Re: State-sanctioned church "police force"

[Paul Horwitz]

I assume, given the size of the congregation, that the church is more of a 
megachurch or campus, indeed much like a university campus with various 
buildings and activities, than a church that is largely deserted except around 
worship times. I can't say I know anything about the racial composition of the 
congregation, what activities take place on campus and whether there have been 
previous issues with crime or trespass, what the crime rate in the area is, or 
any other potentially relevant issues. I'm not sure what burden or level of 
justification the law requires before the legislature will consider granting 
this status, or for that matter when small universities, including those that 
are predominantly of one race, do or do not require their own police forces and 
how searching legislatures are in granting that status to university police at 
colleges of this size. Although I'm happy to hear otherwise, I'm not sure how 
relevant any of that is in any event. And while I'm sensitive to the stark 
visibility of such questions in my state (as opposed to states in which class 
and racial segregation, generally tied together, are emphatically present but 
less visible and not treated as interfering with somewhat illusory narratives 
about that state's residents as relatively virtuous, liberal, or welcoming of 
others; I'm sure if I wanted to live in an effectively gated community in, say, 
Cambridge, Berkeley, Austin, or Northern Virginia, it wouldn't be hard to do 
so), given that this appears to be a first-of-its-kind request in the state, 
I'm not inclined to draw conclusions about its broader social implications. I 
do think it raises EC questions regardless of any of those issues. But I do 
thank you, quite sincerely, for the cite.


Cheers,


PH



From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> 
on behalf of Ira Lupu <icl...@law.gwu.edu>
Sent: Wednesday, April 12, 2017 10:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: State-sanctioned church "police force"

Why would a large, predominantly white suburban congregation near Birmingham 
need its own police force?

For a related religion clause case, see State v. Celmer, 
http://law.justia.com/cases/new-jersey/supreme-court/1979/80-n-j-405-0.html 
(invalidating on First A grounds "a statutory scheme which grants various 
municipal powers to the Ocean Grove Camp Meeting Association of The United 
Methodist Church.")
[https://justatic.com/v/20170324144953/shared/images/social-media/law.jpg]<http://law.justia.com/cases/new-jersey/supreme-court/1979/80-n-j-405-0.html>

State v. Celmer :: 1979 :: Supreme Court of New Jersey 
...<http://law.justia.com/cases/new-jersey/supreme-court/1979/80-n-j-405-0.html>
law.justia.com
80 n.j. 405 (1979) 404 a.2d 1. state of new jersey, plaintiff-respondent, and 
ocean grove camp meeting association of the united methodist church, intervenor 
...



On Wed, Apr 12, 2017 at 11:04 AM, Paul Horwitz 
<phorw...@hotmail.com<mailto:phorw...@hotmail.com>> wrote:

Here's a story from the AP. What do you (or, to use the proper and incredibly 
useful grammar of my adopted state, "y'all") think? Is it a quasi-Grendel's Den 
case or something of the sort? A direct Establishment Clause problem insofar as 
it involves granting governmental or quasi-governmental status to a church 
itself? A Kiryas Joel-type case insofar as it grants a governmental privilege 
or status that might or might not be granted to, say, a mosque or some other 
organization? (Not that I'm crazy about that aspect of the Kiryas Joel ruling.) 
Or, insofar as state law allows the state to empower various entities to have 
police forces, is it constitutional because respectful of equal access to 
governmental benefits or privileges?


Paul Horwitz

University of Alabama School of Law


MONTGOMERY, Ala. (AP) – The Alabama Senate has voted to allow a church to form 
its own police force.
Lawmakers on Tuesday voted 24-4 to allow Briarwood Presbyterian Church in 
Birmingham to establish a law enforcement department.
The church says it needs its own police officers to keep its school as well as 
its more than 4,000 person congregation safe.
Critics of the bill argue that a police department that reports to church 
officials could be used to cover up crimes.
The state has given a few private universities the authority to have a police 
force, but never a church or non-school entity.
Police experts have said such a police department would be unprecedented in the 
U.S.
A similar bill is also scheduled to be debated in the House on Tuesday.


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State-sanctioned church "police force"

[Paul Horwitz]

Here's a story from the AP. What do you (or, to use the proper and incredibly 
useful grammar of my adopted state, "y'all") think? Is it a quasi-Grendel's Den 
case or something of the sort? A direct Establishment Clause problem insofar as 
it involves granting governmental or quasi-governmental status to a church 
itself? A Kiryas Joel-type case insofar as it grants a governmental privilege 
or status that might or might not be granted to, say, a mosque or some other 
organization? (Not that I'm crazy about that aspect of the Kiryas Joel ruling.) 
Or, insofar as state law allows the state to empower various entities to have 
police forces, is it constitutional because respectful of equal access to 
governmental benefits or privileges?


Paul Horwitz

University of Alabama School of Law


MONTGOMERY, Ala. (AP) – The Alabama Senate has voted to allow a church to form 
its own police force.
Lawmakers on Tuesday voted 24-4 to allow Briarwood Presbyterian Church in 
Birmingham to establish a law enforcement department.
The church says it needs its own police officers to keep its school as well as 
its more than 4,000 person congregation safe.
Critics of the bill argue that a police department that reports to church 
officials could be used to cover up crimes.
The state has given a few private universities the authority to have a police 
force, but never a church or non-school entity.
Police experts have said such a police department would be unprecedented in the 
U.S.
A similar bill is also scheduled to be debated in the House on Tuesday.

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Re: the unconstitutionality of barring Muslims from entering the U.S.

[Paul Horwitz]

I'm sorry not to see reference in the discussion to preexisting scholarly 
discussions of the question of the extraterritorial reach of the EC or other 
clauses of the First Amendment. No offense to the worthy statements of those 
who have posted, or written elsewhere, although I do think academics generally 
have a comparative advantage at calm and slow reflection, not short-term 
reactions and predictions, in which they are largely as subject to cognitive 
limitations as all humans are.

To that end, may I commend Timothy Zick's The Cosmopolitan First Amendment: 
Protecting Transborder Expressive and Religious Liberties (Cambridge University 
Press, 2015),
http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210.
 His endnotes point to other relevant and reflective treatments. See also this 
valuable report of a task force on religion and U.S. foreign policy sponsored 
by the Chicago Council on Global Affairs: 
http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf.
 I think everyone will find both sources valuable, interesting, and 
time-consuming.



> On Dec 9, 2015, at 11:12 PM, James Oleske  wrote:
> 
> Although Rick and Chip agree that Trump's proposal violates the Establishment 
> Clause, they travel different paths to that conclusion, and those different 
> paths raise (I think) an interesting question:
> 
> Under the Court's precedents, is it clear that the "denominational 
> discrimination" rule Rick invokes is, like the "ecclesiastical question" rule 
> Chip originally invoked, structural in nature and not rights oriented? 
> 
> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand 
> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of 
> language that makes the issue of endorsement or disapproval sound in 
> individual rights ("person's standing in the political community" "not full 
> members of the political community" “perceived by … nonadherents as a 
> disapproval[] of their individual religious choices"). In its latest 
> explanation of the denominational-discrimination rule in McCreary, the Court 
> wrote that "Manifesting a purpose to favor one faith over another ... clashes 
> with the 'understanding, reached ... after decades of religious war, that 
> liberty and social stability demand a religious tolerance that respects the 
> views of all citizens." If we're talking about non-citizens who are not part 
> of the American political community, could one colorably argue that the 
> denominational-discrimiantion rule -- as currently understood by the Court -- 
> does not apply?
> 
> - Jim
> 
>> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan  
>> wrote:
>> I missed Chip's great post before I asked my question.
>> 
>> I agree completely with what Chip says here. It seems like a clear violation 
>> of  EC limitations on National power. The clearest command of the EC forbids 
>> denominational discrimination by the National government ("Congress shall 
>> make no law").
>> 
>> The only problem might be standing. Would a non-citizen-foreign-national 
>> have standing to challenge the exclusion under the EC?
>>  
>> Rick Duncan 
>> Welpton Professor of Law 
>> University of Nebraska College of Law 
>> Lincoln, NE 68583-0902
>> 
>> 
>> From: Ira Lupu 
>> To: Law & Religion issues for Law Academics  
>> Sent: Tuesday, December 8, 2015 7:10 PM
>> Subject: the unconstitutionality of barring Muslims from entering the U.S.
>> 
>> There has been much discussion in the press and on blog posts re: the 
>> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from 
>> entering the U.S.  Several commentators have suggested the "plenary power" 
>> doctrine, governing Congressional power over immigration, would insulate 
>> such a proposal from a finding of unconstitutionality. 
>> I think the strongest constitutional argument against this proposal is based 
>> on the Establishment Clause, which severely limits the government's power to 
>> decide who is and who is not a Muslim. Suppose the person seeking entry 
>> disputes the label; how will immigration officials adjudicate the question? 
>> What criteria would the government apply to decide who fits the 
>> disqualification? This is an ecclesiastical question, the decisions of which 
>> are off-limits to the government. (See Hosanna-Tabor v. EEOC; more 
>> generally, see Lupu & Tuttle, Secular Government, Religious People, chaps. 
>> 1-2.)
>>  Because the Establishment Clause is structural, and not rights-oriented, It 
>> does not matter whether or not the decisions pertain to American nationals. 
>> The plenary power doctrine cannot undo this structural limitation, any more 
>> than it can undo limitations based on separation of powers (e.g., Congress 
>> may not delegate to a congressional committee the power to process 
>> immigration cases).
>> 
>> 

FW: Town of Greece - Canadian Version

[Paul Horwitz]

Ruthann Robson of CUNY has, on the con law listserv, offered a post linking to 
the issuance of a judgment by the Supreme Court of Canada in the case of 
Mouvement laique quebcois v. Saguenay (City). [I apologize for not properly 
accenting it; I am reminded of page 104 of Rick Atkinson's masterful book An 
Army at Dawn.] As she notes, the case has parallels to Town of Greece v. 
Galloway, inasmuch as the Supreme Court dealt with religious opening practices 
by a city municipal council; unlike the American Court's decision, however, the 
Canadian Court ruled, essentially on Charter grounds, that such practices were 
impermissible. There are factual differences between the cases. The practices 
in Saguenay were arguably much more sectarian than most if not all of the 
prayers in Town of Greece, they were delivered by the mayor and not an invited 
guest, and they represented one faith only; there was not even a bare minimum 
of rotation among other faiths. I think it unlikely, however, that the ruling 
would have differed if the facts had been closer to those in Galloway. The 
decision was unanimous as to the result although there were differences on the 
ad law/standard of review aspects of the case. 
Three interesting facts here. First, as the case notes, the Speaker of the 
House of Commons in Parliament delivers opening prayers before sessions, and 
the prayer said in this case was drawn from that language. The Court declined 
to draw any conclusions on that basis about the municipal practice, and noted 
in passing that the prayer practice in Parliament might be subject to 
parliamentary privilege. (Although I wonder whether that sufficiently answers 
questions about the constitutionality of that practice.) 
Second and to my mind more interesting, the preamble to the Canadian Charter of 
Rights and Freedoms contains this language: Whereas Canada is founded upon 
principles that recognize the supremacy of God and the rule of law... The 
Court refused to allow that fact to alter its judgment on the Charter question, 
stating that the preamble articulates the 'political theory' on which the 
Charter's protections are based and was not determinative on the question of 
how to interpret the Charter itself, whose religion and conscience guarantees 
must be interpreted expansively. Although I think the Court's judgment was 
right, it was nonetheless interesting to see this kind of move, which both 
contrasts with those here who would interpret the Constitution and Bill of 
Rights in light of both the preamble to the Constitution and, for that matter, 
the Declaration of Independence; the Canadian Court's dismissive approach to 
the preamble and its importance to Charter interpretation is kind of like 
Heller-apres-la-lettre. 
More generally, I doubt that the differences in result between the two cases 
had much to do with constitutional text or legal reasoning as such. The Court's 
reasoning in Saguenay, whether wrong or right, is rather airy, depends on 
abstract terms that must be filled in and do little strong work in and of 
themselves, and ultimately, as the Court itself says, has much more to do with 
its sense of what is demanded by its sense of what the Charter should be taken 
to mean given its sense of the evolution of Canadian society. The Court's 
sense is probably right, although Canadian government, including the Court, is 
something of a mandarinate and there are reasons to be skeptical about its 
conclusions about the state and the views of Canadian society. In any event, 
my general and longstanding impression is that the differences between the two 
courts and their respective interpretation of Constitution and Charter have 
much less to do with text and method than with differences in social and 
cultural mores and consensus--although the (seeming) presence of a more solid 
and less divided social consensus has much to do with the method the Court 
applies, and its ability to rely on rather open-ended balancing rather than 
highly technical, mechanical, and narrow methods of Charter interpretation. The 
same cultural and institutional differences are apparent in the courts' 
respective approaches to statutory interpretation as well, I think. Meanwhile, 
as a friend and terrific church-state scholar at McGill Law School, Victor 
Muniz-Fraticelli, observes, many of the religion cases reaching the Court come 
from Quebec (and, I would add, British Columbia, which along with other western 
provinces contains some more conservative and religious communities). These are 
precisely those places in which the Canadian social consensus described, 
represented, and relied upon by the Court--correctly enough, I think, but 
perhaps without sufficient awareness of views and communities (more Western 
than Quebecois) who for decades have been represented within the mandarinate 
poorly if at all--breaks down. 
Finally, note that the Supreme Court of Canada also recently issued a judgment 
in a case 

Re: Homeschooling, vaccinations, and Yoder

[Paul Horwitz]

Of course, it is also possible that these legislators believe that it *is* 
unconstitutional to heavily regulate homeschooling, either because it's the 
best reading of Yoder and Pierce going forward (and given the premise that 
those decisions leave the point unresolved), or because they are independently 
obliged to read and follow the Constitution and believe this is what its best 
reading demands. Even if one believes that the Court has the last word on 
constitutional questions, no one need believe it has the only word. 

Sent from my iPad

 On Feb 2, 2015, at 2:25 PM, Hillel Y. Levin hillelle...@gmail.com wrote:
 
 But the Court's decisions in Yoder and Pierce v. Society of Sisters play an 
 important role too. Together, these cases leave the question of whether the 
 state can prohibit or heavily regulate home schooling open, and they suggest 
 (though do not explicitly find) a parental right of some sort. The 
 pro-homeschooling groups make use of these cases when they lobby, leaving 
 regulators with the impression that it might be unconstitutional to heavily 
 regulate homeschooling. As a result--together with the political economy on 
 the matter and the practical questions about how the state meaningfully could 
 regulate homeschooling--they often throw their hands up and concede.
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RE: Homeschooling, vaccinations, and Yoder

[Paul Horwitz]

I have no complaint about the way Hillel puts things below. I had no complaint, 
as such, about the way he put things the first time. And I could think of much 
worse things to be accused of than naiveté. But I should like to defend myself 
to a certain extent. Of course I understand that legislators are motivated by 
politics! I would have hoped it was obvious that I did. And of course I 
understand that one could think of more suitable parties than legislators when 
thinking about consistent, thoughtful, serious attempts to understand and 
follow the Constitution. (Mind you, on reflection I'm not sure who, exactly: 
not this or most Presidents, for instance; not this or most Congresses; I'm not 
all that certain I'd put every academic student of the Constitution in that 
category either. Military officers, maybe.) I did have a point in offering my 
comment, but it was not the result of some belief, fanciful or otherwise, that 
legislators are paragons of seriousness in interpreting the constitution. 
The point is that, if those cases are open on this issue--and I did not make an 
assertion about that one way or the other; I took it as a premise for purposes 
of responding to Hillel--then legislators are entitled, and indeed obliged, to 
make their own decision about what the federal Constitution, and/or their state 
constitution, requires with respect to homeschooling. It would not surprise me 
if they did not take this duty especially seriously, of course. 
I would add that although I am fine with most of Hillel's response, I would 
part ways slightly on one thing. It would not surprise me--to the contrary, it 
would surprise me if it were never the case--if there are some legislators, and 
specifically some who are ardent supporters of homeschooling, who are strongly 
convinced that there is a constitutional right to homeschool and that it 
includes the right to be substantially unregulated. They may be totally wrong; 
they certainly would be engaged in extremely motivated reasoning, as everyone 
else does; and they certainly ought to be aware of the political gains that 
would be involved in taking such a position. But, given that this is a culture 
war issue for this constituency, I would be surprised if some of them hadn't 
actually become convinced of the constitutional rightness of their position.   
Of course I understood the point of Hillel's comment to be primarily, if not 
purely, descriptive. But it seemed to me that if we were going to talk about 
the role played by past decisions of the Court in influencing legislators, then 
it was important, for both descriptive and normative reasons, to be clear that 
the legislators who accept the arguments on behalf of homeschooling lobbyists 
might conceivably, mirabile dictu, agree with them. It can't, after all, be 
surprising that in a country where there are people who homeschool for 
religious reasons, and an even larger number of people who don't but hold 
traditionalist religious views, a legislator might from time to time be elected 
who actually believes in this kind of reading of the Constitution. It's even 
possible that such a legislator might, at one and the same time, have both 
cynical political and sincere constitutional views on the matter. That is, 
after all, how many if not most people, of whatever political stripe, reason 
about the Constitution a good deal of the time. 
May I add that, despite our well-founded lack of faith in legislators' 
sincerity or seriousness about interpreting the Constitution, we often, for 
various reasons, act as if they are at least capable of doing so. People write 
letters to them, for instance, purporting to explain the law. It is possible 
that all such efforts are purely cynical: merely an effort to put a good face 
on the real work of calculating interest-group politics that is going on behind 
the scenes. But I would like to think that there is a bit of sincerity, or 
perhaps cynicism with just a bit of hopefulness and idealism mixed in, in such 
efforts; and I think our politics will function better in the long run if we 
treat those legislators as participants, however imperfect, in the 
constitutional interpretive community.  
 


 

From: hillelle...@gmail.com
Date: Mon, 2 Feb 2015 17:14:40 -0500
Subject: Re: Homeschooling, vaccinations, and Yoder
To: religionlaw@lists.ucla.edu

I'm skeptical that state legislators (for the most part) have formed any 
informed views about the constitutionality one way or another. I think they are 
motivated by the things legislators tend to be motivated by: constituents, 
focused interest groups, the path of least resistance, calculations of 
political cost, political priorities, what they understand to be good policy, 
and what they think the courts might do based on what the interest groups tell 
them. Paul is right that they could form an independent view based on their own 
research and reading of the state and federal constitutions, but i sincerely 

Re: Increasingly implausible theories of complicity

[Paul Horwitz]

Just to add one small detail: I have no particular problem with questions or 
skepticism and agree that they can be put into a legally relevant framework 
(although in the post-decision commentary, not every such doubt or criticism 
was so framed). But just as the ACA and its implementation have occasioned new 
questions for those studying and administering it, so presumably it caused some 
religious individuals and groups also to have to consider or reconsider the 
precise nature of their ethical obligations or limitations. Religious ethics 
may be old, but for most if not all faiths they are also relational and require 
new thought as to applications to new situations. Some of the conclusions drawn 
on these questions could, of course, be insincere; others could be wrong from 
an internal perspective, but still quite sincere.

 On Jul 5, 2014, at 11:02 AM, Volokh, Eugene vol...@law.ucla.edu wrote:
 
Got it, thanks – now this makes sense.  I don’t know whether 
 these objectors are sincere in their objection to submitting the relevant 
 form, but I agree that that is a legally relevant question (and a potentially 
 legally dispositive one, if they aren’t sincere).
  
Eugene
  
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
 Sent: Saturday, July 05, 2014 8:49 AM
 To: Law  Religion issues for Law Academics
 Subject: Re: Increasingly implausible theories of complicity
  
 I did not mean implausible to me.  I meant that if the actual plaintiffs in 
 some of these cases had been asked before the HHS Rule about where they had 
 to draw the line between what forms of conduct their religion forbids and 
 which it does not, in terms of forbidden cooperation with evil, I find it 
 implausible to believe that they would have drawn the lines they are now 
 insisting upon.  
 
 I realize that this can be restated in terms of a suspicion about sincerity.  
 In which case I should be crystal clear that I think these plaintiffs are 
 deeply sincere about their objection to the use of contraception, and about 
 their religiously inspired discomfort with the use of their insurance plans 
 to reimburse employees and students for the use of contraception.  (The scare 
 quotes around their are of course deliberate, not only because the plans do 
 not belong to the employer, but also because the vast majority of the terms 
 of such plans are compelled by law, not by employer choice, and, most 
 importantly, because participation in such plans is, like salary dollars, 
 compensation for the labor expended by employees -- it's not a gratuity.)  
 
 But the claims by some of the plaintiffs that, e.g., their religion forbids 
 them from opting out in a way that will give the government authority to 
 compel someone else to provide the coverage, or that their religion requires 
 them to provide employer-based health insurance to their employees, well, . . 
 . let's just say I'm skeptical.
  
 
 On Sat, Jul 5, 2014 at 11:33 AM, Volokh, Eugene vol...@law.ucla.edu wrote:
Aren’t most religious claims “implausible”?  It’s pretty 
 implausible to me that God would care whether we mix meat and milk, and in 
 particular that a prohibition on “seething a kid in his mother’s milk” (the 
 relevant text, if I understand correctly) should be read as barring mixing 
 beef and goat’s milk, or for that matter chicken and milk.  Both the 
 prohibition and the reasoning behind it are implausible, I think.  Likewise, 
 it’s implausible to me that God would want men to wear beards, or would want 
 people to consume hoasca.  What’s left of religious exemptions, though, if 
 they are only extended to plausible theories of what God wants?
  
Eugene
  
 Marty writes:
  
 Chip may be right that at some level this mess is the inevitable result of 
 RFRA, and of any exemption test that turns in part on an evaluation of the 
 nature of the burden on religion.  But I also think that it is a function of 
 the increasingly implausible theories of complicity being offered by the 
 plaintiffs' lawyers -- which the Court has invited with its capacious 
 understanding of what constitutes a religious question beyond the ken of 
 civil authorities to evaluate.
 
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Re: Untangling the confusion of the Wheaton College order

[Paul Horwitz]

It seems to me the broader debate suggests that *lots* of people these days, 
and not just the religious, have no sympathy for post-modernist 
anti-foundationalism--and/or that most of us are capable of moving between 
legal realism and formalism and back again in a split second, often without 
noticing.

 On Jul 5, 2014, at 11:41 AM, Levinson, Sanford V slevin...@law.utexas.edu 
 wrote:
 
 Let me tendentiously suggest that accommodationist is synonymous with 
 irrationalist if in fact one can't subject the proffered arguments to some 
 kind of independent scrutiny. Of course, this may represent the ironic 
 triumph of post-modernism, inasmuch as it taught many of us that there is in 
 fact no truly independent vantage point from which to police claims. But, 
 also of course, one can be certain that Wheaton and other religious claimants 
 have no sympathy for post-modernist anti-foundationalism.  
 
 Sandy
 
 Sent from my iPhone
 
 On Jul 5, 2014, at 10:16 AM, Steven Jamar stevenja...@gmail.com wrote:
 
 Yes.  We are not only deep into an accommodationist regime, but the 
 complicity theory immunizes religious claims from examination except for 
 sincerity.  Attenuation could be adopted in a later case, but if it is not 
 attenuated in HL, then it is hard to see where it would be.  And as we all 
 know, one can easily play rhetorical games with attenuation and with 
 defining just what is the evil with which one would be complicit.
 
 If one believes Justice Alito, and I don’t, then the complicity theory only 
 establishes burden, not substantial burden, which is a separate inquiry.  So 
 in theory, one could accept any level of complicity as a claim of burden, 
 but still not find it substantial.  But that is a twisted mess too, isn’t 
 it.  How can one inquire into the substantiality of the burden if one 
 accepts the claim of burden?  Can we use, as the court did in HL, external 
 financial burden to show substantiality and nothing else?  Or would just an 
 action (entering into a contract) be the substantial burden without any 
 showing of financial hardship?  And if the adherent claims that just 
 entering the contract is the substantial burden, under the complicity theory 
 coupled with the immunization of the claims from scrutiny seems to make the 
 financial aspect irrelevant.  
 
 So then the government falls back on compelling interest and least 
 restrictive alternative.  I wonder whether to some extent this decision 
 reflects continuing picque at Congress overturning Smith by enacting RFRA — 
 and the court is trying to get it repealed or changed by the surest way —by 
 enforcing it strictly — as pointed out by Abraham Lincoln.
 
 Steve
 
 
 
 On Jul 5, 2014, at 9:29 AM, Levinson, Sanford V slevin...@law.utexas.edu 
 wrote:
 
 Marty writes that the “mess . . .  is a function of the increasingly 
 implausible theories of complicity being offered by the plaintiffs' lawyers 
 -- which the Court has invited with its capacious understanding of what 
 constitutes a religious question beyond the ken of civil authorities to 
 evaluate.”  I think he’s absolutely right.  Hasn’t the Court in effect made 
 evaluation of religious argument, at last from an outsider’s perspective, 
 nearly impossible, unless one goes down the rabbit hold of challenging 
 “sincerity.”
  
 sandy
  
 
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 To subscribe, unsubscribe, change options, or get password, see 
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 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.
 
 
 -- 
 Prof. Steven D. Jamar vox:  202-806-8017
 Director of International Programs, Institute for Intellectual Property and 
 Social Justice http://iipsj.org
 Howard University School of Law   fax:  202-806-8567
 http://sdjlaw.org
 
 Example is always more efficacious than precept.
 
 Samuel Johnson, 1759
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Re: Does UVA have its own Regnerus scandal?

[Paul Horwitz]

Could you be more specific? What is it you suppose Prof. Laycock to have done 
that puts him in the same company as Regnerus? Are you suggesting that his work 
fails academic standards? That any relevant work as counsel was subject to 
different standards than those that apply to other lawyers? If so, how would 
you apply it to the hundreds of other cases of academic lawyers who also work 
as advocates? Do you see any potential problems with requests for the compelled 
disclosure of emails by university professors? Did you see any problems when 
similar issues came up recently in North Carolina, Michigan, Virginia, and 
elsewhere? Did you see any problems with the compelled disclosure of 
information, records, testimony, associations, and other matters with respect 
to university professors in the 1950s, at both the state and federal level? In 
thinking about these questions, do you not see any potential problems of 
general application? Or do you just look at them case by case? And if the 
latter, how do you distinguish among them? Surely not on the basis of what you 
think about the morality of the individual, or the individual argument, 
involved. What is the bravery involved? The students making the request, and 
the group supporting them, said that they were in no way attempting to 
interfere with academic freedom. I take it then that you agree that using 
freedom of information requests to compel the disclosure of emails by 
university professors raises no questions of academic freedom. Or do you think 
that, sometimes, it just might?

For what it's worth, I agree with you that this story deserves attention. But 
perhaps not for the same reasons that you do.

Respectfully,

Paul Horwitz 

Sent from my iPad

 On May 25, 2014, at 5:42 PM, jim green ugala...@gmail.com wrote:
 
 Too bad it took a few brave college students to do what responsible 
 academics (including many on this list) have failed to do for years...
 
 http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html
  
 
 -​--Jimmy Green​
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Re: Notre Dame-- where's the complicit participation? Sincerity

[Paul Horwitz]

In a liberal and tolerant society, I would also suggest that, absent some 
particularly compelling circumstances, the government should not burden either 
law professor by making them take the action they believe would render them 
morally culpable for someone else's wrongdoing.

Which again makes me wonder about FAIR, especially as to those who think there 
is an element of compelled speech as well as a religious burden involved in 
something like the Little Sisters case. Not, again, that the case itself is 
indistinguishable. But the moral dilemma appears to be very much the same. 

 On Feb 15, 2014, at 12:51 PM, Rienzi, Mark L rie...@law.edu wrote:
 
 The exchange between Marci and Marc about moral complicity for law professors 
 reveals what might be a rare area of common ground for most folks on this 
 list.
 
 Their emails suggest that law professors may have differing views of what 
 kind of actions by a law professor would render that professor morally 
 culpable for someone else's wrongdoing.  I think (and I suspect most on this 
 list would agree) that each law professor is entitled to his or her own view 
 about whether publicly advocating particular legal views would render them 
 morally complicit in someone else's wrongdoing.
 
 In a liberal and tolerant society, I would also suggest that, absent some 
 particularly compelling circumstances, the government should not burden 
 either law professor by making them take the action they believe would render 
 them morally culpable for someone else's wrongdoing.  That would seem to be a 
 reasonable approach to the apparent diversity of religious and moral thought 
 among the group.
 
 Mark
 
 Mark L. Rienzi
 The Catholic University of America
 Columbus School of Law
 (202) 319-4970
 
 
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Re: On implausible burdens

[Paul Horwitz]

The literature on this question, as a legal question. Is of course growing like 
Topsy. But I am not sure that you are asking the same question. Because this 
country does not tend to privilege conscience qua conscience to the same degree 
as religion, the question usually asked is why religion is special as against 
ostensibly similar conscience claims. But your question seems to apply equally 
to either--and may, indeed, amount to asking why any and every individual 
claim, say of autonomy or dignity, is not subjected to some form of 
consequential analysis and balancing. 

A few other observations: 

1) Along one relevant axis we do treat, eg., medical claims to accommodation in 
the same way as we treat religious accommodation claims. Both raise questions 
of the epistemic ability or legitimacy of legal decision-makers, and involve 
substantial deference to the decisions of outside experts, although in the case 
of medicine a) we are, or more often pretend we are, able to second-guess those 
claims to a greater degree, and b) those questions involve a less plural 
interpretive community. 

2) In both cases, there are underlying normative issues that cannot be fully 
answered by the expert community. Even under strict scrutiny regimes we may, 
for normatively charged reasons, prefer compelling state interests to religious 
claims. Even where there is medical or other expert consensus--on, say, the 
capacity of a fetus to live outside the womb or of an individual to decide 
whether to end his life, or the environmental risks presented by nuclear 
power--that consensus does not tell us what we ought to do. At best, we can 
more or less carefully separate the two kinds of questions and argue about who 
ought to have the authority to decide each of them. That, to refer back to the 
earlier discussion, is probably the core academic responsibility in this area. 

3) There are arguably some core conscience claims outside of religion that we 
do treat essentially as black box decisions, at least in individual cases, 
including many equality and speech claims. Having decided to privilege artistic 
or political speech, for instance, we don't ask why Andres Serrano needed Piss 
Christ not to be Waterlogged Christ, or rank his artistic impulses against 
those of other artists, or do much by way of balancing Serrano's artistic needs 
against the needs of the community.

4) Having started down the normative road, we might  (and sometimes do, but we 
could always do so) just as well ask why we privilege community needs over 
individual claims, the state over other normative or interpretive communities, 
equality over liberty, ostensibly secular reasons over religious ones, etc.

 On Feb 15, 2014, at 7:41 PM, Hillel Y. Levin hillelle...@gmail.com wrote:
 
 I have found the posts about the HL and ND cases quite fascinating and 
 illuminating. Thank you all.
 
 It strikes me that the question many of us are debating is really a normative 
 one rather than a descriptive one. Why should law and legal culture privilege 
 religious needs over other needs? It is plain to me that the law does 
 privilege religion in ways both formal (see: Sherbert-version of the Free 
 Exercise clause, RFRA, and the myriad state and federal laws that have 
 religious accommodations built in to them) and informal. By informal, I mean 
 the reluctance that many of us have in questioning the sincerity of ND's 
 claims.
 
 But why should law give wider berth to religious needs than to others? Here's 
 a simple example: many laws accommodate sabbath and religious holiday 
 observance; but what about the person who simply says, for my own mental 
 health, emotional well-being, and feeling of centered-ness, I can't work on 
 Tuesdays. Such a person would suffer both formally (the law does not protect 
 this person's psychic needs) and informally (many people, even in polite 
 society, would scoff at this person's claim and express doubt about its 
 sincerity, or perhaps even question the sanity of the person who asserts a 
 need for accommodation on this basis).
 
 In a sense, the law treats religion as a black box. We can't really claim to 
 understand what compels a person's religious needs, but the law demands that 
 we accept whatever that black box produces as a bona fide reason to provide 
 the accommodation. 
 
 No other accommodation demanded by the law that I am aware of operates this 
 way. If a medical accommodation is requested, we want to understand why the 
 person needs the accommodation; we want an expert to certify the need; we 
 want to know the science behind it. Nothing else gets the black box 
 treatment. A person's (sincere!) psychic and emotional needs, let alone 
 aesthetic preferences, will never be enough to get special treatment.
 
 Those who think that there is something special about religion are more 
 likely, of course, to side with the NDs and HLs of the world. Those who don't 
 are less likely to do so. I think 

RE: courts and lawmaking

[Paul Horwitz]

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.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 onvulnerable 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. HamiltonVerkuil Chair in Public LawBenjamin N. Cardozo Law 
SchoolYeshiva University@Marci_Hamilton 



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Re: Are large employers really better off dropping health insurance?

[Paul Horwitz]

I don't think it becomes the equivalent of the Ninth Amendment, or a shell, 
without heightened scrutiny as a freestanding principle. And I say that as a 
fan of the pre-Smith regime. Rather, it becomes an equality/speech provision, 
like the rest of the modern First Amendment. I am by no means a fan of that 
tendency. But it still leaves the clause as something, not nothing.

 On Dec 18, 2013, at 9:01 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 
 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 

RE: The clergy-penitent privilege and burdens on third parties

[Paul Horwitz]

 in a 
common-sense and real-world dialogue about why I have fallen short, what are 
the obstacles in my path, and what steps I should take to overcome those 
obstacles.  Penance may include prayer (the traditional, “say, ten ‘Our 
Father’s) but more and more often will include steps to compensate for harm to 
others, efforts to assist others in a similar situation, charitable activities, 
etc. Gregory SiskLaghi Distinguished Chair in LawUniversity of St. Thomas 
School of Law (Minnesota)MSL 400, 1000 LaSalle AvenueMinneapolis, MN  
55403-2005651-962-4923gcsisk@stthomas.eduhttp://personal.stthomas.edu/GCSISK/sisk.htmlPublications:
  http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 05, 2013 4:17 PM
To: Law  Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties 
My sense is that I (as someone who is irreligious) would get relatively 
little solace or even wise counsel from speaking to an average Catholic priest 
about my troubles and misdeeds, at least unless I was at least contemplating 
converting to Catholicism.  Unsurprisingly, the priest would respond in a way 
that fits well the beliefs of Catholics, but not my own.  (There might be some 
priests who are inclined to speak to the secular in secular philosophical 
terms, but I assume they aren’t the norm.) Religious people, 
then, have the ability to speak confidentially to those moral advisors whose 
belief systems they share.  Secular people do not. Eugene From: 
religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Paul Horwitz
Sent: Thursday, December 05, 2013 9:33 AM
To: Law  Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties 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.  
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Re: The clergy-penitent privilege and burdens on third parties

[Paul Horwitz]

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
  
  
  
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Re: Warner v. City of Boca Raton

[Paul Horwitz]

Hopefully this is not ad hominem! I don't see anything unique about this in 
RFRA. It is a standard concern with any legal test that involves the use of 
standards, balancing, and other questions of judicial application in the case. 
It is true of vast swaths of constitutional law and common law. See, e.g., 
Posner's discussion in Reflections on Judging of the difficulties of framing 
legal tests given the plasticity and imprecision of language. It is what leads 
some legal thinkers--but not Posner, in all cases--to favor the use of rules 
and formalism. But it's not unique to religion, religious freedom, or RFRA.

To this I would add that 1) rules and formalism front-load but do not eliminate 
the problem of judicial discretion; 2) although the problem Marci raises is 
quite genuine, not everyone agrees that eliminating balancing or judicial 
discretion root and branch are necessary and indefeasible elements of whatever 
the rule of law is; 3) whether rules or standards are preferable in 
particular areas is better analyzed, in my view, as a matter of pragmatic 
weighing and institutional analysis than by invoking the charged and protean 
terms of the rule of law; and 4) whether such decisions constitute a violation 
of the oath is contestable for similar reasons, and we're better off just 
asking whether particular decisions are right or wrong given the legal and 
factual materials in play. (Just as we would in asking whether, say, a court 
soundly decided a case involving a clear and present danger or proximate cause 
or reasonable person inquiry). 

Regards, 

Paul Horwitz

 On Dec 3, 2013, at 10:13 AM, Marci Hamilton hamilto...@aol.com wrote:
 
 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

Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs

[Paul Horwitz]

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 
 
 
 
 
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Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs

[Paul Horwitz]

Fair enough. 

 On Dec 2, 2013, at 2:10 PM, Marci Hamilton hamilto...@aol.com wrote:
 
 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 
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Re: Response to Tom Berg (and others)

[Paul Horwitz]

Nelson, just on the third-party harm point, do you therefore think that 
Hosanna-Tabor was wrongly decided? Or do you think that it is something of a 
misnomer to treat a ministerial employee as a total third party? 

 On Nov 27, 2013, at 9:12 AM, Nelson Tebbe nelson.te...@brooklaw.edu wrote:
 
 
 
 Tom:
 
 Thanks so much for engaging with the piece so generously and skillfully. It’s 
 heartening that the Establishment Clause issues are finally getting an 
 airing—our only worry is that it may be too late for a proper briefing before 
 the Supreme Court. But maybe some members of this list can help rectify that 
 situation.
 
 Here are some responses to some of your points. We have doubts about whether 
 the Supreme Court has articulated the third-party-burden test for religious 
 accommodations as a balancing analysis. Maybe it has, but alternatively, the 
 language in Cutter, Texas Monthly, and Amos could be read to carve out a 
 categorical limit on legislative accommodations. Either way, however, burdens 
 on third party nonbeneficiaries that were negligible would not pose an 
 Establishment Clause problem. We also question whether all religious 
 accommodations necessarily do impose burdens on third parties. How does 
 allowing inmate access to religious literature despite prison mail 
 regulations in Cutter burden secular inmates? It could be seen as unfair, as 
 the Sixth Circuit held in that case, but not because it imposes a burden. The 
 same could be said of religious garb in prisons. So a categorical rule 
 against significant impositions on third parties would not eliminate all 
 religious accommodations.
 
 Here, in any event, the burdens on third parties could be significant. Women 
 who otherwise would be entitled to contraception coverage stand to lose some 
 or all of that coverage, thereby imposing a real cost on them. We actually 
 read Caldor to support that view—after all, the employer there could have 
 found workers to cover for Sabbath observers; it just would have cost a lot. 
 That’s what we are talking about here, too.
 
 Does the loss of a benefit count as a burden, no matter how large the 
 difference in cost, or is it simply the non-receipt of a benefit? Of course, 
 that is the baseline question, and such questions can be tricky, as you note. 
 But we don’t see a devastating baseline problem in this case. Even if Hobby 
 Lobby wins, women working at corporations owned by secular people and 
 religiously-affiliated nonprofits like universities and hospitals will 
 receive the coverage. Obamacare alters reasonable expectations and legal 
 entitlements, just as many welfare-state programs and civil rights laws do. 
 (Interestingly, even Hobby Lobby itself was providing such coverage before 
 this controversy erupted and the company realized it had been doing so, so 
 there may be historical support for the baseline as well.) We think the loss 
 of a costly benefit like this one counts as a burden, and potentially a 
 serious one.
 
 You point out that the provision of Title VII upheld in Amos did impose 
 significant burdens on third parties, such as the employees who were 
 discharged on religious grounds in that case. That’s right. But in Caldor, a 
 case decided only two years earlier with the support of many of the same 
 Justices who signed on to Amos, the Court held that burdens on 
 nonbeneficiaries were too great. What explains the difference? We think the 
 answer has to be that Amos concerned the associational integrity of a church 
 itself, while Caldor concerned a for-profit corporation. *That’s* what 
 Brennan meant when he said in Texas Monthly that the Title VII exemption 
 “prevented potentially serious encroachments on protected religious 
 freedoms.” While we ourselves might not endorse that carve out for churches, 
 it reconciles the two outcomes. And it means that the Court will be concerned 
 when accommodations for profit-seeking corporations owned by religious people 
 impose serious costs on employees, as they may well here. At the very least, 
 we should have the conversation.
 
 Stepping back, you say that society will strike the right balance between 
 free exercise and nonestablishment interests. Probably you mean that courts 
 will adjudicate RFRA correctly, without the need for constitutional 
 intervention. Yet until now, the nonestablishment side of the leger has gone 
 almost completely unnoticed in the litigation. Now that it has come to light, 
 we hope it will tip the balance (in cases that have closely divided the 
 circuit courts) toward protecting women.
 
 We’d like to briefly respond to an issue raised by Eugene and Alan as well. 
 Although we aren’t prepared to take a definitive position at this point, we 
 are inclined to agree that nothing much should turn on whether owners have 
 adopted the corporate form. After all, the D.C. Circuit performed a strong 
 RFRA analysis after rejecting the idea that corporations as such can claim 
 

RE: Response to Tom Berg (and others)

[Paul Horwitz]

I should say that I'm not opposed to this answer. I do think that the 
ministerial employee cases do raise questions about whether someone who 
participates in that kind of central and official capacity in the life of a 
church can really be said to be a genuine third party facing third-party harms. 
But I think Chip's answer has a lot to recommend it. 
I would note, however, that although it may work in the common run of cases, it 
will inevitably raise definitional issues in borderline cases (or not so 
borderline, apparently, as the mandate litigation suggests). Some of us think 
those definitional questions are real but are not sufficient reason to throw 
out the baby with the bathwater. Others, in this and other areas (eg., the 
Press Clause), are driven by such questions, and by a general preference for 
formalism and seeming elegance in the law, to reject any approach that would 
require courts to draw such distinctions. I personally favor an approach to the 
mandate cases that resolves them at the burden and/or balancing stage rather 
than at the categorical stage. And I am interested in the way that these cases 
have provoked or laid bare a tension about one's general constitutional 
methods. For more, although I'm pretty clear in the post that it's a rough 
take, see here: 
http://prawfsblawg.blogs.com/prawfsblawg/2013/11/two-cases.html. 

Date: Wed, 27 Nov 2013 11:03:59 -0500
Subject: Re: Response to Tom Berg (and others)
From: icl...@law.gwu.edu
To: religionlaw@lists.ucla.edu

Tom, Nelson, and Micah have very artfully and rigorously framed the relevant 
questions re: the role of third party harms and Establishment Clause concerns 
in the contraceptive mandate litigation.  Paul's question was addressed to 
Nelson, but I would like to suggest an answer -- Hosanna-Tabor can and should 
rest completely on the doctrine that courts may not decide purely 
ecclesiastical questions.  (See also the church property cases, back to Watson 
v. Jones and elsewhere under the American common law.) Fitness for ministry is 
such a question.  Once that doctrine, which rests primarily on the 
Establishment Clause, is in play, third party harms (which are a second order 
consideration, involving questions of degree) no longer matter.  Of course 
there will be third party harms when courts refuse to answer purely 
ecclesiastical questions -- someone will lose a litigation claim.  But those 
harms can't be used to displace an absolute Establishment Clause prohibition.


On Wed, Nov 27, 2013 at 10:44 AM, Paul Horwitz phorw...@hotmail.com wrote:

Nelson, just on the third-party harm point, do you therefore think that 
Hosanna-Tabor was wrongly decided? Or do you think that it is something of a 
misnomer to treat a ministerial employee as a total third party?




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Re: Marriage -- the Alito dissent

[Paul Horwitz]

On the first point only, the reservation is just that--a reservation. For EC 
purposes, doctrine aside, I'm not sure whether I believe the religiosity of a 
statement or display can be fixed only by contemporary understanding. I suspect 
my conclusion would be that both historical and contemporary meaning are 
relevant if not inextricably linked, but I'd have to think it through more 
carefully. Best, Paul

Sent from my iPhone while driving

On Jun 30, 2013, at 12:00 PM, hamilto...@aol.com wrote:

 I am not sure what Paul's reservation is with the concept that for First 
 Amendment purposes, a belief is the belief being held right now by the 
 believer, regardless of tradition or history.  I had thought the courts had 
 settled on that concept, and its adjunct theory, which is that no court
 can tell a religious believer that their belief is not religious or that it 
 is not true.  
 
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Re: Marriage -- the Alito dissent

[Paul Horwitz]

I'm not sure that the second sentence of Marci's comment below is correct for 
all constitutional purposes. But I think the first part of the first sentence 
can be true. A standard part of the story of religion and science as dual 
magisteria is that the domain of factual claims made by religion tends to 
recede as the domain of scientific explanatory claims expands. So a factual 
claim that was once generally accepted, such as claims about the origin of life 
or the age of the universe, can effectively move from non-sectarian acceptance 
to solely sectarian acceptance. Claims about male-female complementarity 
*might* fall into that category.

That said, I don't think that renders all anti-SSM claims impermissibly 
sectarian. A Burkean conservative might plausibly believe that changing the 
scope of marriage in the face of what he believes to be a well-established and 
well-proven tradition is unwise, and that resistance to this change is prudent 
and rational. Or one might believe as a factual matter, rightly or wrongly (the 
latter, in my view), that children and society fare better under heterosexual 
family arrangements. These views might be wrong, but I don't see why they must 
be treated as sectarian, if that is even constitutionally relevant, just 
because the outcome they suggest is consistent with a prominent sectarian view.

Paul Horwitz 

Sent from my iPhone 

On Jun 29, 2013, at 2:18 PM, Marci Hamilton hamilto...@aol.com wrote:

 Of course history (people) can make sectarian views nonsectarian and vice 
 versa.   A religious belief under the Constitution is what the religious 
 believer says it is right now,
 not what history said it was or should be.   Alito is following Vatican 
 (religious) dogma.   In current US society, the push against gay marriage is 
 based on religious believers who believe it is sinful for same sex couples to 
 marry.  That is the discourse regardless of the source of their current 
 beliefs.
 
 Marci
 
 
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RE: Equivocal evidence, and the right to choose

[Paul Horwitz]

I am also curious about roughly the same point Howard raises. I always value 
the doctrine- and act-specific discussions I get on this list--I learn a great 
deal from them, and the theory I can more or less do on my own. But these 
discussions often seem to me to be just one step away from fairly major and 
consequential statements or assumptions about the underlying theory. So what is 
driving Eugene's paragaph (2), or some of the other statements (not just from 
Eugene) that have taken place in the course of this valuable discussion? Is it 
a moral intuition? A belief, as the paragraph below indicates, both that we 
have a secular legal system and about what that entails? A belief about the 
Constitution itself and what it requires? A belief in a wholly individualist 
and voluntarist conception of the self as a legal subject? A kind of 
implication that the Constitution enacts Mill's On Liberty or Joel Feinberg's 
work and not, say, Charles Taylor's work? A thin or thick conception of what 
harm means? A belief about the relevance or irrelevance of history, 
tradition, community, the sources of or proper occasions for thick commitments?
I appreciate that these are large questions. And in many particular fact-based 
cases what I loosely call my common-sense intuitions *might* comport with 
Eugene's views. But it seems to me, as I wrote earlier, that there are some 
fairly large theoretical commitments guiding those intuitions here and that 
they are reasonably subject to questioning. 
Paul HorwitzUniversity of Alabama School of Law

Subject: RE: Equivocal evidence, and the right to choose
Date: Sun, 8 Jul 2012 13:08:57 -0400
From: howard.fried...@utoledo.edu
To: religionlaw@lists.ucla.edu






RE: Equivocal evidence, and the right to choose




It seems to me that your paragraph (2) focuses the issue.  Should the Free 
Exercise clause understand religion only as a belief system?  Traditional 
Judaism does not define it that way. Instead (for those who are born of a 
Jewish mother) it is an identity that precedes a belief system. Can the 1st 
Amendment be seen as protecting a concept of religion that is different from 
the Christian notion that belief (acceptance of Jesus) defines religion? It was 
the insistence on seeing religion as only a belief system that led to the 
controversial decision by the Supreme Court of the United Kingdom in 2009 that 
ruled Jewish schools using the Orthodox Jewish definition of who is a Jew 
were engaged in ethnic origin discrimination (which British law equates with 
racial discrimination).



Howard Friedman





-Original Message-

From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene

Sent: Sun 7/8/2012 12:29 AM

To: Law  Religion issues for Law Academics

Subject: RE: Equivocal evidence, and the right to choose



(1)  I'm not sure why A's interest in B's religion should give 
A the right to alter B's body - even if A is B's parent.



(2)  As to the sons' own interest in conforming to their 
religion, I don't think it's their religion at age 8 days, at least under 
what should be the secular legal system's understanding of religion (the 
subject's own belief system).



Eugene



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RE: Parental rights and physical conduct

[Paul Horwitz]

This has been a very interesting discussion. I confess that at this point, I am 
quite confused about the meaning of best interests of the child. I understand 
it is a complex, context-driven, and multivalent test. But it would certainly 
help to understand the foundational values and defaults here and what interests 
are considered admissible or inadmissible. In some sense, the thinner the 
exposition of the test becomes, the more I wonder what thick assumptions 
underlie it. Take, for instance, the claim that [m]any would argue that it is 
in the best interest of the child to welcome him into a supportive, religious 
community with shared values and age-old historic traditions, and the response 
that [t]he question is what is in the interest of this child today. It's my 
own fault, I'm sure, but I'm having trouble figuring out exactly where this 
leaves us. Is it that it may be in the interest of the child today to welcome 
him into a supportive religious community but that it is not dispositive, or 
that the fact that the community is well-established and has shared values is 
not dispositive of the child's best interests? Is it that the possibility of a 
supportive religious community should never be relevant as between two possible 
custody dispositions? Is it an empirical question to be decided in each case? 
If it is potentially relevant but we acknowledge that some religious 
communities may risk harm to the child, what counts as harm? Only serious 
physical/emotional harm, or any suboptimal outcome, and by what definition of 
optimization? I'm not asking to be made an expert in family law overnight, but 
I can't help but feel that the best interests of the child is the beginning 
rather than the end of the discussion, and I would welcome some--indeed, 
any--clarification.
Best wishes,
Paul HorwitzUniversity of Alabama School of Law 
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RE: Statement on Religious Liberty from USCCB

[Paul Horwitz]

I'm sorry there haven't been more responses to this thread. May I point out 
that Mirror of Justice has, unsurprisingly, had some very interesting 
discussions of the statement in the last few days. I don't agree with all of 
them but have found the discussion excellent. 
For myself, I find the statement neither disturbing nor terribly helpful. In an 
MoJ post, my good friend Rick Garnett rejects the charge that the statement is 
partisan because of its substantial focus on recent actions of the Obama 
administration, pointing out that it also criticizes things like state 
anti-immigration laws that restrict religious counseling to illegal aliens, and 
adds, I'm afraid it is the charge itself, and not the statement, that appears 
partisan. If by partisan one means party politics, then I think Rick is right. 
Certainly, though, the statement is a positioning paper, so to speak: a 
non-neutral effort to frame how we think about the state of religious liberty 
today and the relative threats it faces. As such, I find it both 
unobjectionable and unsatisfying. Its history is unsubtle and incomplete. It 
doesn't do much by way of acknowledging and addressing internal Catholic 
conflict about some of the history and values it treats as settled and 
obviously right, except for a brief reference to shadows within Catholic 
history. As much as I disagree with some of the actions and decisions it 
criticizes, including recent actions on the part of the administration, I find 
it implausible to argue that religious liberty in the United States today is 
special or particularly high threat; on the whole, and despite those recent 
decisions with which I disagree, I would say the contrary is more true. 
On the civil disobedience point, I find the statement wholly unobjectionable. 
For one thing, and to respond to Marty's question of how likely this kind of 
civil disobedience is, there is no reason to suppose that the statement is more 
aimed at the administration's recent actions than at, say, civil disobedience 
of state laws barring churches from offering full assistance to illegal 
immigrants, an area in which I think civil disobedience is more likely than 
with respect to insurance, government programs, and related federal legal 
controversies. For another, I don't read anything in the statement that departs 
from typical teachings that civil disobedience should be open and loving and 
involve publicly suffering the consequences of disobeying the law. In any 
event, the statement has to be read as a political (not partisan) document. The 
statement itself is an instantiation of the fact that civil disobedience is, 
for most groups and for the USCCB, part of an overall strategy of framing and 
attempting to influence political and legal development, including propaganda 
(which I use in a value-neutral sense here, and which is hardly the sole 
preserve of the Bishops), litigation, lobbying, and so on.
Paul HorwitzUniversity of Alabama School of Law 
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RE: Once it took the step of opening play to non-Christians

[Paul Horwitz]

I won't extend the conversation too much, but I appreciate the points Eugene 
makes. I'm not sure they change my mind entirely, although I do very much think 
one should be sensitive to these counter-arguments.  I suppose the reason I 
take the position I do, notwithstanding what Eugene says about incentives for 
and against ecumenicalism, is that I don't treat ecumenicalism as an 
unqualified good. It depends for me in part on the group's own sense of its 
mission and what it demands. The more ecumenical its own sense of itself is, 
the more its ecumenicalism suggests a need to try and accommodate others, at 
least in the demographic universe it is seeking to inhabit; the more sectarian 
its sense of itself, the less I think it should be obliged to make shift to 
meet others' needs. That it might face public criticism is a possibility, but, 
if it was open about wanting to live out a specifically sectarian mission, I 
would probably not be among the critics. I should add that I'm speaking more in 
civic terms than legal ones. I tend to think that 1) the Court was right in 
both BSA and Hosanna-Tabor, 2) that doesn't mean that those groups should be 
immune from public criticism for their views and decisions; sometimes they will 
hold fast despite that criticism, and sometimes their own sense of mission may 
change as a result of both public criticism and internal debate; and 3) in any 
event, groups that are or ought to be entitled to some legal protection qua 
groups should engage in serious reflection about their mission and what it 
requires, even if the courts themselves are obliged to defer to them for the 
most part about that mission.
Best to all,
Paul  

From: vol...@law.ucla.edu
To: religionlaw@lists.ucla.edu
Date: Sun, 4 Mar 2012 16:26:06 -0800
Subject: Once it took the step of opening play to non-Christians



I think I understand Paul’s point, and the arguments in favor it, 
but I wonder whether it might get things backward.  TAPPS could likely have 
focused itself on Christian private schools with little difficulty for it.  (It 
might have benefited from including secular schools, but it likely could have 
survived just as well limited to Christian schools.)  On the other hand, my 
sense is that in such situations it’s a great benefit to minority schools – 
both secular schools and especially Jewish schools – to be able to join such an 
association, since otherwise there might be very few schools for them to play 
against.  In many places, an all-Orthodox-Jewish league would have very few 
teams, and very long travel times to games. So TAPPS generally did 
Jewish schools a good turn by letting them participate.  And if it hadn’t let 
them participate, I suspect many would have faulted them for being unfairly 
exclusionary, with the argument being “What’s it to you that the school is 
Jewish?”  But now TAPPS is being told that by being somewhat more open, it now 
incurs this extra obligation.  That strikes me as both creating perverse 
incentives, and being a poor reward for TAPPS’ moderate ecumenicalism, because 
it demands that this moderate ecumenicalism lead to considerably more demanding 
ecumenicalism. As to the guest/host analogy, I would think that 
this too cuts the opposite direction at least as much as in the direction 
suggested below (and perhaps more).  If I invite someone to my home, or into my 
private association, I surely would feel some impulse to accommodate him; if 
someone comes for dinner but says that he can’t eat pork (and doesn’t otherwise 
demand a kosher kitchen), I’ll probably try to give him a non-pork option even 
if the main course is ham.  But I would hope that he would feel an even 
stronger impulse not to reward my hospitality with excessive demands, or with 
repeating his demands after I say no (even if I’m being not as hospitable as I 
might be in saying so) – and I would certainly hope that he wouldn’t reward my 
hospitality with a lawsuit. Eugene  Paul Horwitz writes: In this 
case, it seems to me that the road to a reasonable resolution of the problem 
lies in the fact that TAPPS opened itself to a situation in which it welcomed 
the possibility of sporting events involving others whose religious needs might 
require accommodation. If the league had remained solely devoted to Christian 
schools and, in effect, had valued Christian community over sports or all-state 
intramural play itself, then refusing to change its schedule would a) be 
reasonable and b) not be much of a problem, since the issue would be unlikely 
ever to arise. Once it took the step of opening play to non-Christians, 
however, including those with an equally thick set of religious commitments, 
then common sense, if not simply being a good host, would suggest that the 
league ought to anticipate and accommodate the religious needs of its guests. 
But certainly the work here is not done by invoking common sense alone

RE: Basketball tournaments on the Sabbath

[Paul Horwitz]

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 HorwitzUniversity 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
 

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Re: Basketball tournaments on the Sabbath

[Paul Horwitz]

I agree generally with Eugene's point--which I would generalize to just 
about every situation--that common sense, like many other such phrases 
(certainly including respect, or the rule of law) is too capacious a term 
to resolve most disputes. In this case, one would have to both understand and 
expand the context sufficiently to help one reach a reasonable resolution of 
the dispute, and even then there would be more than one such resolution. In 
this case, it seems to me that the road to a reasonable resolution of the 
problem lies in the fact that TAPPS opened itself to a situation in which it 
welcomed the possibility of sporting events involving others whose religious 
needs might require accommodation. If the league had remained solely devoted to 
Christian schools and, in effect, had valued Christian community over sports or 
all-state intramural play itself, then refusing to change its schedule would a) 
be reasonable and b) not be much of a problem, since the issue would be 
unlikely ever to arise. Once it took the step of opening play to 
non-Christians, however, including those with an equally thick set of religious 
commitments, then common sense, if not simply being a good host, would suggest 
that the league ought to anticipate and accommodate the religious needs of its 
guests. But certainly the work here is not done by invoking common sense 
alone.

I do, though, think it's worth taking slight issue with the view that 
common sense tells us that there is real value to following rules with no 
exceptions. I appreciate that this phrase leaves open room for ambiguity and 
charitable interpretation; not least, Eugene says real value, not absolute 
value. But I still think its worth emphasizing that I can think of few if any 
conditions in which a regime intended for application to human affairs would 
common-sensically lead to a belief in following rules with no exceptions -- 
except perhaps, in situations where the rules themselves are already drawn up 
in such a way that the exceptions are either implicit or explicit. Of course, 
it is indeed true of rules generally that they contain explicit or implicit 
exceptions. Even Smith, read common-sensically, is not a rule meant to be 
followed with no exceptions: it contains both implicit and explicit exceptions. 
Even the military, a realm in which more people would be likely to agree that 
rules should be followed with not exceptions, either tailors its rules 
carefully so that they already contain exceptions or, in some quite crucial 
cases, insists that there are situations where one must disobey a command. 

I appreciate that it was just a minor point along the way to a broader 
conclusion that I generally share. Still, at least in an audience of lawyers, I 
think it is always worth emphasizing that no sound system of rules could 
possibly insist on complete obedience, and that any understanding of the rule 
of law that does not make allowance, either implicitly or explicitly, for 
ignoring, avoiding, disobeying, or violating rules resembles madness more 
closely than it does common sense.

Best to all, 
Paul Horwitz 
University of Alabama School of Law

On Mar 3, 2012, at 5:41 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, 
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Religion, doctrine, and history

[Paul Horwitz]

This has been an absolutely fascinating conversation--heated, yes, but terribly 
educational. I'm grateful to the many people who have weighed in. Given that I 
was otherwise occupied during the meat of this discussion I have hesitated to 
contribute, but I did want to pull together a couple of observations that 
particularly interested me about the discussion.
There are three particularly interesting general aspects to this discussion, as 
far as I am concerned. The first is the frequent, and I think quite fair (up to 
a point) insistence that we are, after all, not just embarked on a general 
discussion of the size and nature of religious liberty: we have to come up with 
judicially manageable standards by which a law of the Religion Clauses can be 
dependably administered.  That's a very fair point, I think, and the discussion 
of doctrinal specifics has been very useful. 
The second is the relative lack of focus on history. It came up once briefly in 
a comment by Mark Scarberry, and in a comment or two by Doug Laycock. (I would 
add, not so much from the listserv discussion but based on other work, that 
although I tend to disagree with Marci's historical arguments, she at least 
certainly provides them.) For the most part, however, and I think in keeping 
with the lawyerly bent noted above, the discussion has been quite 
ahistorical--to the point where we have seen an insistence that the bare text 
of the First Amendment says nothing specific about religious institutions 
(although, as it has also been noted, it says nothing in terms about 
individuals either), we should conclude that the First Amendment is *only* 
about individuals and has nothing to do with religious institutions. Granted 
that not everyone has said that, but there has been a general concern with the 
boundary issues that arise when we accord some constitutional freedoms to 
institutions--which I see, again, as feeding back into the argument that our 
legal rules in this case must be clearly administrable. I had no idea legal 
formalism was so popular--and was equally surprised to see *who* among the 
discussants found it so attractive!
I did find the concrete discussion of legal rules useful and corrective, and 
far be it from me to be heretical enough to suggest that other values besides 
strict lawyerly or doctrinal ones are also important here. But I do think that 
a discussion of these issues that utterly casts history aside in favor of an 
overwhelming concern with doctrinal rules and their implementation risks 
missing *something*. The Constitution is not a stereo installation manual or a 
mechanical guide for living. It is, among other things, an instantiation of a 
set of historical settlements and compromises among competing institutions and 
constituencies of long historical standing, of which the church is surely one 
(but only one) and, for that matter, the state is surely one -- but only one. 
Of course any reasonable understanding of the Religion Clauses must understand 
them as part of a broader historical settlement between church and state, and 
one that very much concerns the church *as an institution.* Like any such 
historical settlement, it was imperfect and is subject to ongoing alteration, 
negotiation, and evolution. But I don't understand the Constitution to have 
gone so far toward obliviousness toward these deep historical currents, or so 
far toward enacting John Rawls, that it should now be understood as guided more 
by bare legal doctrine or liberal political theory than by a rather complex 
political history. None of which is to deny that the Religion Clauses function 
now largely as being about individual rights; but any approach to them that 
operates on the assumption that the Religion Clauses have somehow become 
unmoored from deeper questions of the historical settlement between church and 
state as respective and competing institutions seems to me to risk sterility. 
Of course we need lawyerly rules to help us implement the Religion Clauses in a 
reasonably rational and predictable fashion. But, as Chris Lund's quote from 
recent judicial discussions of proximate causation indicates, even the most 
formalist judges understand that implementation is always going to be 
imprecise; and the point of that implementation is still to find reasonably 
judicially manageable means of implementing, not just a bare rule, but a much 
broader historical settlement, one that dates back to the Wars of Religion and 
certainly cannot only be seen through the lens of individual rights.
The third interesting thing here is the resistance toward pluralism. I admit I 
am personally increasingly interested in pluralism, and of a decidedly 
old-fashioned type; but I still rather miss the presence of Figgis, Laski, 
Barker, Maitland, and many other voices here. Indeed, here's a nice quote from 
G.D.H. Cole that rather directly addresses at least one of the debates in this 
thread: 
The primary condition of all 

RE: Hosanna-Tabor

[Paul Horwitz]

No, the framing in terms of physical acts is not terribly descriptively 
useful here.  But to adapt your language, one way we might see this decision, 
and certainly the issues it raises, is that it raises the very question of what 
concerns the state and what concerns the church, rather than simply 
assuming that anything that concerns the state in some way should be 
characterized as necessarily falling within its jurisdiction, or simply 
assuming that what concerns the church is wholly residual or a matter of the 
state's grace.  In that sense, this *relationship* concerned the church and 
fell outside the state's purview, even if it involved what one might describe 
as dignitary and economic harms.  
 
In any event, I'm far from satisfied that it's clear that the potential 
dignitary and economic harms here weren't obviated by the fact that her 
employment was as a religious leader.  At least in some cases, it seems quite 
relevant to me.
 
Regards,
 
Paul Horwitz
University of Alabama School of Law  
 

 From: dc...@law.usc.edu
 To: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
 Date: Wed, 11 Jan 2012 08:56:31 -0800
 Subject: Re: Hosanna-Tabor
 
 It seems to me that part of the problem with the framing of the
 distinction between Smith and Hosanna-Tabor is that physical acts vs.
 internal governance does not well describe in parallel the concerns of
 the state in both cases. Internal governance is what Hosanna Tabor
 protects for religious institutions. But if we consider physical acts
 (as inapt as that characterization is), that is really about the nature of
 that which concerns the state. It goes to the harm the state is trying to
 redress. So, here, the counterpart to physical acts (peyote ingestion in
 Smith) should be disability discrimination in employment. Of course, the
 nature of that employment was religious, which is why First Amendment
 rights trump the state's concerns here. But the dignitary and economic
 harms Cheryl Perich alleged are not obviated by the fact that her
 employment was as a religious leader.
 
 David B. Cruz
 Professor of Law
 University of Southern California Gould School of Law
 Los Angeles, CA 90089-0071
 U.S.A.
 
 On 1/11/12 8:42 AM, Douglas Laycock dlayc...@virginia.edu wrote:
 
 Is anyone convinced by the Court's distinction of Smith? Well actually,
 all
 nine Justices were convinced, all twelve federal circuits have been
 convinced, and twelve state supreme courts have been convinced, with none
 going the other way. Physical acts is not the best label for the scope
 of
 Smith, but the basic distinction between internal church governance and
 other matters goes all the way back to Locke. It is embedded in a line of
 Supreme Court cases that long pre-date Sherbert and Yoder and that
 peacefully co-existed with Reynolds v. United States (a case refusing
 religious exemptions).
 
 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: conlawprof-boun...@lists.ucla.edu
 [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
 Sent: Wednesday, January 11, 2012 10:40 AM
 To: Con Law Prof list
 Subject: RE: Hosanna-Tabor II
 
 This is the sum total, after a quick read, of what the Court said about
 Smith:
 
 But a church's selection of its ministers is unlike an individual's
 ingestion of peyote. Smith involved government regulation of only outward
 physical acts. The present case, in contrast, concerns government
 interference with an internal church decision that affects the faith and
 mission of the church itself. See id., at 877 (distinguishing the
 government's regulation ofphysical acts from its lend[ing] its power to
 one or the other side in controversies over religious authority or
 dogma).
 The contention that Smith forecloses recognition of a ministerial
 exception
 rooted in the Religion Clauses has no merit.
 
 Physical acts, v. an internal church decision.
 
 Is anyone convinced by this?
 
 
 
 From: Eric J Segall
 Sent: Wednesday, January 11, 2012 10:34 AM
 To: Con Law Prof list
 Subject: Hosanna-Tabor
 
 So Title VII, a generally applicable law that was not passed to hurt or
 affect religion (and in fact protects religion), does not apply to
 religious
 groups. I am not an expert in the Free Exercise Area, but how can Scalia
 join this opinion? Am I missing something?
 
 Thanks,
 
 Eric
 
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RE: The Two Forms of Ministerial Exception Cases -- a Query

[Paul Horwitz]

I appreciate Marty and Rick's conversation.  As Rick knows, I tend to share his 
broad viewpoint and I've published on this issue before.  Let me suggest that 
there's a kind of disjuncture in the conversation, one that might be roughly 
captured by the difference between thinking locally and doctrinally and 
thinking more structurally and theoretically.  Defenders of the ministerial 
exception (and I include myself among the culprits) doubtless often strike 
others as unsatisfying because they're talking in big-picture terms, in terms 
of essential postulates and so on, and thus leave all kinds of quite simple 
doctrinal questions unexamined, or not examined carefully enough.  What 
guidance are they actually offering the courts?  Conversely, I do tend to think 
that some of the more doctrinally oriented opposition to or criticism of the 
ministerial exception does not adequately fit those arguments into any kind of 
broader framework or thinking about religious freedom -- including many bedrock 
statements about religious freedom that can be found in our history and in the 
caselaw.  So there is an element of talking past each other in these 
conversations sometimes.
For my part, I do think there are points of intersection.  I think doctrinal 
criticisms of the ministerial exception raise some good tough questions: how do 
we determine who is a minister, what counts as religious work, what (if any) 
is the intersection between retaliation and the ministerial exception, and so 
on.  On the other hand, I don't take it as a given that we can reason our way 
doctrinally and pragmatically as lawyers and judges toward the answers to these 
questions.  Asking, for example, whether teaching specifically religious 
subjects for 45 minutes a day qualifies one as a minister may seem like a 
question that we can just answer with the usual analytical tools, but I'm not 
sure it is; I think that kind of analysis ultimately misses some of the ways in 
which that kind of dry inquiry misses a good deal of what it means to be a 
minister.  The doctrinal tool that usually comes in to address the courts' 
efforts to deal with institutions whose nature and scope is not easily captured 
by judicial analysis is deference; and I take it that many defenders of the 
ministerial exception think that a number of the doctrinal questions that the 
exception's critics find so devastating would be much easier if the courts 
treated many of these threshold questions (including, for instance, the 
question whether retaliation can itself constitute a departure from the 
church's fundamental norms of discipline) as requiring substantial deference on 
the part of the courts toward the views of the religious institution.  I 
understand the arguments against giving churches too much deference in this 
area and I'm not trying to engage with them right now.  I'm just saying that 
how one's big picture views about the role of religious institutions in society 
and the limits of state authority can, through tools like deference, have 
something to say about the resolution of specific cases, including this one.
The same seems to go for some of the doctrinal arguments against (in whole or 
in part) the ministerial exception that I've seen in the briefs and elsewhere.  
Many of them seem to start with the assumption that the state has a general 
regulatory authority, especially within any sector of civil rights or 
employment law; that it would be contrary to this assumption to think of 
churches as having some kind of legal autonomy or sovereignty; that any 
exceptions are or should be very narrowly confined and involve balancing rather 
than some kind of grander jurisdictional limitation; and that when courts, as 
they sometimes do, treat church governance as something apart from state 
authority, they do so only for reasons of judicial incompetence rather than for 
broader reasons, and so any legal resolution of an employment dispute involving 
a church that (ostensibly) does not directly involve a classic case of judicial 
incompetence should be acceptable.  Again, I think some of those conclusions 
miss the broader meaning of the Religion Clauses, and that the subsequent 
doctrinal analysis goes astray when it slips the tethers of the basic meaning 
of the Religion Clauses in this way.  I'm open to disagreement on that part.  
But I feel I can say with confidence that the doctrinal criticisms of the 
ministerial exception begin with some broader big-picture assumptions that 
deserve to be acknowledged, brought out in the open, and questioned.
There may be one more payoff on that last point.  My sense is that some of the 
most prominent critics of the ministerial exception think it is not only not 
constitutionally required, but that it would be either constitutionally 
impermissible or simply terrible policy if legislatures were given authority to 
enact the ministerial exception.  Others may feel only that it is not 
constitutionally 

RE: The Two Forms of Ministerial Exception Cases -- a Query

[Paul Horwitz]

On the second point only, I can imagine two responses.  The first you may find 
too abstract: that some people may believe that whatever rights Dale secures 
for churches, they should not have to rely on freedom of association to get 
there.  Maybe they just feel that way for abstract or aesthetic reasons, or 
maybe they believe that relying on Dale rather than the Religion Clauses will 
leave the latter clauses too thinly interpreted, leading to problems in future 
cases raising different issues.  Second, it depends on how narrowly you apply 
Dale and in what fashion.  Some critics of that opinion read it narrowly on two 
points: that the association in question must be clearly an expressive 
association, and that its public expressions, in particular, must be affected 
by the exclusion of a member/leader/etc.  (I'm not speaking to the merits of 
either of these readings.)  I should think any church might meet the first 
requirement.  But if one reads Dale narrowly in the second way, one might be 
concerned about situations where a minister's primary communications are 
intragroup and someone argues that since the public face of the church won't be 
affected by that member, the courts should allow his or her discrimination suit 
to proceed, even if the church itself thinks his or her ministerial duties are 
important within the church enclave.  

CC: religionlaw@lists.ucla.edu
From: lederman.ma...@gmail.com
Subject: Re: The Two Forms of Ministerial Exception Cases -- a Query
Date: Wed, 17 Aug 2011 12:02:34 -0400
To: religionlaw@lists.ucla.edu

I'm sure it must be a function of my lack of clarity, but I think Alan has 
misunderstood the points I was trying to make about RFRA and Dale, which were 
simply these:
1.  Even construed *narrowly* -- and believe me, I do not favor an expansion of 
Dale -- these, and other statutory exemptions, will be far more than sufficient 
to deal with the parade of horribles, such as Rick's hypo of a state trying 
to require ordination of a female priest (something that no legislature in our 
lifetime would ever consider, let alone impose).
2.  In a case such as this, if a defendant cannot make the showing necessary 
under RFRA or Dale, what is the normative or practical case for application of 
a ME immunity?  That is to say, why shouldn't the school at the very least have 
to satisfy those standards?
Sent from my iPhone
On Aug 17, 2011, at 11:34 AM, Brownstein, Alan aebrownst...@ucdavis.edu 
wrote:


Whatever the merits of, or problems with, the ministerial exception may be in 
this or other cases , I don't see how
Dale and RFRA adequately respond to the issues raised in these cases. First, if 
one takes Justice Alito's dissenting opinion in
Martinez seriously, even the conservative Justices on the Court aren't sure 
what Dale means and don't read it to mean what it pretty clearly says. 
Moreover, it is not clear to me that
Dale extends to paid employment at all non-profit organizations. Nor is it 
clear to me that I would prefer a broad reading of
Dale to a limited acceptance of the ministerial exception. Some of the 
arguments I have read arguing against the ministierial exception because of the 
protection
Dale provides to associational freedom would do far more damage to civil rights 
laws than the ministerial exception ever could.
 
As for RFRA, this is an inadequate substitute for the ministerial exception for 
the same reason that RFRA is an inadequate substitute for the meaningful 
protection of free exercise rights. RFRA can be amended, repealed,
 or overridden by subsequent statutes at the legislature's discretion. 
Decisions that go to the core of religious freedom and identity, as the most 
narrow understanding of the ministerial exception clearly does, require 
constitutional protection.
 
Alan
 
 


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Marty Lederman [lederman.ma...@gmail.com]

Sent: Wednesday, August 17, 2011 7:28 AM

To: Law  Religion issues for Law Academics

Subject: Re: The Two Forms of Ministerial Exception Cases -- a Query





Thanks again, Rick.  I'm interested in what others have to say, so I'll just 
offer two quick reactions:



1.  True enough, as many of you know, I'm no fan of Dale -- but my point is 
simply that once that doctrine and RFRA (not to mention other statutory 
exemptions and the prohibition on courts deciding questions of religious truth) 
are available, why
 is there a need for a ministerial exception, at least in this sort of case?




2.  As for your hypo -- What, then, prevents a state government from imposing 
liability on, say, a (hypothetical) conservative
 Protestant congregation that refuses to hire a woman, because she is a woman, 
as its minister (assuming it can do so without entangling itself in “religious” 
questions)? --



I think it proves my point quite nicely:  First of all, few if any statutes 
would try to
 regulate such a purely internal church decision 

RE: Hosanna-Tabor and the Ministerial Exception

[Paul Horwitz]

I think Marci has raised many valuable practical and theoretical questions 
about church autonomy, both at the level of doctrine and at the level of 
theory.  I'm not trying to address all that here.  Nonetheless, I think the 
argument that the Court has repeatedly followed the principle of 'ordered 
liberty' as opposed to 'autonomy' tends to state the question more than to 
answer it.  
To analogize roughly to the abortion cases (and it's just an analogy, nothing 
more), the courts have said that women have a right to obtain abortions, and 
one somewhat undertheorized piece of that conclusion is that women are entitled 
to some autonomy in making important decisions.  But it has also said that this 
right must necessarily be subject to limits.  One could argue on this basis 
that because women's right to an abortion can be limited by the state, a limit 
that is subject to weighing by the courts, any talk of women's autonomy must be 
illusory -- doesn't autonomy mean we don't get to ask any such questions at 
all? -- and these cases must be all about ordered liberty.  But that would seem 
to me to be the wrong way of thinking about it.  It would be better to say that 
the argument then concerns the degree to which women are entitled to 
decision-making autonomy within a system of law that imposes some outside 
limits.  Really, this is the question we ask every time we balance individual 
rights against state needs -- and, either at a categorical level or on a 
case-by-case basis, we *always* do just that.  Claims of individual or 
institutional autonomy are always balanced against other claims -- including, 
to give one relevant example here, claims that the state has a legitimate 
interest in addressing child sexual abuse and other serious wrongs.  That 
doesn't mean there's no such thing as autonomy; it just means that autonomy is 
not an unlimited concept.  To say some claim is subject to the principle of 
ordered liberty doesn't end the conversation, because what constitutes 
ordered liberty is the very point in contention.
Similarly, in the ministerial exception cases, unless one is arguing either 
that the ministerial exception can't exist at all or that it is absolute, the 
question is the extent to which some degree of autonomy for religious 
institutions is consistent with some degree of acceptable state regulation for 
permissible ends.  It is consistent with this view to believe that churches 
must be allowed some degree of control over employment decisions in core cases 
but that Perich's case falls within the scope of state regulation; it's also 
consistent with this view to believe that churches may be subject to some 
degree of regulation of their employment decisions but that Hosanna-Tabor's 
decision to dismiss Perich falls within the scope of religious freedom.  We may 
certainly invoke concepts like autonomy and ordered liberty in trying to 
resolve these issues, but virtually everyone is already going to be engaged in 
balancing the two, however clumsily, and the invocation of these concepts 
certainly won't answer any difficult questions.   

From: hamilto...@aol.com
Date: Tue, 16 Aug 2011 10:22:42 -0400
Subject: Re: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu








Nelson--  Just a historical note-- there really is no 
church autonomy doctrine at the Supreme Court.  It's not a phrase or 
doctrine the Court has adopted, particularly after the long line of free 
exercise cases that culminate in Smith, and Jones v. 
Wolf.  From my research, the phrase was coined during litigation 
primarily by the bishops of the Roman Catholic and LDS Churches, perhaps 
drawing 
on an article using the term by Doug.  Of course, there are other theorists 
who have argued for autonomy under free speech, but the Religion Clause 
issues 
here extend beyond speech.
 
In contrast, the Court has repeatedly followed the principle of ordered 
liberty as opposed to autonomy.  The SG is actually arguing out of the 
ordered liberty tradition, while the Petr and some of the amici in support are 
taking the more extreme position.  To see an excellent point-counterpoint 
of the 2 approaches, see the 2 decisions in Petruska in the 3d 
Cir.
 
Marci
 
FWIW--I wrote a brief in HT for a number of child protection groups, 
because church autonomy has been invoked in this case and is 
routinely invoked in the clergy sex abuse cases to avoid discovery and 
liability for culpability for child sex abuse.  A holding in HT could 
affect positively or negatively the child sex abuse cases.
 

In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, 
l...@wayne.edu writes:

  
  Marty 
  asked for opinions on the briefs.  Here is what I’ve been thinking, for 
  whatever it’s worth (probably very little).  At the outset, I should say 
  that my own views may be atypical, so I’m particularly interested in what 
  others think.
   
  Anyway, 
  I was a bit surprised by the briefs.  The 

RE: Hosanna-Tabor and the Ministerial Exception

[Paul Horwitz]

I have a brief and basically non-substantive post up on Prawfsblawg today about 
the Law and Religion Professors brief.  Also, the Northwestern University Law 
Review Colloquy will be running several pieces on the case; they should be up 
on the web site by around the start of Term.  I have read some but not all of 
the briefs (and I haven't read Marci's yet; my apologies).  I certainly think 
Caroline Corbin and Leslie Griffin, the writers of the Law and Religion 
Professors brief, do an excellent job of giving the best case against the 
ministerial exception from a doctrinal position, although I also think their 
position is both too closely focused on the doctrine and not focused enough on 
broader history (and even within the doctrine I think they misread Jones v. 
Wolf), and too consequentialist.  Again, though, I certainly applaud them for 
putting their best arguments forward -- although they haven't changed my mind.
Paul Horwitz

From: lederman.ma...@gmail.com
Date: Mon, 15 Aug 2011 09:53:06 -0400
Subject: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu

Now that all the briefs are in except Doug's reply -- see 
http://www.americanbar.org/publications/preview_home/10-553.html -- I was 
wondering if anyone has any reactions, in particular whether anyone's views 
have changed by virtue of the briefs.  I haven't seen much discussion online 
lately.





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RE: Hosanna-Tabor and the Ministerial Exception

[Paul Horwitz]

I'm certainly happy to plead guilty to overenthusiastic writing; it's been 
known to happen on blogs, although I try to avoid it.  I would note, though, 
that the position taken in the brief I mention is not just that the ministerial 
exception raises difficulties of the kinds Marty mentions below, but that it 
should be eliminated altogether.  My claim may still be too extravagant, but I 
still feel fairly comfortable saying that this is not the position of most 
professors who teach and work directly in law and religion.  
 
Best,
 
Paul
 



Date: Mon, 15 Aug 2011 11:25:30 -0400
Subject: Re: Hosanna-Tabor and the Ministerial Exception
From: icl...@law.gwu.edu
To: religionlaw@lists.ucla.edu

Marty is certainly correct to question the conclusion in Paul's post.  Doug 
Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a 
co-author of one of the leading amicus briefs on the petitioner's side.  I 
don't count Bob Tuttle or me in that league, but our most recent writing on 
this subject might give some comfort (and some unease) to both sides.  I think 
the Hosanna-Tabor case has been superbly briefed on both sides.  I expect the 
case will prove quite difficult for the Supreme Court, and will defy any easy 
prediction about the outcome or the line-up of Justices.  


On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman lederman.ma...@gmail.com 
wrote:

Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that 
the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the 
view of most professors who teach Law and Religion, and that, instead, there is 
a very different and nearly unanimous consensus about this case . . . among 
those who spend most of their time working on these issues from a law and 
religion perspective.


Hmmm . . . I wonder, is that true?  Is there a nearly unanimous consensus among 
law  religion scholars that a religious school should have complete immunity 
from employment law rules, including anti-retaliation rules, even in cases 
where (i) the position in question involves secular functions in a commercial 
setting; (ii) the school has not demonstrated a right to an exemption under Boy 
Scouts v. Dale (either because there's no substantial impact on its expression 
or because the state interest outweighs that impact, or both); and (iii) the 
school has not demonstrated a right to an exemption under RFRA (either because 
there's no significant burden on religious exercise or because the state 
interest outweighs the burden, or both)?


I'm not aware of anything like a consensus on that question.  Not even sure 
what the majority view would be among such scholars. 





On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.com wrote:






I have a brief and basically non-substantive post up on Prawfsblawg today about 
the Law and Religion Professors brief.  Also, the Northwestern University Law 
Review Colloquy will be running several pieces on the case; they should be up 
on the web site by around the start of Term.  I have read some but not all of 
the briefs (and I haven't read Marci's yet; my apologies).  I certainly think 
Caroline Corbin and Leslie Griffin, the writers of the Law and Religion 
Professors brief, do an excellent job of giving the best case against the 
ministerial exception from a doctrinal position, although I also think their 
position is both too closely focused on the doctrine and not focused enough on 
broader history (and even within the doctrine I think they misread Jones v. 
Wolf), and too consequentialist.  Again, though, I certainly applaud them for 
putting their best arguments forward -- although they haven't changed my mind.


Paul Horwitz




From: lederman.ma...@gmail.com
Date: Mon, 15 Aug 2011 09:53:06 -0400
Subject: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu


Now that all the briefs are in except Doug's reply -- see 
http://www.americanbar.org/publications/preview_home/10-553.html -- I was 
wondering if anyone has any reactions, in particular whether anyone's views 
have changed by virtue of the briefs.  I haven't seen much discussion online 
lately.


___ To post, send message to 
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Anyone can

RE: Hosanna-Tabor and the Ministerial Exception

[Paul Horwitz]

Mea culpa!
 



From: lederman.ma...@gmail.com
Date: Mon, 15 Aug 2011 12:09:10 -0400
Subject: Re: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu

That's true -- that there should be no ministerial exemption at all is probably 
not the position of most professors who teach and work directly in law and 
religion.  (Although I wonder how many of them would conclude that (i) the 
vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) 
the prohibition on courts resolving questions of religious truth or doctrine, 
are not cumulatively sufficient to do all the necessary work.)


But even so, that claim is far more modest than the claim that there is a very 
different and nearly unanimous consensus about this case . . .


On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz phorw...@hotmail.com wrote:



I'm certainly happy to plead guilty to overenthusiastic writing; it's been 
known to happen on blogs, although I try to avoid it.  I would note, though, 
that the position taken in the brief I mention is not just that the ministerial 
exception raises difficulties of the kinds Marty mentions below, but that it 
should be eliminated altogether.  My claim may still be too extravagant, but I 
still feel fairly comfortable saying that this is not the position of most 
professors who teach and work directly in law and religion.  
 
Best,
 
Paul
 



Date: Mon, 15 Aug 2011 11:25:30 -0400
Subject: Re: Hosanna-Tabor and the Ministerial Exception
From: icl...@law.gwu.edu



To: religionlaw@lists.ucla.edu

Marty is certainly correct to question the conclusion in Paul's post.  Doug 
Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a 
co-author of one of the leading amicus briefs on the petitioner's side.  I 
don't count Bob Tuttle or me in that league, but our most recent writing on 
this subject might give some comfort (and some unease) to both sides.  I think 
the Hosanna-Tabor case has been superbly briefed on both sides.  I expect the 
case will prove quite difficult for the Supreme Court, and will defy any easy 
prediction about the outcome or the line-up of Justices.  


On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman lederman.ma...@gmail.com 
wrote:

Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that 
the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the 
view of most professors who teach Law and Religion, and that, instead, there is 
a very different and nearly unanimous consensus about this case . . . among 
those who spend most of their time working on these issues from a law and 
religion perspective. 


Hmmm . . . I wonder, is that true?  Is there a nearly unanimous consensus among 
law  religion scholars that a religious school should have complete immunity 
from employment law rules, including anti-retaliation rules, even in cases 
where (i) the position in question involves secular functions in a commercial 
setting; (ii) the school has not demonstrated a right to an exemption under Boy 
Scouts v. Dale (either because there's no substantial impact on its expression 
or because the state interest outweighs that impact, or both); and (iii) the 
school has not demonstrated a right to an exemption under RFRA (either because 
there's no significant burden on religious exercise or because the state 
interest outweighs the burden, or both)?


I'm not aware of anything like a consensus on that question.  Not even sure 
what the majority view would be among such scholars. 





On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.com wrote:






I have a brief and basically non-substantive post up on Prawfsblawg today about 
the Law and Religion Professors brief.  Also, the Northwestern University Law 
Review Colloquy will be running several pieces on the case; they should be up 
on the web site by around the start of Term.  I have read some but not all of 
the briefs (and I haven't read Marci's yet; my apologies).  I certainly think 
Caroline Corbin and Leslie Griffin, the writers of the Law and Religion 
Professors brief, do an excellent job of giving the best case against the 
ministerial exception from a doctrinal position, although I also think their 
position is both too closely focused on the doctrine and not focused enough on 
broader history (and even within the doctrine I think they misread Jones v. 
Wolf), and too consequentialist.  Again, though, I certainly applaud them for 
putting their best arguments forward -- although they haven't changed my mind. 


Paul Horwitz




From: lederman.ma...@gmail.com
Date: Mon, 15 Aug 2011 09:53:06 -0400
Subject: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu 


Now that all the briefs are in except Doug's reply -- see 
http://www.americanbar.org/publications/preview_home/10-553.html -- I was 
wondering if anyone has any reactions, in particular whether anyone's views 
have changed by virtue

RE: Bus Driver and Women's Interests/ Was Settlement or extortion?

[Paul Horwitz]

I've read this long thread with interest.  Marci's post evokes some questions 
from me, as do some of the broader questions raised by the thread.
With respect to Marci's post, I confess I am uncertain why this case is 
presented as an example of men imposing their religious views on the freedom of 
women.  Women who are nurses have refused to participate in abortion 
procedures; I assume women who are bus drivers might also object to being asked 
to drive women to Planned Parenthood, rightly or wrongly and with or without a 
right of accommodation.  Whether a statutory regime of religious accommodation 
is aggressive or not, and whether it is good or bad, it does not focus solely 
on men without regard to the rights and interests of women (or other men, or 
customers and operators of common carriers for that matter).  Whether the facts 
of this particular case constitute victimization, and for whom, are likewise 
separate questions.
It also strikes me as possible, but odd and perhaps a little unsettling, that 
we perform our constitutional or statutory calculus in this case by comparing 
the driver's attenuated right/interest against the woman's legitimate 
right.  For one thing, that seems to me to assume the point in question: 
whether he has a constitutional (or statutory) right at stake or not.  
Moreover, even if he loses, it seems to me his loss has more to do with the 
details of reasonable accommodation law than with balancing interests against 
legitimate rights.  Would the driver be entitled to an accommodation if he 
had strong religious objections to Planned Parenthood, and the woman merely 
wanted to buy a PP shirt at the gift shop?  Again, I think the answer to that 
question would have to do with the scope of accommodation law, not with the 
competing interests in question as such.  But if we were to undertake such a 
calculus, and to suppose that anyone with a mere personal interest that comes 
up against a societally legitimate interest loses, I wonder how we should 
treat conscientious objector cases.  Of course the two cases are not the same; 
more may be immediately at stake for the conscientious objector.  But if we 
agree that society has a legitimate interest in its armed forces, and the 
conscientious objector is interfering with this legitimate interest by refusing 
to serve in the armed forces, wouldn't we be obliged to conclude that he or she 
must serve? 
This leads to a broader question about this dialogue.  In earlier post, Marci 
complains that there is no principled dividing line between two different cases 
she mentions.  This seems consistent with her general writing about religious 
accommodations as (forgive my crude summary) problematic from the perspective 
of the rule of law.  I see something of the same motivation in the urge in the 
post I'm responding to here that we sharply distinguish between interests and 
rights, and that the failure to do so undermines the sum of liberty.  Like 
Mark, however, I must quote Holmes, this time to the effect that life is 
painting pictures, not doing sums.  Although I've written critically about the 
rule of law before, I certainly accept the general value of the rule of law.  
But I am not convinced it necessarily entails -- or if it does, that it 
necessarily can achieve -- a mechanical, clockwork nature.  That the 
possibility of principled dividing lines may be difficult if not impossible in 
these cases seems to me to be cause for concern, but not an automatic trump.  
The rule of law is a mutt, not a purebred.  Procedural values like 
predictability count, but so do substantive values (and they *are* substantive 
values) like liberty and equality.  They don't yield to precise measures, in my 
view.
Finally, I am still curious whether the difference between extortion and 
settlement has really been settled here.  For one thing, it's not an either/or 
question; it can be both at the same time.  For another, it doesn't seem to me 
to answer any really important questions of the kinds that have been raised in 
this discussion.  Finally, to the extent that it's just a way of trying to get 
at the question of what the sound legal result should be in such a case, I 
don't see how it sheds much light on that substantive question.  If I think 
that the Pledge of Allegiance, or a legislative prayer said at the beginning of 
a town council meeting, is both unconstitutional and of little moment to the 
vast majority of the audience and only some moment to the objectors, is a 
settlement that involves forcing the school or council to change its practices, 
and awarding attorneys' fees to the plaintiff, a settlement or extortion?  
Surely calling it one or the other is really just a way of expressing our views 
about the substance of the law.
Paul HorwitzUniversity of Alabama   

From: hamilto...@aol.com
Date: Tue, 26 Apr 2011 08:56:42 -0400
Subject: Re: Bus Driver and Women's Interests/ Was Settlement or extortion?
To: 

RE: Religious exemptions and undue preference for religion/Smith

[Paul Horwitz]

Do you mean that Smith as symbol has been important to child and disabled adult 
victims of church sexual abuse?  I guess I have two questions about this.  1) 
Those movements were becoming increasingly popular in the 1990s.  Do you think 
there's a causal relationship, or merely a correlative one?  2) I take it 
you're not saying that Smith as substance has been vital to those movements.  
I'm not sure I see how that statement would be accurate.
Paul HorwitzUniversity of Alabama School of Law

 To: religionlaw@lists.ucla.edu
 Subject: Re: Religious exemptions and undue preference for religion/Smith
 From: hamilto...@aol.com
 Date: Mon, 23 Mar 2009 13:24:35 +
 
 Perry--  with respect to your last comment about Smith and Boerne, could you 
 please point to illegal religious practices that you would want the free 
 exercise clause to protect that are not protected under Smith?  I am 
 interested in the actual impact of Smith.  I can tell you that Smith has been 
 crucial in freeing child abuse and disabled adult abuse victims from church 
 practices and control.  In other words, it has fueled a civil rights move for 
 children and disabled adults, the most vulnerable in our society.  The more I 
 have seen Smith in practice, the more convinced I have been of its 
 fundamental soundness. 
  I would welcome examples from others as well, of course.
 
 Marci
 
 Marci A. Hamilton
 Paul R. Verkuil Chair in Public Law
 Cardozo School of Law
 Sent from my Verizon Wireless BlackBerry
 
 -Original Message-
 From: Perry Dane d...@crab.rutgers.edu
 
 Date: Mon, 23 Mar 2009 00:17:59 
 To: religionlaw@lists.ucla.edu
 Subject: Religious exemptions and undue preference for religion
 
 
 Eugene,
 
  I wonder if you're reading the court's footnote too 
 broadly.  When the court says that granting an exception to 
 Cornerstone (or perhaps all parochial schools) based on the theory 
 that the free exercise claims elevate Cornerstone (or all parochial 
 schools) to a higher status than secular nonpublic schools-would be 
 equally unacceptable under federal law, it might simply mean that 
 such an exception would be unacceptable as a requirement of free 
 exercise doctrine, not that it would be unconstitutional if required 
 by a legislature.
 
  Even if the court did mean more than that, note that what 
 Cornerstone is asking for is far removed from any sort of 
 paradigmatic religion-based exemption.  Whatever burden the 
 government is imposing on free exercise here is quintessentially 
 indirect.  Moreover, while I'm no great friend of the 
 burden-benefit distinction, there surely are some free exercise 
 claims, particularly when they involve alleged right to benefits 
 rather than defenses against burdens, that are not only off the 
 tracks on free exercise grounds but jump the tracks, so to speak, to 
 the point of raising establishment clause concerns.  For example, it 
 seems to me that if Mrs. Sherbert's religion not only forbade work on 
 Saturdays but any work at all, and also forbade contributing to the 
 unemployment insurance fund, her claim to unemployment benefits 
 would, had it been accepted by the State, actually have raised the 
 specter of an unconstitutional religious preference.  And I say this 
 as someone who believes in a vigorous free exercise clause and 
 continues to lament Smith and City of Boerne.
 
  Perry
 
 
 
 ***
 Perry Dane
 Professor of Law
 
 Rutgers University
 School of Law  -- Camden
 217 North Fifth Street
 Camden, NJ 08102
 
 d...@crab.rutgers.edu
 Bio: www.camlaw.rutgers.edu/bio/925/
 SSRN Author page: www.ssrn.com/author=48596
 
 Work:   (856) 225-6004
 Fax:   (856) 969-7924
 Home:   (610) 896-5702
 ***
 
 
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Special pleading

[Paul Horwitz]

I hope I can be forgiven an on-topic, but somewhat unusual post.  I have an 
acquaintance named Marc DeGirolami, who will be on the job market this fall.  
He's and SJD from Columbia, where he worked closely with Kent Greenawalt, and 
will be a visitor at Catholic this year.  He's a specialist in law and 
religion, criminal law, and jurisprudence, and has already published a number 
of terrific law and religion pieces; I urge you to look for his SSRN page and 
see for yourself.  Marc hasn't asked me to post this, but I love to see a 
really talented junior scholar come up from the ranks and would like to do 
everything I can to support getting him firmly ensconsed in the academy so he 
can continue to do the great work he promises to do.  Airing his name on 
religionlaw may be a bit of a coals-to-Newcastle proposition, but if by chance 
you're looking for an entry-level person in any of these areas, he deserves 
serious consideration.  If you know of any schools that might be looking in 
these areas, or if you want to reach him directly or have questions, do feel 
free to email me any time.  Thanks and back to your regularly scheduled 
programming.

Yours,

Paul Horwitz
University of Alabama School of Law
(205) 348-6110


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RE: Mezuzah Suit Sparks Ruckus, Impassioned 7th Cir. Dissent

[Paul Horwitz]

Just as interesting, and more disquieting, than the blog post itself are the 
comments on it.   

Date: Mon, 14 Jul 2008 15:30:30 -0700
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Subject: Mezuzah Suit Sparks Ruckus, Impassioned 7th Cir. Dissent







EMAIL THIS Email

















 




 



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Lynne Bloch and her family filed a suit against the 
condo association when a board rule that prohibited “mats, boots, shoes, carts 
or objects of any sort” from being placed in the hallways resulted in the 
association removing the Blochs’ mezuzah.

See the article for more information



 






 
 







 
 



 
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Re: Falwell: Not Necessarily The Person That You Think

[Paul Horwitz]

, is the 
interesting question surrounding figures such as Monica Goodling, and I've 
written on my blog that while I have absolutely no problem with the mission 
of Regent Law School to place its graduates in positions of power, such 
schools, rather than boasting about the positions of influence its graduates 
have reached, ought to ask whether they are graduating enough 
whistle-blowers, enough individuals who were willing to sacrifice their 
influence for the higher good of demanding integrity in the performance of 
public office.


I think these are all useful questions, and am happy to offer them up to the 
list for discussion.  But I doubt they will occur in a context in which we 
are simply asking: Falwell -- good or bad?


Paul Horwitz
Visiting Associate Professor
Notre Dame Law School



From: Susan Freiman [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edu

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Falwell:  Not Necessarily The Person That You Think
Date: Thu, 17 May 2007 15:44:27 +0300

I would appreciate a continuation of the discussion.  I lurk on this list 
because I enjoy learning about this area of law.


Susan

Paul Finkelman wrote:

much of Falwell's life was dedicated to undermining the establishment
clause, and indeed quite openly working for the establishment of his
faith as the official faith of America; it seems to me that any
discussion of his career is in the end a discussion about constitutional
law, unless Eugene, Will, and Sandy somehow think that on law, and
especially con law, is only about legal cases. If that is so then we
should just discuss Hustler.

I have always wondered why Falwell (or any of those in his church) were
reading Hustler in the first place.

Paul Finkelman
President William McKinley Distinguished Professor of Law
 and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 [EMAIL PROTECTED]


[EMAIL PROTECTED] 05/16/07 10:28 PM 


On this one I tend to agree with Will (unless we want to get into a
discussion of Falwell v. Hustler, one of the shining lights of our
contemporary jurisprudence!).
 sandy



From: [EMAIL PROTECTED] on behalf of Will Linden
Sent: Wed 5/16/2007 8:57 PM
To: Law  Religion issues for Law Academics
Subject: Re: Falwell: Not Necessarily The Person That You Think



   OK, what are the LEGAL implications of Falwell's death? Or will the
list
just become all-argue-about-Fawell, all the time?


Will Linden  [EMAIL PROTECTED]
http://www.ecben.net/
Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y
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Past exams

[Paul Horwitz]

As a first-time teacher of law and religion, I would be exceedingly grateful 
if any list members have any past exams they'd be kind enough to share with 
me offlist.  Needless to say, I'm interested in models, and will craft my 
own questions.


Thanks much in advance,

Paul Horwitz
Visiting Professor
Notre Dame Law School


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Re: Landmark First Amendment Religion Litigation?

[Paul Horwitz]

I honestly can't recall, although I didn't think he had, so this is not too 
much of a loaded question -- but where in Smith does Justice Scalia 
expressly carve out the ministerial exception?


Best,

Paul Horwitz
Visiting Associate Professor
Notre Dame Law School



From: [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edu

To: religionlaw@lists.ucla.edu
Subject: Re: Landmark First Amendment Religion Litigation?
Date: Fri, 26 Jan 2007 17:32:49 EST

In a message dated 1/26/2007 5:26:13 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
That is all well and good, but I have the sense that the Court
nonetheless applied secular norms in some post-Wolf cases, indeed
perhaps going so far as to constitutionalize a Congregationalist polity
even in hierarchical churches (be they Episcopalian or Presbyterian in
their polity).  If this isn't the application of secular norms, then
what is it?

As to the post-Wolf cases, it is difficult to argue that they can be
easily reconciled, there being a real difference on the precise question
of secular norms.  I think that the law is anything but clear,
post-Wolf.

One more point, the property dispute cases involving Eastern Orthodox
Churches certainly reflect secular norms -- a dislike of communism, for
openers.
Even Justice Scalia expressly carved out the Ministerial Exception in
Employment Div. v. Smith (neutral laws of general applicability 
analysis)...it is a

little dfifficult to respond to your sense that the Court applied secular
norms without you referring to specific cases from which you derive that 
sense


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Canadian kirpan case

[Paul Horwitz]

The Supreme Court of Canada yesterday issued an interesting ruling 
addressing the issue of whether a Sikh student may be prohibited from 
wearing a kirpan in school.  The case came out of Quebec; interestingly, 
most Canadian religious freedom cases seem to come from either Quebec or 
British Columbia.  Here's a snippet from my post on Prawfsblawg, available 
at:


http://prawfsblawg.blogs.com/prawfsblawg/2006/03/scc_says_kirpan.html

In today's decision in Multani v. Commission scolaire Marguerite-Bourgeoys, 
the Court holds that a decision of a school board prohibiting a student from 
wearing a kirpan -- in effect, a ceremonial dagger worn by Sikhs -- violated 
his freedom of religion under the Canadian Charter of Rights and Freedoms, 
and that this infringement could not be justified, as some infringements can 
be, under section 1 of the Charter.  It looks to me as if the Court was 
unanimous as to the underlying decision that the board erred in banning the 
kirpan, although there are some interesting arguments as to whether the 
decision ought to have been made under the Charter or under applicable 
principles of administrative law.  The Court noted that the student and his 
parents were willing to comply with certain conditions to ensure that it 
was sealed inside his clothing, but rejected the argument that the student 
could have been made to wear a wooden or plastic kirpan (which the student 
said would not comply with religious requirements) and fairly flatly 
rejected an absolute bar on the wearing of kirpans. . . . . Among other 
things, the Court strongly rejected the argument . . . that allowing kirpans 
exposes kids to violence and affects the perception of the climate of 
security, pointing out the plethora of potentially lethal objects that are 
readily available in any school, from baseball bats to scissors, and arguing 
that [i]f some students consider it unfair that [the student] may wear his 
kirpan to school while they are not allowed to have knives in their 
possession, it is incumbent on the schools to discharge their obligation to 
instill in their students this value that is at the very foundation of our 
democracy.


The decision itself is available at: 
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2006scc006.wpd.html


I should note that much of the remainder of my Prawfsblawg post compares the 
ruling to the contrary argument on kirpans presented by Prof. Hamilton in 
her valuable book God vs. the Gavel, and respectfully sides with the Court's 
view.


Paul Horwitz
Southwestern University School of Law
Los Angeles, CA


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RE: Missouri declares Christianity its official religion.

[Paul Horwitz]

I agree with other commenters that we need not assume the bad faith of this 
resolution's proponents.  What I find striking about it, though, is both the 
odd marriage of different ideas contained in its propositions and the 
strange letdown -- and, I think, mismatch -- between its propositions and 
its ultimate payoff.


With respect to the propositions, it seems to me to teeter between arguing 
that this is in fact a Christian nation and that the Christian faith is the 
true faith (the principles afforded to us by Him, Him being a 
specifically Christian God), and that Christianity is relevant for its place 
in our historical firmament (our forefathers...recognized).  In short, 
thinking in terms of cases like the recent Ten Commandments duo or the Roy 
Moore case, it seems to vacillate between a genuine establishment-like 
statement and a Ten Commandments are part of our legal history statement, 
not quite forthrightly saying both are correct and not quite distinguishing 
between the two.  It is also unclear whether the resolution wants to say 
that Christianity is both our American religion and the true faith, or 
whether it wants only to say that our legacy of religious freedom, derived 
from an identifiably Christian heritage, is one that allows persons of all 
faiths to express their religious beliefs.


This seeming identity crisis is perhaps most apparent in its somewhat 
lackluster conclusion, which draws no larger conclusion from its preambles 
than that voluntary school prayer (it does not specify whether it means 
teacher-led, student-led, or something else) and public religious displays 
should be permissible -- a statement that, whether right or wrong, can 
easily be advanced without the need of much that precedes it.  It is also 
apparent in the fact that this conclusion is said to follow from the 
recognition of the positive role that Christianity has played in this great 
nation of ours, while, at the same time, the resolution speaks in more 
general terms about the constitutional right to acknowledge our Creator -- 
leaving somewhat unclear whether that means a right to acknowledge any 
creator, or only the bill's sponsor's specifically Christian conception of a 
creator -- and about the majority's right to express their religious 
beliefs.  Should one draw the conclusion that if a non-Christian majority 
were to take, by democratic process, the levers of power in Missouri, that 
it would and should be equally free to mount solely non-Christian public 
displays and voluntary school prayers, shutting out Christian public 
displays while showing respect for those who object?  Or is the resolution 
premised on the idea that since Christianity is both true and central to the 
American tradition, similar displays, if exclusively non-Christian, would be 
inappropriate if not impermissible?  Or is it premised on something of a 
wink-and-nod assumption that the resolution's conclusions are true provided 
we're pretty sure who is part of the majority?  In any event, as I've 
suggested, at least as long as the resolution's conclusion is not intended 
to endorse -only- Christian prayer or displays, how much value does the 
preamble lend to the conclusion?


None of this is intended disrespectfully.  I'm happy to assume the good 
faith of its proponents, and it seems to me there are perfectly respectable 
arguments for the importance of Christianity either to the American founding 
or to the American tradition.  There are also perfectly respectable 
arguments in favor of voluntary school prayer and/or public religious 
displays, although one set of arguments need not follow from the other.  But 
it seems to me that this resolution is unsure what it wants to say, or 
unwilling to say it clearly.  This strikes me as a remarkably irresolute 
resolution!


Paul Horwitz
Southwestern University School of Law
Los Angeles, CA

P.S.: Is it OK to plug someone else on the listserv, rather than oneself?  
Winston Calvert, who generously posted the text of the resolution, did not 
mention that he is the author of a very fine Note on judicial selection and 
the Religious Test Clause, published in the Wash. U. L.Q. in 2004 and 
available at:


http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363696




From: Winston Calvert [EMAIL PROTECTED]
Reply-To: [EMAIL PROTECTED],Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edu

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Missouri declares Christianity its official religion. Date: 
Fri, 3 Mar 2006 11:39:35 -0800 (PST)


Here is the text of the resolution:

SECOND REGULAR SESSION
House Concurrent Resolution No. 13
93RD GENERAL ASSEMBLY
4572L.02I
http://www.house.state.mo.us/bills061/bills/hcr13.htm

Whereas, our forefathers of this great nation of the
United States recognized a Christian God and used the
principles afforded to us by Him as the founding
principles of our nation; and

Whereas, as citizens

Re: Dover Intelligent-Design Case

[Paul Horwitz]

Has there every been a court that copped to the plea of judicial activisim?  
I'm not quite sure that it fits the bill, but I think Judge Wilkinson's 
opinion in Brzonkala comes close to doing so, although he attempts to 
justify the present wave of activism to which he refers.  I would frankly be 
surprised if there were not other and clearer examples.


Paul Horwitz



From: Brad M Pardee [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edu

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Dover Intelligent-Design Case
Date: Tue, 20 Dec 2005 11:39:25 -0600

The judge wrote, Those who disagree with our holding will likely mark it
as the product of an activist judge. If so, they will have erred as this
is manifestly not an activist Court.

Has there ever been a Court that admitted that it WAS activist?  Is there
a decision somewhere that says, This Court is proud to admit that it is
an activist Court, and thank you for noticing?

Rick may be on to something when he says, The Bard might have said: The
judge doth protest too much, methinks.

And maybe it's just my untrained eye, but when I see a judge referring to
the defendandts as liars and breathtakingly inane, I find myself wondering
how that is part of his job.  His job is to interpret the law, not to
assess the moral fitness of people whose arguments he did not agree with.
If he thinks they're right, say so.  If he thinks they're wrong, say so.
(And if he truly believes they were lying and that this isn't just extreme
rhetorical excess, can I assume perjury charges will be forthcoming?)

The snippets posted by Ann make me seriously doubt the judge's
impartiality and temperament, and I'm not sure I'd want him judging pecan
pies at the County Fair, much less matters of serious Constitutional
import.

Brad




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Re: B'nai Brith Canada wins in landmark supreme court caseonreligious freedoms

[Paul Horwitz]

The Canadian Charter of Rights carries a state action requirement, although 
the contours of state action doctrine differ somewhat from those in the U.S. 
 The B'Nai Brith case was actually decided under a provincial statute, the 
Quebec Charter of Rights and Freedoms, and I am less familiar with whether 
similar state action requirements apply to that law and how.  The Court did 
draw on freedom of religion jurisprudence under the Canadian Charter and 
clearly would apply its substantive conclusions about the nature of freedom 
of religion in the context of the Canadian Charter in future cases.

State action was an indirectly contentious issue in the Court's opinions; 
one Justice, at least, emphasized this point in dissenting.  To the extent 
state action was required here, it appears to have stemmed from the fact 
that the Civil Code of Quebec accords legal status to condominium ownership 
syndicates and grants co-owners free use and enjoyment of [the] private 
portion and of the common portions of the condo, provided he observes the 
by-laws of the immovable and does not impair the rights of the other 
co-owners

Paul Horwitz
Visiting Assistant Professor
University of San Diego School of Law

From: Nathan Oman [EMAIL PROTECTED]
Reply-To: [EMAIL PROTECTED],Law  Religion issues for Law 
Academics [EMAIL PROTECTED]
To: [EMAIL PROTECTED],Law  Religion issues for Law 
Academics  [EMAIL PROTECTED]
Subject: Re: B'nai Brith Canada wins in landmark supreme court 
caseonreligious freedoms
Date: Thu,  1 Jul 2004 15:52:02 -0400

Doug,
Was the condiminium corporation at issue here a public housing facility, or 
does the Charter of Rights apply to private actors as well?

Nate Oman
-- Original Message --
From: Douglas Laycock [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics 
[EMAIL PROTECTED]
Date: Thu, 01 Jul 2004 14:45:26 -0500

 This is not my prose, but someone else's press release -- B'nai
Brith Canada's I think.  I doubt we could get the same result in many 
U.S.
jurisdictions.

B'nai Brith Canada wins in landmark supreme court case
on religious freedoms

FOR IMMEDIATE RELEASE


June 30, 2004.

MONTREAL - In a landmark ruling, the Supreme Court of Canada has upheld
the rights of all Canadians to follow their religious practices without
interference by the courts.

In what is widely seen as an illustration of this point, the Supreme
Court of Canada has ruled that Jewish condominium owners in a Montreal
building have the right to set up their own personal Succahs, temporary
religious huts that are constructed in celebration of the Jewish holiday
of Succot. B'nai Brith Canada's League for Human Rights had intervened
in the matter following the initial refusal of the condominium
corporation to allow observant Jewish residents to construct individual
huts on their own balconies.

Allan Adel, National Chair of B'nai Brith's League for Human Rights,
reacting to the news, stated: We are satisfied with the decision of the
Supreme Court, which has applied a broad interpretation to the Charter
guarantee of freedom of religion and believe it to be in the best
interests of all Canadians. The Succah ruling is an important,
groundbreaking case that champions the cause of religious freedom in
Canada and will have important ramifications well beyond the immediate
facts of the case.

Montreal lawyer Steven Slimovitch along with B'nai Brith's Senior Legal
Counsel David Matas, represented the League before the Court.
Slimovitch, acknowledging that he was pleased with the verdict stated:
This decision sets an important precedent for the exercise of sincerely
held religious beliefs. The High Court has upheld B'nai Brith's argument
that State should not be the final arbiter of religious dogma. Rather,
this must be a private matter set by each individual.



Established in 1875, B'nai Brith is the Canadian Jewish community's
leading human rights agency.




Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
 512-232-1341 (voice)
 512-471-6988 (fax)
 [EMAIL PROTECTED]

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--
Nathan Oman
http://www.tutissima.com
http://www.timesandseasons.org
--
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