RE: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Scarberry, Mark]

I’m basically with Eugene on this matter. Note, however, that in the Oklahoma 
city example, as Eugene describes it, the government caused the damage, by 
putting bloody bodies on the church’s carpet and hammering tent pegs into the 
church parking lot. The government was compensating the church for direct harm 
done to its property by the government.

A similar example: If a government took church property by eminent domain, the 
government would need to send a check to the church. Or, in a different 
context, if the church overpaid payroll taxes for a church-employed gardener, 
the church would get a check from the government for the overpayment.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, May 09, 2016 4:10 PM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran Church - will churches have to extend "equal 
protection" to all when it comes to use?

The EITC is no more a "salary supplement" than Food Stamps.  These are 
transfers to people based on need, and sometimes triggered by work, or 
conditioned on work.  They are not given in exchange for work, and the giver 
(the U.S.) has no control over the work done or the employee.  So that is no 
example of a violation of the principle that government may not pay the 
salaries of clergy in private faith communities.  (The U.S. does have military 
chaplains, and it pays them salaries.  That's a problem unique to that context 
-- providing military chaplains is an accommodation of the needs of members of 
the Armed Forces, and it has long historical warrant.  See Lupu & Tuttle, Ira 
C. Lupu & Robert W. Tuttle, Instruments of Accommodation: The Military 
Chaplaincy and the Constitution, 110 W. Va. L. Rev. 89 (2007), available here: 
http://scholarship.law.gwu.edu/faculty_publications/965

Re; the construction of churches -- rebuilding them after an emergency, or 
maintaining them for secular, historical reasons may be quite different from 
constructing them in the first place.   Even within that distinction, there may 
be a further distinction between reconstructing facades and exteriors, as 
compared to reconstructing worship space.  See Lupu & Tuttle, Historic 
Preservation Grants to Houses of Worship: A Case Study in the Survival of 
Separationism, 43 BC L Rev  (2002), available here: 
http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2148=faculty_publications.

On Mon, May 9, 2016 at 6:25 PM, Volokh, Eugene 
> wrote:
   1.  The EITC 
(https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit) 
is available to people who earn income, but less than a threshold – a very low 
threshold if they have no children ($14,820 for single filers), a higher one if 
they have children ($39,131 for single parents of one child, see 
https://www.irs.gov/Credits-&-Deductions/Individuals/Earned-Income-Tax-Credit/EITC-Income-Limits-Maximum-Credit-Amounts
 for more details).  Someone with $20,000 in income, no spouse, and one child 
living at home will get about $3,000.

   2.  I think this is indeed a salary supplement – it supplements 
income, and is unavailable if there is no earned income.  If my hypothetical 
poor minister didn’t have earnings at all, he wouldn’t get the EITC.  It is 
indeed available to employees generally, not just to ministers, which is 
precisely why I’m using this here:  It’s an example of a salary supplement 
available on an equal basis.

   3.  I gave this as a response to Chip’s view argument that there 
is “a deep and abiding constitutional principle that the government may not ... 
pay the salaries of clergy in private faith communities”; that argument, I 
assume didn’t turn on whether the check is sent to a church or to the clergy 
member.  The EITC example, I think, helps show that this “principle” shouldn’t 
apply to programs where the clergy get a salary supplement because they are 
earners generally, rather than because they are members of the clergy.

   But if you want an example of the government sending a check to 
a church, let me return to the Oklahoma City example, which I think I’ve 
mentioned in the past.  Following the Oklahoma City bombing, Congress provided 
funding to help nonprofit organizations rebuild from the blast.  A church 
located near the bombed federal building sought “$12,000 from the Federal 
Emergency Management Agency to cover uninsured damages caused after the blast, 
when rescuers placed bloody bodies on the carpeted church floor and pitched 
tents in its newly resurfaced parking lot.”  FEMA at first “refused by saying 
the aid would violate the constitutional separation of church and state,” but 
later changed its mind under pressure from members of the Oklahoma 
Congressional delegation.  Laura Vozzella, Aftermath 

Re: Trinity Lutheran Church - will churches have to extend "equal protection" to all when it comes to use?

[Scarberry, Mark]

I suppose there's a baseline question here, along with an unconstitutional 
conditions issue and probably other issues. Could a synagogue be required to 
allow a wedding to be held on its property between a Jew and a non-Jew, as a 
condition of receiving protection of its property by a fire department? (I 
realize that not all synagogues would oppose such a mixed marriage.) Or of 
receiving a building permit on an equal basis with other organizations (absent 
RLUIPA)? Freedom of religion (along with other freedoms) means little if the 
ordinary benefits of our society can be denied to a person or group because of 
the exercise of that freedom. The Bob Jones case is either an outlier or an 
example of a benefit (tax treatment as a charity) that is not an ordinary 
benefit.

We were all assured that the same-sex marriage issue could never be the basis 
for application of Bob Jones. That assurance seems, in Nixonian terms, to have 
become inoperative.

Of course a person or group that receives benefits from a government ordinarily 
does not as a result become a state actor for equal protection purposes; I 
assume no one is arguing to the contrary, absent a government function or 
symbiosis concern.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On May 5, 2016, at 9:33 AM, Marty Lederman 
> wrote:

As I understood Michael's observation, it was that the topside briefs in 
Trinity Lutheran argue at great length that churches, as such, can virtually 
never be disfavored vis-a-vis similarly situated secular institutions, under 
both the Free Exercise and Equal Protection Clauses -- whereas the writers of 
those briefs would, of course, strongly argue that a legislature generally can, 
and sometimes must, treat churches more favorably than such secular 
institutions.  His fear, as I understood it (but perhaps I misunderstood him), 
was that the emphasis on formal equality in the briefs might prompt the Court 
to settle upon a holding closer to strict formal equality than it has ever 
previously announced -- which could be damaging to claims for permissive 
accommodations (akin to the fears raised by the "HHS can't favor churches" 
argument of the petitioners in Zubik).

On Thu, May 5, 2016 at 11:58 AM, Volokh, Eugene 
> wrote:
Hasn't that ship sailed already?  We know from Bob Jones that religious 
universities are subject to loss of their charitable tax exemption if they 
discriminate, and that the government indeed can and does use the threat of 
withdrawing funds as a means for changing church policy.  Maybe in some 
super-pure world whether religious institutions didn't even get tax exemptions, 
they could resist such restrictions.  But even there, of course, the government 
would have broad power to impose restrictions, just in its capacity as 
sovereign and even without funding; recall, for instance, the New Jersey 
wedding venue case, where a church-owned venue was held subject to 
antidiscrimination law even without any funding hook.

Surrendering any Free Exercise Clause claims to equal treatment in 
funding, as a means of trying to strengthen their claims to autonomy, would be 
a poor choice for churches, I think.  Those who want to impose 
antidiscrimination laws on churches and church-owned organizations generally 
aren't terribly interested in giving churches such autonomy, whether or not 
churches get equal access to generally available benefits.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Michael 
> Peabody
> Sent: Thursday, May 05, 2016 8:47 AM
> To: Law & Religion issues for Law Academics 
> >
> Subject: Trinity Lutheran Church - will churches have to extend "equal
> protection" to all when it comes to use?
>
> In reading the briefs on the Trinity Lutheran Church case, I see a lot of 
> reference
> to churches being denied "equal protection" when state laws specifically 
> prohibit
> them from participating in otherwise neutral state aid programs that are
> available to other civic institutions. Yet churches often vigorously argue 
> that
> they are exempt from "equal protection" when it comes to access to their
> facilities.
>
> But in turn, let's say that Trinity wins the case - does that mean that 
> churches
> that receive the funding could be subject to discrimination claims brought by
> citizens who are prohibited from accessing the infrastructure, or are
> discriminated against while on the infrastructure, because the church teaches
> against their protected class (i.e. religion, gender, sexual orientation, 
> etc.)?
>
> I'm thinking that churches that argue for equal 

Re: questions re zubik oral argument

[Scarberry, Mark]

Could eminent domain be used to take an entire religious facility absent the 
Pillar of Fire facts and assuming other suitable facilities could be found by 
the religious group? I suppose so.

Could the government take a room within a religious facility and use it for 
purposes thought sinful by the religious group? That would seem to interfere 
with the independence of the religious group; it would involuntarily intertwine 
it with the evil and with the government (assuming that under these facts the 
two could be distinguished).

Antiochus tried to take a holy space for government use. It did not turn out 
well, and I doubt it would have mattered if he had promised to pay rent. (But 
perhaps that's like the Pillar of Fire case.)

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Apr 10, 2016, at 3:04 PM, Nelson Tebbe 
> wrote:



I wrote a paper with Christopher Serkin arguing that RLUIPA should not be read 
to provide protection against eminent domain — it might be helpful in answering 
Mary Anne’s first question: http://ssrn.com/abstract=1328921

Nelson

On Apr 10, 2016, at 5:47 PM, Volokh, Eugene 
> wrote:

Mary Anne Case asked:

1) Why does everyone on the Court seem so blithely to agree with Paul Clement 
that for the government to take over a room in the Little Sisters’ facility to 
operate a Title X clinic, even if they paid market price for the room, would of 
course be impermissible?  Couldn’t such a government action be seen as a taking 
for public use with just compensation?  Are RFRA and/or RLUIPA thought more 
generally to protect religiously motivated property owners from what would 
otherwise be permissible takings?  If so, are there cases? And specifically 
with respect to access to contraception, might it not sometimes be the less 
restrictive alternative for a government, for example, to use eminent domain to 
take over space in, for example, a Catholic health care facility, in which 
medical goods and services which the facility objects to providing might be 
made available?

2) When Roberts says, “Well, the way constitutional objections work is you 
might have to change current law,”  why is the response merely “laughter” 
rather than the observation that a RFRA objection is not a constitutional 
objection?

Two quick reactions:

1.  I think that RFRA may well protect religiously motivated property owners 
from what would otherwise be permissible takings.  Indeed, one of the few 
Sherbert/Yoder-era appellate court victories (however tentative) for a 
religious exemption claim was Pillar of Fire v. Denver Urban Renewal Authority, 
509 P.2d 1250 (Colo. 1973), which held that a church might be able to prevail 
under the Free Exercise Clause in its challenge to a government action 
condemning the church that formed the birthplace of plaintiff’s religious 
denomination.  I recognize, though, that this sort of claim (our property is of 
special religious significance to us) may be different, for substantial burden 
purposes, from the claim contemplated by the question (we don’t want our 
property used for sinful purposes, even if it’s taken by the government).

2.  Zubik, like other RFRA cases, are – at least ostensibly – about 
implementing Congress’s will, including its will in enacting RFRA.  But 
Congress, when it enacted RFRA, expressly took the view that religious 
accommodation claims should be treated as akin to constitutional objections 
(since it disagreed with the majority opinion in Smith).  So “the way 
constitutional objections work is you might have to change current law” was 
likely intended (and understood) as shorthand for (a) the way constitutional 
objections work is that you might have to change current law, (b) Congress 
meant to incorporate a constitutional-objection way of thinking into RFRA, and 
(c) RFRA objections thus work the same way.

Eugene

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Signing off for a while at least -- Re: The Charlotte City Ordinance and Religious Freedom

[Scarberry, Mark]

I agree with David that it is not right for us to require these men to break 
the law in order to use the men's restrooms, even if there is no other 
consequence for breaking the law. I do think we need to allow proprietors of 
public accommodations to have men's rooms and women's rooms, and that there are 
sexual privacy and modesty concerns that should be given strong weight. How all 
of this should be sorted out is difficult for me to see.

Unfortunately I have a great deal of work to do, and I will need to stop 
participating on the religionlaw list, at least for a while. I'm not sure I 
will even have time to read any posts. Please don't take my silence as 
agreement with anything anyone may say.

With best wishes for everyone on the list,
Mark

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


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Thursday, March 31, 2016 8:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Off list -- Re: The Charlotte City Ordinance and Religious Freedom

It strikes me that suggestions that (some) trans men should just use men's 
restrooms in South Carolina and would get away with it because they would be 
perceived as a men does not really speak to the fact that to do so, they will 
now have to be lawbreakers.  This to me just underscores and/or compounds the 
many problems of HB2.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Off list -- Re: The Charlotte City Ordinance and Religious Freedom

[Scarberry, Mark]

My apologies. I intended this response to Paul to be off-list. I don't think 
there is anything in it that is inappropriate for the list.

Mark

Sent from my iPad

On Mar 31, 2016, at 8:01 PM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

Thanks, Paul, for the tone of your response.

As Will noted in a later post, and as the text of the amended code sections 
shows, there now is no exemption for showers (or restrooms etc.).

I think Will said that there is no enforcement mechanism.  It seems likely that 
the proprietor simply is permitted to insist that patrons use the restroom that 
seems appropriate, and that the birth certificate requirement simply protects 
the proprietor who does so. No one will question the Trans men in the photos, 
unless they try to use the women's facilities.

I hope all is well.

Mark

Sent from my iPad

On Mar 31, 2016, at 6:49 PM, Paul Finkelman 
<paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com>> wrote:


Mark:

I agree with much of your post, and you and I may agree that the men in those 
pictures should use the men's room.  But unless those men have had their birth 
certificates changed, which as I pointed out, may be legally impossible, the 
state of North Carolina (and Mr. Esser) would in fact question their right to 
use the men's room, and as best I an tell, then can be prosecuted for doing so.

You write below:  "I don’t think Will was changing the subject. He was 
addressing a part of the subject to help provide context. His information helps 
to show that people on both sides of these issues can be clueless or 
insensitive or worse. I’m not sure that many of us knew about the Charlotte 
ordinance; I didn’t."  But your later post shows that these arguments of Mr. 
Esser are clearly wrong about showers and other facilities.  And another post 
shows the Charlotte ordinance to be consistent with out laws around the country.

I appreciate your desire to make a case for balancing here.  And listening to 
everyone's point of view.  But, as you noted in a later post, the Charlotte 
ordinance exempted showers -- the red herring argument that Mr. Esser made -- 
and is irrelevant to the North Carolina law.

Moreover, while the city of Charlotte may be listening to all points of view, 
it does not appear that North Carolina as a state is doing so.

Does anyone know if the legislature held hearings on this law, and invited 
representatives from the LGBT community?  Did they hear from Transmen and 
Transwomen?

Did the legislature consider the evidence that transmen and women have a higher 
suicide rate than most other groups in the nation and face much more violence, 
in part because of discrimination?  Did the legislature look at the inability 
of transmen and transwomen (as well as others in the LGBT community) to find 
jobs and housing?

I don't know the answer here, but perhaps people in NC can help us out.

**

Paul,

I don’t think Will was changing the subject. He was addressing a part of the 
subject to help provide context. His information helps to show that people on 
both sides of these issues can be clueless or insensitive or worse. I’m not 
sure that many of us knew about the Charlotte ordinance; I didn’t.

In California, the Boys Club organization was forced to become the Boys and 
Girls Club, because as a place of public accommodation it was prohibited from 
serving only boys. I don’t know what the case may be in North Carolina. In some 
facilities there are open showers, at least there used to be, and remodeling to 
make all showers and other facilities single-use may not be practicable. Many 
men’s rooms have urinals, of course, that are not enclosed.

As people much wiser than I have pointed out, the making of an error in one 
direction does not mean that an error cannot be made in the other direction. It 
appears that the North Carolina legislature reacted badly to the actions of 
some extraordinarily “progressive” locals in Charlotte, who thought that 
separate men’s and women’s restrooms and shower facilities were a mark of 
benighted primitive prejudice.

It’s not quite clear to me how a place of public accommodation should decide 
who should be allowed to use men’s and women’s facilities. For the most part 
people will just be sensible and will use the facilities appropriately so as 
not to make others feel uncomfortable and so as not to violate others’ concerns 
about sexual modesty. It shouldn’t be illegal for a restaurant or sports 
stadium to mark one restroom “Men” and another “Women;” apparently the 
Charlotte ordinance would prohibit that. I’d really rather that my daughters 
know which room to avoid so that they do not walk in on a man using a urinal.

Of course the men whose pictures you attached to your post should use the men’s 
room, whatever a birth certificate might say. No one would question their doing 
so. Presumably if one of them di

Off list -- Re: The Charlotte City Ordinance and Religious Freedom

[Scarberry, Mark]

Thanks, Paul, for the tone of your response.

As Will noted in a later post, and as the text of the amended code sections 
shows, there now is no exemption for showers (or restrooms etc.).

I think Will said that there is no enforcement mechanism.  It seems likely that 
the proprietor simply is permitted to insist that patrons use the restroom that 
seems appropriate, and that the birth certificate requirement simply protects 
the proprietor who does so. No one will question the Trans men in the photos, 
unless they try to use the women's facilities.

I hope all is well.

Mark

Sent from my iPad

On Mar 31, 2016, at 6:49 PM, Paul Finkelman 
> wrote:


Mark:

I agree with much of your post, and you and I may agree that the men in those 
pictures should use the men's room.  But unless those men have had their birth 
certificates changed, which as I pointed out, may be legally impossible, the 
state of North Carolina (and Mr. Esser) would in fact question their right to 
use the men's room, and as best I an tell, then can be prosecuted for doing so.

You write below:  "I don’t think Will was changing the subject. He was 
addressing a part of the subject to help provide context. His information helps 
to show that people on both sides of these issues can be clueless or 
insensitive or worse. I’m not sure that many of us knew about the Charlotte 
ordinance; I didn’t."  But your later post shows that these arguments of Mr. 
Esser are clearly wrong about showers and other facilities.  And another post 
shows the Charlotte ordinance to be consistent with out laws around the country.

I appreciate your desire to make a case for balancing here.  And listening to 
everyone's point of view.  But, as you noted in a later post, the Charlotte 
ordinance exempted showers -- the red herring argument that Mr. Esser made -- 
and is irrelevant to the North Carolina law.

Moreover, while the city of Charlotte may be listening to all points of view, 
it does not appear that North Carolina as a state is doing so.

Does anyone know if the legislature held hearings on this law, and invited 
representatives from the LGBT community?  Did they hear from Transmen and 
Transwomen?

Did the legislature consider the evidence that transmen and women have a higher 
suicide rate than most other groups in the nation and face much more violence, 
in part because of discrimination?  Did the legislature look at the inability 
of transmen and transwomen (as well as others in the LGBT community) to find 
jobs and housing?

I don't know the answer here, but perhaps people in NC can help us out.

**

Paul,

I don’t think Will was changing the subject. He was addressing a part of the 
subject to help provide context. His information helps to show that people on 
both sides of these issues can be clueless or insensitive or worse. I’m not 
sure that many of us knew about the Charlotte ordinance; I didn’t.

In California, the Boys Club organization was forced to become the Boys and 
Girls Club, because as a place of public accommodation it was prohibited from 
serving only boys. I don’t know what the case may be in North Carolina. In some 
facilities there are open showers, at least there used to be, and remodeling to 
make all showers and other facilities single-use may not be practicable. Many 
men’s rooms have urinals, of course, that are not enclosed.

As people much wiser than I have pointed out, the making of an error in one 
direction does not mean that an error cannot be made in the other direction. It 
appears that the North Carolina legislature reacted badly to the actions of 
some extraordinarily “progressive” locals in Charlotte, who thought that 
separate men’s and women’s restrooms and shower facilities were a mark of 
benighted primitive prejudice.

It’s not quite clear to me how a place of public accommodation should decide 
who should be allowed to use men’s and women’s facilities. For the most part 
people will just be sensible and will use the facilities appropriately so as 
not to make others feel uncomfortable and so as not to violate others’ concerns 
about sexual modesty. It shouldn’t be illegal for a restaurant or sports 
stadium to mark one restroom “Men” and another “Women;” apparently the 
Charlotte ordinance would prohibit that. I’d really rather that my daughters 
know which room to avoid so that they do not walk in on a man using a urinal.

Of course the men whose pictures you attached to your post should use the men’s 
room, whatever a birth certificate might say. No one would question their doing 
so. Presumably if one of them did not have male “plumbing” then he would use an 
enclosed stall in the men’s room, and no one would care. It would be 
insensitive and violative of at least some women’s sense of sexual privacy for 
them to use the women’s room; I think that was your point, or at least it may 
have been. (That’s not to say that only women 

RE: The Charlotte City Ordinance and Religious Freedom

[Scarberry, Mark]

Here are the relevant changes, as best I can tell, that were made to the 
Charlotte Code (sections 12-58 and 12-59) by Ordinance 7056, per the website 
link that Will provided, 
https://www.municode.com/library/nc/charlotte/codes/code_of_ordinances. The 
phrase “sex, marital status, familial status, sexual orientation, gender 
identity, gender expression” was added to the prior text of Section 12-58 in 
three places:

“Section 12-58. – Prohibited Acts

“(a) It shall be unlawful to deny any person the full and equal enjoyment of 
the goods, services, facilities, privileges, advantages, and accommodations of 
a place of public accommodation because of race, color, religion, sex, marital 
status, familial status, sexual orientation, gender identity, gender 
expression, or national origin.

“(b) It shall be unlawful to make, print, circulate, post, mail or otherwise 
cause to be published a statement, advertisement, or sign which indicates that 
the full and equal enjoyment of the goods, services, facilities, privileges, 
advantages, and accommodations of a place of public accommodation will be 
refused, withheld from, or denied any person because of race, color, religion, 
sex, marital status, familial status, sexual orientation, gender identity, 
gender expression, or national origin, or that any person's patronage of or 
presence at a place of public accommodation is objectionable, unwelcome, 
unacceptable, or undesirable because of race, color, religion, sex, marital 
status, familial status, sexual orientation, gender identity, gender 
expression, or national origin; provided, however, this section does not apply 
to a private club or other establishment not, in fact, open to the public.”


Section 12-59 was repealed. It prohibited sex discrimination with respect to 
restaurants, hotels, and motels. It included this exception, among others:

“(b) This section shall not apply to the following:

  “(1) Restrooms, shower rooms, bathhouses and similar facilities which are in 
their nature distinctly private.”



List members can decide for themselves whether section 12-58 should fairly be 
read to include the exception that was explicitly set out in section 12-59. 
That seems to me at best doubtful. There was no need for such an exception in 
section 12-58 (and an exception would have been outrageous) before it was 
amended, because it dealt only with race, color, religion, and national origin. 
The Charlotte City Council (at least at one time) thought there was a need for 
the exception in section 12-59, which dealt with sex discrimination. When 
section 12-58 was expanded to cover sex discrimination, and section 12-59 was 
repealed, the exception was not carried over into section 12-58. It’s possible 
that Will knows whether there was an unsuccessful attempt before the City 
Council to have such an exception included in the amended section 12-58.

Mark

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


From: Scarberry, Mark
Sent: Thursday, March 31, 2016 5:01 PM
To: Law & Religion issues for Law Academics; Will Esser
Subject: RE: The Charlotte City Ordinance and Religious Freedom

I was about to send this post in response to Paul. Jim’s post that arrived a 
moment ago suggests that the Charlotte ordinance may not in fact prohibit 
proprietors of public accommodations from having men’s and women’s restrooms, 
showers, etc. So part of the premise of the following post may not be accurate. 
Nevertheless, I thought it might be a useful addition to our discussion.
**

Paul,

I don’t think Will was changing the subject. He was addressing a part of the 
subject to help provide context. His information helps to show that people on 
both sides of these issues can be clueless or insensitive or worse. I’m not 
sure that many of us knew about the Charlotte ordinance; I didn’t.

In California, the Boys Club organization was forced to become the Boys and 
Girls Club, because as a place of public accommodation it was prohibited from 
serving only boys. I don’t know what the case may be in North Carolina. In some 
facilities there are open showers, at least there used to be, and remodeling to 
make all showers and other facilities single-use may not be practicable. Many 
men’s rooms have urinals, of course, that are not enclosed.

As people much wiser than I have pointed out, the making of an error in one 
direction does not mean that an error cannot be made in the other direction. It 
appears that the North Carolina legislature reacted badly to the actions of 
some extraordinarily “progressive” locals in Charlotte, who thought that 
separate men’s and women’s restrooms and shower facilities were a mark of 
benighted primitive prejudice.

It’s not quite clear to me how a place of public accommodation should decide 
who should be allowed to use men’s and women’s facilities. For the most part 
people will just be sensible and will use the facilities appropriately so as 
not to make ot

RE: The Charlotte City Ordinance and Religious Freedom

[Scarberry, Mark]

I was about to send this post in response to Paul. Jim’s post that arrived a 
moment ago suggests that the Charlotte ordinance may not in fact prohibit 
proprietors of public accommodations from having men’s and women’s restrooms, 
showers, etc. So part of the premise of the following post may not be accurate. 
Nevertheless, I thought it might be a useful addition to our discussion.
**

Paul,

I don’t think Will was changing the subject. He was addressing a part of the 
subject to help provide context. His information helps to show that people on 
both sides of these issues can be clueless or insensitive or worse. I’m not 
sure that many of us knew about the Charlotte ordinance; I didn’t.

In California, the Boys Club organization was forced to become the Boys and 
Girls Club, because as a place of public accommodation it was prohibited from 
serving only boys. I don’t know what the case may be in North Carolina. In some 
facilities there are open showers, at least there used to be, and remodeling to 
make all showers and other facilities single-use may not be practicable. Many 
men’s rooms have urinals, of course, that are not enclosed.

As people much wiser than I have pointed out, the making of an error in one 
direction does not mean that an error cannot be made in the other direction. It 
appears that the North Carolina legislature reacted badly to the actions of 
some extraordinarily “progressive” locals in Charlotte, who thought that 
separate men’s and women’s restrooms and shower facilities were a mark of 
benighted primitive prejudice.

It’s not quite clear to me how a place of public accommodation should decide 
who should be allowed to use men’s and women’s facilities. For the most part 
people will just be sensible and will use the facilities appropriately so as 
not to make others feel uncomfortable and so as not to violate others’ concerns 
about sexual modesty. It shouldn’t be illegal for a restaurant or sports 
stadium to mark one restroom “Men” and another “Women;” apparently the 
Charlotte ordinance would prohibit that. I’d really rather that my daughters 
know which room to avoid so that they do not walk in on a man using a urinal.

Of course the men whose pictures you attached to your post should use the men’s 
room, whatever a birth certificate might say. No one would question their doing 
so. Presumably if one of them did not have male “plumbing” then he would use an 
enclosed stall in the men’s room, and no one would care. It would be 
insensitive and violative of at least some women’s sense of sexual privacy for 
them to use the women’s room; I think that was your point, or at least it may 
have been. (That’s not to say that only women should have their sense of sexual 
privacy respected.)

So all that the North Carolina legislature should have done on that issue, it 
seems, was to preempt the Charlotte ordinance so that proprietors of public 
accommodations could continue to have separate men’s and women’s restrooms, 
shower rooms, saunas, etc. Assuming that men and women, transgender and 
otherwise, would then have acted reasonably, which I would assume, there would 
be no problem.

With regard to the other part of the legislation -- setting antidiscrimination 
laws at the state level -- there are good faith arguments for doing so, 
especially if the legislature is willing to consider the need for statewide 
antidiscrimination protections for people with characteristics other than those 
traditionally specified in anti-discrimination laws. The cities and counties 
that would adopt ordinances prohibiting discrimination against LGBT persons may 
be the cities and counties where such protections are least needed. Social 
pressure may be somewhat effective in those areas, though not in the areas 
least likely to adopt such ordinances, which argues for statewide consideration 
of these matters.

The level at which laws are made is always a problem in an extended democracy. 
I don’t have any general solution to the problem. Local laws sometimes can be 
more oppressive than laws made at a higher level. Consider homeowners’ 
associations.

A social environment in which a person is permitted to preserve his or her own 
sense of sexual privacy, within reason, is generally speaking a good thing. So 
I am not thrilled when cities permit nudity on the streets. Reasonable people 
can distinguish between prohibiting public nudity and requiring the wearing of 
burqas.

Best wishes,
Mark

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



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Thursday, March 31, 2016 2:40 PM
To: Will Esser; Law & Religion issues for Law Academics; Eugene Volokh
Subject: Re: The Charlotte City Ordinance and Religious Freedom

American obsession about bathrooms is curious in itself.  In France (where I 
taught to summers 

RE: Arizona, Indiana . . . and now Georgia

[Scarberry, Mark]

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

Mark

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


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

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

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

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

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

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

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

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

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

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

RE: Arizona, Indiana . . . and now Georgia

[Scarberry, Mark]

Doug writes:

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

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

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

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

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

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

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

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

Mark

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


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

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

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

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

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

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

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Re: Zubik - a different hypo, closer to the case itself

[Scarberry, Mark]

Marty,

You posit two potential requirements: the government requires the employer to 
provide the information or the government requires the employee to provide the 
information. Those raise different issues, don't they?

I haven't had time to follow these most recent list exchanges in detail but 
hope to review them soon.

It has to be the case, I think, that someone who seeks a religious exemption 
can be required to ask for one, even if that will trigger government action to 
which the conscientious objector objects. If you want a draft exemption you 
can't just refuse to show up at the induction center. That's different from 
requiring the c.o. to find or name a replacement draftee or to give a 
preexisting contact list to the govt for that specific purpose.

Suppose in Lyng that the govt was willing to leave undisturbed a square mile of 
sacred ground and asked the native Americans to pick the square mile? Would 
native  Americans by doing so indirectly cause disturbance of the rest of the 
sacred ground? Would that be a substantial burden? Would it be in some sense a 
Sophie's choice (though I hesitate to describe anything as comparable to that 
choice)? Or suppose a religious objector had publicly stated that abortion is a 
worse sin than nonprocreative sex (which is nonetheless a sin, according to the 
objector). Could the objector be required to specify which drugs or devices the 
objector believed to be abortifacients so the govt could accommodate the 
objector with respect to those? This is a kind of requirement that the objector 
specify the degree of the religious impact, where the objector had admitted 
that there were degrees of impact.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Mar 22, 2016, at 9:37 AM, Marty Lederman 
> wrote:

Let me try out another hypo, closer to the facts of Zubik, to see what people's 
reactions are.  As I understand it, what the government and Doug are proposing 
is that the Court establish another bright-line rule, akin to the one the Court 
developed in Bowen and Lyng, excluding a certain category of claims from being 
deemed "substantial burdens" as a matter of law, without regard to whether the 
plaintiff sincerely believes that the law compels her to impermissibly 
facilitate sinful conduct.

The new proposed rule is something like this:  Just as one cannot challenge the 
government's own internal conduct, no matter how much it actually impinges on 
one's exercise of religion (Bowen)--indeed, even where it might render that 
exercise impossible (Lyng)--so, too, the Court should hold that Party A cannot 
challenge a legal relationship between the government and a third party (Party 
B--here, the insurance company), and seek to prevent that relationship in a way 
that would frustrate the government's ability to further its interests, even if 
Party A sincerely believes that its preexisting relationship with Party B 
(i.e., the employer's contract with the insurer, and, here, the insurer's 
access to employee information) contributes to sinful conduct in a way that 
makes Party A morally culpable.

Let's take a case where the government deals directly with Party A's employees, 
such as a single-payer system--or, better yet, the "alternatives" that the 
petitioners in Zubik have themselves suggested, in which women whose employers 
do not allow contraception coverage would receive it instead from the 
government, either directly or through an exchange plan that the government 
would subsidize.

Say that, in such a system, the government requires information from the women 
or their employers in order to make the system work--such as proof of 
employment; proof that they are not already receiving the benefit; info about 
income; info about preexisting relationships with physicians under the employer 
plan; etc.  The law therefore either requires the employer to provide such 
employee-specific information directly to the government, or requires the 
employees themselves to provide the information, which they possess only by 
virtue of their pre-existing contractual relationship with the employer.  The 
employer complains that the conveyance of that information to the government, 
which allows the government to more efficiently implement the "single-payer" 
option, would make it (the employer) complicit in the employees' eventual use 
of contraception (or nonprocreative sex), by "facilitating" the government's 
ability to provide reimbursement to the employees.

As I understand it, the USG/Laycock argument would say that there is no 
substantial burden in such a case as a matter of law, regardless of whether the 
employer's claim of complicity is sincere.

Thoughts?  Would this really be very different from what the Court did in Bowen 
and Lyng themselves?







From: Michael Peabody 

RE: help wanted

[Scarberry, Mark]

What about Seminole Tribe?

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 22, 2016 11:39 AM
To: Law & Religion issues for Law Academics
Subject: RE: help wanted

   If the question is just of Congressional power, I would think 
that the Commerce Clause would be more than ample – just as Title VII can apply 
to commerce in labor (whether by government employers or private ones), so can 
this hypothetical statute.  (I think the proposed statute would be far too 
broad, and might pose Thornton v. Caldor undue-burden-on-third-parties 
concerns; but it wouldn’t pose Boerne v. Flores enumerated-power concerns.)

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 22, 2016 11:17 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: help wanted

Try the spending power.  But why would Congress want to do this, rather than 
leave it to each state? And if Congress did, why not include a provision that 
would specify that the law does not apply to exemptions that would cause 
significant harm to third parties?

On Monday, February 22, 2016, Steven Jamar 
> wrote:
How might Congress draft a federal law that requires states to accommodate 
religious beliefs so that state employees are free to refuse to perform tasks 
that are contrary to their religious beliefs?  We have the Boerne problems of 
making a record and RFRA being held to be too much of a bludgeon.  But assuming 
we could somehow get past that, what would the language be?  Could this work:

"Every state must accommodate the religious beliefs and practices of its 
employees and those persons with which it contracts by exempting them from 
performing tasks that are contrary to their religious beliefs.”

Even assuming the record-requirement part of Boerne could be met, I just can’t 
seem to craft language that I think would be likely to pass constitutional 
muster.

So, help wanted.

Steve



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

“It’s not the note you play that’s the wrong note – it’s the note you play 
afterwards that makes it right or wrong.”

Miles Davis



--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

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Re: Excluding religious institutions from public safety benefits

[Scarberry, Mark]

The petition for cert says the grant could only be used to pay for scrap rubber 
and delivery costs-- not even for site prep or any kind of labor. There is no 
need to audit the church's finances but only to trace these particular funds. 
It would be easy to structure this as a draft payable to the scrap rubber 
seller. Again, it is functionally the provision of scrap rubber, not funds.

Mark Scarberry

Sent from my iPhone

On Jan 17, 2016, at 2:51 PM, Patrick Gillen 
> wrote:

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.

[snip]

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Re: The Establishment Clause question in the Trinity Lutheran case

[Scarberry, Mark]

For those of us who haven't been following the case closely yet:

Why wouldn't this best be described as a grant of scrap rubber rather than as a 
grant of funds/money? Should that characterization matter?

Mark

Mark S. Scarberry
Pepperdine University School of Law

P.S. Condolences to Green Bay fans.

Sent from my iPad

On Jan 16, 2016, at 8:17 PM, Marty Lederman 
> wrote:

I just took a quick look at the briefs and decision below.  Unless I missed 
something, it appears that neither Missouri nor amici ACLU and Americans United 
argued that the funding would violate the federal Establishment Clause.  This 
led the court of appeals to write:  "We . . . recognize that the Supreme 
Court’s Establishment Clause jurisprudence has evolved rather dramatically in 
the forty years since Luetkemeyer was decided. For example, it now seems rather 
clear that Missouri could include the Learning Center’s playground in a 
non-discriminatory Scrap Tire grant program without violating the Establishment 
Clause."  [No explanation of why that is "rather clear."  In fact, insofar as 
governing doctrine is concerned, it's at best a close question under the EC.]

Given that Missouri appears committed to arguing for Locke v. Davey-like "play 
in the joints," it's unlikely the state will argue, in the Supreme Court, that 
funding would violate the EC.  And without the state making that argument, the 
Court will almost certainly not raise the matter itself, even though under 
governing doctrine there's a very strong argument that the funding would be 
unconstitutional.  In which case we'll have what's arguably a major doctrinal 
change without the issue even being joined.

I don't want to overstate the importance of this:  Even if the issue were fully 
briefed, there are almost certainly five or more Justices who would reject the 
notion that funding here would violate the EC.  Still, it would be rather 
remarkable if the Court were to hold, for the first time in history(?), that 
the state can make direct grants to churches, in a case where no party has even 
argued to the contrary.



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Re: North Carolina Magistrate Law

[Scarberry, Mark]

Haven't had time to review it. Here's Carl Esbeck's take: 
http://mirrorofjustice.blogs.com/mirrorofjustice/2015/12/carl-esbeck-on-a-north-carolina-case-involving-religious-accommodations-after-obergefell.html.

This isn't quite responsive to Marty's request; Carl doesn't think the suit has 
merit.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Dec 17, 2015, at 9:20 AM, David Cruz 
> wrote:

Utter silence could be a reflection of the time of the school year and holiday 
timing.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
> 
on behalf of Marty Lederman 
>
Reply-To: Law & Religion issues for Law Academics 
>
Date: Thursday, December 17, 2015 at 7:17 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: North Carolina Magistrate Law

Is it safe for me to assume that the utter silence here means that virtually no 
one thinks there's merit to the case?  I'm genuinely curious to hear from 
anyone who thinks there's more to it than first appears.

On Wed, Dec 9, 2015 at 9:01 PM, Marty Lederman 
> wrote:
Just curious:  Does anyone think there's any merit to the EC, EPC and/or DPC 
claims?

On Wed, Dec 9, 2015 at 10:25 AM, Anthony Michael Kreis 
> wrote:
FYI: Same-sex couples backed by local LGBT rights organizations filed a 
complaint this morning in federal court challenging the NC magistrate exemption 
law that the legislature enacted this year.

http://s3.documentcloud.org/documents/2644126/001-NC-complaint-against-marriage-recusal-law.pdf

Anthony Michael Kreis, J.D.
University of Georgia
School of Public & Int'l Affairs
Sent from my iPhone

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RE: Request for submission of items for AALS Law & Religion Section Newsletter -- on behalf of Professor Richard Albert

[Scarberry, Mark]

I failed to include Richard's email address: 
richard.alb...@bc.edu<mailto:richard.alb...@bc.edu>.

Mark

From: Scarberry, Mark
Sent: Friday, November 06, 2015 4:42 PM
To: Law & Religion issues for Law Academics
Subject: Request for submission of items for AALS Law & Religion Section 
Newsletter -- on behalf of Professor Richard Albert

Friends,

I am sending this on behalf of Prof. Richard Albert, who is the chair-elect of 
the AALS Law & Religion section. Some of you will already have gotten the 
message via the section announcement-only list. His message is addressed to 
section members, but it makes sense to have this go out to the broader group of 
law & religion scholars, so that pertinent items won't be missed.

Best wishes,
Mark

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



Message begins:



Dear Section colleagues,



As the Chair-elect of the Law & Religion Section, it is my pleasant duty to 
prepare the annual newsletter for our community. As in previous years, the 
newsletter will contain a list of new scholarship published over the past year, 
information about religion-related programming at the upcoming AALS Annual 
Meeting in January, as well as details of conferences scheduled for the months 
ahead.



If you would like to submit items for the newsletter, please send them directly 
to me with a copy to Ryan Hynes (ryan.hy...@bc.edu<mailto:ryan.hy...@bc.edu>) 
with the subject line "Submission for Section Newsletter."



I am looking forward to seeing many of you in January.



Until then, my best wishes,



Richard

_



Richard Albert

Associate Professor of Law and Dean's Research Scholar, Boston College

Visiting Associate Professor of Law and Political Science, Yale University 
(2015-16)



617.552.3930 (office)

617.756.2622 (mobile)
http://www.richardalbert.com

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Request for submission of items for AALS Law & Religion Section Newsletter -- on behalf of Professor Richard Albert

[Scarberry, Mark]

Friends,

I am sending this on behalf of Prof. Richard Albert, who is the chair-elect of 
the AALS Law & Religion section. Some of you will already have gotten the 
message via the section announcement-only list. His message is addressed to 
section members, but it makes sense to have this go out to the broader group of 
law & religion scholars, so that pertinent items won't be missed.

Best wishes,
Mark

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



Message begins:



Dear Section colleagues,



As the Chair-elect of the Law & Religion Section, it is my pleasant duty to 
prepare the annual newsletter for our community. As in previous years, the 
newsletter will contain a list of new scholarship published over the past year, 
information about religion-related programming at the upcoming AALS Annual 
Meeting in January, as well as details of conferences scheduled for the months 
ahead.



If you would like to submit items for the newsletter, please send them directly 
to me with a copy to Ryan Hynes (ryan.hy...@bc.edu) 
with the subject line "Submission for Section Newsletter."



I am looking forward to seeing many of you in January.



Until then, my best wishes,



Richard

_



Richard Albert

Associate Professor of Law and Dean's Research Scholar, Boston College

Visiting Associate Professor of Law and Political Science, Yale University 
(2015-16)



617.552.3930 (office)

617.756.2622 (mobile)
http://www.richardalbert.com

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Suggestion that this discussion be on the religionlaw list -- Fwd: Conlawprof list multiple delayed posts -- Re: Notre Dame diversion

[Scarberry, Mark]

I serve as moderator for the conlawprof list. Please see the message below, 
which I sent to that list. I've suggested that this discussion be carried out 
on this list rather than both simultaneously.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

Begin forwarded message:

From: "Scarberry, Mark" 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>
Date: September 9, 2015 at 8:43:19 AM PDT
To: "conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" 
<conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>>
Subject: Conlawprof list multiple delayed posts -- Re: Notre Dame diversion

This morning the conlawprof listserv system notified me that six posts had been 
held up. The reason is that there were too many addressees. The list software 
is designed to screen out email blasts. I can't handle that many posts 
manually, so they will not go through to the conlawprof list membership.

When you respond to a post, it's best just to respond to the list, and only to 
one list. It's usually best, I think,  to keep a discussion on one list or the 
other. I'd like to suggest that the discussion on this subject be carried out 
on the religionlaw list. Some experts in the field are only members of that 
list, and most or all of you who are interested in this topic are on that list. 
(That's just a suggestion.)

Best,
Mark (conlawprof moderator)

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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messages to others.

RE: Kim Davis released, given that her Deputies are issuing licenses

[Scarberry, Mark]

If they have notice of the injunction against Davis (which of course they do) 
and are working in concert with her, they could be held in contempt. The facts 
would need to be fleshed out.

If they are acting on their own, even though they have the same purposes as 
Davis, then they can’t be held in contempt absent entry of an injunction 
against them, per Doug’s post. It’s not enough that they want to achieve the 
same result. I have taught this using some of the abortion protest cases in 
which people (or groups) may or may not be working together, and thus may or 
may not be bound by an injunction entered against one of them (or against one 
group).

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Tuesday, September 08, 2015 1:01 PM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Eric J Segall'; conlawp...@lists.ucla.edu
Subject: RE: Kim Davis released, given that her Deputies are issuing licenses

He can’t issue an injunction orally. There are cases on that. And it is hard to 
imagine an oral order complying with Rule 65, which requires the injunction to 
be specific in its terms, to state the reasons for its issuance, and describe 
in reasonable detail, and not by reference to other documents, the acts 
restrained or required.

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 08, 2015 3:53 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Eric J Segall; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

What's she going to do to stop her Deputies?  In his order today, Judge Bunning 
indicates that they are subject to their own injunctions to issue the licenses. 
 (If so, the document is not yet public -- it must have been done orally at the 
contempt hearing on Thursday, the transcript of which is still not available.)  
Is she going to literally stand in their path?  Threaten them with disfavorable 
work conditions?  If so, she'll be back in prison in a nanosecond -- and 
without even the pretextual ground of religious burden, since her name isn't on 
the licenses.

On Tue, Sep 8, 2015 at 3:42 PM, Anthony Michael Kreis 
<kr...@uga.edu<mailto:kr...@uga.edu>> wrote:
Just as an FYI for those not watching the rally-- Davis' counsel told the crowd 
she plans on blocking marriages again. He also went out of his way to say that 
the Plaintiffs' licenses are not valid. (Not that his view on that finer point 
necessarily matters, but interesting nonetheless.)
Anthony Michael Kreis, J.D.
University of Georgia
School of Public & Int'l Affairs
Sent from my iPhone

On Sep 8, 2015, at 2:24 PM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

Mark

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

From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

But definitely a tentative conclusion.

Best,

Eric

Sent from my iPhone

On Sep 8, 2015, at 1:40 PM, "Doug Laycock" 
<dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote:
I agree that he probably can’t issue an order protecting all couples without a 
class certification. But he did it, in the release order:  “Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples.” And 
he seems to interpret his September 3 order as also covering “all legally 
el

RE: Kim Davis released, given that her Deputies are issuing licenses

[Scarberry, Mark]

If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

Mark

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

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

But definitely a tentative conclusion.

Best,

Eric

Sent from my iPhone

On Sep 8, 2015, at 1:40 PM, "Doug Laycock" 
> wrote:
I agree that he probably can't issue an order protecting all couples without a 
class certification. But he did it, in the release order:  "Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples." And 
he seems to interpret his September 3 order as also covering "all legally 
eligible couples." And he orders counsel for the deputies to report on 
compliance every two weeks.



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

From: Howard Wasserman [mailto:wasse...@fiu.edu]
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu; Michael Dorf; Josh 
Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses


But now we're back to the problem we've seen in other states: The named 
plaintiffs have received their licenses and this has not (yet) been certified 
as a class action. So Davis would not actually be violating the court's order 
if she interferes with licenses to non-parties.



The plaintiffs filed a motion asking the court to clarify that the injunction 
extends to all couples, named or otherwise. But it's not clear he can do that 
without the class certification.



Howard



PS: Please feel free to forward this comment to the Law & Religion list.



Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130


From: Marty Lederman >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html


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Re: What's happening in KY? -- my differences with Eugene

[Scarberry, Mark]

Sent again with prior posts trimmed to conform to list size limits.

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

But then it's bigotry to oppose religious exemptions with regard to federal law 
per the federal RFRA, and, if you are a Kentuckian, to oppose religious 
exemptions under the KY RFRA. So opponents of giving an exemption to Davis for 
KY law purposes are anti-religious bigots.

No. Neither position need flow from bigotry as a matter of con law unless we 
think the majority in Obergefell was dishonest and that the Court in Smith was 
dishonest in saying that religious persons could seek protection by way of the 
political process. (Nor do I think either position need flow from bigotry as a 
matter of morality and common understanding. Cf. the President, seeking 
reelection in an earlier reincarnation.)

Of course a generally applicable RFRA is better, as a matter of protection of 
minority faiths, than a case-by-case legislative grant of exemptions for 
particular practices.

I am willing to say that opponents of RFRAs aren't necessarily bigots. Would 
that proponents of same-sex marriage would reciprocate with regard to that 
issue. (I realize that some list members do.)

But of course the promise of a regime of tolerance made by opponents of Prop. 
8, who told us that fears of intolerance were completely unfounded, has become 
inoperative.

Signing off for the day.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 7, 2015, at 10:02 AM, "Steven Jamar" 
> wrote:

What is “bigotry.”  Do you judge it from the target or do you judge it from the 
point of view of the accused person?  Is there an external standard or is it 
purely subjective?  Is this a sensible statement:  “Davis’s actions are bigoted 
under the law of the land though she herself is not a bigot?”  I don’t think 
so.  At some point it is about actions, and philosophical groundings of 
intentions.  Note that in Davis’s case, it is anot a situation of unintended 
consequences.  The actions align perfectly with her intention.

So again, is it bigot is as bigot does, or is it subjective rationalization?

FWIW, I think the motivations of a person, and the grounding of those 
motivations do matter even though the effect is identical. But they matter far 
more in a moral sense than in a legal sense.

Davis is demanding that her beliefs be respected and that she be allowed to act 
in accordance with them (that was, of course not what Reynolds said), but she 
is disrespecting both the beliefs of others and the law of the land.  And she 
is a government official.  The two claims are not equivalent.

Steve Jamar


On Sep 7, 2015, at 8:31 AM, Kwall, Roberta 
> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant 

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

I don't quite understand why she needs to affirmatively seek relief under the 
Kentucky RFRA. It's part of Kentucky law. The state legislature didn't exclude 
this law from the reach of the state RFRA. If the Kentucky statute -- that 
would otherwise require her to authorize the issuance of licenses -- 
substantially burdens her religious exercise, and if the legislature has an 
alternative means of advancing an interest that it may or may not consider 
compelling, then she need not comply with it. As a state official, I think she 
has the right in the first instance to decide what Kentucky law requires. She 
also has the right (and obligation) to take into account the concern that if 
she doesn't authorize issuance of the licenses, then they may not be valid; 
that could be a basis for instructing deputies not to issue them. If someone in 
the Kentucky government with authority over her requires her to authorize the 
issuance of licenses do so, then she would interpose the state RFRA, and a 
Kentucky court would decide who is right as a matter of Kentucky law. Or a 
Kentucky court might determine that licenses issued by deputies without her 
authorization are valid under Kentucky law.

Of course the Kentucky RFRA can't override the 14th Amendment, but that may 
miss much of the point.

What business does a federal court have in telling her that Kentucky law 
requires her to authorize issuance of licenses, or in enforcing against her 
Kentucky law, or in saying that licenses signed by deputies are valid under 
Kentucky law despite her refusal to authorize issuance?

The only real questions for the federal court should be whether her even-handed 
refusal to authorize issuance of any licenses violates the 14th Amendment's 
equal protection clause and whether her refusal impermissibly burdens the right 
of all couples to marry (when they can get licenses from other counties by 
driving an hour). Perhaps if one of those issues is decided against her, then 
the federal court could exercise jurisdiction to decide the state law issue, 
but otherwise it seems to me that the federal court should leave the issues to 
state officials and state courts.

If I were her, I would issue the licenses. Nevertheless, on both of those 
constitutional issues I think she has the better argument. 

As for Steve's claim that her refusal can only be based on animus (and his 
rather outrageous invocation of the trail of tears, which was the path of some 
of my ancestors), there is this statement in the majority opinion in Obergefell 
(sincerely stated or not):

"Marriage, in their view, is by its nature a gender-differentiated union of man 
and woman. This view long has been held—and continues to be held—in good faith 
by reasonable and sincere people here and throughout the world."

As Eugene has pointed out, the Court in Palmer v. Thompson refused to hold that 
the closing of swimming pools in response to a desegregation order was a 
violation of equal protection. We can argue about how that case should apply 
here, but it's hardly obvious that her claim of a right under the Kentucky RFRA 
is an impermissible basis for her action. 

As for Sandy's question whether political views control the positions of list 
members, I'd suggest that opposition to Obergefell is not necessarily 
political, and neither is a strong desire to protect religious conscience. Are 
we all influenced by our substantive views (political or not)? Yes. But there 
is also what I hope is an attempt to reach a principled position. I certainly 
wouldn't encourage anyone to become a member of the Santeria Church or to drink 
hoasca tea as part of a religious ritual, but I support the Court's decision in 
both cases. 

Mark

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





-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Sunday, September 06, 2015 9:29 AM
To: Law & Religion issues for Law Academics; Scarberry, Mark
Subject: What's happening in KY? -- wrong case, wrong parties

If state law requires her to personally authorize the marriage, she should be 
able to get an exemption under Kentucky RFRA. But not in litigation against 
same-sex couples, and not by refusing to issue any licenses at all. 

It is not clear who enforces the requirement Mark quotes, but the proper 
defendant might be the head of the Department of Libraries and Archives. 

As several others have noted, her lawyers seem more intent on generating 
publicity and raising money than on representing their client. Most or at least 
much of the confusion, on this list and in the press, flows from the fact that 
she has asserted her claim in the wrong case against the wrong opposing parties.

The bottom line still is that the county has no religion and no claim to an 
exemption. Someone has to issue licenses. The couples had a clear legal 
entitlement, they got a judgment to enforce it, and she was in contempt. 

There is 

Re: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

A very quick response to Brian, and then I will subside.

The law invalidated in Hunter v. Underwood had a "racially discriminatory 
impact," which seemed to be the reason or at least a key reason that the Court 
did not follow Palmer v. Thompson. (Also, it was intended to have that 
disparate impact, and it was also intended to have a disparate impact on poor 
whites, as compared to other whites.)

Again, I would authorize issuance of licenses if I were Davis, but her refusal 
to authorize any licenses does not appear to have a discriminatory impact.

Here is what the Court said in Hunter v. Underwood:


"Citing Palmer v. Thompson ... and Michael M. v. Superior Court of Sonoma 
County, ... (plurality opinion), appellants make the further argument that the 
existence of a permissible motive for § 182, namely, the disenfranchisement of 
poor whites, trumps any proof of a parallel impermissible motive. Whether or 
not intentional disenfranchisement of poor whites would qualify as a 
'permissible motive' within the meaning of Palmer and Michael M., it is clear 
that, where both impermissible racial motivation and racially discriminatory 
impact are demonstrated, Arlington Heights and Mt. Healthy supply the proper 
analysis. Under the view that the Court of Appeals could properly take of the 
evidence, an additional purpose to discriminate against poor whites would not 
render nugatory the purpose to discriminate against all blacks, and it is 
beyond peradventure that the latter was a 'but-for' motivation for the 
enactment of § 182."

We could argue about the meaning of Hunter v. Underwood, but it seems clear 
that it was important that there was a racially discriminatory (disparate) 
impact.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 6, 2015, at 7:28 PM, "Brian Landsberg" 
> wrote:

In Hunter v. Underwood the Court held that a law under which persons convicted 
of certain crimes was unconstitutional because it had been adopted with the 
intent of disqualifying African-Americans.  The law disqualified both whites 
and blacks.  As in the Davis case a facially indiscriminate deprivation of a 
fundamental right failed because of discriminatory motive.  This seems a better 
analogy than Palmer v. Thompson, where no fundamental right was at stake.

Sent from my iPad


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Re: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

I said I was going to subside, but let me answer David's question. I may be 
wrong, but let me be wrong with clarity!

First, no one has yet explained why a federal court in a non-diversity case is 
enforcing or interpreting the KY RFRA. The KY RFRA wouldn't seem relevant to 
the federal constitutional issues properly before the court.

Second, different institutional actors may consider interests to be more or 
less compelling. Whether KY considers provision of licenses in each county to 
be a compelling interest -- sufficient to override religious liberty claims -- 
seems to be a question for state officials and courts, not for a federal judge. 
A federal judge is the wrong institutional actor to make that call. If a KY 
official charged with executing the law believes the interest to be compelling, 
he or she can attempt to require Davis to comply by suing in state court (or by 
attempting to remove her from office, if there is a process of that sort in 
KY). Then a state institutional actor, probably a state court, can consider 
whether the state's interest is compelling (and consider the feasibility of 
alternatives that the state might try).

The very enactment of the KY RFRA means that the state, acting through its 
legislature, determined that some of the interests advanced by some of its laws 
may not be compelling. If a federal judge posits the interest that a state 
statute, in the judge's view, advances, and then tries to determine how 
important that interest is to Kentucky, the federal judge would seem to have 
stepped into a peculiarly state role.  That might be rarely be necessary in a 
diversity case, but it isn't at all clear why it is necessary here.

This isn't the same as the issue that a federal court would face under the 
federal RFRA with respect to a state statute, had the Supreme Court decided 
City of Boerne the other way. Then the federal judge would be applying a 
federal standard for whether the state's asserted interest (probably asserted 
by a state official before the federal court) is compelling. The federal judge 
would be the right institutional actor to measure the state's asserted interest 
against the federal standard, set not by the state legislature but by Congress.

Here the federal judge is trying to measure the strength of the state 
legislature's interest in enforcement of a state statute, as against the state 
legislature's purposeful binding of itself by another state statute (the KY 
RFRA). As I've tried to explain, that seems to be a peculiarly state matter to 
be determined by the right state institutional actors.

Does that make sense, David? Or is it at least clear, however wrong-headed it 
may be?

Mark

Mark S. Scarberry
Pepperdine University School of Law



Sent from my iPad

On Sep 6, 2015, at 8:43 PM, "David Cruz" 
<dc...@law.usc.edu<mailto:dc...@law.usc.edu>> wrote:

I think you’ve said this (quotation below) at least a couple times now, Mark, 
but I’m a bit puzzled by it.  Don’t federal courts always make such assessments 
any time a plaintiff sues a state actor for violating a federal constitutional 
right that is judicially protected with strict scrutiny?  Or do you mean to be 
suggesting that what counts as a compelling interest for a state law that turns 
on that question is a sufficiently different question from what counts as a 
compelling interest for federal constitutional purposes?  And if the latter, 
why, particularly given that federal courts routinely interpret (/forecast) and 
apply state law, as others have noted?  If it’s not something about the 
substance, what is it about THIS kind of question of state law that makes it 
institutionally out of bounds for federal courts even in cases you hypothesized 
were ones requiring federal judicial interpretation of state law?  I am sorry 
if you already explained your intuition in some post and I overlooked it.

-David

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of "Scarberry, Mark" 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>>
Reply-To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Date: Sunday, September 6, 2015 at 4:43 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: RE: What's happening in KY? -- wrong case, wrong parties

[snip] If it is necessary for the district court to interpret state law, it 
still seems improper for a federal court to determine what a state legislature 
considered to be a compelling interest. [snip]
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To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subsc

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issues to 
> state

> officials and state courts.



   I appreciate that the right-to-marry issue isn't open and shut, 
but the district court did decide it against her:


The state action at issue in this case is Defendant Davis' refusal to issue any 
marriage licenses. Plaintiffs contend that Davis' “no marriage licenses” policy 
significantly interferes with their right to marry because they are unable to 
obtain a license in their home county. Davis insists that her policy does not 
significantly discourage Plaintiffs from marrying because they have several 
other options for obtaining licenses: (1) they may go to one of the seven 
neighboring counties that are issuing marriage licenses; (2) they may obtain 
licenses from Rowan County Judge Executive Walter Blevins; or (3) they may 
avail themselves of other alternatives being considered post-Obergefell.
Davis is correct in stating that Plaintiffs can obtain marriage licenses from 
one of the surrounding counties; thus, they are not totally precluded from 
marrying in Kentucky. However, this argument ignores the fact that Plaintiffs 
have strong ties to Rowan County. They are long-time residents who live, work, 
pay taxes, vote and conduct other 

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

To clarify one of my points:

I am saying that there does not seem to be a basis for the federal court to 
enforce KY law against Davis in this non-diversity case. There simply doesn’t 
seem to be a basis for the federal court to interpret KY law, unless that is 
necessary in order to decide whether Davis has violated the US Constitution. I 
haven’t seen a clear argument that it is necessary to interpret KY law 
(including but not limited to the KY RFRA) in order to determine whether Davis 
is violating the 14th Amendment. If it is necessary for the district court to 
interpret state law, it still seems improper for a federal court to determine 
what a state legislature considered to be a compelling interest. Given that the 
KY RFRA is part of KY law, the district court cannot decide what is required of 
Davis under state law without making that determination.

Mark

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





From: Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

> refusal to authorize issuance of any licenses violates the 14th Amendment's

> equal protection clause and whether her refusal impermissibly burdens the 
> right

> of all couples to marry (when they can get licenses from other counties by

> driving an hour). Perhaps if one of those issues is decided against her, then 
> the

> federal court could exercise jurisdiction to decide the state law issue, but

> otherwise it seems to me that the federal court should leave the issu

RE: What's happening in KY? -- wrong case, wrong parties

[Scarberry, Mark]

A final brief point in response to Steve. Davis is treating all couples the 
same. This is not like Cleburn. The question is whether her treatment of them 
all the same way is somehow a violation of equal protection. It is not at all 
clear that it is a violation.

Note also that Davis is not claiming that the state has a right to 
discriminate. She is claiming that she, as a person protected by the KY RFRA, 
has a religious liberty right not to violate her religious conscience. That is 
a legitimate interest that is recognized by KY (and also recognized, even after 
Boerne, as a legitimate interest with respect to federal law, though I make 
that point only to indicate the legitimacy of the interest, not to suggest that 
the federal RFRA applies here). She is willing to allow same-sex marriage 
licenses to be issued, if I understand her position correctly, if that is done 
without her stamp of approval (her specific authorization) and if it is done in 
a way that ensures that the licenses are valid under state law (which is quite 
reasonably interpreted to require her authorization as county clerk for 
licenses issued in her county). That is not animus. She appears to be acting on 
a sincerely held good-faith religious belief (if the majority opinion in 
Obergefell is to be taken seriously) and attempting to avoid violation of her 
conscience.

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Sunday, September 06, 2015 4:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties

In response to Eugene:

As I’ve said, it’s certainly true that the KY RFRA cannot affect determinations 
of US Constitutional law. And because the district court did decide against her 
on the US constitutional right-to-marry issue and did issue an injunction, she 
is obligated to obey the injunction until and unless it is reversed, on pain of 
being held in contempt. (Indeed, even if the district court erroneously ordered 
her to authorize licenses on the ground that KY law requires her to do so, she 
would have the same obligation to obey the injunction. It probably would not 
have only a frivolous pretense of validity, per the Walker v. Birmingham 
analysis.)

If it is reversed, then civil contempt sanctions will be eliminated to the 
extent possible. Of course we don’t have a time machine so that her time in 
jail for civil contempt could be undone, but she could not be held liable for 
civil contempt conditional fines that had been imposed.

As we all know, she could still be held liable for criminal contempt even if 
the district court is reversed. Walker v. Birmingham. A list member noted that 
no one wanted to go there because it would make her more of a martyr. In any 
event, it isn’t the plaintiffs’ call whether she will be prosecuted for 
criminal contempt. The US Attorney can do so, and I believe the district court 
might appoint a disinterested person to deal with the matter. The plaintiffs 
cannot prosecute a criminal contempt – the Supreme Court held that very 
clearly, I believe in the Vuitton case.

So, indeed, in order not to commit a crime, she must either obey the injunction 
or resign. That is independent of the merits. My points dealt with the merits, 
and with whether the federal court should interpret and enforce Kentucky law in 
a case in which there is no diversity jurisdiction. I don’t see how the federal 
court can find that Kentucky had a compelling interest in requiring marriage 
licenses to be available in every county; is that a call for a federal court to 
make, even if otherwise possible? Or that the legislature had no alternative 
means of advancing such an interest, if compelling, without burdening Davis’s 
religious exercise (or more appropriately her religious conscience). There 
obviously are alternative means -- if that is the compelling interest -- and 
under the Kentucky RFRA the legislature bound itself to use them rather than 
burdening Davis’s religious exercise.

If I were her I would authorize issuance of the licenses, and if I were her 
attorney I would be required to advise her to do so (though I could also 
explain the law of civil and criminal contempt, as noted above, and tell her 
that in the end the decision is hers).

That’s about all I have to say, though I may respond further to Steve, if the 
press of other business allows me to.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, September 06, 2015 1:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- wrong case, wrong parties


Mark Scarberry:



> The only real questions for the federal court should be whether her 
> even-handed

&g

RE: What's happening in KY? -- my differences with Eugene

[Scarberry, Mark]

I think Howard's point cuts the other way, as I'll note in a moment.

A few quick thoughts:

It seems at the very least odd to me that a federal judge would decide what 
Kentucky thinks is a compelling interest for purposes of the Kentucky RFRA. If 
Kentucky thinks that having every clerk in every county issue marriage licenses 
is a compelling interest, perhaps we might let the state take action, rather 
than having a federal judge do so.

It also seems odd to me that a federal judge would decide that state law 
requires a state official to take an action. So far, it's hard to see the 
federal question that would justify the federal judge in deciding these state 
law issues as a matter of pendent (or ancillary, I can't keep them straight) 
jurisdiction. Indeed, to decide what state law requires Davis to do requires an 
application of Kentucky's RFRA, which in turn, as noted above, requires a 
federal judge to determine what the state of Kentucky considers to be a 
compelling interest (and what, as a matter of Kentucky law, may be an 
appropriate alternative means of advancing any such interest).

At least one list member seems to argue that the Kentucky RFRA doesn't protect 
Davis, with regard to her obligations under state law, because the state 
legislature would have to act in order to provide an alternative means for the 
state to advance its compelling interest. Set aside for a moment how to define 
that interest and whether it is compelling. By enacting its RFRA, the Kentucky 
legislature bound itself not to substantially burden a person's religious 
exercise by way of its legislation, if the legislature has, but chooses not to 
implement, an alternative way of advancing interests it deems compelling. The 
Kentucky legislature has put the burden on itself: it can act to implement an 
alternative means, or it can act to exempt the particular state obligation from 
the reach of the Kentucky RFRA. If it chooses to do neither, then it has chosen 
not to burden the person's religious exercise. That is not a bug; it is a 
feature of a state RFRA, and an intended feature.

It appears to me - as I think Howard's point suggests - that Kentucky law 
requires or at least may well require that Davis's name be on the license, and 
that the license be issued pursuant to Davis's authority as clerk. The deputy 
clerk can't, if I understand Howard's point correctly, issue a license in any 
other way. The issuance of the license under Davis's authority with her name on 
it would appear to create a relatively close relationship between Davis and the 
wedding that she, in order to be true to her sincere religious beliefs, cannot 
facilitate (let alone be responsible for the authorizing of the wedding). 
Again, what is the federal judge's role in determining the meaning of state 
statutes?

Davis has a duty under Kentucky law - she can certainly say she has a duty, it 
seems plain that she does, and it would seem strange for a federal judge to 
hold otherwise - to make sure that licenses issued through her office be valid 
licenses under Kentucky law. If she believes that an altered form of license is 
not valid, she has every reason to prohibit a deputy clerk from issuing such a 
license.

That brings us back them to whether she is entitled to an exemption under the 
KY RFRA from her statutory duty to issue licenses. If so, then her actions make 
perfect sense.

Then the remaining question is whether she is obligated under the US 
Constitution to issue licenses. I don't think the swimming pool closure cases 
clearly lead to the conclusion that she has an obligation to issue licenses, 
though I need to go back and review them; I disagree with Steve on that point 
if I understand him correctly. Assuming her treatment of all couples the same 
is not unconstitutional discrimination against same-sex couples, then the issue 
would be whether it is an unconstitutional burden on the right to marry for a 
state to ask couples to drive an hour to another office to get a license. That 
seems unlikely.

With regard to Steve's argument that only animus could be behind Davis's 
actions, the majority in Obergefell rejected the notion that opposition to 
same-sex marriage was necessarily motivated by animus. Of course, the dissent 
said that the majority didn't really mean that, and perhaps we are now seeing 
that people think the majority didn't mean it.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Saturday, September 05, 2015 4:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

   It would depend on whether there's a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal 

RE: What's happening in KY? -- my differences with Eugene

[Scarberry, Mark]

Section 402.100 appears to require that the license include “[a]n authorization 
statement of the county clerk issuing the license.” The section allows the 
license to be signed by the clerk or deputy clerk (which shows that the 
legislature knew how to include the deputies where it wanted to include them) 
but the authorization statement authorizing the appropriate celebrants to 
perform the marriage and unite the couple in marriage  must be a statement of 
the county clerk. The county clerk must authorize the uniting of the couple in 
marriage. Here is the relevant language:

“Each county clerk shall use the form prescribed by the Department for 
Libraries and Archives when issuing a marriage license. This form shall provide 
for the entering of all of the information required in this section, and may 
also provide for the entering of additional information prescribed by the 
Department for Libraries and Archives. The form shall consist of:

(1) A marriage license which provides for the entering of:
  (a) An authorization statement of the county clerk issuing the license for 
any person or religious society authorized to perform marriage ceremonies to 
unite in marriage the persons named;
  (b) Vital information for each party, including the full name, date of birth, 
place of birth, race, condition (single, widowed, or divorced), number of 
previous marriages, occupation, current residence, relationship to the other 
party, and full names of parents; and
  (c) The date and place the license is issued, and the signature of the county 
clerk or deputy clerk issuing the license

It would seem to me that if the form does not include an authorization 
statement of the clerk (not a deputy clerk), then the form will not have been 
filled out as required by section 402.100. The second reference to issuance of 
the license by the county clerk or deputy clerk may muddy the waters. I 
certainly don’t think a federal court has the expertise to instruct the county 
clerk, who is charged with complying with 402.100 and 402.110, on the meaning 
of the section, or on the consequences of a potential failure to comply with 
it. If Davis believes a license without an authorization from her by name 
(indicating that she has authorized the performance of the marriage) does not 
comport with Kentucky law, then she either must authorize the marriages or 
instruct persons seeking licenses to drive an hour to another county.

It also is a bit ironic that same-sex marriage proponents who cheered when 
officials issued licenses in violation of the explicit terms of state law (not 
necessarily any members of this list), now think it’s improper for Davis to act 
on the basis of her understanding of state law, which of course includes the 
state RFRA.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 7:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

Howard:  As the Deputy Clerk is implementing the licenses, the form of the 
license is the same as that throughout the state, and every license blank does 
contain the identical words and figures provided in the form prescribed by 
section 402.100.  The only difference is that the Clerk's name is not written 
in on the blank where it would ordinarily appear.  That doesn't in any way 
transgress 402.110.

On Sat, Sep 5, 2015 at 6:55 PM, Friedman, Howard M. 
> wrote:
In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

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Re: Question about the Kentucky County Clerk controversy

[Scarberry, Mark]

I haven't been following this carefully, so I have a basic question. Why is a 
federal court ordering her to comply with state law? She is not at this point 
treating same-sex couples differently, and apparently all couples still can get 
licenses by going to a different county. I would assume that the burden of 
doing so is not so great that KY couldn't close down the marriage-license 
issuing function at some county clerks' offices for other reasons. So this 
doesn't seem to be a matter of the placing of an impermissible obstacle in the 
path of couples (same-sex or not) who want to marry.

I suppose the best argument would rely on the pool and park closing cases from 
the 1950s (and 1960s?) in which local officials resisted desegregation by 
closing down public facilities which could permissibly have been closed down 
for other reasons.

I suppose that otherwise a federal court has no business enforcing Kentucky 
law; where would the federal question be? If Kentucky does not choose to 
enforce Kentucky law, or takes the position that the clerk's religious 
conscience should be protected, what basis would the federal court have for 
intervening?

So it seems to me that this turns on an application of the principle of the 
pool and park closing cases: the action doesn't formally discriminate against 
same-sex couples, but the closing of the wedding license window was done with 
discriminatory intent, in violation of the Equal Protection Clause. Whether 
that analogy is persuasive seems to me to be an important question.

But again I haven't been following this case carefully.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Sep 2, 2015, at 9:26 PM, "Paul Finkelman" 
> wrote:

But this is not an attempt to accommodate by someone else doing it. She refuses 
to issue any marriage licenses and has not delegated anyone else in the office 
to do it.  This is not like a religious cop who won't work on (pick the holy 
day).  And Your solution apparently would require a change in KY law, since as 
someone else noted, the law *requires* her name on it.


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: No substantial burden on you -- you just can't go into this line of business

[Scarberry, Mark]

A little perspective may be in order. On the one side we have people denied the 
ability to engage in a common calling without having to violate sincerely held 
religious beliefs. On the other we have an inability of a patron to buy a 
lottery ticket without going a short distance to another store, or perhaps a 
slight reduction in govt revenue from people who decide not to gamble because 
it isn't quite as convenient. I suppose then that if the govt decides everyone 
should be able to buy pork at every store -- the pork industry is big in our 
state and people need their protein -- or that stores must be open Fridays, 
Saturdays, and Sundays -- think of the increased economic activity, sales 
taxes, etc. -- well, if you won't abide by the law then just get into another 
line of business.

And if being shut out of a common calling -- because the govt is unwilling to 
respect your religious conscience -- isn't really a burden, then what about not 
getting the photographer or even the cake-baker of your choice? Be shut out of 
a line of work, or have to pick another of the readily available photographers 
or bakers. Think about it.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Aug 16, 2015, at 5:45 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:

As many on the list know, my view of what Eugene calls the Sherbert-Yoder 
model is that the whole idea of a general regime of religious exemptions -- 
federal or state, constitutional or statutory -- under the terms we are using 
is a grand mistake. For an extended argument to this effect, see 
http://harvardjlg.com/wp-content/uploads/2015/01/Hobby-Lobby-and-the-Dubious-Enterprise-of-Religious-Exemptions.pdf

But If I'm going to play, I need to know which iteration of the model is in 
play -- is it federal free exercise law on the eve of Smith? Betty loses (the 
others probably do likewise).  See U.S. v. Lee -- you enter commerce, you have 
to play by the same rules as others, and you can't bring your religion in to 
trump those rules.  Maybe the hypo is different, because not selling lottery 
tickets does not produce any competitive advantage, but I still think Betty 
would lose (maybe on Marty's suggestion of no reliance interests -- lots of 
ways to lose, not many ways to win between 1963 and 1989.)

Are we operating under RFRA, pre- Hobby Lobby?  Same result as above.  RFRA 
restores pre-Smith principles.

RFRA, post Hobby Lobby?  I'm guessing that in the lower courts, same result as 
above (see the cited article about the judicial urge to hold exemptions in 
close check). At SCOTUS?  Who knows?  The Sherbert-Yoder model, which of course 
does not exist in the real world of law because it never did in these precise 
terms, is endlessly inconsistent and unprincipled.

On Sun, Aug 16, 2015 at 8:10 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   I think we’ve now clearly stated the area of disagreement here, 
and I’d love to hear what others think.  Recall that the hypo is this:
Imagine a state requires all convenience stores to sell lottery tickets.  Betty 
has just bought such a store, unaware of the lottery ticket sale requirement, 
and believes it would be wrong for her to sell lottery tickets, since that 
would involve them in gambling, which she believes is sinful (I believe United 
Methodists, some Mormons, and some Muslims have religious objections to 
gambling).   The state has stepped up enforcement, and Betty now wants an 
exemption under a Sherbert/Yoder-type accommodation regime.
My view is that having to forgo a private-sector occupation or business is 
itself a substantial burden.  (When the government is acting as employer, and 
is only imposing the requirement on government jobs, the analysis may be 
different, just as the government-as-employer analysis is different from the 
government-as-sovereign analysis for the Free Speech Clause.)  Of course, the 
government may be able to justify that burden under strict scrutiny, but under 
a Sherbert/Yoder-type accommodation regime, the government would indeed have to 
justify the burden (if it wants to deny the exemption).
Marty’s view, unless I’m badly misreading it, is that this just isn’t a 
substantial burden, and the government can just deny the exemption to Betty 
(though not to people who have had such businesses for a while, and who are now 
surprised by newly imposed restrictions), without having to justify it under 
any heightened scrutiny at all.  What is the view of others on the list?
Eugene

Marty Lederman writes:

Unless there's something more about Betty that I don't know, then no, I think 
there's no substantial burden on her to violate her religious precepts, at 
least if she can get a decent return on her business.

On your broader question, if a necessary component of the job is something that 
your religion prohibits, and if you care about not violating religious 
injunctions, then it 

Re: Colorado Cakeshop decision

[Scarberry, Mark]

There is also the question of the meaning of common carrier. If we think it's 
particularly important for common carriers to serve all comers but then think 
that a business is a common carrier simply because the law currently requires 
it to take all comers, we're engaged in a circular argument. The only function 
of the term would be to evoke historical notions or feelings that it was 
important that certain kinds of businesses serve all comers. I've argued before 
that common carrier has been expanded far beyond its historical meaning -- in 
California the Boys Clubs organization was brought within that term by the 
courts and forced to become the Boys and Girls Clubs -- but it was suggested 
that the common carrier category was not as limited historically as I thought. 
(I don't recall whose work was cited for that point.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 8:29 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   I still don’t quite understand.  “No hoasca” means that the 
ordinary right of citizens to ingest what they please is eliminated – but RFRA 
says otherwise.  “You must serve on a jury” means that the ordinary right of 
citizens to decide where to go and what to do with their time is eliminated – 
but religious exemption regimes say otherwise.  What’s magical about common 
carrier law that somehow immunizes it from religious exemption regimes, while 
other laws are deliberately covered by those regimes?  (I set aside the 
possibility that common carrier law, like drug law and other laws, would often 
be justifiable under strict scrutiny, since I take it that isn’t Sandy’s 
argument.)

   As people on this list know, I’m not a religious exemption 
maximalist.  Once upon a time, I was one of the very few First Amendment people 
who supported Employment Division v. Smith, though I notice that the tide has 
turned on that in recent years.  I support state RFRAs, but precisely because 
they are trumpable by legislatures (which could, if they choose, carve out drug 
laws or common carriers or antidiscrimination law from the state RFRAs); I also 
would have preferred it if RFRAs had used looser standards than strict scrutiny.

   But if we’re talking about the actual religious exemption model 
under RFRAs and the state constitutional religious exemption regimes, I just 
don’t see how assumptions about what “common carrier” “just means” resolve the 
religious exemption analysis.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

I suppose I’m like the naïve first-year student who begins with the assumption 
that “common carrier” just means that the ordinary right of the seller to pick 
and choose among customers is eliminated (at least so long as the purchaser can 
pay the regular price or, in the cases of innkeepers, is behaving properly).  
Would an English innkeeper at common law been able to say to a Catholic “we 
don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)?  
I thought the essence of “common carrier” law (about which I know extremely 
little, obviously) is that it refers to a category of businesses—inns, moving 
companies, telephone companies, etc.—and not to that subset of companies that 
can be described as “monopolists.”  The duties we impose on monopolists rest, 
presumably,  on a different analysis than the duties we impose on Ollie’s 
Barbecue to stop being a bigot.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   Sandy:  Why exactly should we all agree that anyone covered by 
“common carrier” law could not refuse to provide service to an abortion center 
– or a KKK delegation or what have you?  After all, we don’t agree that 
everyone covered by drug laws couldn’t get a religious exemption, or that 
everyone covered by the duty to serve as a juror couldn’t get a religious 
exemption, etc.  The whole point of religious exemption regimes is to give 
religious exemptions even to (some) people covered by generally applicable laws.

   Now if the common carrier is a monopolist, then one could make a 
good argument that denying the exemption is necessary to serve a compelling 
interest in making sure that everyone gets access to this service (e.g., 
electricity).  But if the common carrier is not a monopolist – say, a taxicab 
driver who refuses to drive a Klansman in Klan regalia, in a situation where 
the Klansman can 

Re: Colorado Cakeshop decision

[Scarberry, Mark]

Marty makes a good but not dispositive point. In any event we have to be sure 
this doesn't turn into a principle that bars people who belong to a certain 
religion from some professions. There are analogous and very disturbing 
historical prohibitions, not limited to those the mention of which would 
trigger Godwin's Law.

Mark

Sent from my iPad

On Aug 14, 2015, at 9:26 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

The burden on religious exercise if you have to give up your business might be 
quite substantial, especially if means choosing between your religion and 
sacrificing many years of work, costs, good will, self-fulfillment, etc.  But 
not if giving it up means not starting down that path in the first place 
because you're not willing to abide by the common-carrier rules required of 
such businesses.  (Denial of unemployment benefits, likewise, imposes a much 
greater burden on poor persons than on the wealthy.)

For example:

Let's take two people who both really want to teach 10th grade biology.  And 
they both have the same religious belief that it would be sinful for them to 
teach Darwinian evolution.  State X passes a law requiring all schools (public 
and private) to teach Darwinian evolution in 10th Grade.

One difference between the two wannabe teachers:  One of them is 55 years old, 
and has been teaching 10th Grade Bio in a religious school for over 30 years, 
from an evolutionist perspective, without speaking a word of Darwin.  It's the 
only job she's ever had, and her family depends upon her income.  The other is 
a recent high-school graduate who had planned to study for an education degree 
so as to be able to fulfill his dream of teaching creationism to 10th Graders.

Neither of them can henceforth teach 10th Grade without violating their 
religious precepts (or moving to a different state).  Equal burden on their 
religious exercise?  I think not.  Not even close.

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Re: Colorado Cakeshop decision

[Scarberry, Mark]

I used the term common carrier. I think those of us who've used that term 
meant to say public accommodation or place of public accommodation. (I did.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 9:10 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

There is also the question of the meaning of common carrier. If we think it's 
particularly important for common carriers to serve all comers but then think 
that a business is a common carrier simply because the law currently requires 
it to take all comers, we're engaged in a circular argument. The only function 
of the term would be to evoke historical notions or feelings that it was 
important that certain kinds of businesses serve all comers. I've argued before 
that common carrier has been expanded far beyond its historical meaning -- in 
California the Boys Clubs organization was brought within that term by the 
courts and forced to become the Boys and Girls Clubs -- but it was suggested 
that the common carrier category was not as limited historically as I thought. 
(I don't recall whose work was cited for that point.)

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 14, 2015, at 8:29 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   I still don’t quite understand.  “No hoasca” means that the 
ordinary right of citizens to ingest what they please is eliminated – but RFRA 
says otherwise.  “You must serve on a jury” means that the ordinary right of 
citizens to decide where to go and what to do with their time is eliminated – 
but religious exemption regimes say otherwise.  What’s magical about common 
carrier law that somehow immunizes it from religious exemption regimes, while 
other laws are deliberately covered by those regimes?  (I set aside the 
possibility that common carrier law, like drug law and other laws, would often 
be justifiable under strict scrutiny, since I take it that isn’t Sandy’s 
argument.)

   As people on this list know, I’m not a religious exemption 
maximalist.  Once upon a time, I was one of the very few First Amendment people 
who supported Employment Division v. Smith, though I notice that the tide has 
turned on that in recent years.  I support state RFRAs, but precisely because 
they are trumpable by legislatures (which could, if they choose, carve out drug 
laws or common carriers or antidiscrimination law from the state RFRAs); I also 
would have preferred it if RFRAs had used looser standards than strict scrutiny.

   But if we’re talking about the actual religious exemption model 
under RFRAs and the state constitutional religious exemption regimes, I just 
don’t see how assumptions about what “common carrier” “just means” resolve the 
religious exemption analysis.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

I suppose I’m like the naïve first-year student who begins with the assumption 
that “common carrier” just means that the ordinary right of the seller to pick 
and choose among customers is eliminated (at least so long as the purchaser can 
pay the regular price or, in the cases of innkeepers, is behaving properly).  
Would an English innkeeper at common law been able to say to a Catholic “we 
don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)?  
I thought the essence of “common carrier” law (about which I know extremely 
little, obviously) is that it refers to a category of businesses—inns, moving 
companies, telephone companies, etc.—and not to that subset of companies that 
can be described as “monopolists.”  The duties we impose on monopolists rest, 
presumably,  on a different analysis than the duties we impose on Ollie’s 
Barbecue to stop being a bigot.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   Sandy:  Why exactly should we all agree that anyone covered by 
“common carrier” law could not refuse to provide service to an abortion center 
– or a KKK delegation or what have you?  After all, we don’t agree that 
everyone covered by drug laws couldn’t get a religious exemption, or that 
everyone covered by the duty to serve as a juror couldn’t get a religious 
exemption, etc.  The whole point of religious exemption regimes is to give 
religious exemptions even to (some) people covered by generally applicable laws.

   Now if the common carrier is a monopolist

Re: Developments in contraceptive coverage

[Scarberry, Mark]

The linked PDF of the cert petition (in 15-119) doesn't include the Appendix, 
which reproduces the self-certification form. Can anyone provide an image 
(front and back, if double-sided) of the current form?

Are petitioners right that in some cases they would have to locate and enter 
into a relationship with a TPA that is willing to provide the four 
objectionable drugs/devices?

Are they right that the certification is declared by law to be a formal 
addition to their insurance plan documents that authorizes the TPA to provide 
the drugs/services?

I realize Marty has said (if I understand him correctly) that employees of 
religious employers with church plans won't receive these drugs/devices in 
any event, but I think only one petitioner has a church plan. I still don't 
understand which organizations qualify to have church plans.

It seems to me that the sending of a letter or simple notice stating an 
objection is all that is necessary for the government to make sure the 
drugs/devices are provided, if the government (which acts purposively to make 
law through two branches) so chooses. [I say purposively because we know the 
courts have neither FORCE nor WILL. (All caps in original, I think.)]

A requirement that such a letter or simple notice be sent is the least 
restrictive means by which the government may advance that interest; it's 
pretty clear to me that HHS can require that. If HHS is demanding more, then it 
isn't clear why RFRA permits it to do so.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Aug 1, 2015, at 6:42 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

and a sixth petition, also from the Tenth Circuit decision:

f.  On July 24, 2015, four university plaintiffs in the Tenth Circuit case 
filed another petition, No. 
15-119https://www.justsecurity.org/wp-content/uploads/2015/08/southernnazarene.pet_.pdf,
 Southern Nazarene Univ. v. Burwell (David Cortman, Counsel of Record).  Two of 
those plaintiffs, Oklahoma Wesleyan University and Oklahoma Baptist University, 
use insured plans; all three judges on the court of appeals rejected their RFRA 
claims  The other two petitioners are among the four plaintiffs as to which 
Judge Baldock dissented (see above)--Southern Nazarene University, which uses a 
self-insured plan, and Mid-America Christian University, which uses a 
self-insured church plan.  All four of these petitioners object to the 
regulation only as applied to the four contraceptive methods at issue in Hobby 
Lobby--ella, Plan B, and two types of IUDs.

On Fri, Jul 24, 2015 at 3:14 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
A fifth petition filed, this one in Little Sisters:

[UPDATE:

e.  On July 23, 2015, the parties in one of the consolidated cases in the Tenth 
Circuit--Little Sisters, et al.--filed petition No. 
15-105https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf,
 Little Sisters of the Poor Home for the Aged v. Burwell [Paul Clement, Counsel 
of Record].  As noted above, all three judges on the Tenth Circuit panel, 
including Judge Baldock, rejected Little Sisters' claim on the theory that 
there can be no substantial burden in that case because the Little Sisters 
employees will not receive cost-free contraception coverage in any event:  
Little Sisters uses a church plan administered by Christian Brothers Services, 
which has itself made clear that, because of its own religious objections, it 
will not provide contraceptive coverage if the Little Sisters were to opt 
out--and the government may not compel Christian Brothers to offer such 
services.

Little Sisters nevertheless argues in its petition (see footnote 2) that its 
opt-out might still result in coverage for its employees, because its plan has 
another TPA, Express Scripts, that has not made the same representation as 
Christian Brothers; and at oral argument in the Tenth Circuit counsel for the 
government represented that the Department of Labor would ask Express Scripts 
to provide coverage to those employees even though the government has no legal 
authority to require Express Scripts to do so.  The judges on the court of 
appeals not surprisingly disregarded Little Sisters' argument respecting 
Express Scripts; as I blogged back in January 
2014http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html, and 
as the government argued to the court of appeals, Plaintiffs made no reference 
to Express Scripts in their complaint or in their preliminary injunction 
filings, and allegations about this organization cannot be a basis for 
challenging the court's denial of the preliminary injunction. . . .   Moreover, 
plaintiffs bear the burden of establishing their entitlement to injunctive 
relief, which they have wholly failed to do with respect to any possible 
coverage by Express Scripts.  That is to say, even assuming that Express 
Scripts is a 

Re: Final Regs on matters including Contraceptive (or per some claimants abortifacient) Mandate

[Scarberry, Mark]

As I have suggested, It isn't a question of identifying the insurer or 
administrator in general (such as, for example, in pleadings that allege that 
the HHS regs would require the plaintiff to arrange for coverage through the 
named insurer or administrator).

Rather what may be objectionable is the requirement to do so specifically so 
the insurer or administrator can be forced to provide the drugs and services. 
(I don't know whether any of the plaintiffs have made that argument.)

It is interesting to note that, at least in the order I found for the Wheaton 
College case, the Supreme Court has not seemed to order objectors to include 
insurer or administrator contact information with their objections:

WHEATON COLLEGE v. SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET 
AL.

ON APPLICATION FOR INJUNCTION [July 3, 2014]

The application for an injunction having been submitted to JUSTICE KAGAN and by 
her referred to the Court, the Court orders: If the applicant informs the 
Secretary of Health and Human Services in writing that it is a nonprofit 
organization that holds itself out as religious and has religious objections to 
providing coverage for contraceptive services, the respondents are enjoined 
from enforcing against the applicant the challenged provisions of the Patient 
Protection and Affordable Care Act and related regulations pending final 
disposition of appellate review. ...

Mark

Sent from my iPad

On Jul 10, 2015, at 2:39 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

The notice requires the employer to identify the insurer or the third-party 
administrator of the plan (e.g., Aetna), so that the government can then take 
the steps necessary to have that entity create a new, contraceptive-specific 
plan.  In the cases currently being litigated, the objection of the employers 
is not to this identification requirement -- each and every one of the 
employers has, as far as I know, already identified the insurer or the TPA in 
the body of its complaint.

On Fri, Jul 10, 2015 at 5:20 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I hope we will not get too personally dismissive in this discussion.

I suspect -- though I haven't recently been following this matter closely -- 
that a possible basis for objecting has to do with the information that the 
religious organizations must supply in connection with their request for / 
demand for / notice of exemption. If they must, in this particular context, as 
opposed to the general context of the ACA, provide contact information for plan 
administrators or others -- specifically so the govt can force those others to 
provide these drugs and services -- then their providing of that information is 
a causal link that they may consider to be too direct. (Whew! Sorry for the 
long sentence.)

The drugs and services can't be provided under the accommodation unless the 
govt knows of the objection. I don't see how an objector can resist an 
obligation simply to notify the govt of the objection. But if the other 
information is available or could be made available in a way that isn't so 
closely related to the provision of the goods and services, then it would make 
sense for the govt to get the information another way. From the nuns' 
standpoint, this could be like a conscientious objector to war having to 
identify someone else who will fight in his place.

How much information must these groups supply under the accommodations that 
courts have ordered? I don't recall whether they must identify, as part of 
their claim for objection, a plan administrator or other person who can be 
forced to pay for the drugs and services. Does the govt generally require 
employers to provide this contact information to confirm that health insurance 
(with or without these drugs and services) is in place? If so, the govt could 
just match up the records with the objections.

Marty will know, as will the Becket Fund lawyers.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad
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Anyone can subscribe

RE: The Remarkable Disappearance of State Justifications in Obergefell

[Scarberry, Mark]

I have to say one last thing before excusing myself from this discussion.

Justice Roberts's explanation of the institution of marriage leads to  clearly 
rational basis for not expanding it to include same sex couples. Expanding it 
may affect or dilute the social meaning of the institution and reduce its 
effectiveness in accomplishing the goals described by the Chief. We don't know 
whether that will happen, and we never will know, because the variables can't 
be controlled. That's enough to provide a rational basis.

With regard to whether it is rational to limit the institution to a union 
between a man and a woman, but to limit it in various other ways: There are 
many reasons why it would be rational not to limit the institution in those 
other ways. An inquiry into whether the man and woman are able to have children 
would be intrusive (and sometimes would yield the wrong answer). Ditto for an 
inquiry into whether they plan to have children, an inquiry that would be very 
inaccurate in determining whether the couple really will have children. There 
is no age line that can be drawn that accurately divides women who can bear 
children naturally from those who cannot, and there is no age, as far as I 
know, beyond which a man cannot naturally father a child. In any case, it is 
rational not to set different ages for men and for women. To the extent that 
the institution is designed to keep natural parents together as they raise 
children, any age limit would rationally be extended by 17 years or more.

Signing off for now.

Mark

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




From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Friday, July 03, 2015 10:33 AM
To: Michael Worley; Scarberry, Mark
Cc: Law  Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell


Except, of course, in our country the premises of that reasoning have 
absolutely nothing to do with the benefits of marriage otherwise two sterile 
people would not be allowed those benefits. Moreover, as a factual matter 
procreation can occur in ways other than relations between a man and a 
woman.



Whatever Ed Whelan and Roberts may think, the procreation rationale is just not 
rational.



Best,



Eric


From: conlawprof-boun...@lists.ucla.edu conlawprof-boun...@lists.ucla.edu on 
behalf of Michael Worley mwor...@byulaw.net
Sent: Friday, July 3, 2015 1:21 PM
To: Scarberry, Mark
Cc: Law  Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

My understanding is Roberts did articulate the state's procreation argument:

The premises supporting this concept of marriage are so fundamental that they 
rarely require articulation. The human race must procreate to survive. 
Procreation occurs through sexual relations between a man and a woman. When 
sexual relations result in the conception of a child, that child's prospects 
are generally better if the mother and father stay together rather than going 
their separate ways. Therefore, for the good of children and society, sexual 
relations that can lead to procreation should occur only between a man and a 
woman committed to a lasting bond.

On Fri, Jul 3, 2015 at 10:22 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I have other commitments today and over the next several days, have only been 
able to skim the first part of Marty's post, and will likely not be able to 
participate further for several days.

With that caveat, let me point out that the view of several justices is that a 
new substantive due process right should be declared only when history and 
tradition strongly support it at a fairly specific level. That is all that 
needs to be said, under their view; our history and traditions don't support 
the Court's decision.

Let me also point out that Marty is arguing that state law is underinclusive, 
which isn't a strong argument unless a constitutional right is involved (which 
is the point at issue and would beg the question) or some form of heightened 
scrutiny is required, which gets us back to an equal protection argument that 
the majority only obliquely relied on.

Because Marty's post is long (and near the size limit for posts), I'll truncate 
it severely and ask readers to refer back to his original post for the content 
of it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 3, 2015, at 8:56 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Some of you might find this of interest.  Reactions and critiques encouraged, 
as always.

http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html


The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman
Over at the Slate Breakfast Table, I have

Re: The Remarkable Disappearance of State Justifications in Obergefell

[Scarberry, Mark]

I have other commitments today and over the next several days, have only been 
able to skim the first part of Marty's post, and will likely not be able to 
participate further for several days.

With that caveat, let me point out that the view of several justices is that a 
new substantive due process right should be declared only when history and 
tradition strongly support it at a fairly specific level. That is all that 
needs to be said, under their view; our history and traditions don't support 
the Court's decision.

Let me also point out that Marty is arguing that state law is underinclusive, 
which isn't a strong argument unless a constitutional right is involved (which 
is the point at issue and would beg the question) or some form of heightened 
scrutiny is required, which gets us back to an equal protection argument that 
the majority only obliquely relied on.

Because Marty's post is long (and near the size limit for posts), I'll truncate 
it severely and ask readers to refer back to his original post for the content 
of it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 3, 2015, at 8:56 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Some of you might find this of interest.  Reactions and critiques encouraged, 
as always.

http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html


The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman

Over at the Slate Breakfast Table, I have a 
posthttp://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html
 describing the handful of biggest surprises in what was in fact (or so I 
argue) a Supreme Court Term in which the Justices generally acted according to 
predictable form.

[snip]
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Please clearly identify the sender -- RE: The Remarkable Disappearance of State Justifications in Obergefell

[Scarberry, Mark]

Twice it has appeared that comments by others were mine. Please identify 
yourselves clearly when you send a post. For example, the post immediately 
below could be taken to be my response to a question that Eric asked me 
directly. In fact it was from Michael Worley.

The “from” line doesn’t always make it easy to see who a post is from. Please 
append your name at the end of your post.

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

From: Michael Worley [mailto:mwor...@byulaw.net]
Sent: Friday, July 03, 2015 11:15 AM
To: Eric J Segall
Cc: Scarberry, Mark; Law  Religion issues for Law Academics; 
conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

I don't have to; I was saying that was the state's argument; therefore, Marty 
is incorrect in saying that the dissenters didn't mention the state's arguments.

On Fri, Jul 3, 2015 at 12:03 PM, Eric J Segall 
eseg...@gsu.edumailto:eseg...@gsu.edu wrote:
You are saying the SSM bans enacted in the last 20 years were about procreation?

Eric

Sent from my iPhone

On Jul 3, 2015, at 1:54 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I have to say one last thing before excusing myself from this discussion.

Justice Roberts’s explanation of the institution of marriage leads to  clearly 
rational basis for not expanding it to include same sex couples. Expanding it 
may affect or dilute the social meaning of the institution and reduce its 
effectiveness in accomplishing the goals described by the Chief. We don’t know 
whether that will happen, and we never will know, because the variables can’t 
be controlled. That’s enough to provide a rational basis.

With regard to whether it is rational to limit the institution to a union 
between a man and a woman, but to limit it in various other ways: There are 
many reasons why it would be rational not to limit the institution in those 
other ways. An inquiry into whether the man and woman are able to have children 
would be intrusive (and sometimes would yield the wrong answer). Ditto for an 
inquiry into whether they plan to have children, an inquiry that would be very 
inaccurate in determining whether the couple really will have children. There 
is no age line that can be drawn that accurately divides women who can bear 
children naturally from those who cannot, and there is no age, as far as I 
know, beyond which a man cannot naturally father a child. In any case, it is 
rational not to set different ages for men and for women. To the extent that 
the institution is designed to keep natural parents together as they raise 
children, any age limit would rationally be extended by 17 years or more.

Signing off for now.

Mark

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




From: Eric J Segall [mailto:eseg...@gsu.edu]
Sent: Friday, July 03, 2015 10:33 AM
To: Michael Worley; Scarberry, Mark
Cc: Law  Religion issues for Law Academics; 
conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell


Except, of course, in our country the premises of that reasoning have 
absolutely nothing to do with the benefits of marriage otherwise two sterile 
people would not be allowed those benefits. Moreover, as a factual matter 
procreation can occur in ways other than relations between a man and a 
woman.



Whatever Ed Whelan and Roberts may think, the procreation rationale is just not 
rational.



Best,



Eric


From: 
conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu 
conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu 
on behalf of Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net
Sent: Friday, July 3, 2015 1:21 PM
To: Scarberry, Mark
Cc: Law  Religion issues for Law Academics; 
conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu
Subject: Re: The Remarkable Disappearance of State Justifications in Obergefell

My understanding is Roberts did articulate the state's procreation argument:

The premises supporting this concept of marriage are so fundamental that they 
rarely require articulation. The human race must procreate to survive. 
Procreation occurs through sexual relations between a man and a woman. When 
sexual relations result in the conception of a child, that child’s prospects 
are generally better if the mother and father stay together rather than going 
their separate ways. Therefore, for the good of children and society, sexual 
relations that can lead to procreation should occur only between a man and a 
woman committed to a lasting bond.

On Fri, Jul 3, 2015 at 10:22 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I have other commitments today and over the next several days, have only been 
able to skim the first part of Marty's post, and will likely not be able

June 25 Georgetown Program on new Lupu Tuttle book: Secular Government, Religious People

[Scarberry, Mark]

Cross-posted to conlawprof list:

There's an excellent (and free!) program that will be held at Georgetown Law 
Center on June 25, 4-5:30 pm:


In their new book Secular Government, Religious People, Ira Lupu and Robert 
Tuttle break through what they call an unproductive American debate over 
competing religious rights. They present an original theory that makes the 
secular character of the American government, rather than a set of individual 
rights, the centerpiece of religious liberty in the United States. Lupu and 
Tuttle will discuss their book with Andrew Koppelman, Marty Lederman, and 
William Marshall.

This event is cosponsored by Georgetown University's Berkley Center for 
Religion, Peace, and World Affairs, the Georgetown University Law Center, Notre 
Dame Law School's Program in Church, State, and Society, and Pepperdine 
University Law School's Nootbaar Institute.

http://berkleycenter.georgetown.edu/events/secular-government-religious-people

RSVP required. See the link.


Mark

Mark S. Scarberry

Pepperdine University School of Law
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RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

Chip:

I don’t take kindly to threats. Say what you want to say, or don’t.

O’Brien doesn’t apply here, and no one is talking about spray painting anyone’s 
house.

A typical definition of “self-serving” is

“Serving one's own interests often in disregard of the truth or the interests 
of others.”

http://www.merriam-webster.com/dictionary/self-serving.

You should not have used that derogatory term to refer to Doug or Tom.

Wedding photographers try to depict, through their artistic efforts, weddings 
as being beautiful events. You previously said that the photographer could be 
required to depict the ceremony as beautiful (and authentic, whatever that may 
mean). I gave that statement a generous interpretation which I could accept, to 
the effect that if she could, contrary to my views, be required to photograph 
the event, then she could not sabotage the depiction of the event, could not 
set out to make it seem that the parties did not care for each other, and would 
have to use appropriate technical skills (regular camera equipment, correcting 
for red-eye, etc.). Now you seem to say that the photographer must make the 
same effort to create beauty (whether or not successful) that the photographer 
would make with regard to other ceremonies. That is a demand that the 
photographer attempt to depict the ceremony (to the extent possible) as a 
beautiful thing, which violates the photographer’s right not to express the 
government’s view or anyone else’s view of that which is beautiful. The right 
to have one’s own beliefs as to the good, the true, and the beautiful – and the 
right to refrain from expressing anyone else’s beliefs – is a central component 
of freedom.

Mark

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


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 05, 2015 1:58 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

Mark:

O'Brien fits any attempt to apply free speech principles to regulation of 
conduct that has non-communicative elements.  You can love the Lord, but you 
cannot spray paint that on the side of my house.  You can despise inter-faith 
marriage, but (if you are covered by public accommodations law), you cannot 
refuse to serve an inter-faith couple.  Of course the state cannot compel you 
to create beauty -- most of us are incapable of that.  But if you offer to 
create beauty for the general public, you can be held to an obligation to do so 
without discrimination.  I'm willing to consider taking photographers out from 
under that entire regime.  And still, I get insulted by you?  You are being the 
hothead.

Tom and Doug have written letters to a dozen or more state legislators seeking 
these exemptions or seeking RFRA's -- they have political motivations.  I write 
opposing letters, and I have political motivations.  I have seen at least one 
such letter, which you signed, that contained a factual assertion that I 
strongly believe is an untruth.  I called that to the attention of the 
signatories, but not to the list.  Please don't tempt me further to make that 
dispute public by being intemperate with me.

I hope you all take up the invitation that Jim and I have now proffered to 
discuss the non-profit situation.  The commercial vendor context is just too 
loaded with polarized views and quick triggers to anger, at least for me, so 
I'm out of it unless you insult me further.

Chip

On Sun, Apr 5, 2015 at 4:21 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I am astonished and dismayed that Chip says the First Amendment allows the 
State to require a person to create art that depicts beauty. The authoritarian 
spirit arises: So what he says. Principles that get in the way of a preferred 
outcome must be discarded. Perhaps that is too harsh; he says that he is not 
*convinced* that the First Amendment does not provide protection against such 
compelled speech

Chip's accusation that Doug's and Tom's arguments are politically 
self-serving does not deserve a response, and I hope will be rejected by 
fair-minded members of this list.

Of course Chip's invocation of O'Brien would receive a very poor grade on a 
student's paper. Does *Chip* have a political agenda here, or is he perhaps 
just not thinking straight? I hope the latter is the case.

Here the photographer is required by the State to express a message; that was 
not the case in O'Brien. Here the photographer does not refuse to obey the law 
in order to communicate a message; she refuses to engage in an affirmative act 
of communicating a State-mandated message because it violates her religious 
conscience to do so. If an important state interest is sufficient to justify 
the state in compelling speech, then we are in very deeply authoritarian 
trouble. The need for commitment to the security of a nation

RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

In line with Mark's suggestion, let me apologize to Chip for using such strong 
language to describe what I believe is an error in his analysis. I think I 
adequately explained why reliance on O'Brien is, in my opinion, clearly wrong 
in this case. List members can reach their own conclusions. Again let me 
apologize for using such strong language.

I continue to believe that requiring people to create art that sends a 
state-mandated message is more than troubling. Such a power in the state, if 
generalized, will eventually lead to a broader authoritarian result that few of 
us on this list - probably none - will like. I specifically said that Chip 
would not favor such an authoritarian result. 

With regard to the letter, I will add only a few comments to Doug's.

The Supreme Court did copy the non-profit accommodation in the relevant sense, 
as did Justice Kennedy in his concurrence: [T]here is an existing, recognized, 
workable, and already-implemented framework to provide coverage. I think it 
was clear that the Court was requiring the administration to give the same 
accommodation to Hobby Lobby and the Greens. It was also clear, I think, that 
the administration had not yet implemented it, else there would have been no 
need for the Court to rule against the administration. 

I would have hoped that there might be more voices from those on the other side 
of this issue to temper the overstatements made by politicians and commentators 
with regard to the likely effect of a state RFRA. 

Mark

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

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Monday, April 06, 2015 3:48 PM
To: Law  Religion issues for Law Academics
Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights

May I suggest that we return to the decorum that has more often than not 
characterized this list.  The best conclusion I can draw from the various 
emails is that the issues are more difficult to many of us than they appear to 
others and that RFRA is the classic example of a statue drawn with some 
examples in mind that is now being applied to circumstances some people claim 
is nearly identical to the original paradigm cases and some think is quite 
different.

MAG

___
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Please note that messages sent to this large list cannot be viewed as private.  
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___
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To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

: Muslims, Jews, Hispanics, immigrants from certain places, etc.? 
Today's intense culture war will fade, and tomorrow will bring a new one.

The hardest questions for me, and I don't see a whole lot of discussion on the 
list about these, are the exemptions for religiously affiliated non-profits.  
Are they all ministries, to be left unregulated?  When government funded?  When 
government licensed? These are not merely speculative questions -- see the 
Indiana RFRA fix, and see
http://www.irfalliance.org/hidden-restriction-on-faith-based-organizations-in-vawa-reauthorization/
​.​

On Thu, Apr 2, 2015 at 2:04 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
Let's see what Chip and I seem to agree on, and then I'll express my strong 
disagreement on one point.

We seem to agree that the wedding photographer creates art. It is hard to see 
how visual portrayals of an event can convey a message of beauty and 
authenticity and not be called art. Indeed it would seem to be celebratory art, 
as I've been saying all along, if it deals with beauty and authenticity.

We seem to agree that the wedding photographer (if she can be required to 
photograph the same sex ceremony) cannot (as a colleague put it off list) 
sabotage the photography, by intentionally portraying the ceremony as ugly or 
false (in the sense that the two persons are insincere or that the ceremony 
doesn't have whatever legal effect the law provides). I suppose I'd go further 
and say that the photographer has to use the same high-quality equipment that 
she normally would use, has to take photos from the normal angles, and has to 
fix red-eye problems and similar problems before sending the proofs to the 
clients for their selection.

I can't agree that the photographer can be required to create visual works that 
portray the ceremony as beautiful (or authentic, if that means posing the 
couple so as to bring out their sincere commitment to each other). The state 
may be able to require her to photograph the ceremony, but it can't require her 
to express the view that the ceremony is beautiful. The state has no business 
deciding what is beautiful or requiring people to create expressive works that 
carry a message of beauty, any more than it can require people to express the 
view that the state is good and the laws just. The state may not prescribe 
orthodoxy as to the beautiful, the true, or the good; any other view takes us a 
step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip 
obviously would not endorse).

With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie 
may express his political and social views, but surely he can't intentionally 
spoil the food, just as the photographer can't intentionally spoil the photos.

A key difference for other purposes is that Ollie is not in the business of 
creating expressive works; the requirement that he sell food of the same 
quality to all comers doesn't raise compelled speech issues. He has much less 
need to express his political and social views in the restaurant to avoid 
becoming the state's mouthpiece, because he isn't being required to say 
anything that would appear to be his own speech. (He could be required to post 
a sign saying that the state requires all customers to be served, without 
respect to race etc., but that would identify the message as coming from the 
state.)

Nor is Ollie required to be involved personally in the intimate lives of his 
customers, the way a wedding photographer (or wedding planner) ordinarily is 
with the couple. That raises separate free exercise issues in the wedding 
photography case for a photographer who believes it is wrong (as a matter of 
conventional religion or its equivalent per the Seeger case) to facilitate a 
same-sex marriage. And perhaps it creates a hybrid rights situation per Smith.

Of course it's also easier for the state to tell whether Ollie burns the food 
or includes noxious ingredients than it is for the state to determine whether a 
photographer has sufficiently expressed the state's (or the clients') views as 
to beauty and truth. That implicates not only practical concerns but also the 
degree of vagueness of the law and the degree of discretion given to officials 
who would police the photographer's use of her First Amendment rights.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Apr 1, 2015, at 6:03 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
No, I don't think that's OK.  But that's a real compelled speech problem, where 
the student must first utter the Pledge.

The wedding vendors do not have to say anything approving about the marriage, 
or affirm its validity in the eyes of the state or God.  They do have to 
provide goods and services; in the photographer's case, the services include 
making the wedding look authentic and beautiful, not ugly or false.  So the 
compelled

Signing off for a while -- RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

I have a lot to do, what with the holidays and my day job, so I’ll be signing 
off for a while. I’ll keep one eye on any further posts in case Chip responds 
to mine (see below), though of course no one has any obligation to respond to 
anyone else’s post.

May the holidays be meaningful, for those of you who are celebrating Passover 
or Easter (or both); of course, for many Christians tonight is not so joyous. 
It is particularly somber in light of the murder of almost 150 Christian 
students in Kenya by Al-Shabaab – murdered specifically because they were 
Christians. Sometimes I think we strain at gnats, and don’t much notice the 
camel in much of the rest of the world (Syria, Iraq, and many other places), 
where there is wholesale violent persecution of Christians and some people of 
other faiths, like the Yazidi and Bahai, because of their beliefs.

Mark

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


From: Scarberry, Mark
Sent: Thursday, April 02, 2015 11:04 AM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

Let's see what Chip and I seem to agree on, and then I'll express my strong 
disagreement on one point.

We seem to agree that the wedding photographer creates art. It is hard to see 
how visual portrayals of an event can convey a message of beauty and 
authenticity and not be called art. Indeed it would seem to be celebratory art, 
as I've been saying all along, if it deals with beauty and authenticity.

We seem to agree that the wedding photographer (if she can be required to 
photograph the same sex ceremony) cannot (as a colleague put it off list) 
sabotage the photography, by intentionally portraying the ceremony as ugly or 
false (in the sense that the two persons are insincere or that the ceremony 
doesn't have whatever legal effect the law provides). I suppose I'd go further 
and say that the photographer has to use the same high-quality equipment that 
she normally would use, has to take photos from the normal angles, and has to 
fix red-eye problems and similar problems before sending the proofs to the 
clients for their selection.

I can't agree that the photographer can be required to create visual works that 
portray the ceremony as beautiful (or authentic, if that means posing the 
couple so as to bring out their sincere commitment to each other). The state 
may be able to require her to photograph the ceremony, but it can't require her 
to express the view that the ceremony is beautiful. The state has no business 
deciding what is beautiful or requiring people to create expressive works that 
carry a message of beauty, any more than it can require people to express the 
view that the state is good and the laws just. The state may not prescribe 
orthodoxy as to the beautiful, the true, or the good; any other view takes us a 
step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip 
obviously would not endorse).

With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie 
may express his political and social views, but surely he can't intentionally 
spoil the food, just as the photographer can't intentionally spoil the photos.

A key difference for other purposes is that Ollie is not in the business of 
creating expressive works; the requirement that he sell food of the same 
quality to all comers doesn't raise compelled speech issues. He has much less 
need to express his political and social views in the restaurant to avoid 
becoming the state's mouthpiece, because he isn't being required to say 
anything that would appear to be his own speech. (He could be required to post 
a sign saying that the state requires all customers to be served, without 
respect to race etc., but that would identify the message as coming from the 
state.)

Nor is Ollie required to be involved personally in the intimate lives of his 
customers, the way a wedding photographer (or wedding planner) ordinarily is 
with the couple. That raises separate free exercise issues in the wedding 
photography case for a photographer who believes it is wrong (as a matter of 
conventional religion or its equivalent per the Seeger case) to facilitate a 
same-sex marriage. And perhaps it creates a hybrid rights situation per Smith.

Of course it's also easier for the state to tell whether Ollie burns the food 
or includes noxious ingredients than it is for the state to determine whether a 
photographer has sufficiently expressed the state's (or the clients') views as 
to beauty and truth. That implicates not only practical concerns but also the 
degree of vagueness of the law and the degree of discretion given to officials 
who would police the photographer's use of her First Amendment rights.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Apr 1, 2015, at 6:03 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
No, I don't think that's OK

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

Let's see what Chip and I seem to agree on, and then I'll express my strong 
disagreement on one point.

We seem to agree that the wedding photographer creates art. It is hard to see 
how visual portrayals of an event can convey a message of beauty and 
authenticity and not be called art. Indeed it would seem to be celebratory art, 
as I've been saying all along, if it deals with beauty and authenticity.

We seem to agree that the wedding photographer (if she can be required to 
photograph the same sex ceremony) cannot (as a colleague put it off list) 
sabotage the photography, by intentionally portraying the ceremony as ugly or 
false (in the sense that the two persons are insincere or that the ceremony 
doesn't have whatever legal effect the law provides). I suppose I'd go further 
and say that the photographer has to use the same high-quality equipment that 
she normally would use, has to take photos from the normal angles, and has to 
fix red-eye problems and similar problems before sending the proofs to the 
clients for their selection.

I can't agree that the photographer can be required to create visual works that 
portray the ceremony as beautiful (or authentic, if that means posing the 
couple so as to bring out their sincere commitment to each other). The state 
may be able to require her to photograph the ceremony, but it can't require her 
to express the view that the ceremony is beautiful. The state has no business 
deciding what is beautiful or requiring people to create expressive works that 
carry a message of beauty, any more than it can require people to express the 
view that the state is good and the laws just. The state may not prescribe 
orthodoxy as to the beautiful, the true, or the good; any other view takes us a 
step on the road to tyranny (or, in the extreme, to totalitarianism) which Chip 
obviously would not endorse).

With regard to Ollie's Barbecue, we may disagree about the ways in which Ollie 
may express his political and social views, but surely he can't intentionally 
spoil the food, just as the photographer can't intentionally spoil the photos.

A key difference for other purposes is that Ollie is not in the business of 
creating expressive works; the requirement that he sell food of the same 
quality to all comers doesn't raise compelled speech issues. He has much less 
need to express his political and social views in the restaurant to avoid 
becoming the state's mouthpiece, because he isn't being required to say 
anything that would appear to be his own speech. (He could be required to post 
a sign saying that the state requires all customers to be served, without 
respect to race etc., but that would identify the message as coming from the 
state.)

Nor is Ollie required to be involved personally in the intimate lives of his 
customers, the way a wedding photographer (or wedding planner) ordinarily is 
with the couple. That raises separate free exercise issues in the wedding 
photography case for a photographer who believes it is wrong (as a matter of 
conventional religion or its equivalent per the Seeger case) to facilitate a 
same-sex marriage. And perhaps it creates a hybrid rights situation per Smith.

Of course it's also easier for the state to tell whether Ollie burns the food 
or includes noxious ingredients than it is for the state to determine whether a 
photographer has sufficiently expressed the state's (or the clients') views as 
to beauty and truth. That implicates not only practical concerns but also the 
degree of vagueness of the law and the degree of discretion given to officials 
who would police the photographer's use of her First Amendment rights.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Apr 1, 2015, at 6:03 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:

No, I don't think that's OK.  But that's a real compelled speech problem, where 
the student must first utter the Pledge.

The wedding vendors do not have to say anything approving about the marriage, 
or affirm its validity in the eyes of the state or God.  They do have to 
provide goods and services; in the photographer's case, the services include 
making the wedding look authentic and beautiful, not ugly or false.  So the 
compelled speech concern seems much weaker to me than in Barnette.

On Wed, Apr 1, 2015 at 8:53 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
Apart from the other points with which I disagree:

Wow, Chip. You really think it’s OK to make the student recite the Pledge, as 
long as the student is permitted at the end to say “I don’t mean it”? Can I be 
required to burn a pinch of incense to the emperor as long as I am permitted 
afterwards to say that the emperor isn’t really a god?

Mark

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



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun

RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

I don’t have time right now to respond in a substantial way to Chip’s post. Let 
me just quote this language from the New Mexico Supreme Court’s decision in 
Elane Photography:

“Businesses that choose to be public accommodations must comply with the NMHRA, 
although such businesses retain their First Amendment rights to express their 
religious or political beliefs. They may, for example, post a disclaimer on 
their website or in their studio advertising that they oppose same-sex marriage 
but that they comply with applicable antidiscrimination laws.”

That’s not quite the same as saying that gay couples aren’t welcome, but it’s 
pretty close. Is the NM court right that the photographers have a 1st Am right 
to do so?

On the question whether religious liberty claims have anything to do with the 
compelled speech issue, if we believe that the “hybrid rights” part of Smith 
means anything, it might apply in this kind of case so that the combination of 
the claims to constitutional protection might create some synergy.

Mark

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









From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, April 01, 2015 4:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

I think the compelled speech issues, re: communicative work like photography, 
are interesting and sometimes difficult. I address those in an article I will 
post later this month.  All I want to say now is that religious motivation is 
irrelevant to the compelled speech argument.  (See W Va Bd of Educ v. Barnette.)

But Mark also say If [harm] depends on the message sent by the refusal, then 
we have an interesting viewpoint discrimination issue.  If, in 1965, Ollie's 
BBQ had put up a sign in the window that read Federal law says we must serve 
all, so we will, but n-s are not sincerely welcome, then he would have 
violated the Public Accommodations title of the Civil Rights Act (he would not 
have provided full and equal enjoyment of his restaurant without 
discrimination on the basis of race.)  Does Mark or anyone on this list really 
think that presents a serious First Amendment problem?  Ollie can write letters 
to Congress, and to the newspapers, and put signs on his lawn, all railing 
against the oppressive Civil Rights Act, but he cannot communicate that 
directly to customers on his business premises. If it were otherwise, the Act 
would be gutted entirely.  I think that no Justice who has served in the last 
50 years would take such a First A claim seriously.

On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I also think the florist and baker examples are weaker for the religious 
claimant, especially where the flowers and cakes are generic. But what if 
custom floral arrangements involve artistic choices by the florist? What if the 
cake is (as some are) a truly creative work of art? And do only high-end bakers 
get protection from violation of conscience? What if the florist or baker is 
asked to include particular words or other expressive content in the 
arrangement or the cake? (This from someone who argued against licensing 
requirements for sellers of flowers – protectionist provisions for florists who 
fear grocery stores’ selling of flowers – on the basis that flower arranging is 
a kind of art that the government has no right to license, other than for 
health purposes.) What if the custom florist decides to include a lot of black 
roses in the arrangements? Or just puts the flowers together without using any 
creativity (so that they look like flowers you would get through 
1-800-Flowers)? Can the florist be required to enter into the contract to 
provide flowers and then be required to follow some sort of industry standard 
of artistry in arranging the flowers?

In the photography example, if the photographer must photograph a ceremony that 
he or she believes wrong, may the photographer refuse to use the creative 
skills that would ordinarily be used? (E.g., posing the couple in a particular 
way, using filters to get a romantic look, telling them to kiss for the 
photograph, etc.) I suppose that goes with my view that wedding photography is 
creation of celebratory art, and the First Amendment compelled speech cases 
prohibit the government from requiring the photographer to create art.

On the harm question, of course there is a matter of baseline. Do I harm you by 
not photographing your ceremony? Or do I benefit you by doing it? If that 
depends on the message sent by the refusal, then we have an interesting 
viewpoint discrimination issue.

Mark

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

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RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

Apart from the other points with which I disagree:

Wow, Chip. You really think it’s OK to make the student recite the Pledge, as 
long as the student is permitted at the end to say “I don’t mean it”? Can I be 
required to burn a pinch of incense to the emperor as long as I am permitted 
afterwards to say that the emperor isn’t really a god?

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, April 01, 2015 5:32 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

If the compelled speech argument is constitutionally sufficient, permission to 
post a disclaiming sign may solve the problem. (It would be like letting a 
student say aloud I don't mean it after forcing her to recite the Pledge of 
Allegiance.)

If the compelled speech argument is NOT constitutionally sufficient, I think 
the photographers have no First A right to put up such a sign, though of course 
the NM legislature could permissibly accommodate the religious objection by 
permitting a vendor to post such a sign.  Away from the business site (on line 
or physical), the photographer of course is free to express her views on same 
sex marriage.



On Wed, Apr 1, 2015 at 7:37 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I don’t have time right now to respond in a substantial way to Chip’s post. Let 
me just quote this language from the New Mexico Supreme Court’s decision in 
Elane Photography:

“Businesses that choose to be public accommodations must comply with the NMHRA, 
although such businesses retain their First Amendment rights to express their 
religious or political beliefs. They may, for example, post a disclaimer on 
their website or in their studio advertising that they oppose same-sex marriage 
but that they comply with applicable antidiscrimination laws.”

That’s not quite the same as saying that gay couples aren’t welcome, but it’s 
pretty close. Is the NM court right that the photographers have a 1st Am right 
to do so?

On the question whether religious liberty claims have anything to do with the 
compelled speech issue, if we believe that the “hybrid rights” part of Smith 
means anything, it might apply in this kind of case so that the combination of 
the claims to constitutional protection might create some synergy.

Mark

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









From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Ira Lupu
Sent: Wednesday, April 01, 2015 4:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

I think the compelled speech issues, re: communicative work like photography, 
are interesting and sometimes difficult. I address those in an article I will 
post later this month.  All I want to say now is that religious motivation is 
irrelevant to the compelled speech argument.  (See W Va Bd of Educ v. Barnette.)

But Mark also say If [harm] depends on the message sent by the refusal, then 
we have an interesting viewpoint discrimination issue.  If, in 1965, Ollie's 
BBQ had put up a sign in the window that read Federal law says we must serve 
all, so we will, but n-s are not sincerely welcome, then he would have 
violated the Public Accommodations title of the Civil Rights Act (he would not 
have provided full and equal enjoyment of his restaurant without 
discrimination on the basis of race.)  Does Mark or anyone on this list really 
think that presents a serious First Amendment problem?  Ollie can write letters 
to Congress, and to the newspapers, and put signs on his lawn, all railing 
against the oppressive Civil Rights Act, but he cannot communicate that 
directly to customers on his business premises. If it were otherwise, the Act 
would be gutted entirely.  I think that no Justice who has served in the last 
50 years would take such a First A claim seriously.

On Wed, Apr 1, 2015 at 6:53 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I also think the florist and baker examples are weaker for the religious 
claimant, especially where the flowers and cakes are generic. But what if 
custom floral arrangements involve artistic choices by the florist? What if the 
cake is (as some are) a truly creative work of art? And do only high-end bakers 
get protection from violation of conscience? What if the florist or baker is 
asked to include particular words or other expressive content in the 
arrangement or the cake? (This from someone who argued against licensing 
requirements for sellers of flowers – protectionist provisions for florists who 
fear grocery stores’ selling of flowers

RE: Eugene's Blog Post on Liberals and Exemption Rights

[Scarberry, Mark]

I also think the florist and baker examples are weaker for the religious 
claimant, especially where the flowers and cakes are generic. But what if 
custom floral arrangements involve artistic choices by the florist? What if the 
cake is (as some are) a truly creative work of art? And do only high-end bakers 
get protection from violation of conscience? What if the florist or baker is 
asked to include particular words or other expressive content in the 
arrangement or the cake? (This from someone who argued against licensing 
requirements for sellers of flowers - protectionist provisions for florists who 
fear grocery stores' selling of flowers - on the basis that flower arranging is 
a kind of art that the government has no right to license, other than for 
health purposes.) What if the custom florist decides to include a lot of black 
roses in the arrangements? Or just puts the flowers together without using any 
creativity (so that they look like flowers you would get through 
1-800-Flowers)? Can the florist be required to enter into the contract to 
provide flowers and then be required to follow some sort of industry standard 
of artistry in arranging the flowers?

In the photography example, if the photographer must photograph a ceremony that 
he or she believes wrong, may the photographer refuse to use the creative 
skills that would ordinarily be used? (E.g., posing the couple in a particular 
way, using filters to get a romantic look, telling them to kiss for the 
photograph, etc.) I suppose that goes with my view that wedding photography is 
creation of celebratory art, and the First Amendment compelled speech cases 
prohibit the government from requiring the photographer to create art.

On the harm question, of course there is a matter of baseline. Do I harm you by 
not photographing your ceremony? Or do I benefit you by doing it? If that 
depends on the message sent by the refusal, then we have an interesting 
viewpoint discrimination issue.

Mark

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




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, April 01, 2015 3:18 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

I think Prof. Chen is substantially correct, but I believe, more than ever, 
that it's the kind of problem that can ( and should) be handled outside legal 
constraints. Why would I want to hire a wedding photographer who so clearly 
won't view the day as affirmatively special?  Ditto the band?  But I really 
can't work up much sympathy for the florist or baker. They should be treated 
under the general rubric of public accommodations and the Civil Rights Act of 
1964. I'm sure there were florists and bakers who objected to mixes-race 
marriages and could cite the purported curse on Ham. It really doesn't (and 
shouldn't) matter.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:
As someone putting a wedding together, I can't explain the lack of sympathy for 
the wedding photographer as anything but thinking that their work is 
essentially interchangeable. It is not, unfortunately, and it is priced 
accordingly. Every single photographer of them seems to take their business 
very, very personally. More to the point, it is a personal, professional 
service which is by its nature selective compared to the harm done by 
impersonal corporations excluding goods and services when they otherwise serve 
the public.

A principled difference can be drawn between accommodating personal, inherently 
selective commercial businesses and businesses that are open to the public at 
large. The vast majority of commercial transactions are from businesses who 
sell to the public, or their business community, on a non-discriminatory basis. 
When such a business denies goods or services to a class of person, that is an 
inherently political act. Such a businesses is not just refusing the do 
business with an individual or class, they are making an attempt to exclude 
them from the definition of the public itself. They are thus doing harm to both 
individual and society by imposing their will on what constitutes the political 
community. This harm grows geometrically with each exclusionary actor.

Individual consumers on the other hand, are inherently selective. If you need 
one loaf of bread this week, you will patronize precisely one baker this week. 
If you need a salary, you will work one, maybe two jobs. The harm of being 
denied service by a consumer (or laborer) because of their beliefs has a 
societal harm, if any, nearly indistinguishable to being denied for any other 
reason.

Some services should fall in between. I'm not convinced for the florist and the 
and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer 
(ethical obligations notwithstanding) 

RE: state RFRA's and local anti-discrimination laws

[Scarberry, Mark]

Under the Indiana RFRA, the question is whether the government has a compelling 
interest, not whether a particular level of government has such an interest. So 
long as the local government is competent absent a state RFRA to enact such 
laws, the analysis of the application of the state RFRA should not depend on 
the level of government that asserts a compelling interest. Note that the 
definition of “governmental entity” includes local government. The compelling 
interest that the “governmental entity” must establish is a “governmental 
interest.” This appears to be a straightforward interpretation of the statute.

I suppose that the alternative means analysis might be affected. A state 
government might have more ability to provide alternative means to advance the 
compelling governmental interest than a local government might have. I suppose 
a court might find that there is an alternative means available in such a case 
(even if the local government cannot successfully persuade the state government 
to provide the resources or make the changes in law needed to provide the 
alternative). Or perhaps in such a case a court might find that the alternative 
is not available (which would cut against the religious liberty claimant).

It might be possible for a RFRA claimant to argue that state law affirmatively 
disclaims the view that a particular governmental interest is compelling. A 
particular state law, for example, might provide for religious and health 
exemptions from a general policy that state law enforcement officers must be 
clean-shaven. It would be hard then for the local sheriff to argue that there 
is a compelling interest in requiring deputy sheriffs to be clean-shaven. This 
kind of “preemption” (of a sort) would not seem to be applicable if state law 
is merely silent on the question.

At least this is my initial take.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, March 30, 2015 10:45 AM
To: Law  Religion issues for Law Academics
Subject: state RFRA's and local anti-discrimination laws

One very important question I have never seen discussed is the relationship 
between a state RFRA (say, Texas or Indiana) and a local anti-discrimination 
ordinance (say, San Antonio or Indianapolis) that covers public accommodations 
and protects the LGBT population.  This is a common configuration; most RFRA 
states do NOT have state-wide LGBT laws re: public accommodations, but many 
have cities or counties with such laws.  So, when the local wedding vendor 
refuses to sell to a same sex couple and is cited by the local Human Rights 
Commission for violating the public accommodations law, and the defense is 
state RFRA, how will the arguments play?  Can a local law ever present a 
compelling interest sufficient to defeat a state religious freedom law? If 
not, the outcome of these conflicts is pre-ordained; the vendor will win.  Or 
can the local interest be sufficiently compelling in that community to defeat 
the state RFRA defense? Does this depend on state-to-state generic principles 
of local government law?

All thoughts welcome.
--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Re: Amazing what Hobby Lobby has wrought

[Scarberry, Mark]

If I recall correctly, several years ago there was a suit against a church in 
San Francisco for firing an organist (who helps lead a congregation in worship 
as he or she plays sacred music), an organist who was, as I recall, a sexually 
active gay man. What about the small Christian bookstore like the one (Logos) 
that I frequented when studying at UCLA? Should there be a blanket 
anti-discrimination law exception to a state RFRA in such a case, so that the 
bookstore would have to hire atheists to recommend particular religious books 
to customers, or hire persons to do so who disagree with the moral principles 
taught in the books that the owner thinks most faithful to the faith? What if 
the owner of the bookstore has the temerity to operate it as a for-profit 
entity so that at some point the owner may actually be able to keep the fruits 
of his or her years of labor by selling the business? (Proceeds of sale of a 
nonprofit operation may not, as I understand it, enure to the be!
 nefit of a private person.)

Most recently there was the alarming position taken by the administration in 
Hosanna Tabor against the ministerial exception (and not just against its 
application in that case). Cf. O Centro. It is not surprising that proponents 
of state law RFRAs have little trust in the proclamations of government 
officials and others in support of religious freedom. And, as Doug reminds us, 
there was CLS v. Martinez, in which many of us thought a public law school was 
advancing pretextual reasons for a policy that discriminated against CLS. CLS 
made a tactical error in stipulating , contrary to the facts, that the 
all-comers policy was uniformly applied. I doubt that another group now will 
have a chance of prevailing even if it doesn't so stipulate.

This is not the same as the pervasive racial discrimination with respect to 
real public accommodations that effectively excluded African-Americans and 
sometimes Jews from much of public life and made it difficult for them even to 
travel. When I see gays and lesbians excluded from restaurants and hotels and 
theaters (on more than extremely rare, and perhaps nonexistent occasions), then 
I'll consider thinking that antigay bias justifies a blanket carve-out from 
RFRAs for civil rights laws.

This is, I think, all about dignitary harm that results from religious 
persons holding certain views on which they might act on rare occasions in 
order not to be in violation of religious conscience. It is primarily, I think, 
about delegitimizing religious views, not about preventing acts of 
discrimination.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

 On Mar 28, 2015, at 8:21 AM, Douglas Laycock dlayc...@virginia.edu wrote:
 
 The demand for a total carve out of all civil rights claims goes back to the 
 debates on the (never enacted) Religious Liberty Protection Act in the late 
 90s. What was said at length then is still true today,
 
 Antidiscrimination laws generally serve compelling government interests, and 
 to the extent that there are any cases, the side that calls itself the civil 
 rights side will win nearly all of them. (Religious liberty is also a civil 
 right.) But a total carve out doesn't work, because there are a few cases, in 
 religiously sensitive contexts, where religious believers or organizations 
 should get an exemption.
 
 There are claims against religious organizations for religious discrimination 
 (most notoriously, in CLS v. Martinez). There are cases about weddings and 
 marriage counseling. There are a fair number of states (not including 
 Indiana, I think, but I haven't checked recently) where the employment 
 discrimination laws prohibit discrimination on the basis of any lawful 
 off-the-job activity. Think the church secretary moonlighting in an abortion 
 clinic or a strip club or any other legal activity that the church views as 
 immoral.
 
 If there were any good will on the two sides, it ought to be possible to 
 negotiate a less-than-global discrimination carve out that would allow for 
 such cases. But those negotiations never came close to agreement in the late 
 90s, and things are much more polarized now. 
 
 Both sides are intransigent, and with respect to marriage equality, both 
 sides want to totally crush the other, leaving no vestige of any liberty on 
 the other side. The conservatives want no right to marry, and most red states 
 have not added sexual orientation to their discrimination laws. RFRA 
 opponents are now objecting even to exemptions for religious non-profits. 
 They have generally conceded that clergy do not have to perform the wedding 
 ceremony; I don't know if that is real or tactical.
 
 The recent deal in Utah would be very encouraging, except that it was 
 immediately denounced by all the gay rights groups, and many Republican 
 legislators hated it and thought they had given away the store.
 
 So a total carve out doesn't work, and the 

RE: Jim Oleske's new review of book by Robert George

[Scarberry, Mark]

Chip,

I’m with Doug on this: I also think Smith was wrongly decided, so you have put 
me in the wrong group; even on your view of the matter, I’m not a clinger.

And I *haven’t* seconded any argument about political accountability. In fact, 
I very much worry that there will be too little room for religious freedom if 
the matter is left to the political process. Recent developments confirm my 
fears. I want Smith to be overruled. Meanwhile I’m willing to support RFRAs as 
a second best approach (and perhaps as a better approach than what might be put 
in place of Smith, were it to be overruled).

What I *have done* is to point out that there are people who are convinced of 
two perfectly consistent propositions: (1) Smith was right as a matter of 
whether the Constitution requires religious exemptions, and (2) a RFRA approach 
is good policy. They may have various reasons for taking both of those 
positions. They need not agree with the reasons Justice Scalia gave in his 
Smith opinion. I need not agree with any of their reasons to recognize that 
they put them forward reasonably and in good faith.

Even if I thought that Smith got it right as a matter of constitutional law – 
perhaps, to use a counterfactual, because I somehow was persuaded that it was 
right on originalist grounds – I still would support the RFRA approach. I’m not 
persuaded that the concerns expressed by Justice Scalia about (as you term 
them) “normative and institutional deficiencies” outweigh the need for real and 
substantial protection of religious exercise against neutral, generally 
applicable laws. It’s not that Justice Scalia’s concerns “go away;” I never 
found them persuasive in the first place.

Best,
Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, February 18, 2015 3:28 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Jim Oleske's new review of book by Robert George

I think Smith was wrong. But those who think it right think so for a variety of 
reasons. They may think the original public meaning simply didn’t include 
exemptions, and think that unfortunate. They may not at all buy Scalia’s 
argument about how terrible it is for judges to make judgments. Recall Bill 
Marshall’s argument that the result was right but the opinion was a travesty.

Even if they rely on legislative oversight, they may think that in a 
sufficiently clear or unpopular case, legislative oversight would come. State 
legislatures have enacted plenty of RFRA exceptions, some of them reasonably 
sensible and some of them deeply ill-advised. Most of these were part of the 
initial enactment, but at least Illinois and Florida have enacted RFRA 
exceptions in response to particular litigation. Supporters of both Smith and 
RFRA may also think that the present legislative polarization will not last 
forever, and sooner or later, it will be possible for Congress to legislate 
again.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 18, 2015 6:12 PM
To: Law  Religion issues for Law Academics
Subject: Re: Jim Oleske's new review of book by Robert George

Dear Rick:

Yes, I think you are just echoing Mark and Eugene when you emphasize the 
distinction between pre-Smith free exercise adjudication and RFRA adjudication. 
 Consider what Scalia says in Smith (pp. 885-890) about the normative and 
institutional deficiencies of free exercise adjudication -- among other 
concerns, the deep undesirability of a system in which each conscience is a 
law unto itself or in which judges weigh the social importance of all laws 
against the centrality of all religious beliefs (at 890).  What makes this and 
other concerns he expresses go away when the identical standards are being 
applied under RFRA?

The argument to the contrary, as I understand it, is not about judicial 
competence to apply those standards.  How can judges magically become more 
trustworthy or reliable when the identical power is being exercised under a 
statute? Eugene's argument (which you and Mark have seconded) is not about 
manageability or substantive soundness of those standards.  Instead, it is all 
about political accountability - that somehow RFRA adjudication is different 
because of the possibility of legislative revision and control.  As you 
probably know, I have recently argued that this line of thinking is an academic 
fancy, with no real world confirmation.  See pp. 73-74 of Hobby Lobby and the 
Dubious Enterprise of Religious Exemptions, 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466571.  Reasonable people 
can differ on this, 

RE: Jim Oleske's new review of book by Robert George

[Scarberry, Mark]

In response to Chip:

Perhaps I should let Eugene speak for himself, but I think he for the most part 
thinks the Court got it right in Smith but also thinks a RFRA approach makes 
sense. I suppose, though, that he (and others who take the same view) do not 
agree with Justice Scalia that the judicial role assigned to judges by 
Sherbert/Yoder and by RFRA is unworkable; they just don’t think the 
Constitution provides for judges to take on such a role. I don’t know whether 
George’s support for Smith was based on the unworkability argument or on an 
understanding that the democratic process should govern the availability of 
exceptions on a neutral basis. If it was the latter, then it does not seem that 
his positions are inconsistent.

It seems to me that we should avoid attributing improper motivations to any of 
the people involved here, unless there is very good reason to do so. Jim may be 
seriously mistaken – that does not mean he engaged in a smear. Robbie may have 
taken inconsistent positions, but that does not mean he did so insincerely to 
benefit his preferred outcome (and his “friends”).

Mark

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


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, February 17, 2015 9:52 AM
To: Law  Religion issues for Law Academics
Subject: Re: Jim Oleske's new review of book by Robert George

[Snip]]
No one who embraced Scalia's description of limits on the judicial role could 
be a fan of RFRA, unless perhaps it turned out that RFRA helped his friends.  I 
understand that people can change their minds when their interests are 
implicated, but a little humility (not accusations of smear) seems in order.
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Re: Wedding photographers and freelance writers

[Scarberry, Mark]

I was about to send this post when Eugene's came in. To some degree it makes 
similar points. And it makes some points that are similar to Steve's helpful 
post.

With regard to whether there should be a creative expression exception to 
antidiscrimination laws, as Alan frames the issue:

Of course another way of looking at this is the extent to which there should be 
exceptions made to the very strong 1st Am protection against compelled speech, 
outside the area of commercial speech.

We are willing to force people to engage in war and kill others in order to 
protect our nation. Why not then require people to swear loyalty to the nation?

On a slightly different note, we all know that the complainants in Elane 
Photography did not really have their hearts set on having Elaine Huguenin take 
their photos. Who would really want someone to take celebratory photographs of 
an event that the photographer thought deeply wrong? No. This was an effort to 
engage in public education (or private re-education) by requiring Huguenin to 
bow down or go out of business. Does anyone think there weren't other 
photographers the complainants could have gone to?

So if this is really about inculcating a point of view -- and delegitimizing 
another -- doesn't the state have a very strong interest in inculcating 
patriotism and in delegitimizing pacifism? So much for Barnette.

However creative they may be, salespersons (including Alan's Uncle George) who 
are trying to persuade customers to buy a product are engaged in commercial 
speech, or something like it: they are in effect proposing a commercial 
transaction. Artists (including wedding photographers) are not. We all know 
that speech is not commercial speech just because the speaker is paid.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad


On Feb 15, 2015, at 3:08 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   Alan:  What do you thank about freelance writers?  Say that 
someone generally takes freelance gigs to write a wide range of press releases, 
technical manuals, and pretty much anything else that comes in the door.  Along 
comes the Church of Scientology, asking the person to write a press release for 
their latest event.  Say that the press release is not “commercial speech,” but 
fully protected religious advocacy.

   It’s just that this writer doesn’t want to create this sort of 
advocacy, for a religion that he views as evil and corrupt.  He says no, and 
the Scientologists sue him for religious discrimination.  I would think that he 
should a First Amendment right not to be compelled to write religious advocacy 
that he doesn’t want to write.  Am I mistaken on that?

   As to some of the other analogies, I don’t think they quite 
work.  Some involve commercial speech, which is treated differently, compare 
Pittsburgh Press.  The closest examples involve lawyers and doctors, but those 
are treated differently, for complicated reasons having to do with tradition 
and with the professionals’ monopoly, to the point that I don’t think they 
should be much of a precedent for other speakers.  One piece of evidence:  
Lawyers have historically been required to defend criminal defendants, for free 
and regardless of their preferences – not just by antidiscrimination law, but 
by ad hoc court orders.  Surely if a government agency just ordered a freelance 
writer to write a press release for some worthy organization, on the grounds 
that they really needed the services, we’d agree that this is unconstitutional 
compelled speech compulsion, right?  If so, then I think this shows that 
(rightly or wrongly) lawyer-client speech and doctor-client speech is broadly 
subject to much more compulsion than freelance writing, photography, etc.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Sunday, February 15, 2015 2:16 PM
To: Law  Religion issues for Law Academics
Subject: Re: Wedding photographers as creators of art


​I think Steve's focus on the difficulty of drawing distinctions in this area 
is helpful, but it also demonstrates the potential range of autonomy and/or 
expressive exemptions from civil rights laws.



Let's put prostitution aside for the moment since it involves a form of 
intimacy that is so personal that commercializing it commonly results in 
criminal sanctions. I think ministers practicing their religion are also a 
unique constitutional category.



But it is a very large step to move from these two special circumstances to the 
general idea that jobs and services with a personal autonomy or creative 
expressive dimension should be exempt from civil rights laws.



lots of jobs and services can be characterized as intimate or personal. 
Legitimate massage therapists and physical therapists, barbers and hair 

RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?

[Scarberry, Mark]

No time to say more now. It’s Valentine’ Day! (A good day to think about 
celebratory art and romantic relationships.)

Consider:

A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to 
celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine).

A group that wants to rent a hall owned by a German immigrant who survived the 
Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 
years ago. http://www.bbc.com/news/world-europe-31452693.

More to the point: A professional photographer who is an environmentalist and 
who does not want to do a celebratory photo-shoot of the cutting down of the 
remaining 12 ancient redwoods in the county and the building of a shopping 
center on the site (complete with shots showcasing the bravery of the 
lumberjacks and the vibrant industry of the construction workers, and the joy 
of shoppers who flock to the new shopping center).

I continue to find it hard to understand how wedding photographers can be 
considered as anything other than creators of copyrightable celebratory art, 
complete with instructions on posing for pictures, framing of shots, etc. Don’t 
we all understand that photography is a kind of art? Here is a link to a local 
wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can 
anyone doubt that that the photos on the website are celebratory art (though we 
might differ as to the quality of the art, which is completely irrelevant)?

Mark

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




See

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, February 14, 2015 9:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?

Look at the Nevada law of public accommodations, 
https://www.leg.state.nv.us/NRS/NRS-651.html#NRS651Sec060.  It is focused on 
places open to the general public, not on particular kinds of work.  It covers 
any bar or restaurant, or any establishment that includes a bar or restaurant.  
And it includes Any  . . .establishment or place to which the public is 
invited or which is intended for public use.  It excludes private clubs or 
other establishment not in fact open to the public.

So it appears that a house of prostitution in Nevada would be covered by the 
public accommodations law, while a service that sends a prostitute to a 
residence or hotel room is not.  Does this seem surprising?  Nevada has 
legalized the business of prostitution, subject to regulations, and so treats 
such places of business like any other (including specifically a gymnasium, 
health spa, bowling alley, golf course or other place of exercise or 
recreation.)

On Sat, Feb 14, 2015 at 12:19 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
Mark:  So do I understand correctly that you think it's OK for the 
government to say:

As a condition of your being able to earn a living in your 
chosen occupation [here, prostitution], you are legally obligated to have sex 
with people you're unwilling to have sex with.

That surprises me, but I'd love to hear more about it.

Eugene

 -Original Message-
 From: 
 religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-mailto:religionlaw-
 boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Graber, 
 Mark
 Sent: Saturday, February 14, 2015 2:49 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: The racist prostitute hypothetical

 I confess that I get off at the second paragraph (or the first substantive
 paragraph).

 My spouse is an excellent breadbaker and therapist.  For a while, she just 
 bakes
 for friends and only comforts friends and does so for friendship.  Turns out 
 all
 our friends are of the same race, religion, sexual orientation, etc.  I 
 presume
 these choices are constitutionally protected.  One day, after receiving 
 numerous
 comments of the sort, you really ought to go into business, she does.  The 
 first
 person who orders bread and asks for therapy is of a different race, religion,
 sexual orientation, etc.  I take it this can be regulated.  The first 
 amendment
 does protect some activities, even when done commercially, but at the very
 least those activities cannot be described as Eugene does below as just
 business.  If it is just business (and that is not what a clergy person 
 thinks they
 are doing when they marry someone), then it ought to be subject to anti-
 discrimination law.
 
 From: 
 religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
 [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu]
 Sent: Saturday, February 14, 2015 12:01 AM
 

RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?

[Scarberry, Mark]

And with apologies for responding to my own post a second time: The cases are 
not distinguishable unless religious conscience is entitled to special 
protection, which would make the case for the religiously motivated 
photographer stronger.

Mark

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



From: Scarberry, Mark
Sent: Saturday, February 14, 2015 12:03 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?

It should go without saying (but I will say it) that I am in no way suggesting 
that same-sex marriage is like the Holodomor or the fire-bombing of Dresden, 
except to say that the cases are not distinguishable as a matter of 
constitutional law.

The environmentalist photographer example is not so different, even setting 
aside legal analysis.

Mark

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



From: Scarberry, Mark
Sent: Saturday, February 14, 2015 11:58 AM
To: Law  Religion issues for Law Academics
Subject: RE: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?

No time to say more now. It’s Valentine’ Day! (A good day to think about 
celebratory art and romantic relationships.)

Consider:

A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to 
celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine).

A group that wants to rent a hall owned by a German immigrant who survived the 
Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 
years ago. http://www.bbc.com/news/world-europe-31452693.

More to the point: A professional photographer who is an environmentalist and 
who does not want to do a celebratory photo-shoot of the cutting down of the 
remaining 12 ancient redwoods in the county and the building of a shopping 
center on the site (complete with shots showcasing the bravery of the 
lumberjacks and the vibrant industry of the construction workers, and the joy 
of shoppers who flock to the new shopping center).

I continue to find it hard to understand how wedding photographers can be 
considered as anything other than creators of copyrightable celebratory art, 
complete with instructions on posing for pictures, framing of shots, etc. Don’t 
we all understand that photography is a kind of art? Here is a link to a local 
wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can 
anyone doubt that that the photos on the website are celebratory art (though we 
might differ as to the quality of the art, which is completely irrelevant)?

Mark

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


___
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

RE: Can someone be legally obligated to have sex with people she's unwilling to have sex with?

[Scarberry, Mark]

It should go without saying (but I will say it) that I am in no way suggesting 
that same-sex marriage is like the Holodomor or the fire-bombing of Dresden, 
except to say that the cases are not distinguishable as a matter of 
constitutional law.

The environmentalist photographer example is not so different, even setting 
aside legal analysis.

Mark

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



From: Scarberry, Mark
Sent: Saturday, February 14, 2015 11:58 AM
To: Law  Religion issues for Law Academics
Subject: RE: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?

No time to say more now. It’s Valentine’ Day! (A good day to think about 
celebratory art and romantic relationships.)

Consider:

A Stalinist group that wants to rent a hall owned by a Ukrainian immigrant to 
celebrate Stalin and the Holodomor (and Putin’s invasion of Ukraine).

A group that wants to rent a hall owned by a German immigrant who survived the 
Dresden fire-bombing to celebrate that event, which occurred on Feb. 13, 70 
years ago. http://www.bbc.com/news/world-europe-31452693.

More to the point: A professional photographer who is an environmentalist and 
who does not want to do a celebratory photo-shoot of the cutting down of the 
remaining 12 ancient redwoods in the county and the building of a shopping 
center on the site (complete with shots showcasing the bravery of the 
lumberjacks and the vibrant industry of the construction workers, and the joy 
of shoppers who flock to the new shopping center).

I continue to find it hard to understand how wedding photographers can be 
considered as anything other than creators of copyrightable celebratory art, 
complete with instructions on posing for pictures, framing of shots, etc. Don’t 
we all understand that photography is a kind of art? Here is a link to a local 
wedding photographer’s website: http://www.mariannewilsonphotography.com/. Can 
anyone doubt that that the photos on the website are celebratory art (though we 
might differ as to the quality of the art, which is completely irrelevant)?

Mark

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


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Wedding photographers as creators of art

[Scarberry, Mark]

In response to Paul:

Elaine Huguenin's cert petition says that artistic expression pervades her 
work.

She also says that her work is expressive photojournalism that tells a story.

More later, perhaps, but I couldn't leave your claim unanswered that she didn't 
claim to be an artist. She engages in creative artistic expression. She does 
not run a photobooth. She is not an auto mechanic. She does not sell product. 
She creates artistic expression that tells a story.

It is profoundly illiberal to require someone to engage in expression contrary 
to conscience, and even worse to require them to create a state-mandated 
message that tells a story they do not wish to tell.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Paul Finkelman
Date:02/14/2015 6:43 PM (GMT-08:00)
To: Law  Religion issues for Law Academics
Subject: Re: Can someone be legally obligated to have sex with people she's 
unwilling to have sex with?

Mark:

I think there might be a difference, in terms of commercial activity between 
the artistic photographer, who shoots and sells photos and the commercial 
photographer who advertises that he does weddings, confirmations, family 
portraits etc.  One is essentially an artist, who sometimes takes a commission. 
 I agree with you that an artists can refuse a commission, just like we can 
refuse to write a book when a publisher asks us to.

But, if our business is open to all, then it has to be open to all.  The person 
photographs people is no different than an auto mechanic or a dentist.  The 
other has an open business that anyone can walk in off the street and use.  
Similarly, while we can decline to write a book, if our class is open to all 
students, we cannot refuse to let some in on the grounds that we oppose their 
beliefs, faith, color, life style etc.

And, if you can discriminate on the basis of gender then you presumably can for 
race or religion.

None of the people who have refused to sell their product to gay people are 
arguing they are artists.  They are business owners who sell to the general 
public.  Except when they don't like the general public!

And, if you rent out your theater or lecture hall, you do it for all comers if 
that is your business.

To take your hypo further, Mark.  If you have a photography studio and you are 
an animal rights person, can you refuse to  photograph the two hunters who come 
in to get their pictures taken in their hunting clothes?  And if some state 
requires a photo for a fishing or hunting license, can that person refuse to 
take the picture?

We can spin hypos all day.  We are trained to that.  The bottom line is this:  
do we allow businesses to discriminate on the basis of race, gender, or 
religion?  If we do, then we might as well repeal the 1964 Civil Rights Act, 
and allow private discrimination across the board; no more black people in your 
restaurant or gays or Catholics of Jews or Mormons or Evangelicals, or whoever 
you don't like.

Is that where you want to go?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.comhttp://www.paulfinkelman.com/

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Oklahoma bill would protect clergy who won't perform gay marriages

[Scarberry, Mark]

Following up on Eugene’s point:

Marty and Sandy are basically right, but that doesn’t mean it couldn’t become 
an issue.

If I’m not mistaken, the Obama administration opposed recognition of the 
ministerial exception (and not just as applied on the facts in Hosanna-Tabor). 
Some states have antidiscrimination laws that on their face (and probably as 
correctly interpreted absent a very aggressive reading the other way) provide 
no exceptions for ministers or churches.

Consider the New Mexico Elane Photography case in which creators of celebratory 
art were penalized for refusing (on sincere religious grounds) to photograph a 
same-sex ceremony, despite a loosely-drafted state RFRA and despite Supreme 
Court precedent on compelled speech.

State courts, and state and local officials and administrative agencies (e.g., 
the Coeur d’Alene City Attorney), may take positions quite at odds with popular 
opinion (and in many cases ought to do so, at least absent valid legislation 
reflecting that popular opinion).

And consider the Bob Jones case, in terms of what could happen at the federal 
level (which I know the Oklahoma legislature can’t deal with).

I testified against a Kansas bill that would have dealt with the marriage 
facilitation issue in an overbroad and unnecessary way. (But Kansas has a 
stronger RFRA than New Mexico.)

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, February 13, 2015 2:51 PM
To: Law  Religion issues for Law Academics
Subject: RE: Oklahoma bill would protect clergy who won't perform gay marriages

Any thoughts on the Coeur d’Alene, Idaho incident in which the 
City Attorney suggested that a wedding chapel run by two ministers would have 
to allow same-sex marriages, given a Coeur d’Alene public accommodations 
ordinance that banned sexual orientation discrimination?  See 
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/
 .  The same rationale might well apply to a minister who gets paid for 
officiating just as a side business, even without having a chapel of his own.

The city did apparently change its stance, in response to the public outcry, 
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/.
  But perhaps the Oklahoma Legislature wants to prevent such local decisions 
from being made, rather than leaving protection against such decision to public 
pressure or court decision.

As to predictions, I wouldn’t have predicted in 1996, when the Defense of 
Marriage Act was passed, that in 2015 the Court would be quite likely to 
recognize a constitutional right to same-sex marriage.  It might likewise be 
hard to tell for certain what some Oklahoma cities might do in the coming two 
decades.

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, February 13, 2015 2:39 PM
To: Law  Religion issues for Law Academics
Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages

I think the odds are higher that the electorate of Oklahoma overwhelmingly 
votes for Elizabeth Warren for President than that both houses of the Oklahoma 
legislature would approve, and the Oklahoma governor would sign, a bill that 
requires all clergy in Oklahoma to perform religious weddings for gay and 
lesbian couples.  And the odds are about the same that a court in Oklahoma 
would construe its public accommodations law --which probably doesn't even 
protect against sexual orientation discrimination in the first place (I haven't 
checked)--to require clergy to perform such weddings.

On Fri, Feb 13, 2015 at 4:47 PM, Brad Pardee 
bp51...@windstream.netmailto:bp51...@windstream.net wrote:
I thought that having nearly ten percent of the legislature oppose it indicates 
that that the pastors' concerns weren't just products of their imagination, and 
what nearly ten percent now may grow larger in time as activists and lobbyists 
play their role in the political process.  What I've seen of our legislature 
here in Nebraska is that, when senators' votes are changed, it seems far more 
likely that senators who voted with the majority will change rather than one of 
the minority, which is why I felt it was a serious question.

Considering that nearly the entire article as about this piece of legislation 
and there were no gay rights supporters stating that this proposal was fine and 
that it was other proposals they would challenge in court, it could be that it 
is sloppy journalism (not unheared of on Yahoo) or it could be that the gay 

Conference, Feb. 27-28, co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics, and its Glazer Institute for Jewish Studies

[Scarberry, Mark]

If I might beg Eugene’s indulgence, I thought that this was sufficiently 
related to the list’s purpose that it would be appropriate to forward a brief 
announcement. Religion provides a source for much of the “wisdom” that will be 
discussed. The relation of that “wisdom” to the law may raise constitutional 
issues, as well as issues of many other kinds.

Mark

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




From: Cochran, Robert
Sent: Tuesday, February 03, 2015 11:44 AM
To: …

Subject: Pepperdine Conference: Wisdom, Law, and Lawyers


Dear Friends,

I am writing to invite you to the Nootbaar Institute’s Annual Conference, 
entitled “Wisdom, Law and Lawyers,” on February 27th  28th, 2015.  PLEASE 
FORWARD THIS TO OTHERS WHO MIGHT BE INTERESTED.  We will have thirty speakers, 
including:
William S. Brewbaker III, William Alfred Rose Professor of Law, University of 
Alabama School of Law
Michael J. Broyde, Professor of Law at Emory University School of Law
Jonathan Burnside, Professor of Biblical Law, University of Bristol, England
Alberto R. Coll, Professor of Law, DePaul University College of Law
Daisy Hurst Floyd, Dean and University Professor of Law and Ethical Formation, 
Mercer University School of Law
Tremper Longman III, Robert H. Gundry Professor of Biblical Studies, Westmont 
College
Michael Moreland is vice dean and professor of law at Villanova University 
School of Law

Russell G. Pearce, Edward  Marilyn Bellet Professor of Legal Ethics, Morality 
and Religion Fordham University School of Law

Stephen L. Pepper is a professor at the University of Denver Sturm College of 
Law
Ellen Pryor, Professor and Associate Dean for Academic Affairs, UNT Dallas 
College of Law
Michael Scaperlanda, Gene and Elaine Edwards Family Chair in Law and Professor 
of Law, University of Oklahoma College of Law
Brett Scharffs, Francis R. Kirkham Professor of Law and Associate Dean for 
Research and Academic Affairs, J Reuben Clark Law School, Brigham Young 
University
Steven D. Smith, Warren Distinguished Professor of Law and Co-Executive 
Director, Institutes for Law  Religion and Law  Philosophy, University of San 
Diego
Susan Stabile, Professor of Law and Faculty Fellow for Spiritual Life at the 
University of St. Thomas
David Van Drunen, Robert B. Strimple Professor of Systematic Theology and 
Christian Ethics, Westminster Seminary, California

I have attached a link to the Conference brochure, where you can find detailed 
information about the Conference schedule, as well as speaker biographies. I 
have also included a link to our registration page.
Please follow this link to see our brochure: 
http://issuu.com/pepperdine/docs/peppperdine_law_nootbaar_symposium_?e=1187774/11244325
Please follow this link to register for the Conference: 
http://law.pepperdine.edu/nootbaar-institute/annual-conference/default.htm
Note on the brochure that you are invited to a private tour of the Getty Villa 
on Thursday, February 26th at 3:30pm. The Villa is located between LAX and 
Pepperdine’s campus. A shuttle service may be available to help you with 
transportation. You can check out the Getty Villa here: 
http://issuu.com/pepperdine/docs/peppperdine_law_nootbaar_symposium_?e=1187774/11244325
If you have questions about logistics, travel, or transportation to the Getty 
Villa please contact the Nootbaar Institute’s Program Manager, Jenna Anderson, 
at jenna.ander...@pepperdine.edumailto:jenna.ander...@pepperdine.edu. We have 
a deal with the Hilton Garden Inn in Calabasas, so contact Jenna if you will be 
reserving a hotel room.
I hope to see you in February!
Bob Cochran
Robert F. Cochran, Jr.
Louis D. Brandeis Professor of Law and
Director, Herbert and Elinor Nootbaar
  Institute on Law, Religion, and Ethics
Pepperdine University School of Law
24255 Pacific Coast Highway
Malibu, California 90263-4611
(310) 506-4684 (Office)
(310) 506-4063 (FAX)
(818) 706-1087 (Home)
(818) 309-8481 (Cell)
robert.coch...@pepperdine.edumailto:robert.coch...@pepperdine.edu
Problems viewing this email? Click 
herehttp://www.cvent.com/events/mproc.aspx?m=84834e6a-595c-4417-b06d-cabc2ed17e5cu=http%3a%2f%2fwww.cvent.com%2fe.aspx%3f1Tl=Click+here.








Pepperdine School of Law’s Nootbaar Institute Annual Conference
Wisdom, Law, and Lawyers
February 27th  28th, 2015


  At a time when law is seen by many as purely a matter of power politics 
and the lawyer’s role as purely a matter of pursuing clients’ economic 
interests, we want to consider how wisdom should influence deliberations in 
legislative chambers, courts, and lawyers’ offices. Both theoretical wisdom and 
practical wisdom have much to say about law.

The Conference will be organized around four general themes:

 1.  The Nature of Wisdom – What do our traditions teach about the nature of 
wisdom? Speakers will address this question from a variety of religious and 
secular perspectives.
 2.  Wisdom and Lawyers - In recent decades, legal profession scholars 

RE: Homeschooling, vaccinations, and Yoder

[Scarberry, Mark]

Legislators and others might also think that people have rights beyond those 
set out in the Constitution or provided for even on a fair reading of the 
Constitution – rights that ought to be respected by government even though the 
Constitution does not require that they be respected. Cf. the Ninth Amendment. 
To the extent that the state and federal constitutions permit legislators to 
recognize such rights, they can of course do so. (Of course states can 
recognize rights in their own constitutions beyond those provided for in the 
federal constitution, again, so long as such recognition doesn’t violate the 
federal constitution.) Consider, e.g., Eugene’s argument for permissibility of  
legislative accommodation of religious exercise, and consider both federal and 
state RFRAs.

I do have difficulty with the notion that religious exercise can’t to some 
degree be protected qua religious exercise, given the specific recognition in 
the 1st Am of the right to free exercise of religion. Even a legislator who 
thinks the Smith decision is right as an interpretation of the demands made by 
the Constitution might think that the policies behind the Free Exercise clause 
or the importance of religious liberty as part of what it means to be free 
justify special protection for exercise of religion, at least as broadly 
defined.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, February 02, 2015 3:49 PM
To: Law  Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder

I think I agree with everything Paul says here, and I didn't mean to suggest 
naivete or anything else; I just meant to disagree with the assertion that I 
understood Paul to be making.

In particular, I agree that if you asked many state legislators--and especially 
those who favor homeschooling for personal or political reasons--they will 
honestly tell you that they believe that the state cannot conscript their 
children into schools (public or otherwise) without giving parents some rights 
to homeschool. In my view, they are certainly wrong as a federal constitutional 
matter. But I do think they believe it, as do many parents who homeschool. 
(Indeed, this is part of my argument in the paper I linked to.)



On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz 
phorw...@hotmail.commailto:phorw...@hotmail.com wrote:
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 

Bishop John Hughes, Protestant Public Schools in New York, and Political Activity by Clergy

[Scarberry, Mark]

It seems that Bishop John Hughes in New York endorsed political candidates. 
Apparently he opposed public funding of schools that taught Protestantism 
unless funds were also provided for Catholic schools, as he requested.  When 
the request was denied, he endorsed political candidates who took steps to 
remove religion from NY public schools (New York City, I think, rather than New 
York State, but I could be wrong). My sense is that New York public schools 
(perhaps in NY City or perhaps just elsewhere in the state) continued to (or 
eventually later began again to) promulgate Protestantism, at least of a sort. 

I'd be interested in hearing from list members who oppose clergy political 
activity what they think about this example.

Mark

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


 
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PBS Series God in America -- Opinions on it?

[Scarberry, Mark]

The PBS series God in America -- opinions on its accuracy and quality of 
commentary? Interesting portrayal of George Whitfield (and others) in the first 
episode. 

I wonder how John Leland will be treated (if at all). [Shameless self-promotion 
alert -- John Leland and James Madison: Religious Influence on the Ratification 
of the Constitution and on the Proposal of the Bill of Rights, 113 Penn State 
L. Rev. 733 (2009), http://ssrn.com/abstract=1262520. Download early and often.]

If you have Amazon Prime you can watch it [the PBS documentary, not my article, 
which alas is not available in video format on Amazon] free.

Mark

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


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RE: City subpoenas pastors' sermons in equal rights ordinance case

[Scarberry, Mark]

Perhaps I’m missing something. Does it really matter whether a judge or 
governmental official finds that the proponents misstated or even intentionally 
misrepresented the effect of the proposition? The government is refusing to 
count petitions because a proponent engaged in core political speech to 
persuade people to exercise their political right – a kind of legislative power 
– to sign the petitions? This does not seem to be a case in which the text of 
the proposition on the petitions was misstated, so that the signers were not in 
effect signing the right petition. Will we now refuse to count votes cast in 
favor of a candidate who misled voters about his or her positions or the effect 
of legislation that the legislator voted for? Will we refuse to count votes of 
a legislator who voted in favor of a bill after being given an incorrect 
explanation of what the bill would accomplish? We all know that legislators 
often don’t read bills. What member of Congress actually read the Affordable 
Care Act? This all seems absurd.

Mark

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



From: religionlaw-bounces+mark.scarberry=pepperdine@lists.ucla.edu 
[mailto:religionlaw-bounces+mark.scarberry=pepperdine@lists.ucla.edu] On 
Behalf Of Arthur Spitzer
Sent: Wednesday, October 15, 2014 8:36 AM
To: Law  Religion issues for Law Academics
Subject: Re: City subpoenas pastors' sermons in equal rights ordinance case

Yes, the Trans community definitely believes that people should be able to use 
the restroom they believe is appropriate for themselves.  E.g., 
http://www.lambdalegal.org/know-your-rights/transgender/restroom-faq
Art Spitzer

Warning: this message is subject to monitoring by the NSA.

On Wed, Oct 15, 2014 at 11:03 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   I did a bit of looking, and saw that a Colorado Civil Rights 
Division panel interpreted a ban on “transgender status” discrimination to 
indeed conclude that people (in that case, children) who are biologically male 
but who self-identify as female are legally entitled to use women’s restrooms.  
It thus seems that the claims that the Houston ordinance would have such an 
effect were at least defensible and possibly quite correct, unless I’m missing 
something here.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Allen Asch
Sent: Wednesday, October 15, 2014 7:29 AM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: City subpoenas pastors' sermons in equal rights ordinance case

Regarding your second question, I can tell you from my work as an ACLU activist 
helping  pass/implement the California law allowing equal access to sex 
segregated activities/facilities in schools, AB 1266, that I heard repeatedly 
that AB 1266 clarified but did not change existing California law, Cal Educ 
Code 220, which has similar language to the proposed Houston ordinance. You can 
see the author of AB 1266, Assemblymember Tom Ammiano, make this claim when he 
talked in committee about AB 1266, saying Although current California law 
already protects students from discrimination in education based on sex and 
gender identity, many school districts are not in compliance with these 
requirements. AB 1266 clarifies existing law… See 
https://www.youtube.com/watch?v=DA7r9bVpayQ

Allen

-Original Message-
From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Oct 14, 2014 11:29 pm
Subject: RE: City subpoenas pastors' sermons in equal rights ordinance case
   Got it, thanks very much!  Two questions:

   1.  Isn’t the response arguing that plaintiffs were dishonest in 
the petition itself, not just in public statements about the ordinance?

   2.  Under the ordinance, would employers indeed be able to 
exclude people who are biologically male but who self-identify as female from 
women’s restrooms?  I haven’t thought about this question in the past, and I’d 
love to hear what people know about how such bans on gender identity 
discrimination have been interpreted (or how plaintiffs or activists have 
sought to have them be interpreted).

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu?]
 On Behalf Of Allen Asch
Sent: Tuesday, October 14, 2014 8:29 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: City subpoenas pastors' sermons in equal rights ordinance case

Prof Volokh,

You piqued my interest, so I checked out the City of Houston's Response in 
Opposition to Plaintiff's Request for 

RE: Sixth Circuit reverses hate-crime convictions in Amish hair-cutting case

[Scarberry, Mark]

If we think the jury instructions were incorrect, then I would have trouble 
with a decision upholding the convictions.

I have always been uncomfortable with the notion of harmless error in jury 
instructions in criminal cases. The result is somewhat like granting summary 
judgment in favor of the prosecution. Here’s the harmless error argument, as I 
would characterize it: “If the jury had been given the correct instructions, 
they still would have convicted, because the evidence requires a conviction.”

You don’t have to believe in jury nullification to be concerned about this kind 
of approach. Why not just dispense with the jury at the close of the evidence,  
if a faithful jury could only reach one decision? Send them home, and let the 
court convict the defendant. Of course that would violate the defendant’s right 
to jury trial.

End of rant.

Mark

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 28, 2014 6:41 PM
To: Law  Religion issues for Law Academics
Subject: Re: Sixth Circuit reverses hate-crime convictions in Amish 
hair-cutting case

Yes, thanks, David; that is what I was trying, however inartfully, to convey.

One possible objection to my post might be based on the particular language of 
the Hate Crimes Act.  That Act makes it a crime to “willfully cause bodily 
injury to any person . . . because of the actual or perceived . . . religion . 
. . of [that] person.”

Title VII, by contrast, makes it unlawful to discriminate against any 
individual with respect to his compensation, terms, conditions, or privileges 
of employment, because of such individual's . . . religion

I could imagine someone arguing that discriminate . . . with respect to 
offers more breadth of coverage under Title VII, and that the natural reading 
of the language of the Hate Crimes Act is that it only asks whether the bare 
fact of the defendant causing bodily injury was because of the victim's 
religion, and that the statute simply doesn't address whether religion was a 
but-for cause of the nature of the attack, even where, as here, the attack is 
designed to force the victim to violate his or her most central religious 
precepts, knowing that the religious injury will be especially injurious to the 
victim.  Even so, I think the HCA can fairly be read to prohibit discrimination 
not only in the on-off choice of whether to cause bodily injury, but also in 
the choice to inflict a particular type of bodily injury -- a reading that 
makes much more sense, I think, given the objectives of the law.  It's hard to 
imagine that Congress would not have considered this a core case that causes 
precisely the sorts of specialized harms that it wanted to prevent.

On Thu, Aug 28, 2014 at 9:01 PM, David Cruz 
dc...@law.usc.edumailto:dc...@law.usc.edu wrote:
Marty’s blog contribution says:

“In other words, the majority is of the view that where someone decides to 
assault someone else for nonreligious reasons--where, in the majority's words, 
a nonreligious ground was the motive for the assault--but specifically chooses 
to physically force the victims to violate their religious precepts as a way of 
hurting them in a fundamental way that a mere ordinary assault could not, the 
victims' religion is not a but-for cause of the bodily injury.”

Would another way of putting this be the following?:

The majority held that the victims' religion was not proven to be a but-for 
cause of their injury because the defendants had reasons in addition to 
religion to attack them, so that if the victims had not been of the faith they 
were, they might nonetheless have been attacked though in a different fashion.  
So, given the defendants’ multiple motivations, they might have inflicted an 
assault on the victims regardless of the victims’ religion, but in so ruling, 
the majority ignored the assaults that were actually inflicted on the victims, 
which are only [reasonably] explicable as occurring because of the defendants’ 
religion.

Would that be fair?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Thursday, August 28, 2014 at 3:53 AM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Sixth Circuit reverses hate-crime convictions in Amish hair-cutting 
case

My take on it:

http://balkin.blogspot.com/2014/08/disturbing-reversal-of-hate-crime.html

I'm curious whether others are as troubled by this decision as I am -- and 
whether I've overlooked any other justification for the majority's reasoning.

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To post, send 

Re: Administration to ‘Augment’ ACA Contraceptive Rules

[Scarberry, Mark]

I don't know exactly how this works, but if you can't in some way be part of a 
negotiated rate group, medical costs would be very high. I'll get a $300 bill 
for lab work that Anthem cuts down to $20. We've all seen the stories about the 
outrageous sticker prices charged by hospitals to individuals who aren't 
insured (or otherwise covered by some sort of negotiated rate program).
Could a negotiated rate network be set up without it being an insurance program 
that would be subject to ACA minimum standards? Then it might be possible for a 
decent-sized company to self insure.

But I don't know much about how this works.

If the only way to provide coverage consistent with faith commitments is to 
self-insure without having access to such a program, that would seem to create 
a large burden.

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Aug 22, 2014, at 4:54 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Two points in response:

First, perhaps I should have been clearer:  This is merely a responsive, or 
defensive, point on behalf of the government.  In several cases, such as the 
Priests for Life case currently pending in the DC Circuit, it has been some of 
the plaintiffs who complain that the accommodation imposes a burden because it 
allegedly requires them to refrain from canceling an insurance arrangement 
with a third party authorized to provide the mandated coverage.  Similarly, at 
least one district judge ruled against the government in part on the ground 
that the regulations impose “a duty upon the religious organization to contract 
with a willing third-party administrator that will arrange for the payments for 
contraceptives.”  The court stated that, in its view, “the obligation to take 
affirmative steps to identify and contract with a willing third-party 
administrator if the existing third-party administrator declines forces the 
religious organization to do something to accomplish an end that is inimical to 
its beliefs.”

The government responded, quite reasonably, that the regulation does no such 
thing:  If you want to go it alone, without a TPA, you can go right ahead.  
There is no duty to contract with a third-party administrator that will arrange 
for the payments for contraceptives.

Second, the government has not adopted the view that going it alone would be 
impracticable.  It merely noted that no employers do so.  And for good reason 
-- why would anyone choose that option, when employees are typically not as 
competent and trained as insurance company personnel at administering a plan?  
If it's marginally more efficient to hire a TPA, then presumably everyone would 
do so.

But this does not mean that it would be so extraordinarily burdensome to handle 
it in-house -- after all, employees often administer payroll and other unwieldy 
programs for organizations.  I can imagine that it's marginally more expensive 
or less efficient to do it in-house, which is why no one does so.  But if an 
employer truly cared about its alleged religious duties, and this was an easy 
way to avoid so-called complicity, one would think that bearing a modest cost 
such as bringing the insurance administration in-house would not be such a 
prohibitive burden to bear.  Indeed, if an employer were more willing to 
violate its religious precepts than to train some employees to administer an 
insurance plan, that might well tell us something about the importance to the 
employer of those religious tenets.



On Fri, Aug 22, 2014 at 6:50 PM, Kniffin, Eric N. 
eknif...@lrrlaw.commailto:eknif...@lrrlaw.com wrote:
Marty,

The government does not believe that your third option is practicable. See 78 
Fed Reg 39880:

“Although some commenters addressed the solicitation for comments on whether 
and how to provide an accommodation for self-insured group health plans 
established or maintained by eligible organizations that do not use the 
services of a third party administrator, no comments indicated that such plans 
actually exist. Accordingly, the Departments continue to believe that there are 
no self-insured group health plans in this circumstance.”

This is an option so unattractive, so expensive, so burdensome that nobody is 
doing it.

Eric

Eric N. Kniffin, Attorney
Admitted in Illinois  District of Columbia,
Not Admitted in ColoradoLewis Roca Rothgerber LLP | 90 S Cascade Ave Suite 1100 
| Colorado Springs, CO 80903-1662(T) 719.386.3017tel:719.386.3017 | (F) 
719.386.3070eknif...@lrrlaw.commailto:719.386.3070eknif...@lrrlaw.com | 
www.LRRLaw.comFrom:http://www.LRRLaw.comFrom: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, August 22, 2014 4:32 PM
To: Law  Religion issues for Law Academics
Subject: Re: Administration to ‘Augment’ ACA Contraceptive Rules

You've got those basically correct, Doug:

In order to prevail, 

Re: Question about the President's executive order on sexual orientation discrimination

[Scarberry, Mark]

Here's a test case. A religious organization only allows members of one race to 
be members, based on its view that God rejects all others. It then hires only 
co-religionists. Does that fall within the exemption under Title VII? Under 
the EO?

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 23, 2014, at 2:43 PM, Nelson Tebbe 
nelson.te...@brooklaw.edumailto:nelson.te...@brooklaw.edu wrote:




I think Marty has the better argument here. The exemptions to the EO and Title 
VII allow certain religious organizations to favor co-religionists in hiring, 
but that exemption does not allow them to discriminate on prohibited grounds, 
even if they do so based on religious belief. Boyd is not to the contrary -- 
that case involved discrimination based on religiously-prohibited conduct, 
namely sexual activity outside marriage, not discrimination on the basis of 
sex. Similarly, Little v. Wuerl involved someone who was fired for a divorce 
and remarriage, not for being a woman (rather than a man) who divorced and 
remarried (outside the rules of the faith).

Cases where the religious organization wanted to discriminate on prohibited 
grounds, even pursuant to a religious belief, have come out the other way. See, 
e.g., EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1364-67 (9th Cir. 1986) 
(church owned school violated Title VII by providing health insurance to 
married men but not married women, even though such discrimination reflected a 
religious belief that only married men can be heads of households).

Now that sexual orientation is a prohibited ground under the EO, a religious 
organization could not discriminate on the basis of sexual orientation even for 
religious reasons. Nor could it discriminate on the basis of activity that is 
correlated with sexual orientation, I would think. See  Lawrence v. Texas, 539 
U.S. 558, 575 (2003) (O'Connor, J., concurring) (“[T]he conduct targeted by 
this law is conduct that is closely correlated with being homosexual. Under 
such circumstances, [the] law is targeted at more than conduct. It is instead 
directed towards gay persons as a class.”); Elane Photography v. Willock,  309 
P.3d 53, 61 (N.M. 2013). ([t]o allow discrimination based on conduct so 
closely correlated with sexual orientation would severely undermine the purpose 
of [New Mexico’s antidiscrimination law].). I admit there is room for argument 
in the cases on this point, though, and we can expect litigation on it.

Nelson

On Jul 23, 2014, at 4:48 PM, Kniffin, Eric N. 
eknif...@lrrlaw.commailto:eknif...@lrrlaw.com wrote:

Marty is correct: Monday’s executive order leaves Section 204—the religious 
exemption Bush added in 2002—as is. The tweaks to the existing order are minor: 
 in the only four places where the phrase “sex or national origin” appears 
(three times in 202 and once in 203), that phrase is amended to read “sex, 
sexual orientation, gender identity, or national origin.” That’s it.

However, I take issue with Marty’s statement that Title VII and the executive 
order do not “give the organization the right, even on religious grounds, to 
discriminate on the basis of sex, or race, or sexual orientation. . . .”  
That’s not the law.  Marty’s linked text (p.32) cites Boyd v. Harding Acad. of 
Memphis, Inc., 88 F.3d 410 (6th Cir. 1996), where a court upheld a religious 
school’s decision to fire an unmarried pregnant teacher.

The school won because the term “religion” in the Title VII is interpreted 
broadly, to include “all aspects of religious observance and practice, as well 
as belief.” 42 U.S.C. § 2000e(j). This allows a qualifying religious entity to 
evaluate employees based not only on what they believe, but also whether they 
act in conformity with those beliefs. See Hall v. Baptist Mem’l Health Care 
Corp., 215 F.3d 618, 624 (6th Cir. 2000); Little v. Wuerl, 929 F.2d 944, 951 
(3d Cir. 1991). Thus, the “religion” exemption protects a religious 
organization’s right to exclude employees based on conduct that both (1) 
expresses one’s sexual orientation and gender identity and (2) violates the 
church’s moral teachings.

Practically speaking, such organizations have to answer plaintiffs’ charges 
that the adverse decision was not based on “religion” but on prohibited bases. 
That is why religious employers should be prepared to demonstrate that they 
have applied behavioral standards evenhandedly.  For example, the court in Boyd 
might well have upheld the pregnant teacher’s sex and pregnancy discrimination 
if the school had not been able to show that it had previously fired male and 
female employees for premarital sex, even when no pregnancy resulted. 88 F.3d 
at 412, 414.

Eric

image001.gif

Eric N. Kniffin, Of Counsel

Lewis Roca Rothgerber LLP |

90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662

(T) 719.386.3017 | (F) 719.386.3070

eknif...@lrrlaw.commailto:eknif...@lrrlaw.com | 
www.LRRLaw.comhttp://www.lrrlaw.com/

Re: Hobby Lobby, Wheaton College, and the disputed issues in the upcoming cases challenging the government's religious accommodation

[Scarberry, Mark]

As usual, Marty provides a very helpful explanation of the big picture and the 
details. I have to take issue, though with two of his points (and need to think 
more about some of his other points.

First, he says that the Court in Hobby Lobby accepted the govt's claim that 
provision of the objectionable services would not increase costs, due to the 
decrease in pregnancies.

The Court does say that

Although this procedure requires the issuer to bear the cost of these 
services, HHS has determined that this obligation will not impose any net 
expense on issuers because its cost will be less than or equal to the cost 
savings resulting from the services.

I don't think the Court determined that HHS is right. As I've argued before, 
the study on which HHS relied was very poorly done, and treats the empirical 
data on which it purports to rely in such a shoddy manner that it is hard to 
believe that it represents an attempt to determine this matter objectively. 
This is particularly the case with regard to the requirement that all FDA drugs 
and other means be covered, only some of which are objected to by some 
claimants. In any event, that statement, in context, may simply be part of the 
explanation why HHS granted exemptions that undermined its claim that there was 
not another way to provide the drugs and services.

Second, he says that Form 700 (which HHS requires objectors to use) doesn't 
instruct the Third Party Administrator to provide the drugs, etc. that are 
objectionable. He says (if I understand him correctly) that it only tells the 
TPA to look at the HHS regs, and does not tell the TPA that it has a duty to 
comply with them or otherwise make the objector complicit. Yet it actually does 
tell the TPA that it has the *duty* (obligations) to comply, and it makes the 
form 700 *part of the objector's plan documents* by making it an instrument 
under which the plan is operated. Both of those statements make the objector 
complicit, and neither is necessary to further the govt's interest. To the 
extent that ERISA regs must be changed to permit coverage without use of the 
form, HHS can change the regs (or the form). To the extent the burden is 
imposed statutorily by ERISA, Congress can change it (without requiring any 
spending). Congress is part of the govt that has imposed the burden, and 
Congress is in a position to implement a narrower means. If Congress chooses 
not to, then it has decided under RFRA not to require the objectors to bear the 
burden.

I've set out the back of the form below. It may make this post large enough 
that I'll have to approve it manually. If list members would delete it when 
they respond, and only quote relevant language, that would make my life easier, 
as list moderator.

Mark

Mark S. Scarberry
Pepperdine University School of Law


The organization or its plan must provide a copy of this certification to the 
plan’s health insurance issuer (for insured health plans) or a third party 
administrator (for self-insured health plans) in order for the plan to be 
accommodated with respect to the contraceptive coverage requirement.

Notice to Third Party Administrators of Self-Insured Health Plans

In the case of a group health plan that provides benefits on a self-insured 
basis, the provision of this certification to a third party administrator for 
the plan that will process claims for contraceptive coverage required under 26 
CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes 
notice to the third party administrator that the eligible organization:

(1) Will not act as the plan administrator or claims administrator with respect 
to claims for contraceptive services, or contribute to the funding of 
contraceptive services; and

(2) The obligations of the third party administrator are set forth in 26 CFR 
54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A

This certification is an instrument under which the plan is operated.


Sent from my iPad

On Jul 18, 2014, at 11:48 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

For those of you who have nothing better to do this weekend, allow me to offer 
a rather dry and detailed effort to explain what the issues will be in the 
cases going forward:

http://balkin.blogspot.com/2014/07/unpacking-forthcoming-rfra-challenges.html
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Re: Hobby Lobby, Wheaton College, and the disputed issues in the upcoming cases challenging the government's religious accommodation

[Scarberry, Mark]

Sorry. My post was sent to both the conlawprof and religionlaw lists. I should 
have made clear that I'm only moderator of the conlawprof list, not of Eugene's 
religionlaw list.

Mark

Sent from my iPad

 On Jul 18, 2014, at 1:44 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:
 
 As usual, Marty provides a very helpful explanation of the big picture and 
 the details. I have to take issue, though with two of his points (and need to 
 think more about some of his other points.
...

Mark

Mark S. Scarberry
Pepperdine University School of Law

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Separate the list threads: Re: Hobby Lobby, Wheaton College, etc.

[Scarberry, Mark]

A few posts ago this thread started being addressed to both the conlawprof and 
religionlaw lists. I couldn't tell which list the posts were coming from, so 
I'm splitting the thread. This post is only going to religionlaw. In a minute 
I'll send one only to conlawprof. Please  don't put both lists in the To or 
Cc lines of any more posts. If you want to post to both, please do so 
separately. Thanks!

Mark Scarberry
(Conlawprof moderator)


Sent from my iPad

On Jul 18, 2014, at 2:18 PM, Eric J Segall 
eseg...@gsu.edumailto:eseg...@gsu.edu wrote:

I'm glad to hear that Jonathan!

Perhaps the key word in his other response was supported, but that really 
wasn't my point. The legal machinations over the form strike me as absurd and 
suggest other motivations.

Best,

Eric



Sent from my iPhone

On Jul 18, 2014, at 5:06 PM, Jonathan Adler 
j...@case.edumailto:j...@case.edu wrote:


I wouldn't challenge a revised form, whether revised by Congress or HHS, just 
like I havent challenged this form our the contraception mandate.  Eric forgets 
that many of those challenging the contraception mandate or the accommodation 
supported passage of the ACA.

On Jul 18, 2014 4:59 PM, Eric J Segall 
eseg...@gsu.edumailto:eseg...@gsu.edu wrote:

Mark says: To the extent that ERISA regs must be changed to permit coverage 
without use of the form, HHS can change the regs (or the form). To the extent 
the burden is imposed statutorily by ERISA, Congress can change it (without 
requiring any spending). Congress is part of the govt that has imposed the 
burden, and Congress is in a position to implement a narrower means.


Mark, we know Congress will not in any forseeable future change the form and if 
HHS does someone like Jonathan Adler would likely challenge it on some basis 
and some judge somewhere opposed to the ACA may well agree.


Sorry to be so cynical but the hairs we are splitting here on when a form is 
allowable or not is, in my humble opinion, absurd when what this is all about 
is bringing down the ACA (not your motivation but that of the litigants and the 
anti-ACA law professor folks).


Best,


Eric



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Only to religionlaw -- Re: Hobby Lobby, Wheaton College, etc.

[Scarberry, Mark]

I refuse to accept the notion that a less restrictive means is unavailable 
because the govt refuses to use it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 18, 2014, at 1:58 PM, Eric J Segall 
eseg...@gsu.edumailto:eseg...@gsu.edu wrote:


Mark says: To the extent that ERISA regs must be changed to permit coverage 
without use of the form, HHS can change the regs (or the form). To the extent 
the burden is imposed statutorily by ERISA, Congress can change it (without 
requiring any spending). Congress is part of the govt that has imposed the 
burden, and Congress is in a position to implement a narrower means.


Mark, we know Congress will not in any forseeable future change the form and if 
HHS does someone like Jonathan Adler would likely challenge it on some basis 
and some judge somewhere opposed to the ACA may well agree.


Sorry to be so cynical but the hairs we are splitting here on when a form is 
allowable or not is, in my humble opinion, absurd when what this is all about 
is bringing down the ACA (not your motivation but that of the litigants and the 
anti-ACA law professor folks).


Best,


Eric


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RE: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.?

[Scarberry, Mark]

Perhaps an initial question is the scope of the proposed regulations. The 
government has pushed “harassment” and “hostile work environment” definitions 
pretty hard. If a manager of a religiously-affiliated charity that had a 
federal contract to provide social services, let’s say food for the homeless, 
openly expressed the view that same-sex sexual conduct is immoral, could that 
be the basis for suit, or perhaps, in this context, for denial of a government 
contract? (One online anti-harassment training program – that employees of a 
religiously-affiliated institution in California were required to take – 
included a suggestion that an employee should be reported to the equal 
opportunity officer if he or she made a mildly disparaging comment about the 
movie Brokeback Mountain – “The studios should make movies about more important 
issues.”)

A more important question is the extent of the requested exemptions. It appears 
that the requested exemptions would be limited to faith-based organizations. 
See the excerpt from the NY Times story set out below my signature line. The NY 
Times story’s reference to Hobby Lobby seems out of place and perhaps 
misleading. Here is a link to the letter: 
http://apps.washingtonpost.com/g/documents/local/letter-to-obama-from-faith-leaders/1072/.
 According to the letter, the requested exemptions are “comparable” to the 
exemptions included in the version of ENDA that passed the Senate.

Even with regard to for-profit companies: If a gay employee was discharged, 
would the religious views of the employer or of a supervisor be admissible as 
evidence tending to show bias as a motivation for the discharge? I’m not sure 
what the law is in other anti-discrimination contexts; would membership in a 
religious group that thought women should not work outside the home be 
admissible in a suit for sex discrimination in employment? Is there a 
practicable and fair way to exclude evidence of such religious views or 
religious expression? But again, it appears that the requested exemption only 
would cover faith-based organizations.

We all know that employers tend to be very risk averse. Would employment 
applications, and promotion reviews, include consideration of religious views 
with regard to same-sex sexual conduct? There are reports that JP Morgan Chase 
may ask employees to fill out non-anonymous surveys that include a question 
about whether the employee is “[a]n ally of the LGBT community,” whatever that 
may mean. See 
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/06/brendan-eich-was-only-the-beginning-.html;
 
http://www.washingtontimes.com/news/2014/jul/3/chase-bank-surveys-workers-see-if-theyre-ally-lgbt/.

There is another issue, not dealing with exemptions or with the substance of 
the issue, but dealing with separation of powers and the assertion of executive 
authority. Congress rejected ENDA. May the President impose it on a 
not-insubstantial segment of the economy? Perhaps the answer is a clear yes, 
under federal contracting law, but some of us think the President already is 
asserting executive power in very troubling ways.

Mark

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

Excerpt from NY Times story, 
http://www.nytimes.com/2014/07/09/us/faith-groups-seek-exclusion-from-bias-rule.html?hpaction=clickpgtype=Homepageversion=HpSummodule=first-column-regionregion=top-newsWT.nav=top-news_r=2:

“In a July 1 letter to Mr. Obama sent the day after the Hobby Lobby case was 
decided, leaders of religious groups wrote that ‘we are asking that an 
extension of protection for one group not come at the expense of faith 
communities whose religious identity and beliefs motivate them to serve those 
in need.’

“The effort behind the letter was organized by Michael Wear, who worked in the 
White House faith-based initiative during Mr. Obama’s first term and directed 
the president’s faith outreach in the 2012 campaign. The letter, which called 
for a ‘robust religious exemption’ in the planned executive order, was also 
signed by the Rev. Larry Snyder, the chief executive of Catholic Charities 
U.S.A.; Rick Warren, the pastor of Saddleback Church, who delivered the 
invocation at Mr. Obama’s first inauguration; and Stephan Bauman, president of 
World Relief, an aid group affiliated with the National Association of 
Evangelicals.

“Mr. Wear, who calls himself an ‘ardent supporter’ of the president and a 
backer of gay rights, said in an interview on Tuesday that the rationale of the 
organizations was to maintain the rights they have. ‘We’re not trying to 
support crazy claims of religious privilege,’ he said.”

[end of excerpt]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, July 09, 2014 8:46 AM
To: Law  Religion issues for Law Academics
Subject: What's at stake in the debate over the forthcoming LGBT 
nondiscrimination E.O.?

The Times reports that the 

Net costs of contraception -- flawed HHS report per NYT piece

[Scarberry, Mark]

I noted in a prior post that the govt's position (that the required 
contraception coverage was cost neutral or would save insurance companies 
money) was based on a very flawed report. The govt argued that employers 
wouldn't be paying for it, because there would be no higher premiums due to the 
coverage, because it would save insurance companies money. The report was so 
shoddily prepared that it seemed to be advocacy rather than honest analysis.

Now a  health economist has pointed out the flaws, in a NYT piece:

http://www.nytimes.com/2014/07/10/upshot/does-contraceptive-coverage-pay-for-itself.html?hpaction=clickpgtype=Homepageversion=HpSummodule=second-column-regionregion=top-newsWT.nav=top-news

It's no wonder that some people find HHS less than trustworthy and candid in 
these matters.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad
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RE: What's at stake in the debate over the forthcoming LGBT nondiscrimination E.O.?

[Scarberry, Mark]

Paul,

As usual, you’ve managed to misunderstand me. If I get a chance, I’ll respond 
later today. Meanwhile I’ll just say that your interpretation of what I said is 
not reasonable, as you should have known.

Mark

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


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Wednesday, July 09, 2014 11:47 AM
To: Law  Religion issues for Law Academics
Subject: Re: What's at stake in the debate over the forthcoming LGBT 
nondiscrimination E.O.?

What's at stake is the basic civil rights for millions of American who are 
fired, or never hired, for what they do in private and what they do outside the 
workplace.

These are not much different than the arguments in the 1950s and 1960s that 
integration violated God's laws.  Bob Jones University is best known only 
because it ended up in the Supreme Court, but these arguments were made quite 
frequently.

The comment about the movies I suppose would be this:  Hollywood makes stupid 
movies about stupid things all the time.  Hollywood makes movies about 
unimportant things all the time.  So isn't the issue this:  if you only 
criticize movies that deal with gay issues, and you do it as a kind of 
harassment -- as opposed to a serious discussion of movies --  and you do it in 
front of colleagues you know are gay only to annoy them or harass them -- then 
perhaps it is harassment.  If you discuss movies at work all the time, then it 
might not be.

It strikes me as religious discrimination to assume that people who are 
religiously hostile to people because they are gay would necessarily 
discriminate against them.  But, it would also be discrimination if someone is 
fired because the boss believes being gay is sinful.

Since Christians believe that we are sinners, if the devout person fires 
someone for being gay or transgender (they are very different things) isn't 
that discrimination because they haven't fired all the other sinners, including 
themselves.

Mark, you seem to be arguing that people can use religion to discriminate 
against anyone who they think is immoral.  How far are you going to take that?

Paul Finkelman

From: Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Wednesday, July 9, 2014 1:20 PM
Subject: RE: What's at stake in the debate over the forthcoming LGBT 
nondiscrimination E.O.?

Perhaps an initial question is the scope of the proposed regulations. The 
government has pushed “harassment” and “hostile work environment” definitions 
pretty hard. If a manager of a religiously-affiliated charity that had a 
federal contract to provide social services, let’s say food for the homeless, 
openly expressed the view that same-sex sexual conduct is immoral, could that 
be the basis for suit, or perhaps, in this context, for denial of a government 
contract? (One online anti-harassment training program – that employees of a 
religiously-affiliated institution in California were required to take – 
included a suggestion that an employee should be reported to the equal 
opportunity officer if he or she made a mildly disparaging comment about the 
movie Brokeback Mountain – “The studios should make movies about more important 
issues.”)

A more important question is the extent of the requested exemptions. It appears 
that the requested exemptions would be limited to faith-based organizations. 
See the excerpt from the NY Times story set out below my signature line. The NY 
Times story’s reference to Hobby Lobby seems out of place and perhaps 
misleading. Here is a link to the letter: 
http://apps.washingtonpost.com/g/documents/local/letter-to-obama-from-faith-leaders/1072/.
 According to the letter, the requested exemptions are “comparable” to the 
exemptions included in the version of ENDA that passed the Senate.

Even with regard to for-profit companies: If a gay employee was discharged, 
would the religious views of the employer or of a supervisor be admissible as 
evidence tending to show bias as a motivation for the discharge? I’m not sure 
what the law is in other anti-discrimination contexts; would membership in a 
religious group that thought women should not work outside the home be 
admissible in a suit for sex discrimination in employment? Is there a 
practicable and fair way to exclude evidence of such religious views or 
religious expression? But again, it appears that the requested exemption only 
would cover faith-based organizations.

We all know that employers tend to be very risk averse. Would employment 
applications, and promotion reviews, include consideration of religious views 
with regard to same-sex sexual conduct? There are reports that JP Morgan Chase 
may ask employees to fill out non-anonymous surveys that include a question

RE: Hobby Lobby Question

[Scarberry, Mark]

Sandy,

Many people think millions of innocent babies have been intentionally killed. 
It is nearly intolerable that a government would allow private persons to do 
this (putting the child outside the protection of the law), and unthinkable 
that a court would prevent the people from acting through the other branches of 
government to stop it.

Once the government sets up a program of paying for mass abortion, many people 
will think that the government is too evil to be treated as legitimate. 
Resistance of various kinds would become morally permissible or even required.

You asked how this could be distinguished from use of tax money for unjust wars 
and for propping up terrible foreign regimes:

We have seen that when we try to replace terrible regimes abroad with better 
ones, we sometimes only make things worse. Did the Shah do bad things? Of 
course. Did our pressuring the Shah to allow Khomeini to return improve the 
situation? The question answers itself.

Even in wars that many of us may think unnecessary and unjust, our forces 
generally do not have a policy of intentionally killing innocent noncombatants. 
We all know that there will be disagreements about which wars need to be 
fought, and how they should be fought. The vast majority of Americans are not 
thoroughgoing pacifists; we know that we do need armed forces and that they 
will sometimes need to be sent to war. But when soldiers intentionally kill 
innocent noncombatants - not as an unwanted  but unavoidable side-effect but 
intentionally - we want the perpetrators to be prosecuted. When the victims are 
innocent young children, we want even harsher punishment of the perpetrators.

Abortion is an intentional killing of the fetus/unborn child. Only rarely can 
the death be seen as an unwanted  side effect. (Ectopic pregnancies may be an 
exception.)

Yet if the government - our government, using resources taken from us - starts 
paying doctors to kill innocent children? What would you do, Sandy, if the 
government paid for vans to pick up unwanted children and kill them? Resistance 
to paying taxes would probably be the mildest reaction you would have. This may 
be too foreign to you for it to be understandable, but that is how millions of 
Americans would feel about massive levels of government funded abortions (or 
even less-than-massive levels).

It's hard for me to believe that those who are strongly pro-life really think 
in their gut that an early abortion is the same as the murder of an innocent 
child. If they did, they would refuse to tolerate such mass murder, and we 
would already have a civil war; or at least we would unless the pro-life forces 
were convinced that violence would lead to an even worse Hobbesian war of all 
against all. Perhaps Christian teachings about non-violence or respect for 
authority help to constrain what could otherwise be violent actions taken in 
defense of innocent human life. There is occasional violence, but nothing like 
what would happen if there were vans going around picking up children and 
killing them, all  under police protection. We would get out our hunting 
rifles. (Actually, I'd go out and buy one, if they were available.)

Now, the later the abortion, the more like child murder it becomes (even for 
those who believe intellectually that all abortions are the same),  and the 
stronger the reaction; that explains why, if I'm correct, the violence tends to 
be against doctors who perform late term abortions that many people see as 
being little different from infanticide. Even then, almost all pro-life people 
reject violence.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 7:45 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

Mark may well be right, but why would a clearly constitutional single payer 
system elicit such disobedience (and arguments about complicity) but the 
funding of deeply immoral wars and complicity with a number of terrible regimes 
do not?  This is meant as a serious question. Abortion has become like the 
Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of 
the Seven Years War, but  (we now know) the trigger for the American 
Revolution.  Or is the better analogy to slavery, where compromise was 
ultimately impossible (for better or worse)?

Sandy

Sent from my iPhone

On Jul 6, 2014, at 4:14 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
And then we would have massive resistance that would make our largely voluntary 
tax system unworkable and create civil division at extreme levels.

Think, as mentioned at AALS, peasants with pitchforks.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

 Original message

IRS QA on employers who drop coverage and instead pay for policies obtained by employees

[Scarberry, Mark]

I noted before the possibility that there may be new rules that would make it 
very difficult for employers to drop insurance coverage. Marty said that he 
didn't know of any such initiative. He may be right. Here is the development 
that I had heard of.

There is an IRS QA from this year suggesting that a $36,500 per employer per 
year fine could be imposed on employers who drop coverage and instead provide 
employees money to buy their own health insurance policies:

http://www.irs.gov/uac/Newsroom/Employer-Health-Care-Arrangements

This may not as draconian as initial reports suggested, so perhaps Marty is 
right. Warning: I am not a tax prof!!!

The penalty may apply only if the money is provided pre-tax such as through a 
health savings account; I believe payment of premiums from HSAs is currently 
permitted (though HSAs are limited to $2,500 per year). There is some 
indication that there is a risk even if the money is provided on a post-tax 
basis if it is earmarked for payment of premiums. See 
http://www.swlaw.com/blog/employee-benefits/2014/06/11/the-irs-meant-what-it-said-in-notice-2013-54-employers-who-pay-for-individual-health-insurance-policies-for-employees-on-a-pre-tax-basis-face-massive-penalties/
 (After-tax arrangements to pay for individual health insurance policies 
appear to be permissible, but employers who pay for individual health insurance 
policies on an after-tax basis must be careful that they fall within the 
Department of Labor’s voluntary plan safe harbor.)

Mark

Mark S. Scarberry
Pepperdine University School of Law



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RE: Untangling the confusion of the Wheaton College order

[Scarberry, Mark]

Perhaps I misunderstood Marty's brief response, to the effect that I should 
read his post. I took that to mean that all would be clear if I just bothered 
to read again the post to which I was responding. Perhaps instead he meant that 
I should read a post he made on the Balkinization blog; if so, then my 
apologies for taking offense and responding as I did.

Mark Scarberry


Sent from my Verizon Wireless 4G LTE Smartphone
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RE: Extent of Wheaton College's Objection

[Scarberry, Mark]

 
understanding of what constitutes a religious question beyond the ken of 
civil authorities to evaluate.

On Sat, Jul 5, 2014 at 2:49 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
Perhaps I misunderstood Marty's brief response, to the effect that I should 
read his post. I took that to mean that all would be clear if I just bothered 
to read again the post to which I was responding. Perhaps instead he meant that 
I should read a post he made on the Balkinization blog; if so, then my 
apologies for taking offense and responding as I did.

Mark Scarberry


Sent from my Verizon Wireless 4G LTE Smartphone

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Re: Hobby Lobby Question

[Scarberry, Mark]

Maybe this is a constitutional fact, like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 1, 2014, at 8:30 AM, Vance R. Koven 
vrko...@gmail.commailto:vrko...@gmail.com wrote:

I have (perhaps incorrectly) assumed that when the Court says *it* should not 
get involved in judging the sincerity of a religious belief, it is expressing 
the proper division of labor between a court and the finder of fact. It should 
be up to the jury (or the court wearing a fact-finder hat) to decide whether 
the belief is sincerely held or not. A trial court can easily enough instruct a 
jury to disregard whether they think the religious belief is kooky; but it's 
perfectly acceptable based on the credibility of the witnesses and direct and 
circumstantial evidence for a jury to ascertain whether the claimed religious 
belief is real or bogus.

I have often suspected that doctrine in religious liberty cases has become 
quite twisted over time by courts' reluctance to let juries do what they're 
supposed to do.


On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer 
artspit...@gmail.commailto:artspit...@gmail.com wrote:
I appreciate Steve's response, which I think demonstrates that he is precisely 
rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' 
beliefs.  The plaintiffs say that their religious beliefs prohibit complicity 
with evil, and that signing a contract that makes available certain chemicals 
or devices to others amounts to complicity with evil, because of the use to 
which such chemicals or devices are most likely to be put (terminating what 
plaintiffs believe is a human life).

If a court should not accept that assertion without inquiry, then what 
inquiry is it supposed to make?

Can a court evaluate and reject the religious belief that complicity with evil 
is sinful?

Can a court evaluate and reject the religious belief that terminating a human 
life is evil?

Can a court evaluate and reject the religious belief that morning-after pills 
terminate a human life?

Can a court evaluate and reject the religious belief that providing the means 
for a person to obtain a chemical or device whose principal purpose is to 
terminate a human life, and that is likely to be used for that purpose, counts 
as complicity in terminating a human life?

Is there some other inquiry the court should be making that I'm missing?

Art Spitzer
PS - My questions should not be taken to imply that I necessarily agree with 
the majority opinion (not that anyone cares), and they certainly do not 
represent the views of my employer.



Warning: this message is subject to monitoring by the NSA.






--
Vance R. Koven
Boston, MA USA
vrko...@world.std.commailto:vrko...@world.std.com
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RE: Little Sisters question

[Scarberry, Mark]

One problem is that the text of the HHS required notification form appears to 
instruct the administrator to obtain the coverage or at least to tell the 
administrator that it has an obligation to obtain the coverage. Thus, the S. 
Ct. allowed the Little Sisters to give notice without using the form, if I 
understand this correctly. (I think Marty disagrees with this 
characterization.) If the employer simply had to notify the government of its 
refusal to provide the coverage, then there would be less of an objection 
(though I understand that some religious groups would still object due to the 
triggering effect of the giving of the notice).

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, July 01, 2014 12:09 PM
To: Law  Religion issues for Law Academics
Subject: Little Sisters question

Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever else 
might object to the certification requirement (including, I guess, Hobby Lobby, 
if the agency takes the Court's invitation to offer a similar accommodation to 
for-profits. (As has been noted, the Hobby Lobby decision may not make such a 
future holding likely, but it certainly does not foreclose the possibility.)

What could the government then do to ensure coverage of these forms of 
contraception (short of covering them directly, which seems politically 
untenable)?

Four example, could it promulgate a rule as follows:

 *   An employer that declines to provide such coverage for religious reasons 
must alert employees;
 *   any employee may then file a form with the federal government (or the 
insurance company) attesting that the employer's plan will not cover the 
relevant contraception;
 *   this notification from any employee then triggers the requirement that the 
insurance company provide coverage at no cost to all employees covered by the 
plan.
Would this satisfy these religious employers? The difference between this and 
the current certification regime is that the employer doesn't file anything 
with the government; it merely provides information to the employees. Any 
employee can then decide what to do with that information--i.e. whether or not 
to file for coverage.

I understand that this imposes an additional burden on at least one employee at 
the company to file the form. (And this rule is not what I'd prefer.) But as a 
practical matter, it would provide an avenue for the contraceptive coverage, 
and I imagine that some watchdog group could help employees navigate this.





--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edumailto:hle...@uga.edu
hillelle...@gmail.commailto:hillelle...@gmail.com
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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RE: Hobby Lobby Question

[Scarberry, Mark]

With regard to Sandy’s comment that there isn’t a chance in hell of getting 
funding from Congress to cover these methods of contraception:

Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?

On the question whether govt funding may be a less restrictive means:

The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means – less 
restrictive of religious liberty – than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43:

“The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers’ religious objections. … It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. … If, as HHS tells us, providing all women with cost-free access to all 
FDA-approved methods of contraception is a Government interest of the highest 
order, it is hard to understand HHS’s argument that it cannot be required under 
RFRA to pay anything in order to achieve this important goal.
 “We do not doubt that cost may be an important factor in the 
least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, 
may in some circumstances require the Government to expend additional funds to 
accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his 
chapter may require a government to incur expenses in its own operations to 
avoid imposing a substantial burden on religious
exercise.’). HHS’s view that RFRA can never require the Government to spend 
even a small amount reflects a judgment about the importance of religious 
liberty that was not shared by the Congress that enacted that law.”

Mark

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 12:28 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

This is a good question.  AS I read the opinion it tends to rely on the fact 
that the insurance providers will be required to provide the coverage “for 
free” (given that it will overall cost less to cover than would pregnancies), 
so that the government must allocate not a single new penny.  If, on the other 
hand, a new appropriation, even of a penny, would be necessary, then we all 
know that there isn’t a chance in hell of that being voted by Congress.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law  Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edumailto:hle...@uga.edu
hillelle...@gmail.commailto:hillelle...@gmail.com
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Simple Hobby Lobby question

[Scarberry, Mark]

Prof. Greenwood overstates the protection corporation law gives to officers and 
directors from civil liability, whether or not they are shareholders. Apart 
from cases in which the law makes them directly responsible for the 
corporation's obligations (e.g., responsible person liability for unpaid 
withholding taxes), officers and directors generally are, as I understand the 
matter, liable for their own tortious actions even if performed as agents of 
the corporation. That is true for shareholders who actively participate in the 
corporation's activities and who use the corporate form in part for the benefit 
of limited liability. The principle of limited liability protects shareholders 
and officers and directors from liability for the acts of other agents of the 
corporation, but not for their own. The major protection is from liability for 
torts committed by other agents (e.g., the truck driver who negligently runs 
over a pedestrian) and from liability on contracts (though often the other 
party will insist on a personal guaranty of performance, as with many loan 
agreements). For a simple discussion of this from a California point of view, 
see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm.

Of course, the issue here is moral responsibility, not legal responsibility. 
But it's still important to see that the use of the corporate form is not the 
get out of jail free card that it is being portrayed as.

Prof. Greenwood's use of terms like theft and fraud is not helpful in 
moving our discussion forward, nor is his invocation of that boogeyman of the 
law -- Lochner. And the business judgment rule has nothing to do with 
obligations to third parties, as opposed to potential liability to the 
corporation itself and to its shareholders

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Jun 11, 2014, at 1:58 PM, Daniel J. Greenwood 
daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu wrote:


I think this is not a correct statement of corporate law.



The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.)



However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporation, to be sure, is liable for its torts and contracts.  But 
if the default is large enough to leave the corporation insolvent, the victims 
are out of luck.  The shareholders have no obligation to pay corporate 
obligations, to fund the corporation adequately, to replenish its capital or to 
return dividends or other payments it may have made to them in the past 
(assuming they were proper when made).



Moreover, the shareholders, as shareholders, have no responsibility at all for 
the actions of directors they elected or employees the directors hired, even if 
the shareholder knew, or should have know, the directors were acting in 
violation of their fiduciary duties.



The only time the shareholders are legally responsible for the corporation's 
actions is if they disregard corporate form -- for example, by seeking to 
control the corporation in their shareholder role, by extracting funds from it 
in violation of corporate law, or by treating corporate assets as their own.



Similarly, directors ordinarily are also immune from legal responsibility for 
their actions, even if those actions wrong another.  The victims must sue the 
corporation, and the corporation alone.  The corporation would have a 
claim-over against the directors if they violated their fiduciary duty, but 
under the business judgment rule the directors are not liable for ordinary 
negligence or for mistakes of judgment.  More importantly, only the directors 
or the shareholders have standing to bring this suit – so it is irrelevant in a 
closely held corporation where the directors and the shareholders have a 
unified interest.



In short, the primary reason to organize as a close corporation is to avoid 
legal responsibility.



Note that the Greens' decision to adopt 

Re: Divisiveness

[Scarberry, Mark]

Jon,

I think you don't understand, or are ignoring, the point of view of the Hobby 
Lobby parties. They don't object to employees buying what the Hobby Lobby 
parties consider to be abortifacient drugs. I don't think they monitor what 
their employees do with wages or would take any action against employees who 
buy or use such drugs. They object to being required themselves to take an 
action specifically related to abortion -- buying insurance that specifically 
covers the drugs. You might object to buying a gun for an employee, even though 
the recipient would be the one who uses it. You might, if you were a pacifist, 
object to being drafted to serve as an army medic or supply clerk, even though 
you would not be killing anyone but merely be advancing the army's operations. 

I understand that some people object to this characterization, but it doesn't 
move the discussion forward to just assume that it isn't the position taken by 
the objectors in Hobby Lobby.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

 On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote:
 
 There is some authority for not preferring religion over non-religion.
 I do not think religious people should get exemptions reasons not
 connected to the practice of their religion (church services, prayer,
 lighting candles, sacrificing chickens etc.) To me many requests sound
 like I think it is wrong for religious reasons and therefore other
 people should not engage in that behavior.  E.g. I will not pay my taxes
 because taxes pay for killing people.  No one is asking the owners of
 Hobby Lobby to engage in activities that they believe offend their
 religion; they are seeking not to pay employees in such a way that
 certain contraceptives would be covered.  The decision to use or not use
 the contraceptives is the employees'.  One difficulty is that the courts
 are loath to inquire into to the closeness of the connection of the
 claim to the religious belief.  But without limits exemptions will
 become legion.
 
 Exemptions usually involve some unfairness.  That would be mitigated if
 religious exemptions were limited to the actual practice of religion
 rather than attempts to impose beliefs on others through refusing to
 comply with general laws. Smith is a good example and, as we know, does
 not stop you from sacrificing chickens because people in the community
 are offended.  Take it outside the church or home and give exemptions to
 general laws and that will create problems if the exemptions become wide
 enough to make it seem that religious folks have general privileges in
 society that secular folks do not.  Cf. Affirmative action.
 
 I noted previously Scalia's citation (in during oral argument) of the
 overwhelming majority extending the VRA as evidence that the law was not
 carefully considered. During RFRA's passage and thereafter I focused on
 conservatives articulating the issue as one in which the Supreme Court
 disrespected religion, and those on the other side of the spectrum
 articulated the Smith decision as having disrespected constitutional
 rights.  From discussion about Scalia with lawyers and non-lawyers, I
 cannot help thinking that a dislike of Scalia contributed to one side's
 support of RFRA.
 
Jon
 
 
 On 2014-06-09 17:00, Steven Jamar wrote:
 “nones”?
 Huh.  I knew that was a thing, but didn’t really expect to see it
 here.
 
 Steve
 
 On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu
 wrote:
 
 I agree with Alan's statement below, stated better than I did.  I
 would add that we now do/should include the nones within the system.
 
  Jon
 
 On 2014-06-08 22:36, Alan Brownstein wrote:
 If divisive means that people will be upset by a substantive
 decision
 than Eugene is clearly correct. I have always thought the issue was
 whether a decision was one that provoked political divisions along
 religious lines in the sense that if government could promote
 religion
 (or interfere with religion) religious groups would have an
 additional
 incentive to organize and mobilize as religious groups in order to
 make sure that it was their faith that the government promoted and
 that it was not their faith that was subject to government
 interference. Placing a church-state issue beyond the scope of
 political decision-making by subjecting it to constitutional
 constraints avoided (or at least mitigated) these kinds of
 political/religious divisions.
 
 There is probably a better term for this concern than divisiveness.
 
 Alan Brownstein
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 From: religionlaw-boun...@lists.ucla.edu
 [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
 [vol...@law.ucla.edu]
 Sent: Sunday, June 08, 2014 4:54 PM
 To: Law  Religion issues for Law Academics
 Subject: Divisiveness
 
   I agree very much with Tom 

Re: Divisiveness

[Scarberry, Mark]

But are they the beneficial owners of the shares as beneficiaries of the trust?

Sent from my iPad

On Jun 10, 2014, at 11:32 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I didn't say that the Greens are not potentially burden as company directors -- 
indeed, that's exactly what I've argued the case is about, rather than being 
about corporate free exercise or shareholder rights:

http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html


On Tue, Jun 10, 2014 at 2:17 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
The just like wages characterization is highly contested and, at least if 
pushed to its logical conclusion,  unsustainable. As to the shareholder issue, 
almost everyone these days owns property through trusts; anyone who has 
substantial assets and wants to avoid probate will do so. So it's not 
surprising that the Greens are not personally shareholders but rather trustees 
of the trusts that hold the shares (if I understand the facts correctly). Their 
rights are implicated as beneficial owners and as controlling persons, by way 
of their being trustees of their family trust and also officers and directors 
who personally take actions on behalf of the corporation. As for them not being 
required to provide the coverage they object to, because they can just leave 
their employees out in the Obamacare cold, and pay a fine, there is a strong 
argument that the law still creates a substantial burden. I think we've 
discussed that issue at length.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jun 10, 2014, at 10:09 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I agree with Mark's correction that the complaint of the Greens is not that 
their employees' use of contraceptive burdens their religion.

But it's also not that they have to buy insurance that specifically covers the 
drugs.  For thing, the law doesn't require HL to offer an employee health 
insurance plan at all.  For another, the Greens aren't shareholders, and 
therefore aren't buying anything.  Hobby Lobby, Inc. --as opposed to the 
Greens-- is contracting for an insurance plan -- but of course that plan is not 
made available to their employees gratis; it is a part of their compensation 
package, provided in exchange for their labor, just like wages.

The nature of the way in which the Greens are alleged to be required to act in 
violation of any religious obligations, therefore, is not at all obvious.


On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
Jon,

I think you don't understand, or are ignoring, the point of view of the Hobby 
Lobby parties. They don't object to employees buying what the Hobby Lobby 
parties consider to be abortifacient drugs. I don't think they monitor what 
their employees do with wages or would take any action against employees who 
buy or use such drugs. They object to being required themselves to take an 
action specifically related to abortion -- buying insurance that specifically 
covers the drugs. You might object to buying a gun for an employee, even though 
the recipient would be the one who uses it. You might, if you were a pacifist, 
object to being drafted to serve as an army medic or supply clerk, even though 
you would not be killing anyone but merely be advancing the army's operations.

I understand that some people object to this characterization, but it doesn't 
move the discussion forward to just assume that it isn't the position taken by 
the objectors in Hobby Lobby.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

 On Jun 9, 2014, at 2:35 PM, mallamud 
 malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote:

 There is some authority for not preferring religion over non-religion.
 I do not think religious people should get exemptions reasons not
 connected to the practice of their religion (church services, prayer,
 lighting candles, sacrificing chickens etc.) To me many requests sound
 like I think it is wrong for religious reasons and therefore other
 people should not engage in that behavior.  E.g. I will not pay my taxes
 because taxes pay for killing people.  No one is asking the owners of
 Hobby Lobby to engage in activities that they believe offend their
 religion; they are seeking not to pay employees in such a way that
 certain contraceptives would be covered.  The decision to use or not use
 the contraceptives is the employees'.  One difficulty is that the courts
 are loath to inquire into to the closeness of the connection of the
 claim to the religious belief.  But without limits exemptions will
 become legion.

 Exemptions usually involve some unfairness.  That would be mitigated if
 religious exemptions were limited to the actual practice of religion
 rather than attempts

RE: Hadley Arkes' Recasting Religious Freedom

[Scarberry, Mark]

More later, perhaps, but here is an initial reaction.

I think Arkes is saying that all persons, not just religious ones, have the 
right not to be forced by the government to take innocent human life. The 
government may not justly require compliance with its demands, over an 
objection that compliance would involve personal involvement with the taking of 
human life, unless the government can show that the claim that human life is at 
stake is deeply unreasonable. The natural right to life is not a matter of 
religious belief; it is a moral fact that is true whether put forward as 
religious belief or not.

Arkes is arguing, I think, for a move toward a kind of libertarianism when 
natural rights of others are at stake. The government always must give a reason 
for limiting our freedom or (the same thing) for coercing us to act in a way 
demanded by the government. But only a very strong reason could suffice against 
a claim that the government is asking us to be personally involved in violating 
the natural rights of another person; instead of meeting such a 
perhaps-impossible burden, the government must instead show that the claim of a 
violation of natural right is deeply unreasonable. Arkes would insist, I 
think, that the right be one that can be established on rational natural law 
principles; he has no difficulty doing so with the right to life, which we all 
recognize. The only question is whether the compelled act would involve 
violation of that right; on that question, the government is obligated to 
respect the objectors' freedom unless the claim of violation of natural right 
is deeply unreasonable.

A law requiring restaurants to serve soft drinks only in small cups (per Mayor 
Bloomberg) would need some justification, but the restaurant could not 
plausibly claim that it would violate its customers' rights by not selling them 
Big Gulps.

Again, this is only an initial reading.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, May 12, 2014 8:11 PM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Hadley Arkes' Recasting Religious Freedom

I was just reading, and being puzzled by, Hadley Arkes' First Things article, 
Recasting Religious Freedom, 
http://gallery.mailchimp.com/87af8f0af298f8ee9016150c3/files/f4e8099e-b859-4316-b018-30b1df49f257.pdf.
  I hesitate to try to summarize his point, for fear that I didn't fully grasp 
it; but, as best I can tell, he seems to be saying that (1) religious freedom 
rights should only apply to belief systems that are sufficiently well-reasoned 
(p. 47) -- though I'm not sure if the quality of the reasoning is meant to be 
judged by his standards or by the courts' -- and (2) once an exemption claim is 
found to belong to such a system, the government must accept it unless it can 
show that it is deeply unreasonable (p. 49).  But I wonder whether others on 
the list have read the article and can offer a different (and perhaps better) 
reading.

I will say that there is one thing I like about Arkes' analysis - it suggests, 
on p. 50 (and in other places), that a constitutional religious exemption 
regime would in many ways be very close to the Lochner-era substantive due 
process regime, though it would apply the generalized Lochnerian liberty only 
to those who can claim a religious freedom claim.  That is the argument I made 
in my Common-Law Model for Religious Exemptions article, 
http://www.law.ucla.edu/volokh/relfree.pdf, though I made it against a 
constitutional exemption claim.  But that is a somewhat different matter; at 
this point, I just want to make sure I understand Arkes' argument.  Many thanks,

Eugene

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RE: States prohibiting churches from sanctioning same-sex marriage

[Scarberry, Mark]

This does not seem to me to be an issue that is limited to same-sex marriage 
ceremonies. Any religious ceremony by which a minister solemnizes a marriage 
for which a North Carolina license hasn't been issued is prohibited, with the 
exception mentioned by Doug. The issue could be much broader, and the criminal 
statute already would have been triggered by numerous Catholic weddings, if I 
understand Catholic doctrine correctly. I doubt that Catholic priests have been 
prosecuted, which suggests that the statutes have been treated as applying in 
the narrow way Eugene suggests.

Here is the analysis:

The religious ceremony exception seems to be in 51-6, not 51-7 (as Doug said), 
and seems to refer only to out-of-state weddings.

Consider the result if the statutes are interpreted as Steve suggests (and as 
Doug thinks is perhaps correct). Suppose that a couple is married in Maryland 
by a Presbyterian minister pursuant to a Maryland license; the husband is 
Catholic and the wife is Presbyterian. If I understand Catholic doctrine 
correctly (or perhaps Catholic doctrine as it existed in the past?) their 
marriage will not be recognized as valid by the Catholic Church.

They move to North Carolina and at some point want the marriage to be 
recognized by the Catholic Church. They need to have a wedding ceremony 
performed by a Catholic priest. If the Catholic ceremony in North Carolina is 
the kind of marriage covered by 51-7, then the priest would violate the law by 
holding the wedding service. I think this kind of wedding service must have 
been done hundreds of times or more in North Carolina. I don't think there can 
have been an intent to criminalize the priests' conduct in performing such 
marriages. That suggests strongly that the kind of ceremony that is prohibited 
is one that purports to create a civil marriage, not one that is designed to 
create a religious marriage. The absence of prosecution of Catholic priests 
would suggest that the law should be given the narrow construction argued for 
by Eugene. The narrow construction is a reasonable one; the phrase marries any 
couple (in 51-7) can easily be interpreted to mean marries the couple for 
civil purposes, which would explain the non-prosecution of the priests.

All of this would complement Eugene's argument that the phrase as required by 
law limits the prohibition to those situations in which a license is required 
by law for the religious ceremony to have its purported effect of creating a 
valid civil marriage.

Does that make sense?

I suppose there still could be a question whether a religious official should 
be permitted to marry a couple without a license (any couple, I suppose) and 
take the position that it is a valid marriage for all purposes. Assume that the 
couple and the religious official know that state officials will act as though 
the marriage is not a valid civil marriage, but they believe that it is wrong 
to get a license issued by the state and that the state must (as a matter of 
natural law or their interpretation of the Constitution or of state law or some 
such thing) treat the marriage as valid. They reject the positivist notion that 
the law is what officials do. There is no fraud involved, because everyone 
knows what is going on. That issue could come up in any state with regard to 
any kind of marriage. Could such a ceremony be outlawed? (Perhaps some kind of 
fraud on third parties might result, if they hold themselves out as civilly 
married, knowing that state officials will not so treat them.)

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, May 09, 2014 3:21 PM
To: Law  Religion issues for Law Academics
Subject: RE: States prohibiting churches from sanctioning same-sex marriage

Oh, I agree that the law doesn't categorically exempt purely 
religious ceremonies.  The prohibition in section 51-7 would apply to such 
ceremonies, but only if a license is required by law for such ceremonies.  
But I don't see how section 51-7 makes it a crime to celebrate a religious 
ceremony connected to a marriage for which a license is neither required nor 
even allowed.  Or am I missing something?

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, May 09, 2014 3:17 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: States prohibiting churches from sanctioning same-sex marriage

The principal source of ambiguity is that §51-7 goes on to provide an exception 
for couples who are married by a judge and later have a religious ceremony as 
well. Hard to see why that exception was needed if no one thought the law 
reached purely religious ceremonies.

Douglas Laycock
Robert E. Scott Distinguished Professor 

Mississippi RFRA enacted; Wash Post apparently links to wrong version

[Scarberry, Mark]

On April 3 Mississippi enacted a state RFRA. The Washington Post story 
describes it as being like the Arizona bill vetoed by Gov. Brewer and raises 
the issue of sexual orientation discrimination. The AZ bill was misrepresented 
by many of its critics, but in any event it appears that the Miss. RFRA is much 
more like the federal RFRA than the AZ bill (or the Kansas bill that I 
testified against and that has little chance of passing).

The Wash. Post appears to link to an earlier version of the Miss. bill, which 
was substantially amended before passage.

Here is the bill as passed: 
http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681SG.pdf.

Here is the link to the page that includes the various versions: 
http://billstatus.ls.state.ms.us/2014/pdf/history/SB/SB2681.xml.b

Here is an excerpt from the WaPo story:

Supporters of the 
measurehttp://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681PS.pdf
 [pdf] say it would protect religious freedoms, while opponents say it could be 
used to discriminate against gays and lesbians. A similar bill that passed 
Arizona’s legislature earlier this year, but Gov. Jan Brewer (R) vetoed it 
after the bill drew loud protests from gay rights and civil liberties groups.

http://www.washingtonpost.com/blogs/govbeat/wp/2014/04/01/mississippi-passes-arizona-style-religious-freedom-bill/.

Hope I've got the links right. Running out the door.
Mark S. Scarberry
Pepperdine University School of Law



Sent from my iPad

On Apr 5, 2014, at 12:15 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

An interesting development.

http://mobile.nytimes.com/2014/04/05/world/middleeast/conservative-saudi-cleric-salman-al-awda.html?from=global.home

Mark Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone
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RE: Mississippi RFRA enacted; Wash Post apparently links to wrong version

[Scarberry, Mark]

I’m not sure my earlier email on this subject was distributed to the list. In 
any event, one of the links in it (the link to the page containing the 
different versions of the bill) doesn’t work.

Here is the correct link:

http://billstatus.ls.state.ms.us/2014/pdf/history/SB/SB2681.xml

Here is the link to the conference report, which contains the text that was 
passed and signed by the governor:

http://billstatus.ls.state.ms.us/documents/2014/pdf/cr/SB2681CR.pdf

The other links in the original email, see below, should work, in particular 
the links to the bill as passed (same text as that in the conference report) 
and to the Washington Post story. The link contained in the excerpt from the 
WaPo story also seems to work; it is, as a said, a link to a version of the 
bill that wasn’t passed.

It’s surprising to me that the Washington Post wouldn’t be more careful, 
particularly on an issue like this one.

Best wishes,
Mark

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

From: Scarberry, Mark
Sent: Sunday, April 06, 2014 10:05 AM
To: Law  Religion issues for Law Academics
Subject: Mississippi RFRA enacted; Wash Post apparently links to wrong version

On April 3 Mississippi enacted a state RFRA. The Washington Post story 
describes it as being like the Arizona bill vetoed by Gov. Brewer and raises 
the issue of sexual orientation discrimination. The AZ bill was misrepresented 
by many of its critics, but in any event it appears that the Miss. RFRA is much 
more like the federal RFRA than the AZ bill (or the Kansas bill that I 
testified against and that has little chance of passing).

The Wash. Post appears to link to an earlier version of the Miss. bill, which 
was substantially amended before passage.

Here is the bill as passed: 
http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681SG.pdf.

Here is the link to the page that includes the various versions: 
http://billstatus.ls.state.ms.us/2014/pdf/history/SB/SB2681.xml.b

Here is an excerpt from the WaPo story:

Supporters of the 
measurehttp://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681PS.pdf
 [pdf] say it would protect religious freedoms, while opponents say it could be 
used to discriminate against gays and lesbians. A similar bill that passed 
Arizona’s legislature earlier this year, but Gov. Jan Brewer (R) vetoed it 
after the bill drew loud protests from gay rights and civil liberties groups.

http://www.washingtonpost.com/blogs/govbeat/wp/2014/04/01/mississippi-passes-arizona-style-religious-freedom-bill/.

Hope I've got the links right. Running out the door.

Mark S. Scarberry
Pepperdine University School of Law
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RE: Mississippi RFRA enacted; Wash Post apparently links to wrong version

[Scarberry, Mark]

Sorry for sending a third message. As a matter of fairness to the WaPo author, 
I should add this paragraph, which I included in the similar post that I sent 
later to the conlawprof list:

The WaPo link appears to be to the version as passed by the Miss. Senate, not 
to the version that was enacted. The article does note that the bill as passed 
was the version approved in conference committee and that it does not include 
some language from previous versions. But the link is to the wrong version, and 
the description of it as being like the AZ bill is misleading at the very least.

Mark

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



From: Scarberry, Mark
Sent: Sunday, April 06, 2014 1:46 PM
To: Law  Religion issues for Law Academics
Subject: RE: Mississippi RFRA enacted; Wash Post apparently links to wrong 
version

I’m not sure my earlier email on this subject was distributed to the list. In 
any event, one of the links in it (the link to the page containing the 
different versions of the bill) doesn’t work.

Here is the correct link:

http://billstatus.ls.state.ms.us/2014/pdf/history/SB/SB2681.xml

Here is the link to the conference report, which contains the text that was 
passed and signed by the governor:

http://billstatus.ls.state.ms.us/documents/2014/pdf/cr/SB2681CR.pdf

The other links in the original email, see below, should work, in particular 
the links to the bill as passed (same text as that in the conference report) 
and to the Washington Post story. The link contained in the excerpt from the 
WaPo story also seems to work; it is, as a said, a link to a version of the 
bill that wasn’t passed.

It’s surprising to me that the Washington Post wouldn’t be more careful, 
particularly on an issue like this one.

Best wishes,
Mark

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

From: Scarberry, Mark
Sent: Sunday, April 06, 2014 10:05 AM
To: Law  Religion issues for Law Academics
Subject: Mississippi RFRA enacted; Wash Post apparently links to wrong version

On April 3 Mississippi enacted a state RFRA. The Washington Post story 
describes it as being like the Arizona bill vetoed by Gov. Brewer and raises 
the issue of sexual orientation discrimination. The AZ bill was misrepresented 
by many of its critics, but in any event it appears that the Miss. RFRA is much 
more like the federal RFRA than the AZ bill (or the Kansas bill that I 
testified against and that has little chance of passing).

The Wash. Post appears to link to an earlier version of the Miss. bill, which 
was substantially amended before passage.

Here is the bill as passed: 
http://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681SG.pdf.

Here is the link to the page that includes the various versions: 
http://billstatus.ls.state.ms.us/2014/pdf/history/SB/SB2681.xml.b

Here is an excerpt from the WaPo story:

Supporters of the 
measurehttp://billstatus.ls.state.ms.us/documents/2014/pdf/SB/2600-2699/SB2681PS.pdf
 [pdf] say it would protect religious freedoms, while opponents say it could be 
used to discriminate against gays and lesbians. A similar bill that passed 
Arizona’s legislature earlier this year, but Gov. Jan Brewer (R) vetoed it 
after the bill drew loud protests from gay rights and civil liberties groups.

http://www.washingtonpost.com/blogs/govbeat/wp/2014/04/01/mississippi-passes-arizona-style-religious-freedom-bill/.

Hope I've got the links right. Running out the door.

Mark S. Scarberry
Pepperdine University School of Law
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Saudi cleric argues against theocracy

[Scarberry, Mark]

An interesting development.

http://mobile.nytimes.com/2014/04/05/world/middleeast/conservative-saudi-cleric-salman-al-awda.html?from=global.home

Mark Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone
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RE: Testimony on Kansas Statutory Protection of Religious Liberty

[Scarberry, Mark]

Yesterday I posted links to my Kansas testimony and that of other witnesses. 
For some reason, when it came to me from the list, it went into my spam folder. 
If you didn't get it but want the links, check your spam folder or contact me 
directly.

Mark S. Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone
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RE: Testimony on Kansas Statutory Protection of Religious Liberty

[Scarberry, Mark]

Here is the link to my written witness statement for the March 6 Kansas State 
Senate Judiciary Committee hearing: 
http://www.kslegislature.org/li/b2013_14/committees/ctte_s_jud_1/documents/testimony/20140306_16.pdf.

You can find links to all the witnesses' statements here: 
http://www.kslegislature.org/li/b2013_14/committees/ctte_s_jud_1/documents/?date_choice=2014-03-06.


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

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Hobby Lobby and the 4 Justices who believe the ACA cannot be supported by the commerce clause

[Scarberry, Mark]

Cross posted to conlawprof list.

A random thought:

If four Justices continue to believe that the ACA is unconstitutional (with the 
individual mandate being beyond Congress's power to impose under the Commerce 
Clause and with the rest of the ACA not being severable):

Would it only take one other Justice (the Chief?) to join on RFRA grounds for 
Hobby Lobby and Conestoga Wood Specialties to prevail?

4 + 1 = 5.

Pardon me if I'm spinning off into space here late in the evening.


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

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RE: letter opposing Mississippi RFRA

[Scarberry, Mark]

I'm not sure what Greg means, but if the government can override such positions 
held by politically powerful groups, then what chance will minority religions 
have?

It's also important to see that the Protestants who object do so not because 
HHS is requiring them to provide contraception, but because they sincerely 
think the drugs they must provide will sometimes cause abortions. That is a red 
line for those Protestants and, I think, for many Catholics - a real red line, 
not like the ones sometimes drawn in international affairs.

If the government can force religious people to provide for the obtaining of 
abortions, then all bets are off. Whether or not you think the contraceptives 
cause abortion, the arguments that would permit the HHS contraceptive mandate 
are equally applicable to abortion.

I think it was Sandy who warned at AALS of peasants with pitchforks. Let's 
not go there.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Tuesday, March 11, 2014 11:05 AM
To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

Yes, indeed. And whatever substantial burden means, it most certainly does 
not mean - and could not be applied by courts, with a straight face, to mean - 
burdens with respect to long held and clearly stated teaching of two of the 
largest religious groups in the country.




On Mar 11, 2014, at 1:42 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:


To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way 
back when, we thought they were worth fighting for because of all manner of 
cases that did not involve the commercial sector -- including, for example, 
Doug's prisoner case that the Court just granted.  Doug is right that no one, 
back then, thought commercial sector cases could prevail -- because they have 
virtually never received so much as a vote in the Supreme Court.
But that was then; this is now.  If Hobby Lobby prevails, and if these state 
laws are enacted against the backdrop of such a Supreme Court decision and a 
manifest legislative and popular intent to promote exemptions in the commercial 
sphere, well . . . that's a different landscape entirely, isn't it?

On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:
I'm not sure I understand. If such RFRAs are so ineffectual then why are some 
people pushing so hard for them? If they aren't worth fighting against, why are 
they worth fighting for?


On Tuesday, March 11, 2014, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
There is of course nothing in the actual experience of state RFRAs to support 
any of the speculative fears in the letter. Litigation has been scarce; 
decisions favoring religious claimants have been scarcer. RFRAs have been 
significantly under enforced compared to the aspirations of their drafters.

The recent string of wins under federal RFRA in the contraception cases arise 
in a context where government attempted to override long held and clearly 
stated teaching of two of the largest religious groups in the country (Roman 
Catholics and evangelical Protestants). Even if those wins hold up in the 
Supreme Court, which is far from assured, there is little reason to think they 
would be replicated in other contexts.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 11, 2014 12:21 PM
To: Law  Religion issues for Law Academics
Subject: letter opposing Mississippi RFRA

A group of ten legal academics, including myself and a number of others who 
post on this list, have prepared a letter urging the legislative defeat of a 
proposed Religious Freedom Restoration Act in Mississippi.  The letter has 
recently been delivered and made publicly available.  It can be found here:  
http://www.thirdway.org/publications/795

--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053tel:%28202%29994-7053
Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452tel:%28678%29%20641-7452
hle...@uga.edumailto:hle...@uga.edu
hillelle...@gmail.commailto:hillelle...@gmail.com
SSRN Author Page: 

RE: letter opposing Mississippi RFRA

[Scarberry, Mark]

Yes, we have been through it before, and we just disagree as to the connection 
under the mandate between the commercial actor and the provision of the drugs 
or services.

Here, though, I think we're dealing with a separate issue. The rationale being 
advanced would apply even if the commercial actor was required to provide the 
drugs or services directly, or to pay for them directly.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 11, 2014 11:44 AM
To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

We've been through this a million times before, so I won't belabor it, but no 
one is being required to provide any drugs to anyone.

On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I'm not sure what Greg means, but if the government can override such positions 
held by politically powerful groups, then what chance will minority religions 
have?

It's also important to see that the Protestants who object do so not because 
HHS is requiring them to provide contraception, but because they sincerely 
think the drugs they must provide will sometimes cause abortions. That is a red 
line for those Protestants and, I think, for many Catholics - a real red line, 
not like the ones sometimes drawn in international affairs.

If the government can force religious people to provide for the obtaining of 
abortions, then all bets are off. Whether or not you think the contraceptives 
cause abortion, the arguments that would permit the HHS contraceptive mandate 
are equally applicable to abortion.

I think it was Sandy who warned at AALS of peasants with pitchforks. Let's 
not go there.

Mark

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



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Greg Lipper
Sent: Tuesday, March 11, 2014 11:05 AM

To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

Yes, indeed. And whatever substantial burden means, it most certainly does 
not mean - and could not be applied by courts, with a straight face, to mean - 
burdens with respect to long held and clearly stated teaching of two of the 
largest religious groups in the country.




On Mar 11, 2014, at 1:42 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way 
back when, we thought they were worth fighting for because of all manner of 
cases that did not involve the commercial sector -- including, for example, 
Doug's prisoner case that the Court just granted.  Doug is right that no one, 
back then, thought commercial sector cases could prevail -- because they have 
virtually never received so much as a vote in the Supreme Court.
But that was then; this is now.  If Hobby Lobby prevails, and if these state 
laws are enacted against the backdrop of such a Supreme Court decision and a 
manifest legislative and popular intent to promote exemptions in the commercial 
sphere, well . . . that's a different landscape entirely, isn't it?

On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin 
hillelle...@gmail.commailto:hillelle...@gmail.com wrote:
I'm not sure I understand. If such RFRAs are so ineffectual then why are some 
people pushing so hard for them? If they aren't worth fighting against, why are 
they worth fighting for?


On Tuesday, March 11, 2014, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
There is of course nothing in the actual experience of state RFRAs to support 
any of the speculative fears in the letter. Litigation has been scarce; 
decisions favoring religious claimants have been scarcer. RFRAs have been 
significantly under enforced compared to the aspirations of their drafters.

The recent string of wins under federal RFRA in the contraception cases arise 
in a context where government attempted to override long held and clearly 
stated teaching of two of the largest religious groups in the country (Roman 
Catholics and evangelical Protestants). Even if those wins hold up in the 
Supreme Court, which is far from assured, there is little reason to think they 
would be replicated in other contexts.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 11, 2014 12:21 PM
To: Law  Religion issues for Law Academics
Subject: letter opposing Mississippi RFRA

RE: letter opposing Mississippi RFRA / FDA labeling for ella

[Scarberry, Mark]

This is much more difficult than Sandy suggests.

The skyscraper builder doesn't accomplish its purpose through the death of a 
worker; that is, the worker's death does not advance the building of the 
skyscraper. In fact, the death is likely to hinder the work. It is an 
unintended and unwanted side effect, one that the builder will take precautions 
against, even though the builder knows that the precautions will not prevent 
all accidental deaths on the project.

By contrast, depending on how you define the purpose of a drug like ella, it 
accomplishes its purpose when it prevents - however rarely - implantation of a 
fertilized egg/embryo. If the person taking the drug simply doesn't want to be 
pregnant, then prevention of implantation advances that purpose. My guess is 
that most women who take it - and most doctors who prescribe it, to the extent 
such drugs must be prescribed - won't think it matters to any substantial 
degree whether the drug prevents fertilization or prevents implantation. (I 
don't think I would, in their shoes, but I can't be certain of it.) One who has 
the view that a fertilized egg/pre-implantation embryo is a very new human 
person entitled to life (which does not happen to be my view but is the view of 
people for whom I have great respect) would quite reasonably be morally 
troubled by being involved in the provision of drugs which accomplish their 
purpose, in some cases, through the killing of that very new person. The 
prevention of implantation/killing of the very new person is not an unwanted 
side effect; when it happens, rarely as that may be, it accomplishes the 
intended result. It is not, to use Sandy's term, an untoward event.

Suppose there was a test that could determine whether an egg had been 
fertilized. Does anyone think that most women who use ella (or doctors who 
prescribe it) would take (or  order) the test? There is a willingness, one that 
I perfectly understand and do not personally find immoral (or at least 
seriously immoral), to prevent implantation, in the event that an egg has 
already been fertilized. Others find this tantamount to a willingness to kill 
an innocent child for the purpose of preventing or terminating (depending on 
your terminology and point of view) a pregnancy. If I am not willing to take 
this seriously, then I am not treating them with the respect that they deserve.

List members may disagree with this analysis, but again this is much more 
difficult than Sandy suggests.

Mark

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




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kim Colby
Sent: Tuesday, March 11, 2014 3:29 PM
To: Law  Religion issues for Law Academics
Subject: FDA labeling for ella

Just to provide some factual information, here is the United States Food and 
Drug Administration's approved patient labeling for ella, which states: It is 
possible that ella may also work by preventing attachment (implantation) to the 
uterus.  
http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf 
(last visited March 11, 2014).

The FDA makes this point at two places, on pp. 5  9:

12.1 Mechanism of Action  When taken immediately before ovulation is to occur, 
ella postpones follicular rupture.  The likely primary mechanism of action of 
ulipristal acetate for emergency contraception is therefore inhibition or delay 
of ovulation; however, alterations to the endometrium that may affect 
implantation may also contribute to efficacy.

Later in the labeling information, the FDA states:  How does ella work?  ella 
is thought to work for emergency contraception primarily by stopping or 
delaying the release of an egg from the ovary.  It is possible that ella may 
also work by preventing attachment (implantation) to the uterus.

Best,
Kim Colby
Director, Center for Law and Religious Freedom
Christian Legal Society




From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Tuesday, March 11, 2014 3:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: letter opposing Mississippi RFRA

Many thanks to Mark for this extremely interesting link. The article concludes 
with the following:

If you can't be absolutely sure the drugs don't block implantation, what 
probability of killing a human being would you accept? said Dr Jane Orient, an 
internist in Tucson, Arizona, and spokeswoman for the libertarian, 
anti-abortion Association of American Physicians and Surgeons, which joined the 
anti-emergency contraceptive brief.


I confess that I am left unpersuaded by such arguments.  The first thing one 
learns in first-year torts-and I have often said that the course I took from 
Marc Franklin some 44 years ago was the best course I've ever had anywhere on 
any subject-is that we, as a society, constantly assume the risk that 
untoward 

RE: letter opposing Mississippi RFRA / FDA labeling for ella

[Scarberry, Mark]

Posts are coming in faster than I can read them, so I'll just respond to 
Steve's post about complicity (see below) and then do some other work.

I think Steve is conflating two issues.

One issue is whether the religious claimant believes the conduct to be 
wrongful, so that he cannot permissibly engage in it or assist others in 
engaging in it. This may not depend much or at all on how likely it is that the 
wrongful conduct will result in harm. I may believe it is wrong to shoot a gun 
into the air, even if there is only a one in a thousand chance that the falling 
bullet will injure someone. Some people may believe it is wrong to use ella, 
even if they are persuaded that there is only a one in a thousand chance that 
it will cause an abortion.

I tried to point out in my earlier response to Sandy (see below) that the ella 
situation is quite different from knowing that someone will likely die in the 
building of a skyscraper. In any event, the one in a thousand chance is not 
best seen as a matter of complicity; it is instead a part of the consideration 
of whether the action is wrongful (shooting the gun into the air, or using 
ella). Each person is entitled himself or herself to decide that question, and 
to take into account the odds of injury to the extent relevant under their 
moral and religious calculus. My religious views are my own; they determine 
what is permitted or prohibited as a matter of my religious obligations; no one 
else gets to decide that for me.

The second issue deals with complicity. Now the question is whether I am 
responsible for the act that I have already determined to be wrongful (shooting 
the gun into the air, or using ella), even though I'm not the one who actually 
does it. We've discussed that issue at length. I don't want to rehash the issue 
of whether it is different if (1) I pay wages to my employees, knowing they may 
choose to use some of the money to engage in acts I might consider wrongful, 
such as buying and using ella, or (2) I buy an insurance policy for my 
employees that, by its terms, covers the cost of their getting the ella. The 
difference is obvious to me. Many of you will remember Doug making the point 
eloquently at the AALS meeting. In any event, note that this analysis has 
nothing to do with whether there is only a one in a thousand chance of some 
evil resulting from the action; we already dealt with the probabilities, to the 
extent they are morally relevant, in determining that the action was wrongful. 
Steve is simply wrong, in my view, to treat the one in a thousand odds as being 
determinative of moral complicity.

Maybe some judge (or law professor) can tell us that we don't understand our 
own faith's view of complicity. Under Thomas, my own religious views are the 
ones that matter with regard to whether my connection to a wrongful act is so 
close that I am morally complicit, and thus that I am violating my religious 
obligations. Even if we reject Thomas, it is perfectly reasonable for me to 
consider myself complicit in the use of the ella by an employee, when I provide 
the insurance policy that covers it. Again, there probably is no point in 
rehashing all of that. We've all stated our views multiple times.
Mark

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


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, March 11, 2014 5:31 PM
To: Law Religion  Law List
Subject: Re: letter opposing Mississippi RFRA / FDA labeling for ella

I think it is difficult only because of the impossibly long, subjective, 
untestable stretch of the religious (not legal) complicity theory.  If there is 
.1% chance of something happening, does that make one complicit in it?  Does my 
paying taxes make me complicit in the 30,000 annual deaths on tax-funded 
highways?

There is no legally congizable end to the complicity theory - leaving the 
courts to simply adopt whatever the adherent says it is.

I hope this theory is soundly and completely rejected.

And I generally support accommodations - even for the anti-gay photographer (I 
would do it not on religious grounds, but on speech grounds and on the grounds 
of the size of the business -  have sympathy for the solo photographer that I 
do not have for Sears.

Steve

--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/
Lay not up for yourselves treasures upon earth, where moth and rust doth 
corrupt, and where thieves break through and steal; but lay up for yourselves 
treasures in heaven, where neither moth nor rust doth corrupt, and where 
thieves do not break through nor steal. For where your treasure is, there will 
your heart be also.

Matthew 6:19-21




On Mar 11, 2014, at 8:18 PM, Scarberry, Mark

RE: letter opposing Mississippi RFRA

[Scarberry, Mark]

Religious and moral obligations aren't bounded by what the state allows. We are 
bound to feed the hungry even if the state prohibits it, and some of us are 
bound not to eat certain foods or to engage in other conduct even if commanded 
by the state. A view that we aren't religiously or morally responsible because 
we are just doing what the state commands is a prescription for disaster. I 
don't think Hillel has that view, but his argument comes dangerously close to 
entailing it.

Mark

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, March 11, 2014 6:36 PM
To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

Thanks Brad. I'm still not sure I understand, though. You have helped me 
understand why, in the absence of a contraception mandate a religious employer 
with these beliefs would be obligated to choose not to cover contraception. But 
the contraception mandate doesn't allow the employer to choose whether 
contraception is covered. So in what way is the employer fully involved in the 
decision of what is being covered?

On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee 
bp51...@windstream.netmailto:bp51...@windstream.net wrote:
Because the employee's paycheck is a blank check.  The employee can do whatever 
they want with it because, as part of the salary, there are no limits on what 
the employee can or can't spend the money on.  However, insurance is not a 
blank check.  The policy specifies what it is covering and what it is not 
covering and the employer, in determining the range of the benefits they offer, 
is fully involved in the decision of what is being covered and is fully 
accountable to his or her God for that decision.

Brad

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Hillel Y. Levin
Sent: Tuesday, March 11, 2014 7:36 PM

To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

I have a question for those who have religious beliefs opposed to the 
contraception mandate. I do not mean this question as a provocation, but rather 
in the interest of helping me to understand the problem. Suppose a religious 
employer knows with 100% certainty that an employee will spend a small amount 
of her income on contraception. I take it that this does not violate a 
religious belief. How is that different from directing a percentage of the 
employee's salary towards health insurance, which will cover contraception?


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--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edumailto:hle...@uga.edu
hillelle...@gmail.commailto:hillelle...@gmail.com
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Testimony on Kansas Statutory Protection of Religious Liberty

[Scarberry, Mark]

So that those on the list will be satisfied who want us all to disclose our 
public statements, here is a news report of the testimony I gave 
(telephonically) before the Kansas State Senate Judiciary Committee on Thursday:

http://www.kansas.com/2014/03/06/3329020/senate-judiciary-committee-reviews.html

The hearing considered generally the degree of protection provided by the 
Kansas Preservation of Religious Freedom Act, which was enacted last year, and 
whether more might need to be done. The current Kansas House Bill 2453 wasn't 
the focus of the hearing, but I did criticize it, as those of you who read the 
earlier letter that was sent to Arizona Gov. Brewer would have expected. The 
Kansas PRFA is already quite strong, as I pointed out.

This week I will be submitting a summary written statement for the record, 
along with a written response to two questions that were asked at the hearing. 
I'll post them somewhere, or in some other way make them available.

Mark

Mark S. Scarberry
Pepperdine University School of Law
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Re: Testimony on Kansas Statutory Protection of Religious Liberty

[Scarberry, Mark]

For a highly critical discussion by Caroline Mala Corbin of the breadth of the 
2012 Kansas Preservation of Religious Freedom Act, including its potential 
application to discrimination claims, see 
http://jurist.org/forum/2012/04/caroline-corbin-religious-freedom.php. 

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

 On Mar 10, 2014, at 6:27 AM, Ira Lupu icl...@law.gwu.edu wrote:
 
 Thank you for this courtesy, Mark.
 
 Sent from my iPhone
 
 On Mar 10, 2014, at 3:31 AM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:
 
 So that those on the list will be satisfied who want us all to disclose our 
 public statements, here is a news report of the testimony I gave 
 (telephonically) before the Kansas State Senate Judiciary Committee on 
 Thursday:
 
 http://www.kansas.com/2014/03/06/3329020/senate-judiciary-committee-reviews.html
 
 The hearing considered generally the degree of protection provided by the 
 Kansas Preservation of Religious Freedom Act, which was enacted last year, 
 and whether more might need to be done. The current Kansas House Bill 2453 
 wasn't the focus of the hearing, but I did criticize it, as those of you who 
 read the earlier letter that was sent to Arizona Gov. Brewer would have 
 expected. The Kansas PRFA is already quite strong, as I pointed out.
 
 This week I will be submitting a summary written statement for the record, 
 along with a written response to two questions that were asked at the 
 hearing. I'll post them somewhere, or in some other way make them available.
 
 Mark
 
 Mark S. Scarberry
 Pepperdine University School of Law
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Re: Definition of discrimination.

[Scarberry, Mark]

Wow! So now all list members who engage in advocacy -- or in the case of the 
letter mostly providing information to a public official to remedy public 
misinformation -- without informing the list, lack candor and professional 
courtesy? Even if public disclosure was somehow required, the letter was posted 
publicly and was the subject of press reports. The high level of emotion on 
this issue has begun to affect even the fairest and most level-headed of our 
colleagues.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Mar 1, 2014, at 7:38 AM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:

Yes, a sad and disturbing story that Jean tells (perhaps a threat of assault, 
or some other crime).  Likewise, a sad story about the evangelists that Greg S. 
tells (rudeness and worse).  But neither story is about discrimination as the 
law understands it, because passersby had no legal duty to engage in any way 
with the people they mistreated.  We are all free to ignore or interact 
(peacefully) with strangers on the street, whatever their political or 
religious cause, personal appearance, etc.  And we are all selective in how and 
when we do engage -- so we discriminate in that sense, like we discriminate 
when we order from a menu.

This is NOT the context of wedding vendor exemptions or marriage license clerk 
exemptions from anti-discrimination norms.  Those norms impose a duty to serve 
without selectivity based on race. religion, etc.  And those kinds of laws are 
built on a sense that certain groups are vulnerable to widespread exclusion 
from opportunities -- employment, housing, and (where the law so provides) the 
right to purchase goods and services from those who hold themselves out to the 
public as providing such services.  So, please, let's not get sidetracked with 
poor analogies to highly sympathetic but legally quite different situations.

To Greg S.  -  your concern for conscription of creative artists 
(photographers?) seems quite legitimate.  Perhaps such people should just not 
be covered by anti-discrimination laws at all.  But we would have to be very 
careful to define creative artists quite narrowly -- wine vendors, caterers, 
bakers, and most others who serve in the wedding industry should NOT fall under 
that category.

To all list members who signed that letter to Gov. Brewer -- it would have been 
a whole lot better if you had brought that letter to the list's attention 
yourselves.  Whether or not you had a duty to disclose it (in light of your 
postings on the subject), norms of professional courtesy and candor certainly 
pointed that way.  I'm disappointed that you failed to do so.



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