feelings towards Citizens United; in 1997 ( and especially when arguing to a political body like Congress and in an effort to muster public opinion) the issue was cast in less abstract terms. Marc Stern ___ 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
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 right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end – in the analysis of compelling interest – rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of their faith across the whole range of human activity, including the world of business and commerce. It is this last point that I think would benefit most from being expanded to account for the doctrinal significance of Lee, where the Court identified a competing presumption that comes into play in for-profit cases due to impact on third parties: When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. I've previously criticized the Tenth Circuit majority in Hobby Lobby for failing to address this language from Lee. Since then, the Third Circuit majority in Conestoga Wood -- while coming to the opposite conclusion of the Tenth Circuit -- has likewise neglected to engage the relevant language from Lee (the dissents in both cases do at least
Re: Contraception mandate
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 did not 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, especially Thomas 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 question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA. Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception because the Supreme Court's pre-Smith jurisprudence that was being restored had already imposed limitations on exemptions in the commercial arena? I haven't studied the legislative
Re: Contraception mandate
There is no all in the legislative process. There are only competing interests and conflicting sides. I am not going to belabor this for this exchange, but as someone who was as intimately involved in this as Doug, but on the opposite side, his description encompasses some but not all of what was happening. He can certainly speak for those who started altogether on his side even if they split asunder later. That would be the Coalition and the civil rights groups. He cannot speak authoritatively for those who were on the other side, particularly when they ultimately prevailed. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 9:48 PM, Marc Stern ste...@ajc.org wrote: An additional fact: the civil rights issue came into public view after the ACLU wrote a letter to Congress-whether to the whole house or the judiciary committee I don't recall- spelling out in detail the cases in which civil liberties and religious liberty claims clashed. It was that letter that sparked the nadler amendment and the breakup of the coalition that had earlier supported RFRA. Marc - Original Message - From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Thursday, August 01, 2013 09:30 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilto...@aol.com hamilto...@aol.com Subject: Re: Contraception mandate RLUIPA does not apply to fair housing laws because it applies only to land use regulation and institutionalized persons, and it exprssly defines land use regulation as zoning and landmarking. Period. No mystery to explain. My recollection is that that definition was added late in the process. I have not checked that. Before that amendment, neither I nor any other supporter assured opponents that RLPA would not apply to fair housing laws. The whole fight was fueled by fair housing laws. There were negotiations about exempting large landlords and protecting small landlords. But these negotiations quickly broke down because the two sides were too far apart on what the size limit should be. RLPA had other opponents, but the civil rights issue is what killed it. It is not true that it was doomed by its overbreadth. It was not even obvious at the time that it was doomed by the civil rights fight. The Nadler Amendment to exclude civil rights claims was defeated in the House 234-190. The unamended bill then passed the House 306-118. That lopsided yes vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. Rec. H5607-08. The bill then died in the Senate without a vote. Both sides in the debate over the Nadler Amendment, and in the earlier debates in committee, were fighting about a live issue. No one thought they were making post-enactment legislative history for RFRA. They were all acting on a common understanding about what the language copied from RFRA meant. On Thu, 1 Aug 2013 20:20:28 -0400 (EDT) hamilto...@aol.com wrote: 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
Re: RLUIPA and hair length in prison
Michael-- how do you read Cutter's several statements that require deference to prison officials on safety? Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jul 27, 2013, at 12:36 PM, Michael Masinter masin...@nova.edu wrote: The eleventh circuit's restatement of RLUIPA's compelling interest/narrowly tailored standard based on a snippet of legislative history and some language from Cutter v. Wilkinson respecting due deference would make George Orwell proud: Although the RLUIPA protects, to a substantial degree, the religious observances of institutionalized persons, it does not give courts carte blanche to second-guess the reasoned judgments of prison officials. Indeed, while Congress enacted the RLUIPA to address the many “frivolous or arbitrary” barriers impeding institutionalized persons' religious exercise, it nevertheless anticipated that courts entertaining RLUIPA challenges “would accord ‘due deference to the experience and expertise of prison and jail administrators.’ ” Cutter v. Wilkinson, 544 U.S. 709, 716–17 (2005) ( quoting 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sens. Hatch and Kennedy on the RLUIPA)). The Supreme Court has cautioned that “[w]e do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety,” and “an accommodation must be measured so that it does not override other significant interests.” Id. at 722. The Court further instructed: We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, context matters in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. They anticipated that courts would apply the Act's standard with due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources. Id. at 722–23 (internal quotation marks and citations omitted). This deference is not, however, unlimited, and “policies grounded on mere speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the act's requirements.” Rich v. Secretary, Florida Dep't of Corrections, 716 F.3d 525, 533 (11th Cir.2013) (internal quotation marks omitted). It would be hard to write a better statement of only slightly beefed up rational basis review whenever discipline is in play. As long as the judgment of an administrator cannot be proven to be frivolous or arbitrary or based on mere speculation, exaggerated fears, or post-hoc rationalizations it will survive statutorily mandated strict scrutiny review. Perhaps the unstated premise that incarcerated felons are subhuman will cabin the dilution of strict scrutiny, but perhaps not; in the national security state, it's only a short leap from prison safety to public safety. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Joel Sogol jlsa...@wwisp.com: http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593 7966 Knight, et al. v. Thompson, et al. Docket: 12-11926 Opinion Date: July 26, 2013 Judge: Schlesinger Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government Administrative Law Plaintiffs, male inmates, filed suit under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. 2000cc et seq., challenging an ADOC policy that forbids them from wearing their hair unshorn in accordance with the dictates of their Native American religion. The United States intervened on plaintiffs' behalf. The court affirmed the district court's judgment in favor of the ADOC because the ADOC carried its burden of demonstrating that its hair-length policy was the least restrict means of furthering its compelling governmental interests of prevention of contraband, facilitation of inmate identification, maintenance of good hygiene and health, and facilitation of prison discipline through uniformity. http://j.st/HMg http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl etters_jurisdictionsutm_medium=emailutm_term=0_92aabbfa32-282bac825a-40593 7966 http://j.st/HMg?utm_source=Justia+Lawutm_campaign=282bac825a-summary_newsl
Re: Marriage -- the Alito dissent
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 Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 4:18 PM, Richard Dougherty dou...@udallas.edu wrote: I understand why it can seem that way, but history can't make a nonsectarian view sectarian. The claim that the majority -- but not all -- of the arguments one hears are sectarian is per se evidence that it is not sectarian. There is a reason why the arguments track, but are not derived from, Vatican teaching, and that is that the Vatican teaching is largely drawn from philosophical principles, not theological ones. The natural law is the common source. Richard Dougherty On Sat, Jun 29, 2013 at 11:25 AM, Marci Hamilton hamilton.ma...@gmail.com wrote: At this stage in history, Alito's view is in fact decisively sectarian. The vast majority of opposition is theological w theological sources. That is the political reality. And his sources and arguments are derived directly from Vatican doctrine. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jun 29, 2013, at 12:10 PM, Richard Dougherty dou...@udallas.edu wrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate (http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: ___ 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.
Marci Hamilton wants to share new pictures with you :)
Title: An Email from Zoosk Marci Hamilton has added you as a friend on Zoosk. Is Marci Hamilton your friend? Yes No This message was sent by a Zoosk user who entered your email address. If you'd prefer not to receive emails when other people send you emails through Zoosk, click here You have received this message at the email address: religionlaw@lists.ucla.edu Copyright 2007-2012 Zoosk, 989 Market St, San Francisco, CA 94103 USA. Privacy Policy ___ 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?
As long as it is a case-by-case analysis, I am on board. But I think the presumption of religion as good is folly for the vulnerable. Marci On Jul 10, 2012, at 10:10 AM, Andrew M M Koppelman akoppel...@law.northwestern.edu wrote: I said that the value of religion sometimes outweighs other considerations. I didn't say it always does so. Marci has compiled some mighty persuasive horror stories showing that the balance is often struck with excessive deference to religion. But that doesn't answer the circumcision question. In that context, it's doubtful whether the child is harmed at all, and the religious values on the other side are substantial. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [hamilto...@aol.com] Sent: Monday, July 09, 2012 10:36 AM To: religionlaw@lists.ucla.edu Subject: 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.commailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
Re: Parental rights and physical conduct
But we do know-- the best interests of the child is based on a totality of the circumstances. A one-time sip of beer does not harm a child A full beer would. Most of these cases are just common sense. Your example is a straw man Marci On Jul 5, 2012, at 10:44 PM, Eric Rassbach erassb...@becketfund.org wrote: My Dad gave me a sip of Dome foam at an Astros game when I was fairly young, which had the (almost certainly intended) effect of putting me off of beer until later than many of my peers. The sad part is that we will never know whether that act was in the best interests of the child or whether Dad should've been locked up. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, July 05, 2012 9:26 PM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I am wondering if Marci thinks Troxel v. Granville (unconstitutional for legislature to provide for grandparent visitation rights over objection of custodial parent) is correctly decided, or consistent with her views. Her assertion that Children are increasingly being treated as independent persons whose interests must be examined separately is awfully vague -- 16 year olds involved in custody fights? What's the context to which you are referring? Now I have to go watch the Nationals and drink some beer with my younger son -- he'll be 22 in a few weeks. I have a 13 year old grandson coming to visit tomorrow, and I'll have to think twice about offering him a bottle. On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I would disagree with Chip that the concept of best interest of the child continues to afford a presumption that parents act in the best interest of the child. Children are increasingly being treated as independent persons whose interests must be examined separately. I do agree w Chip, though, that religious reasons should never be adequate as reasons to water down the best interest inquiry or create a defense in a case involving harm to a child. Marci On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Our ordinary, wide-spread, and long-standing presumption is that parents/guardians act in the best interests of their minor children. The state may intervene -- overcome that presumption -- when parents/guardians inflict significant harm on their children. Of course, we can all argue about what constitutes such harm (e.g., Eric' s example of Amish families keeping their children on the farm, or Alan's example of a parent providing a child with small amounts of alcohol). I am not trying to settle what constitutes harm sufficient to justify intervention. I am trying to reject the idea that religion will EVER appropriately affect that judgment by the state. There is no room for play in the joints on these questions, because the interests of third parties are involved. If the state singles out religiously motivated conduct for an exemption from a prohibition on what is otherwise abusive or neglectful, that violates the Establishment Clause. And if If the state singles out religiously motivated conduct for punishment in cases where the same conduct with secular motivation is not considered abusive or neglectful, that violates the Free Exercise Clause. So, Alan, the answer is yes, both parents who provide alcohol to their children should have to operate under the same rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the vast majority of such parents don't abusively or neglectfully ply their minor children with alcohol), then likewise for the parent who provides the same amount of alcohol, over the same number of hours, with the same frequency on the calendar (once a year). Doing this at every Sabbath, or every Sunday during NFL season, might be abuse or neglect, but the standard for state intervention would be the same for both parents. On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: 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.orgmailto:erassb...@becketfund.org wrote: Eugene -- I don't think this makes sense because
Re: Parental rights and physical conduct
I would disagree with Chip that the concept of best interest of the child continues to afford a presumption that parents act in the best interest of the child. Children are increasingly being treated as independent persons whose interests must be examined separately. I do agree w Chip, though, that religious reasons should never be adequate as reasons to water down the best interest inquiry or create a defense in a case involving harm to a child. Marci On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edu wrote: Our ordinary, wide-spread, and long-standing presumption is that parents/guardians act in the best interests of their minor children. The state may intervene -- overcome that presumption -- when parents/guardians inflict significant harm on their children. Of course, we can all argue about what constitutes such harm (e.g., Eric' s example of Amish families keeping their children on the farm, or Alan's example of a parent providing a child with small amounts of alcohol). I am not trying to settle what constitutes harm sufficient to justify intervention. I am trying to reject the idea that religion will EVER appropriately affect that judgment by the state. There is no room for play in the joints on these questions, because the interests of third parties are involved. If the state singles out religiously motivated conduct for an exemption from a prohibition on what is otherwise abusive or neglectful, that violates the Establishment Clause. And if If the state singles out religiously motivated conduct for punishment in cases where the same conduct with secular motivation is not considered abusive or neglectful, that violates the Free Exercise Clause. So, Alan, the answer is yes, both parents who provide alcohol to their children should have to operate under the same rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the vast majority of such parents don't abusively or neglectfully ply their minor children with alcohol), then likewise for the parent who provides the same amount of alcohol, over the same number of hours, with the same frequency on the calendar (once a year). Doing this at every Sabbath, or every Sunday during NFL season, might be abuse or neglect, but the standard for state intervention would be the same for both parents. On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote: 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
Re: Parental rights and physical conduct
I do think Troxel and Yoder particularly were wrongly decided. The more egregious was Yoder, which was based on a romantic view of a religious community that does not operate in the best interest of the child in far too many situations On the increasing rights of children, I am talking about the sexual abuse context generally, but specifically the increasing number of states that now reject First Am defenses in the context and the states rolling back the indefensible clergy exceptions to child sex abuse reporting. I would add to that the slowdown in medical neglect exemptions and the death of the ND RFRA by child Advocates arguing for the welfare of children to defeat a RFRA. Finally, the turn around in the criminal justice system in favor of child victims against priests/bishops (Philly Msgr. Lynn conviction + rejection of request for house arrest) and today's acquittal of the victim accused of assaulting the priest who sexually assaulted him. Plus the defensive posture of Brooklyn DA Hynes who cooperated in the rabbis' coverup of abuse in the Hasidim community. The Zeitgeist has shifted decisively in favor of children and against religious actors who harm children. Marci On Jul 5, 2012, at 9:26 PM, Ira Lupu icl...@law.gwu.edu wrote: I am wondering if Marci thinks Troxel v. Granville (unconstitutional for legislature to provide for grandparent visitation rights over objection of custodial parent) is correctly decided, or consistent with her views. Her assertion that Children are increasingly being treated as independent persons whose interests must be examined separately is awfully vague -- 16 year olds involved in custody fights? What's the context to which you are referring? Now I have to go watch the Nationals and drink some beer with my younger son -- he'll be 22 in a few weeks. I have a 13 year old grandson coming to visit tomorrow, and I'll have to think twice about offering him a bottle. On Thu, Jul 5, 2012 at 8:19 PM, Marci Hamilton hamilto...@aol.com wrote: I would disagree with Chip that the concept of best interest of the child continues to afford a presumption that parents act in the best interest of the child. Children are increasingly being treated as independent persons whose interests must be examined separately. I do agree w Chip, though, that religious reasons should never be adequate as reasons to water down the best interest inquiry or create a defense in a case involving harm to a child. Marci On Jul 5, 2012, at 3:34 PM, Ira Lupu icl...@law.gwu.edu wrote: Our ordinary, wide-spread, and long-standing presumption is that parents/guardians act in the best interests of their minor children. The state may intervene -- overcome that presumption -- when parents/guardians inflict significant harm on their children. Of course, we can all argue about what constitutes such harm (e.g., Eric' s example of Amish families keeping their children on the farm, or Alan's example of a parent providing a child with small amounts of alcohol). I am not trying to settle what constitutes harm sufficient to justify intervention. I am trying to reject the idea that religion will EVER appropriately affect that judgment by the state. There is no room for play in the joints on these questions, because the interests of third parties are involved. If the state singles out religiously motivated conduct for an exemption from a prohibition on what is otherwise abusive or neglectful, that violates the Establishment Clause. And if If the state singles out religiously motivated conduct for punishment in cases where the same conduct with secular motivation is not considered abusive or neglectful, that violates the Free Exercise Clause. So, Alan, the answer is yes, both parents who provide alcohol to their children should have to operate under the same rules -- if a Jewish parent's Seder practices are OK (and I'm sure that the vast majority of such parents don't abusively or neglectfully ply their minor children with alcohol), then likewise for the parent who provides the same amount of alcohol, over the same number of hours, with the same frequency on the calendar (once a year). Doing this at every Sabbath, or every Sunday during NFL season, might be abuse or neglect, but the standard for state intervention would be the same for both parents. On Thu, Jul 5, 2012 at 2:59 PM, Marci Hamilton hamilto...@aol.com wrote: 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
Re: Providing public school credits for release-time religious classes
Marty is undoubtedly correct under current doctrine. The release time program exists I assume to avoid Establishment Cl problems. To now argue entanglement is a problem is a constitutional sleight of hand to avoid a violation. The entanglement argument is particularly weak given the description of the program I also think the entanglement argument is specious given that public and private schools set requirements and criteria to accept credit from other schools all the time. A school does not need to nor does it normally blindly accept courses and/or credits from other schools, private or public. I am at a loss to understand how this decision is salutary from an academic perspective. Sounds to me like it is potentially watering down the 3Rs Marci On Jun 30, 2012, at 11:11 AM, Marty Lederman lederman.ma...@gmail.com wrote: I should add that, wholly apart from whether the particular Spartanburg Bible School class was in any way, as Rick suggests, of some secular educational value (which was, I repeat, not the basis for the court's holding), the South Carolina statute at issue expressly provides that [a] school district board of trustees may award high school students no more than two elective Carnegie units for the completion of released time classes in religious instruction. That is to say, the credits are specifically and unequivocally being awarded for the religious instruction as such. On Sat, Jun 30, 2012 at 10:47 AM, Marty Lederman lederman.ma...@gmail.com wrote: Rick, The statute says that the school district must use secular criteria to determine whether the release time education qualifies for credits, but those criteria have nothing to do with fulfillment of any of the secular educational objectives of the school (they include the number of hours of instruction; a syllabus that reflects course requirements; a method of assessment used by the religious school teachers; and whether the teachers are certified). The School District here, for admirable nonentanglement reasons, entered into an arrangement with Oakbrook Preparatory School, an accredited private Christian school, by which Spartanburg Bible School could submit its grades through Oakbrook to Spartanburg High School. Under the arrangement, Oakbrook agreed to review and monitor Spar- tanburg Bible School’s curriculum, its teacher qualifications, and educational objectives, and to award course credit and grades given by the Bible School before transferring them to Spartanburg High School. In carrying out the arrangement, Oakbrook reviewed syllabi, spoke with instructors, suggested minor curricular adjustments, and satisfied itself that the Spar- tanburg Bible School course was academically rigorous. To my mind, this delegation raises a serious Larkin problem. But that aside, the fact that the accredited school is an intermediary that transfers the grades based on an assessment that the religious course was academically rigorous does not cure the problem, which is that this education is designed to be religious in nature, and not to advance any of the secular objectives of the public schools. You quote with apparent approval Judge Niemeyer's governing principle that private religious education is an integral part of the American school system. But that stated principle is the problem, not a virtue. Providing families with the option of achieving the society's secular educational objectives at a private school of their choice, religious or secular, is a governing principle of the American school system. (And securing the freedom of families to provide or obtain a private religious education outside the American school system is surely a governing principle of our constitutional order (Meyer, Pierce, etc.).) But religious education as such not only is not an integral part of the American school system -- as a constitutional matter, it can't be part of that system at all. On Sat, Jun 30, 2012 at 10:29 AM, Rick Garnett rgarn...@nd.edu wrote: Dear Marty, In this case, if I am reading the opinion correctly, the credits in question are coming from Oakbrook Preparatory School, an accredited private Christian school. In my view, the decision is welcome because -- as Marc says, below -- I think it would be the wrong approach to say that, when a student transfers from a non-state school to a state school, he or she may only receive credit for courses with the requisite secular content. As Judge Niemeyer wrote: Also important to our conclusion is the governing principle that private religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school. See Pierce v. Soc’y
Re: Providing public school credits for release-time religious classes
As a product of public schools who has chosen where to live based on the excellence of the public schools for my children, I cannot let Rick get away with his shot at the public schools without comment! But like him, I will move on. On the merits, I don't see why or how the public schools can take frankly ecclesiastical courses from frankly religious schools for credit under existing doctrine. Now, if the argument is that the Court should and may abandon the Establishment Clause, let's be honest about that. It is well known that those hostile to separation are hoping this new Court will cut back on the Est Cl Under existing doctrine, these credits are a violation of the separation of church and state and the Memorial and Remonstrance. Marci On Jun 30, 2012, at 2:52 PM, Rick Garnett rgarn...@nd.edu wrote: Dear Marty, I think we can all unite in support of (and I'd also welcome a meaningful commitment to enhancing) the 3 Rs in our public schools. (I'm pretty confident that those R's are better promoted, generally speaking, in religious schools, but I realize that's a debate for another day.) In any event, I'm not sure why the question is whether or not the fourth R is integral to the public schools' mission (I'm not sure we really know what the public school's mission is and, again, I suspect that whatever it is is at least as well achieved in religious schools as in public schools.) Instead, I'd ask does it 'establish religion' for a public school to allow two credits for religious education courses taken pursuant to a release-time statute, when those courses are approved by an accredited private school and when the state is not involved in any way in the religious instruction? I think the answer to this latter question, both doctrinally and (more important) morally and historically, should be no. There's no entanglement, endorsement, coercion, etc., here. We allow credits for all kinds of courses with debatable connection to the 3-Rs, let alone the public schools' mission. It seems to me that -- again, given that the government is not pushing the release-time option, and is not involved in religious instruction -- it is fine for the political community to, in this very small way, which does not subtract meaningfully from the few affected students' secular course of study and which imposes burdens on no one, accommodate the fact that, for many, religious education is education and perhaps acknowledge the possibility that a child's healthy development is advanced as much by (non-state-provided) religious education as by, say, for-credit classes in pottery, or P.E., or high-school sociology. I'll quit being a bore now, and sign off on this thread, but am always happy to chat offline, if anyone wants to. All the best, Rick Richard W. Garnett Professor of Law Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Saturday, June 30, 2012 2:05 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Providing public school credits for release-time religious classes Unless, like Niemeyer, you think that four Rs, not three, are integral to the public school mission. Sent from my iPhone On Jun 30, 2012, at 1:55 PM, Marci Hamilton hamilto...@aol.com wrote: Marty is undoubtedly correct under current doctrine. The release time program exists I assume to avoid Establishment Cl problems. To now argue entanglement is a problem is a constitutional sleight of hand to avoid a violation. The entanglement argument is particularly weak given the description of the program I also think the entanglement argument is specious given that public and private schools set requirements and criteria to accept credit from other schools all the time. A school does not need to nor does it normally blindly accept courses and/or credits from other schools, private or public. I am at a loss to understand how this decision is salutary from an academic perspective. Sounds to me like it is potentially watering down the 3Rs Marci On Jun 30, 2012, at 11:11 AM, Marty Lederman lederman.ma...@gmail.com wrote: I should add that, wholly apart from whether the particular Spartanburg Bible School class was in any way, as Rick suggests, of some secular educational value (which was, I repeat, not the basis for the court's holding), the South Carolina statute at issue expressly provides that [a] school district board of trustees may award high school students no more than two elective Carnegie units for the completion of released time classes in religious instruction. That is to say, the credits
Re: Religious exemptions in ND
The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci On Jun 14, 2012, at 11:34 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use “burden” instead of “substantial burden” in their state RFRAs. Rhode Island, New Mexico, and Missouri speak of “restrictions on religious liberty.” But I really don’t know how much the difference in language ends up mattering. Connecticut is a “burden” state, like North Dakota would have been. But the lower courts in Connecticut have interpreted Connecticut’s RFRA to be equivalent to the standard laid out in Employment Division v. Smith. It’s hard to see how that is even possible, given what state RFRAs were designed to do. But there it is. My South Dakota piece (which Doug referred to earlier) provides the details. Given all this, it’s hard for me to understand these fears of dramatic overenforcement. Even with explicit authorization from state legislatures, we can’t even seem to get back to Sherbert/Yoder—and it’s not as if the Sherbert/Yoder regime led to the horrible things that NARAL was fearing. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer Sent: Thursday, June 14, 2012 9:45 PM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND I believe that New Mexico's speaks in terms of restrict[ing] a person's free exercise of religion. Roman Storzer Greene, P.L.L.C. 1025 Connecticut Avenue, Northwest Suite One Thousand Washington, D.C. 20011 Tel: (202) 857-9766 Fax: (202) 315-3996 110 Wall Street Eleventh Floor New York, N.Y. 10005 Tel: (212) 943-4343 Fax: (202) 315-3996 http://www.storzerandgreene.com stor...@storzerandgreene.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, June 14, 2012 9:32 PM To: religionlaw@lists.ucla.edu; b...@jmcenter.org Subject: Re: Religious exemptions in ND Other than Conn and Alabama, I'm not aware of another state that eliminated substantial from the formulation. Are there others? I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Eric Rassbach erassb...@becketfund.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; bob b...@jmcenter.org Sent: Thu, Jun 14, 2012 9:26 pm Subject: RE: Religious exemptions in ND I don't know that all bets would need to be off in any case, since other state RFRAs have long used burden rather than substantial burden, e.g. Connecticut's. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, June 14, 2012 9:15 PM To: b...@jmcenter.org; Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Supreme Court of the United states would have had nothing to say about the meaning of Measure 3. It would have been a state law issue. On Thu, 14 Jun 2012 20:50:43 -0400 (EDT) b...@jmcenter.org b...@jmcenter.org wrote: Eric, Glad to see you focusing on the claims made with respect to Measure 3. I've been counseling a nontheistic North Dakota group for over a year on Measure 3 and its predecessor. My primary concern has been the potential use of Measure 3 to legalize discrimination against atheists, members of minority religions and LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment Clause protects atheists, Justice Thomas doesn't believe in incorporation and six of nine justices self-identify themselves as Catholic, all bets are off what would have benn protected by mere burden in Measure 3. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On June 14, 2012 at 4:42 PM Eric Rassbach
Re: Religious exemptions and child sexual abuse
To be sure church autonomy arguments outpace RFRA arguments, but less than half the states have rfras I don't actually get Doug's point -- a RFRA is irrelevant if it is not the dispositive issue in most cases? It adds a layer of argument in these cases. And from the perspective of child protection, it is bad policy. In any event, Marty has under reported the prevalence of these issues in child sex abuse cases. For a summary of the cases and issues, see my cert petition in John Doe AP, which I have posted on my Cardozo web page http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf For the most recent case, see the Tennessee Supreme Court decision, Redwing v. Catholic Bishop for the Diocese of Memphis - On Jun 15, 2012, at 11:31 AM, Douglas Laycock dlayc...@virginia.edu wrote: Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments and church autonomy arguments: My previous comments were not about the bankruptcies where federal law, the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes prevail. Second, it is one thing to plead an affirmative defense. It is quite another to file a dispositive motion. Professor Hamilton writes, Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. If she saw the arguments, there must be briefs. Might she share those three briefs with the group? The information I have suggests that counsel, at least in Hawaii and California, are not filing dispositive motions arguing that the church autonomy doctrine bars ecclesiastical negligent supervision claims. Last evening, the leading ecclesiastical defense counsel in California (who has himself handled over 500 cases and who is daily communications with others from that defense bar) told me that he is unaware of defense counsel in California filing dispositive motions contending that tort liability is precluded by the church autonomy doctrine. I suspect that the practical unavailability of a church autonomy argument against negligent ecclesiastical supervision claims in California has something to do with Church defendants paying out around $1.5 billion in settlements in that state. The leading ecclesiastical defense counsel in Hawaii also informed me that he is unaware of church autonomy arguments being briefed in Hawaii to bar ecclesiastical negligent supervision claims. I have not recently conferred with church counsel in Illinois. Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, in those states with such laws. This is consistent with what I've seen. Martin Nussbaum PLEASE TAKE NOTICE, the information contained in this electronic communication and any document attached hereto or transmitted herewith, including metadata, is attorney-client privileged, work product, private or otherwise confidential, and is intended for the exclusive use of the individual or entity named above. The information transmitted in this e-mail and any attachment is intended only for the personal and confidential use of the intended recipients and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited. If you have received this communication in error, please immediately notify the sender by telephone or reply e-mail and delete this communication. You are further notified that all personal messages express views solely of the sender which are not to be attributed to Rothgerber Johnson Lyons LLP and may not be copied or distributed without this disclaimer. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 6:44 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse There is a significant federal RFRA litigation burden in the diocesan bankruptcies. Marty and I have been on opposite sides litigating it. I currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the RFRA and First Amendment issues. I have seen state rfras pled in many cases. These cases typically settle so decisions are rare. The trend is definitely against their theories but they are part of the fabric of these cases nonetheless. Autonomy theories are persistent in these cases
Re: Religious exemptions in ND
Public schools should also be held to the same standard as any private institution and it should be child-protective Marci On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not just other constitutional interests that limit liability for harm to children. It is also other public policies. For example, in Missouri, where Gibson v. Brewer limits the church’s liability to cases where they knew about abuse and failed to act, public schools have no state-law liability at all in sex abuse cases. See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no federal liability unless an official with authority to act had “actual knowledge” and made “an official decision” not to do anything. Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290 (1998). The should-have-known liability now imposed on churches in many states, and the should-have-known-there-was-an-elevated-risk liability that is often alleged and sometimes imposed, goes far beyond the liability rules applicable to most public schools. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 9:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice—so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions in ND
That is an inaccurate analysis of my last post -- The attempts to treat these issues as de minimis are wrong. Read my cert petition and the Redwing case out of Tennessee I don't in any way back off of my statement that rfras open the door to more child sex abuse and less deterrence. They don't stand alone but they do. Child safety should be excluded from all such laws. Safe to say they are unlikely to be passed anyway at this point because gay rights and women's rights groups have come to understand they are adverse to their interests as well. The danger of the RFRA as I have stated before is its blanket blind approach. It hides the actual agendas of those who seek them. Far better for the vulnerable that exemptions be publicly debated. Marci On Jun 15, 2012, at 1:57 PM, lawyer2...@aol.com wrote: Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read
Re: Religious exemptions and child sexual abuse
I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and child sexual abuse
Doug-- your downplaying of rfras' effect is inaccurate and misleading. The rfras can apply and they are invoked in these casesJust because a case comes down on common law theory doesn't mean rfras don't apply. I think you have sidestepped the issues. Obviously, rfras can be invoked in these cases Are you opposed to exempting child safety from the RFRAs? And what is your view on a RFRA without substantial modifying burden? Marci On Jun 14, 2012, at 11:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: Gibson v. Brewer is an outlier, giving the church more protection than most states provide. And the protection Gibson provides is roughly equivalent to what state and federal law provides the public schools in similar circumstances. No state has even considered giving religious liberty protection to abusers. The only dispute is with respect to entities who weren’t there and didn’t do it, but might have been able to prevent it. And most of those cases are decided under common law rules uninfluenced by RFRAs or free exercise clauses. I have written about Gibson v. Brewer in Michigan in 2007. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 10:02 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I was talking about the facts of how these cases are litigated. I represent many victims in numerous cases around the country on the First Am and RFRA issues. The RCC and LDS on particular push the religious freedom claims hard in such cases. Sometimes together Gibson v Brewer out of Missouri Is a good case to start with Marci On Jun 14, 2012, at 9:31 AM, Arthur Spitzer artspit...@gmail.com wrote: Marci - I don't believe you've stated the facts of a single case. I'd say the same thing if you were a man. Art On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton hamilto...@aol.com wrote: I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions and child sexual abuse
There is a significant federal RFRA litigation burden in the diocesan bankruptcies. Marty and I have been on opposite sides litigating it. I currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the RFRA and First Amendment issues. I have seen state rfras pled in many cases. These cases typically settle so decisions are rare. The trend is definitely against their theories but they are part of the fabric of these cases nonetheless. Autonomy theories are persistent in these cases. Marty may not have seen the briefing but I see such issues from around the country on a daily basis. Just this week I have seen autonomy argued in Illinois, Hawaii, and California cases. Marci On Jun 14, 2012, at 6:01 PM, Douglas Laycock dlayc...@virginia.edu wrote: I don’t think there is much of a litigation burden from RFRA defenses in sexual abuse cases. The principal news about state RFRAs is that they are seriously underutilized and seriously underenforced when utilized. Chris Lund documents this at 55 S.D. L. Rev. 466 (2010). This is not a good thing, but it’s a fact. I am not aware of state RFRAs being used at all in sexual abuse cases. Chris mentions no such case, and he cites no case with a Doe or Roe plaintiff. But as Vance says, things can go on in trial courts that law professors don’t know about. So I asked Martin Nussbaum at the Rothgerber firm in Denver whether anyone is using state RFRAs in sexual abuse cases. Martin has represented churches in many sexual abuse cases. Here is what he said: “I am aware of only one church defense counsel in the past five years, who has filed a dispositive motion based on church autonomy or other religious freedom grounds. That motion was filed in the past year. It was not based on a state RFRA argument. It was unsuccessful. While the First Amendment precedents are still split on this issue, the majority of such First Amendment arguments after 1-1-02 have lost. I am aware of some arguments being made that seek to limit the scope of discovery that invoke confidences mandated by church law and contend that civil courts should respect such confidences due to First Amendment, state confidential clergy communications statutes, and, conceivably, state RFRAs. I cannot point though to instances where an advocate invoked state RFRA laws to limit such discovery. It may have happened. I just don't know about it.” The significance of 2002, of course, is that that is when the news from Boston broke. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, June 14, 2012 1:57 PM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I think someone needs to raise a word in defense of Marci here. The perspective of someone who actively litigates these cases has to be different from that of someone who sits in an office reading the decisions and synthesizing the rationales of the cases. The fact that religious-institution defendants raise RFRAs as a defense to causes of action or to discovery means that the plaintiffs have to go to that much more work (and legal expense) to counter the arguments. In that sense, whether the defenses work or not, there is an additional burden on litigants in having that extra string on the defendant's bow. Vance ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Defeat of RFRA constitutional amendment in North Dakota
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 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: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels
parishioners. But if the pastor's instructions to his parishioners are to do something unlawful if a certain pre-condition is satisfied and the pre-condition is sufficiently common that it will almost certainly occur in the very near future, I'm not sure I see the Brandenburg problem. Infants will cry and will fail to sit still. If a speaker instructs a group of parents with very young children to stick their children's hand in boiling water if they cry or fail to sit still, that seems pretty imminent to me. If the parishioners follow his instructions and he ratifies their conduct and tells them to continue to do so, I think that's more than abstract advocacy. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 4:31 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels I don’t think that strict scrutiny can justify restrictions that are forbidden by Brandenburg. After all, in most advocacy-of-crime cases there’s a compelling interest in preventing crime, and a plausible argument that alternatives to suppression of advocacy – e.g., counterspeech and punishment of the criminal conduct – aren’t going to be as effective as suppression (plus those alternatives). Brandenburg, I think, is a judgment that speech restriction is just not a permissible means of serving the compelling interests, see generally http://www.law.ucla.edu/volokh/scrutiny.htm pts. II.B III (Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997)). And I think that’s as true for speech advocating child abuse as for speech praising rioters, speech advocating the propriety of holy war, and the like. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Sunday, May 13, 2012 4:24 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels Eugene-what about strict scrutiny? I think there is a compelling interest in protecting children from being hit with wooden dowels Given the hidden nature of most such abuse, there is unlikely to be a lesser restrictive method to ensure children are not harmed. Marci On May 13, 2012, at 7:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct – even illegal conduct – doesn’t fit within the Brandenburg exception, because it isn’t intended to yield imminent lawless conduct; and I don’t think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it’s possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana is a sacrament be prosecuted for conspiracy to engage in criminal possession or receipt of marijuana? Could imams who preach the propriety of jihad be prosecuted for conspiracy to engage in jihad, just based on the teaching alone? Eugene http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old. Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church's literal interpretation of the Bible. The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom. Circuit Judge Maryann Sumi found that Caminiti had a sincerely held religious belief
Re: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels
Eugene-what about strict scrutiny? I think there is a compelling interest in protecting children from being hit with wooden dowels Given the hidden nature of most such abuse, there is unlikely to be a lesser restrictive method to ensure children are not harmed. Marci On May 13, 2012, at 7:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct – even illegal conduct – doesn’t fit within the Brandenburg exception, because it isn’t intended to yield imminent lawless conduct; and I don’t think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it’s possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana is a sacrament be prosecuted for conspiracy to engage in criminal possession or receipt of marijuana? Could imams who preach the propriety of jihad be prosecuted for conspiracy to engage in jihad, just based on the teaching alone? Eugene http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old. Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church's literal interpretation of the Bible. The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom. Circuit Judge Maryann Sumi found that Caminiti had a sincerely held religious belief as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state's child abuse statute places a burden on his sincerely held religious belief. Scripture doesn't specify how and when the rod should be used, Sumi said, adding that Caminiti also was willing to modify the church's practices to comply with the 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.
Re: Court upholds prison no-pork policy against Establishment Clause challenge
Eugene-- that does not respond to my point. Cutter is a narrow opinion saying RLUIPA does not on its face violate the Establishment Clause. It does not say that every program considered under RLUIPA is safe from Establishment Clause attack. Marci On Apr 16, 2012, at 5:54 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, Ellis was arguing that “the issue” was whether “RFRA and RLUIPA ... are secular in purpose and effect.” I read Cutter as concluding that they are, though indeed particular accommodations implemented out of a desire to avoid RLUIPA litigation might not be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, April 16, 2012 1:33 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Cutter only addressed the facial Establishment Clause attack on the prison provisions of RLUIPA. It did not protect any particular program or exemption from attack Marci On Apr 12, 2012, at 7:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Maybe it would and maybe it wouldn’t, but I don’t think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever “primary effect” might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being “secular in purpose and effect,” the Supreme Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn’t impress any of the Justices, even Stevens. But even if RLUIPA didn’t exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 5:21 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue. Suppose these two laws did not exist. Then would the prison policy in question be secular in nature? The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons. For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 12, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me. On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis ew...@richmond.edu wrote: Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West
Re: Statement on Religious Liberty from USCCB
This is a statement of their preferred public policy not constitutional law. Marci On Apr 13, 2012, at 6:47 AM, Marty Lederman lederman.ma...@gmail.com wrote: The Conference of Catholic Bishops just issued this major Statement on Religious Liberty: http://usccb.org/issues-and-action/religious-liberty/upload/Our_First_Most_Cherished_Liberty.pdf I'd be curious to hear what others think of it. Its basic thrust is that religious liberty is now acutely under attack in the U.S., in a way it has not been in quite a while. Indeed, what is at stake is no less than whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it. Do you think they've made the case for such an indictment? Furthermore, it quotes liberally from Dr. King's letter from the Birmingham jail, and urges citizens to have the courage not to obey the laws that allegedly are presenting this profound threat. (What are the odds there will be much civil disobedience of the laws they have in mind? -- not a rhetorical question.) And it invokes Lincoln at Gettysburg in asking for a fast for a new birth of freedom in our beloved country. Thoughts? ___ 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 upholds prison no-pork policy against Establishment Clause challenge
Cutter only addressed the facial Establishment Clause attack on the prison provisions of RLUIPA. It did not protect any particular program or exemption from attack Marci On Apr 12, 2012, at 7:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Maybe it would and maybe it wouldn’t, but I don’t think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever “primary effect” might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being “secular in purpose and effect,” the Supreme Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn’t impress any of the Justices, even Stevens. But even if RLUIPA didn’t exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 5:21 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue. Suppose these two laws did not exist. Then would the prison policy in question be secular in nature? The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons. For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 12, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me. On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis ew...@richmond.edu wrote: Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On
Re: Discrimination against people with religious motivations for their actions
I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is “a badge of a religion different from yours.” And thus he would be presumptively required to deliver to the doctor’s office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:10 AM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge of a religion different from yours -- only in this case it is alcohol possession -- a badge of a religion different from yours. The dodge of oh, I'm not against their religion, just against their conduct can't be allowed can it? The person transporting the alcohol is the passenger, not the cab driver. The fact of hidden vs. open possession of the bottle of wine gives it away, doesn't it -- it is not about the action, it is about the religious nature of the action -- the violation of the religious beliefs of the driver by the religious beliefs (ok to have and transport alcohol) by the passenger. It is action based on a difference of religious belief. That is discrimination no matter how one twists it. Maybe we should allow this discrimination, just like maybe we should allow discrimination in allowing landlords to discriminate against gays based on the landlord's religious beliefs, but that is still religious-based discrimination. You can't suddenly say that motivation doesn't matter just
Re: Discrimination against people with religious motivations for their actions
Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers I would add that Hershberger was decided at the height of the misleading doctrinal hysteria over Smith. It is unfortunate that the state Courts were persuaded to make either/or decisions about free exercise in that context They like Congress were given a false choice You have to give her credit-- Justice OConnor conceded that there were definite arenas where SS had not applied Since then, there has been a lot more public education about the actual impact of SS on the vulnerable and affected. That is why the state rfras slowed down considerably and the W Va version is going nowhere. I apologize for going so far off topic Marci On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion
Re: Basketball tournaments on the Sabbath
So only those practices that are mandatory are relevant? Isn't that a centrality requirement? Marci On Mar 3, 2012, at 4:50 PM, Alan Armstrong alanarmstrong@verizon.net wrote: I think that is not relevant. I thought the Saturday afternoon/evening mass was for those who could not make it to church Sunday morning. An Orange County Register columnist, Frank Mickadeit, called it the slakers' mass. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 3, 2012, at 12:21 PM, Marci Hamilton wrote: Lots of Catholics go to Saturday evening mass. Relevant? On Mar 3, 2012, at 2:55 PM, Alan Armstrong alanarmstrong@verizon.net wrote: My understanding is that Jewish and 7th day adventists consider sabbath as going from sundown on Friday to sundown on Saturday. I do not know of any christian denominations that use sundown Saturday to sundown on Sunday as the Lord's day.Therefore a Saturday night game should be acceptable to all. A little thought and common sense and we would need fewer lawyers. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote: Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint’s state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side’s state action theory is very weak. But they had to file the lawsuit before common sense could prevail. 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: Requirement that cabbies transport alcohol = tiny burden?
Eugene-- just a point of information--is there a lead MN Sup Court case that applying strict scrutiny in cases involving neutral generally applicable laws and worship conduct that is illegal? Thanks! On Mar 7, 2012, at 3:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote: But the Minnesota Constitution has been interpreted as following Sherbert and Yoder, so isn’t the question indeed why the cab drivers aren’t constitutionally entitled to an exemption? As it happens, I oppose constitutional exemption regimes, at the state and federal levels, and support jurisdiction-by-jurisdiction RFRAs, which means the question becomes statutory, and trumpable by the state legislature. But the Minnesota rule is one of constitutionally mandated exemptions, unless strict scrutiny is satisfied, no? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:22 AM To: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? For the record, I was in favor of the accommodation attempted for the Somali Muslim cab drivers in Minneapolis and am in favor of most accommodations of religion done by employers and public agencies and the government in general -- even quite odd ones like this particular interpretation of the Quran by this group of Somalis. But that is quite different from positing that there is a right in the Somalis to engage in this sort of discrimination let alone a constitutional right to do so. Doug is right -- sometimes hostility to religious accommodation is motivated by a universalist thrust that we should in fact all be treated equally -- the same sort of hostility one sees against affirmative action for Blacks. And Doug is also right that sometimes the hostility is directed against a religion and members of that religion -- as JWs, Muslims, Jews, and in some settings and some times, Catholics and others have experienced (19th Century Baptist prayer -- God save us from the Unitarians who at the time had circuit riders and were quite evangelical, unlike today). No doubt both of these played into this event -- especially hostility to Islam. But the subtextual motivation of hostility to the religion cannot make what is otherwise lawful discrimination unlawful, or does it? Is there a constitutionally meaningful distinction between -- I don't like your religion and therefor will not accommodate you and I don't think you are entitled to an accommodation as a matter of constitutional right -- where there is in fact no constitutional right to accommodation, as here. Steve ___ 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: Basketball tournaments on the Sabbath
Frankly, common sense or at least a full evaluation of all of the non religious interests seems lacking on the side of those claims accommodation. On Mar 3, 2012, at 6:41 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The trouble with “common sense” is that it often points in different directions. Common sense tells us there is real value to following rules with no exceptions, so that one doesn’t have to later deal with questions of “you accommodated them, why don’t you accommodate” us (even when the future request for accommodation might be different from the current one), and also to having a schedule that is predictable, especially given that team members and others related to the team may often plan their schedules around the preannounced playing schedule. Common sense also tells us that there is real value to being flexible, especially for what could be a once-in-a-lifetime event for the kids in whose interest the league is supposed to be operating. Likewise, respect for others sometimes includes changing your plans for others – and sometimes not insisting that others change their plans for you. On balance, I’m pleased with TAPPS’ ultimate decision to accommodate the Jewish team, but I’m not sure that “common sense” and “respect” by themselves resolve this question. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Saturday, March 03, 2012 12:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Basketball tournaments on the Sabbath The common sense is what is often lacking and with a sense of fairness and toleration. Apparently for the leaders of the TAPP common sense means everyone is a Christian and all people have a Sunday sabbath. The lawyers serve as educator to teach common sense and respect for other religions. Connected by DROID on Verizon Wireless -Original message- From: Alan Armstrong alanarmstrong@verizon.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00 Subject: Re: Basketball tournaments on the Sabbath My understanding is that Jewish and 7th day adventists consider sabbath as going from sundown on Friday to sundown on Saturday. I do not know of any christian denominations that use sundown Saturday to sundown on Sunday as the Lord's day.Therefore a Saturday night game should be acceptable to all. A little thought and common sense and we would need fewer lawyers. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote: Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint’s state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side’s state action theory is very weak. But they had to file the lawsuit before common sense could prevail. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road = div= ___ 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: Basketball tournaments on the Sabbath
There is significant precedent for one-religion sporting events, which I assume everyone agrees is fine.Catholic Leagues exist in numerous cities And the Maccabiah Games feature only Jewish athletes. TAPPs' first mistake appears to have been opening itself up to religious organizations with different religious needs and demands. 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 On Mar 4, 2012, at 9:51 PM, Paul Horwitz phorw...@hotmail.com wrote: I agree that the word liberty may be problematic here. Of course it depends on the circumstances: some set of facts, or some particular state law regime, might involve a public sports league, or some set of religious rights of non-discrimination in a place of public accommodation. (Although, even if a public accommodation law were involved, that doesn't seem to me, a supporter of BSA v. Dale, to answer the question whether a largely religious sporting association would be obliged to accommodate others.) I didn't do very much research on this, but I didn't immediately spot relevant laws in Texas on this subject, and TAPPS is a private league. So liberty is not the best word here. Pluralism, on the other hand, goes some of the way, given the facts, especially as it relates to the word hospitality, which Eugene uses. Groups might choose to stay small and insular in order to avoid these kinds of scheduling problems and other conflicts. If, on the other hand, they are interested in expanding their reach, for a variety of reasons (among others, pre-collegiate athletics, including interleague exhibition and championship play, is becoming an increasingly profitable and organized activity across the country; the New Yorker recently ran an interesting story on that subject), then they ought to know at some point that doing so will bring them in contact with other religious groups and individuals with other needs. As long as they are interested in hosting such play, they ought to think in a forward-looking and, I hope, accommodating way about these issues, and anticipate them rather than stumble into them. As to the questionnaire to Muslim schools, I honestly don't know enough about the facts to do anything other than wonder what they were thinking. I should add that I'm quoted in yesterday's Times story, and the quote is accurate enough, but in light of this exchange I must emphasize that the primary point I made in talking to the reporter was not one about the law, but about the increasing likelihood that more leagues will deal with more issues of religious conflict or accommodation as they grow larger, the need for those leagues to figure out how much their own sectarianism matters to them and how much having a broader field of members and competitors does, and in either case the need to think through their mission first and act accordingly. Of course there are law-and-religion issues and overtones here, but we are better off thinking through what pluralism demands in any event, whether the law is at issue or not. The answer won't always be that pluralism demands accommodation, at least by private actors; but it may be that private actors of this kind that are interested in interacting with other groups, including inviting other teams with other beliefs to compete in play, are indeed obliged to accommodate, or at least to try to. Best, Paul Horwitz University of Alabama School of Law From: vol...@law.ucla.edu To: religionlaw@lists.ucla.edu Date: Sun, 4 Mar 2012 14:17:32 -0800 Subject: RE: Basketball tournaments on the Sabbath I wonder whether religious liberty is exactly the right term here, where we're talking about access to a privately provided program, and one that is hardly essential for life or livelihood. The question isn't just whether Orthodox Jews are free to live as good Orthodox Jews, or even are free to get broadly available benefits of the welfare state that are important to survival (such as unemployment compensation). Rather, the question is whether other private parties should adapt their behavior -- their exercise of their own liberty -- to accommodate Orthodox Jews' felt religious obligations. That's an interesting question, and the answer might well be that they should so adapt their behavior, if it's a low-cost adaptation, out of hospitality or kindness or application of the Golden Rule or some such. But I think that talk of liberty here is not very helpful. 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
