RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Sisk, Gregory C.]

[The following is a hypothetical only, as I don’t pretend to know everything 
about the parties and their views.]

Suppose that you are a solo law practitioner in the town where Arlene’s Flowers 
is located.  You have long known that Barronelle Stutzman has strong 
traditionalist religious views, viewing marriage as a lifelong commitment 
between a man and a woman, that sexuality should only be expressed in marriage 
that is open to life, etc., and thus is religiously opposed to divorce, 
contraception, abortion, and same-sex marriage.

Although your own religious views are very different and indeed you vehemently 
disagree with Barronelle, you have a policy of not discriminating on the basis 
of religious and so have represented her on more than one legal matter, 
including drafting wills for her and her husband, reviewing a contract that she 
had with a company who supplied florist materials to her, etc.

Now she has come to you and reported that the Attorney General is suing 
Arlene’s Flowers because she declined to apply her florist professional skills 
to create a flower arrangement for a same-sex marriage ceremony, as she did not 
agree with the message of approval conveyed by her professional services.  She 
asks you to represent her in defending against the Attorney General’s suit by 
asserting her First Amendment religious liberty.

If you refuse to represent her in a religious liberty defense, arguing that you 
don’t want to apply your legal professional skills to promote a message with 
which you disagree, should that choice be regarded as the equivalent of 
invidious religious discrimination?  Isn’t your decision not to apply your 
legal professional skills to advance a message with which you disagree really 
the same in substance to her decision not to apply her florist professional 
skills to a ceremony with which she disagrees?

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, October 10, 2016 9:40 AM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics 

Subject: Noteworthy, puzzling scholars' brief in Arlene Flowers

Some of you may be familiar with the Washington v. Arlene's Flowers case, which 
will be argued in the Washington Supreme Court next month.  Barronelle Stutzman 
and her husband are the owners of Arlene’s Flowers, Inc., a closely held 
for-profit corporation.  Over the course of nine years, Stutzman regularly sold 
floral arrangements to Robert Ingersoll, knowing that he was gay.  When 
Ingersoll asked Stutzman to sell him flower arrangements for his wedding to 
Curt Freed, however, she refused to provide them, even if they were prepared by 
others in her shop, because doing so, she claimed, would "constitute a 
demonstration of [her] approval for the wedding," whereas in fact she has 
religious objections to same-sex marriages.  (She agreed to provide the raw 
materials for the arrangements--the flowers and such--but not to have her shop 
do the arranging.)

The Washington Attorney General sued Arlene's Flowers, seeking an injunction 
against such discrimination in the future.  (Ingersoll and Freed also sued, 
seeking nominal damages for the costs they incurred when Stutzman refused to 
serve them.)  The principal basis for the suit is a claim of discrimination on 
the basis of sexual orientation, prohibited by the Washington Law Against 
Discrimination (WLAD), RCW 49.60.215, which provides that "It shall be an 
unfair practice for any person or the person's agent or employee to commit an 
act which directly or indirectly results in any distinction, restriction, or 
discrimination, . . . or the refusing or withholding from any person the 
admission, patronage, custom, presence, frequenting, dwelling, staying, or 
lodging in any place of public resort, accommodation, assemblage, or 
amusement."  The forms of prohibited discrimination are listed in RCW 
49.60.030:  "The right to be free from discrimination because of race, creed, 
color, national origin, sex, honorably discharged veteran or military status, 
sexual orientation, or the presence of any sensory, mental, or physical 
disability or the use of a trained dog guide or service animal by a person with 
a disability is recognized as and declared to be a civil right. This right 
shall include, but not be limited to: . . . (b) The right to the full enjoyment 
of any of the accommodations, advantages, facilities, or privileges of any 
place of public resort, accommodation, assemblage, or amusement."

Stutzman defended on both statutory and state and federal constitutional (Free 

RE: Davis doubles down

[Sisk, Gregory C.]

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
Cc: 'Michael Dorf' ; 'Dellinger, Walter' 
; 'Howard Wasserman' 
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


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

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing 

RE: Davis doubles down

[Sisk, Gregory C.]

I wonder how long the DOJ policy will survive, though, in an era in which 
accommodating the values of others with which one strongly disagrees appears to 
be no longer in favor, especially among the elites, and accusations of malice 
or bad faith or bigotry are so quick to be made in so many circles.  The 
present scorched earth approach to political and legal policymaking, from both 
sides of the political spectrum when they take power, is depressing.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, September 09, 2015 12:52 PM
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: Davis doubles down

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote:
Yes,  the policy, though unstated, dates back at least to the early 1970's.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department's lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst's name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the "don't-ask-don't-tell" policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, "For the United States": Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Cc: 'Michael Dorf' <miked...@gmail.com<mailto:miked...@gmail.com>>; 'Dellinger, 
Walter' <wdellin...@omm.com<mailto:wdellin...@omm.com>>; 'Howard Wasserman' 
<wasse...@fiu.edu<mailto:wasse...@fiu.edu>>
Subject: RE: Davis doubles down

I don't know that the Attorney Gen

RE: Is Discussion of Justices' Religion Off Limits?

[Sisk, Gregory C.]

Thanking Step Feldman for his mention, the empirical studies that Michael 
Heise, Andrew Morriss, and I have conducted on religious liberty decisions in 
the federal courts did indeed find that religion was an important factor on 
Free Exercise decisions - but it tended to the religion of the claimant that 
mattered the most.

For the 1986-1995 period, we found that traditionalist Christians - Catholics, 
evangelical Baptists, etc. - were significantly more likely to lose in seeking 
accommodation for religious exercise under the First Amendment or religious 
liberty statutes.  Gregory C. Sisk, Michael Heise  Andrew P. Morriss, 
Searching for the Soul of Judicial Decisionmaking:  An Empirical Study of 
Religious Freedom 
Decisionshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=486148,  65 Ohio 
St.  L.J. 491 (2004).

By the 1996-2005 period, that traditionalist Christian deficit had disappeared. 
 Michael Heise  Gregory C. Sisk, Free Exercise of Religion Before the Bench:  
Empirical Evidence From the Federal 
Courtshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2025149, 88 Notre 
Dame L. Rev. 1371 (2013); Gregory C. Sisk  Michael Heise, Muslims and 
Religious Liberty in the Era of 9/11:  Empirical Evidence From the Federal 
Courtshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057, 98 Ia. L. 
Rev. 231 (2012).  One possible reason for that change, we hypothesized, was 
that a large number of the claims presented by traditionalist Christians were 
for exemption from anti-discrimination statutes, such as employment cases 
involving teachers in religious institutions, a position that had largely 
prevailed in the lower federal courts by the middle of the last decade, even 
before the Supreme Court's decision in Hosanna Tabor.

However, for the 1996-2005 period, we found that Muslim Americans had only 
about half the chance to succeed in religious accommodation cases as did 
claimants from other religious communities.  In the Muslims and Religious 
Liberty article, we discussed possible explanation for this Muslim claimant 
deficit.

As for judges, we found some evidence that Jewish and non-mainstream Christian 
judges were attracted to religious accommodation claims during the 1986-1995 
period.  But we did not replicate that for Free Exercise cases in the 1996-2005 
period, although we found that Asian and Latino judges as well as judges who 
were former law professors were particularly amenable to Free Exercise and 
accommodation claims. In sum, our results paint a complex and nuanced picture 
of how extra-judicial factors inform Free Exercise litigation outcomes as well 
as judicial decisionmaking more generally.

Perhaps more pertinent to the current thread, in a related study, we did find a 
powerful correlation between the political party of the judge and the outcome 
in Establishment Clause cases - even controlling for the judge's own religious 
background (but not finding religious affiliation of judges to be a significant 
influence in either direction).  Gregory C. Sisk  Michael Heise, Ideology All 
the Way Down? An Empirical Study of Establishment Clause Decisions in the 
Federal Courtshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1791214, 110 
Mich. L. Rev. 1201 (2012).  And here, rather than focusing on the judge's own 
background directly, we suggested that the impact of political party may well 
be attributable to the increasing divide between the political parties on 
matters of religion and thus on those who make judicial appointments.  As we 
said in the abstract for that article:

  A religious-secular divide that has become associated with the two major 
political parties increasingly characterizes our national political discourse 
about the proper role of religion and religious values in public life. The 
federal courts may be sliding down into the same God Gap that has opened and 
widened between left and right and between Democrat and Republican in the 
political realm. Because of the notorious lack of clarity in the Supreme 
Court's Establishment Clause jurisprudence and a consequent low level of law 
formality, the door has been thrown wide open to unrestrained political 
judging. Sadly, the Supreme Court's Establishment Clause doctrine has become an 
attractive nuisance for political judging.

Michael Heise and I are planning to follow the study forward into the next 
ten-year period, 2006-2015, and expect to begin collecting data in the next 12 
to 18 months.

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Final post on discrimination/religious liberty issue

[Sisk, Gregory C.]

As difficult as the conversation has been at times, I’d like to think we 
stumbled toward some better understanding of and empathy for those different 
from us, but perhaps I speak only for myself.  If we as scholars cannot hold 
such a conversation and listen to and struggle in civility with others, then 
there is little hope for the larger society to productively engage on these 
questions.  Still, I know that such discussions can be exhausting both to 
engage in and to listen to.  So this will be my last message to the ReligionLaw 
list -- whatever may be the response or lack thereof to the following -- and 
then I'll withdraw into listen mode again.
Despite some tangents and departures, I honestly do think progress has been 
made in clarifying that the points of disagreement among most of us are 
narrower than might first appear.  Considering the views expressed in support 
of (largely off-list) and critical of what I've expressed, I've reflected 
further on the elements of discrimination, harm, and liberty interests that 
have emerged in that discussion.
While I wouldn’t suggest that consensus has been reached on all points, I 
thought I heard increasing agreement on some basic points:
First, when the law declares that basic provision of goods and services may not 
be denied on the basis of certain classifications, the general application of 
such a law meets with general approval among members of the list.  Thus, to use 
a couple of generic examples offered now by more than one member of the list, 
the grocer should not discriminate on race, gender, religion, or sexual 
orientation in selling groceries and the baker should not bar anyone at the 
door based on such identity from entering to buy baked goods.  To permit the 
grocer or baker to pick and choose who to serve based on essential identity 
would be discrimination at its most invidious, the harm experienced by the 
person who was the subject of such discrimination would be at its most 
egregious, and the claim of an intrusion into liberty interests at its lowest 
ebb.
Second, and by contrast, people appear to agree that when a person suffers a 
hostile reaction to advocacy, even on the most discriminatory of bases, or when 
a person restricts the goods and services that will be offered to anyone on the 
basis of that person's personal identity, then law should not intervene.  
Discrimination in direction or in effect by itself cannot be the basis for 
unleashing the coercive power of law.  Thus, as previously discussed, a pair of 
Christian evangelists who are the subject of discriminatory taunts on the 
street should receive no legal redress.  And the Jewish baker who closes the 
shop early on Fridays because the Sabbath is beginning should not be forced to 
do otherwise.
Into this second category where the law should not intrude, then, presumably 
would fall such additional examples as the operator of a Jewish deli or a 
Muslim halal grocery who chooses not to stock pork chops or bacon for religious 
reasons; the owner of a gay and lesbian bookstore who chooses not to place 
books about religious “reparative” ministries on bookshelves because he 
disagrees with that message; or the obstetrician who refuses to perform 
abortions on philosophical or religious grounds.
Now, and here I return to the point where consensus has not been reached, I 
would submit that some of the same or similar characteristics or principles 
that define this second category of free choice also encompass the case that 
has been highlighted of the wedding photographer who declines to photograph a 
ceremony with which she disagrees. Similarly, an attorney may choose to 
represent only plaintiffs who allege they are victims of sexual abuse and 
simply refuse to represent defendants who are accused of sexual abuse. An 
advertising agency may refuse to work up a promotional campaign for a 
Republican politician.  A public relations firm may refuse to take on a 
Catholic archdiocese seeking to counter negative publicity related to priest 
sexual abuse.  A psychologist may specialize in counseling women who have 
suffered abuse, while choosing not to accept male clients.  A couples therapist 
may focus on gay couples, while not choosing not to work with straight couples.
Now each of these examples could be described as involving “discrimination.”  
But we have also used another term to describe these choices:  Freedom.
What I would argue distinguishes these business choices from the general 
prohibition on discrimination in goods and services is that the service or good 
provided is inextricably intertwined with a message or perspective that the 
provider may or may not wish to endorse.  In these examples, the services are 
being devoted directly or nearly so to the promotion of a message, which thus 
implicates freedom of thought at its most critical.  Moreover, because of the 
personal nature of these kinds of services, the service-provider necessarily 
must identify 

RE: Definition of discrimination.

[Sisk, Gregory C.]

A sad and disturbing story.  I'd say that, yes, it was discrimination from 
the outset and virulently so.  Verbal antagonism is a form of discrimination, 
when it is based on a person's identity, as it obviously was here (and in my 
hypothetical as well).  Whether what Jean experienced was or should be 
actionable as a matter of law, and at what point the discriminatory conduct 
changed from offensive speech to illegal threat (when the introduction of legal 
constraint is most justified), does not change the overall nature of the 
conduct as discrimination.

As despicable as may be expression, we appreciate that the law is not the right 
response to every such situation and that empowering the government to police 
emotional harms -- without in any way depreciating the reality and impact of 
emotional harms -- may be intrusive into expression and may invite overreaching 
of governmental coercion that endangers freedom for all.  Denying public goods 
and services based on identity is discrimination to be sure, but so is what my 
hypothetical Christian evangelists suffered.  In the end, whether the law 
should prohibit any particular form of discrimination should turn on whether a 
concrete economic harm or danger to safety is established, not simply on 
characterization of behavior as discriminatory.  Expectations of decency and 
civility call for all of us as neighbors, friends, members of a community to 
speak out and reject hateful words and intolerant behavior (while protecting 
always genuine differences of opinion).  We cannot shirk this moral duty by 
delegating it to government, and given the dangers of government power, we 
should not.

Greg Sisk


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Jean Dudley [jean.dud...@gmail.com]
Sent: Saturday, March 01, 2014 7:05 AM
To: Law  Religion issues for Law Academics
Subject: Definition of discrimination.


On Feb 28, 2014, at Fri, Feb 28,  7:11 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Now what these two evangelical Christians experienced was plainly 
“discrimination.”

I’m not sure it was.  While I’m not an attorney of any stripe or ilk, I’d say 
that what those evangelists experienced was (verbal) antagonism.  And while it 
was indeed vile and despicable, it is protected under free speech, if I’m not 
mistaken, provided no one actively threatened them with bodily harm.

Discrimination would have occurred if the Jewish shop owner had indeed refused 
to serve them because they were evangelists, or at least discrimination in the 
legal sense, if I understand it.  If someone had begun beating them while 
yelling anti-evangelist epithets, that would have been a hate crime or possibly 
religiously motivated assault, certainly?

Discrimination is difficult to pin down; but certainly denying publicly offered 
goods and services for reasons other than an inability to pay is 
discrimination, isn’t it?

Once, while leaving the local lesbian watering hole in Providence, RI, a car 
full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me.  My 
immediate response was “I’m a walking dyke. I do my fucking at home!”

At that point one of them threw a glass bottle which smashed many yards away 
from me.

Discrimination?  They didn’t deny me from using public roads, but assault?  
Maybe.  That bottle was more threat than assault, I think.

Was I scared, in fear of my life?  You better believe it, in spite of my rare 
quick response to their taunt.  Luckily they sped off, and I was able to get to 
my car and go home without any physical damage. But common self preservation 
told me that drunk young men are dangerous; that is a lesson I learned from 
Matthew Sheppard.  My prescience was justified by the badly-aimed glass bottle.

So tell me, list members, was I “discriminated” against?  Was I assaulted?  At 
what point did their behavior cross from protected speech to criminal activity? 
 Did it?

I never did tell my story to the police.  I’d already been told that the 
Providence police turned a blind eye on such things, and even worse things 
routinely.  How could I get justice when I didn’t even have a license plate 
number or descriptions of the men?

All the best,
Jean.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Definition of discrimination.

[Sisk, Gregory C.]

No, the story I told about the abuse directed at Christian evangelists was not 
just a hypothetical.  It was an observed event.  And I venture that multiple 
participants on the list have observed similar responses to street ministers of 
various kinds over the years.  (The extension of the discussion in response to 
Greg Lipper's hypothetical -- about going in the bakery, etc., was 
hypothetical.)

Greg Sisk


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Paul Finkelman [paul.finkel...@yahoo.com]
Sent: Saturday, March 01, 2014 9:51 AM
To: Law  Religion issues for Law Academics
Subject: Re: Definition of discrimination.

Ira, unless I missed an earlier post, aren't Greg evangelists merely 
hypothetical?  It may be sad, but it is only a story as opposed to Jean's 
retelling of a history or the facts of the florist who would not serve gay 
customers.

I think Ira is absolutely right that we have to be very careful about how we 
use the term art in this context.  The art claim is someone bogus for a 
commercial photographer or a commercial artist.  We are all artists in 
some old fashioned sense (look at old apprenticeship contracts).  But when you 
are advertising your profession to the general public you are not usually an 
artist in the way we generally understand it.

I know wedding photographers who are also artists -- but the enterprises are 
separate.

Is my dentist and artist when he fills my teeth?  Or the art work of the 
plumber fixing my pipes?  I don't think so.
Could an architect say he will not design a house for a gay couple because he 
is an artist?  Or the house painter refuse to paint the house for the same 
reason?


Paul Finkelman
Justice Pike Hall, Jr. Visiting Professor of Law
LSU Law Center
110 Union Square Bldg.
1 East Campus Drive
Louisiana State University
Baton Rouge, LA  70803-0106

518 605 0296 (mobile)


From: Ira Lupu icl...@law.gwu.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Saturday, March 1, 2014 10:37 AM
Subject: Re: Definition of discrimination.

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.




On Sat, Mar 1, 2014 at 10:09 AM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:
A sad and disturbing story.  I'd say that, yes, it was discrimination from 
the outset and virulently so.  Verbal antagonism is a form of discrimination, 
when it is based on a person's identity, as it obviously was here (and in my 
hypothetical as well).  Whether what Jean experienced was or should be 
actionable as a matter of law, and at what point the discriminatory conduct 
changed from offensive speech to illegal threat (when the introduction of legal 
constraint is most justified), does not change the overall nature of the 
conduct as discrimination.

As despicable as may be expression, we appreciate that the law is not the right 
response to every

RE: The pain of discrimination and the role of government

[Sisk, Gregory C.]

No one has made the argument that people should be forced into exclusion or 
required to deny their essential identity -- quite the opposite -- nor has 
anyone downplayed the pain of discrimination.  To be skeptical about  resort to 
law and government is not at all to the contrary.  The most important things 
are life are seldom susceptible to satisfying political and legal solutions.  
Indeed, my personal hope is that we might move away from the scorched earth 
approach of current politics, in which those who win a political majority in a 
city, state, or nation then seek to use political power to not only advance 
their own goals but to drive the other into the dust.

I think most on the list hold to the aspiration that we could have a discussion 
among disagreeing friends, extending assumptions of good faith to those with 
whom we strongly disagree, about how we should live together in a genuinely 
diverse society inhabited by people with deeply conflicting worldviews.  I am 
enriched by the comments made by a widely diverse set of participants on this 
list, especially from those with whom I disagree (or think that I disagree).  
Those comments in turn prompt me to rethink my presumptions, provide me with 
greater context from a different perspective, cause me to consider new 
situation or posit new hypotheticals designed (inartfully, to be sure, given my 
own failings) toward finding points of agreement and disagreement.  My legal 
and political views on a number of contested issues have changed and shifted 
over the years because of what I have learned from those that I initially saw 
as opponents -- including significant changes of views traceable in part to 
debates on various listservs.

The Swarthmore student newspaper recently published an interview with Princeton 
Professor Robert George on his visit to Swarthmore with his close friend, 
co-teacher, and sparring partner, Professor Cornel West.  This excerpt seems 
pertinent to the present discussion:

People on the conservative side should facilitate dialogue and discussion by 
recognizing their opponents as reasonable people of goodwill who might actually 
be right and from whom, in any event, there is much to be learned.  Those on 
the left should facilitate dialogue and discussion by recognizing their 
opponents as reasonable people of goodwill who might actually be right and from 
whom, in any event, there is much to be learned.  We can respect each other 
while deeply disagreeing even about fundamental matters.  I can believe that 
what you are doing is tragically wrong, and you can believe what I am doing is 
tragically wrong, and yet we can recognize each other as sincere and thoughtful 
people who are trying our best to get things right—and who may, in fact, 
contrary to what we suppose at the moment, actually be right.

There are people whom I deeply respect, and for whom I even have great 
affection, who strongly support elective abortion—something I believe is the 
gravely unjust killing of innocent human beings, a moral horror of the very 
first rank.  Yet, it would not occur to me to attempt to stigmatize and 
marginalize them, or to exclude them from the discussion.  I would most 
definitely not say to them:  “Well, since you are, from my infallible point of 
view, fetaphobes and murderers, since you deny innocent and vulnerable children 
in the womb their most fundamental right, you have no place in the 
discussion—people of your type don’t belong here.”

http://www.swarthmorephoenix.com/2014/02/27/swarthmore-at-its-best-an-interview-with-robert-george/

Greg Sisk


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of jim green [ugala...@gmail.com]
Sent: Saturday, March 01, 2014 10:36 AM
To: wlind...@verizon.net; Law  Religion issues for Law Academics
Subject: Re: The pain of discrimination and the role of government

So the answer to discrimination against gays  lesbians is for them to go back 
into closet!  All of these queers mincing around looking for a lawsuit - you've 
busted us.
I suppose I could play the rhetorical games and have you replace gay with 
christian or explain how heterosexuals flaunt their sexuality without even 
realizing it - wedding rings, family pictures, water cooler chit chat.
But it's exhausting and will only result in a 3 page sermon on Catholic moral 
theology (one of the few benefits of being an atheist in the country used to be 
relative freedom from sermons but not so much on here...)
This list seems to have devolved into a some Fox news version of legal 
analysis. Christians and the job creators are the real victims in society, 
pining for the days when gays knew their place (in the closet or jail) , up is 
down...etc.
---Jimmy Green


On Sat, Mar 1, 2014 at 10:45 AM, Will Linden 
wlind...@verizon.netmailto:wlind...@verizon.net wrote:
 The same way they know someone is homosexual, of coruse.

I have been waiting for 

RE: Definition of discrimination.

[Sisk, Gregory C.]

 missionaries did. Even 
the worst sinners would simply say they were busy, or that they had no desire 
to hear the gospel. Maybe if I'd tried my luck in the infamously callous 
streets of New York I would have had to endure worse insults.  But then it 
would have only triggered my sense of martyrdom, I supposed, and I would have 
rejoiced that I was such a good Christian in spite of men's mocking of my 
efforts. I have since repented of my youthful folly and count myself among the 
godless atheists now.

 On Mar 1, 2014, at 9:09 AM, Sisk, Gregory C. gcs...@stthomas.edu wrote:

 A sad and disturbing story.  I'd say that, yes, it was discrimination from 
 the outset and virulently so.  Verbal antagonism is a form of 
 discrimination, when it is based on a person's identity, as it obviously was 
 here (and in my hypothetical as well).  Whether what Jean experienced was or 
 should be actionable as a matter of law, and at what point the discriminatory 
 conduct changed from offensive speech to illegal threat (when the 
 introduction of legal constraint is most justified), does not change the 
 overall nature of the conduct as discrimination.

 As despicable as may be expression, we appreciate that the law is not the 
 right response to every such situation and that empowering the government to 
 police emotional harms -- without in any way depreciating the reality and 
 impact of emotional harms -- may be intrusive into expression and may invite 
 overreaching of governmental coercion that endangers freedom for all.  
 Denying public goods and services based on identity is discrimination to be 
 sure, but so is what my hypothetical Christian evangelists suffered.  In the 
 end, whether the law should prohibit any particular form of discrimination 
 should turn on whether a concrete economic harm or danger to safety is 
 established, not simply on characterization of behavior as discriminatory.  
 Expectations of decency and civility call for all of us as neighbors, 
 friends, members of a community to speak out and reject hateful words and 
 intolerant behavior (while protecting always genuine differences of opinion). 
  We cannot shirk this moral duty by delegating it to government, and given 
 the dangers of government power, we should not.

 Greg Sisk

 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 on behalf of Jean Dudley [jean.dud...@gmail.com]
 Sent: Saturday, March 01, 2014 7:05 AM
 To: Law  Religion issues for Law Academics
 Subject: Definition of discrimination.


 On Feb 28, 2014, at Fri, Feb 28,  7:11 PM, Sisk, Gregory C. 
 gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

 Now what these two evangelical Christians experienced was plainly 
 “discrimination.”

 I’m not sure it was.  While I’m not an attorney of any stripe or ilk, I’d say 
 that what those evangelists experienced was (verbal) antagonism.  And while 
 it was indeed vile and despicable, it is protected under free speech, if I’m 
 not mistaken, provided no one actively threatened them with bodily harm.

 Discrimination would have occurred if the Jewish shop owner had indeed 
 refused to serve them because they were evangelists, or at least 
 discrimination in the legal sense, if I understand it.  If someone had begun 
 beating them while yelling anti-evangelist epithets, that would have been a 
 hate crime or possibly religiously motivated assault, certainly?

 Discrimination is difficult to pin down; but certainly denying publicly 
 offered goods and services for reasons other than an inability to pay is 
 discrimination, isn’t it?

 Once, while leaving the local lesbian watering hole in Providence, RI, a car 
 full of (I suspect rather drunk) young men yelled “Fucking dyke!” at me.  My 
 immediate response was “I’m a walking dyke. I do my fucking at home!”

 At that point one of them threw a glass bottle which smashed many yards away 
 from me.

 Discrimination?  They didn’t deny me from using public roads, but assault?  
 Maybe.  That bottle was more threat than assault, I think.

 Was I scared, in fear of my life?  You better believe it, in spite of my rare 
 quick response to their taunt.  Luckily they sped off, and I was able to get 
 to my car and go home without any physical damage. But common self 
 preservation told me that drunk young men are dangerous; that is a lesson I 
 learned from Matthew Sheppard.  My prescience was justified by the 
 badly-aimed glass bottle.

 So tell me, list members, was I “discriminated” against?  Was I assaulted?  
 At what point did their behavior cross from protected speech to criminal 
 activity?  Did it?

 I never did tell my story to the police.  I’d already been told that the 
 Providence police turned a blind eye on such things, and even worse things 
 routinely.  How could I get justice when I didn’t even have a license plate 
 number or descriptions of the men?

 All the best,
 Jean

The pain of discrimination and the role of government

[Sisk, Gregory C.]

Over the past day, I've withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today's other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what they understood to be a 
genuine calling to share good news with others.

The response was anything but receptive; indeed, it was, no two ways around it, 
frequently hostile and, yes, bigoted.  While most of those walking by simply 
ignored the two or gave them a cold stare as they passed, several made 
derogatory remarks, laughed or jeered loudly, or even told them to [epithet 
deleted] off.  No one physically accosted the two, and the comments did not 
provoke any violence, so I don't think it could be called disorderly conduct.  
But the targeted response was despicable in manner.

The two evangelists never responded in kind, instead saying God bless you or 
Jesus loves you to each person.  But it was plain that the hostile treatment 
left its psychological mark.  The young woman, who I am guessing was the 
veteran at street ministry, seemed less impacted.  But the young man was 
shaken, as I could tell from his mannerisms, what looked to be tears in his 
eyes, and the quaver that appeared in his voice after he received a 
particularly vituperative comment.

Now what these two evangelical Christians experienced was plainly 
discrimination.  And it was blatant and invidious discrimination.  The 
remarks were not merely negative and disrespectful, but many were hateful and 
cruel.  And the basis for the discrimination plainly was their religious 
identity and message.  In the words of more than one poster to this list over 
the past day, these two were suffering an injury to their dignity, the pain of 
rejection, and the shame of stigma based on their identity.

Despite the undeniable fact that these two were the victims of discriminatory 
treatment and that they plainly felt the sting of that discrimination, I am 
guessing that all or most on this list will agree with me that it would be 
inappropriate to use the power of government to prevent such unfortunate 
behavior in the future or to pass a law that would compel those who pass by to 
treat evangelists with respect.  And I think that choice to refrain from use of 
government and law is correct for at least two reasons.

First, a legally binding directive to treat evangelists - or for that matter 
others who present a message - with respect, or instead a government regulation 
that induces such respect at the cost of some type of sanction or withheld 
benefit, would be difficult to separate from an improper government endorsement 
of the message at issue.  At the very least, legal action would put the heavy 
thumb of the government on the side of refraining from expressing opposition or 
indifference to a value-laden message.

But, second, it simply is not the proper role of government to enforce 
standards of courtesy or to wield legal power (as contrasted with appropriate 
exercise of persuasion) to shape human interactions.  I definitely assert a 
moral right to be treated with dignity, but I do not have a legal right in a 
free society to demand that other private citizens extend such courtesy to me 
or even refrain from being discourteous.  (By statute, of course, I do have the 
right to object to even private discrimination on certain grounds when it 
denies me the necessary tools for educational and economic opportunity.  That's 
something on which I'll comment more later - but this post is already too long. 
 My specific point here is that the real pain of discrimination alone, 
unaccompanied by something concrete like an economic deprivation, is like other 
failures in human behavior that are not properly the subject of government and 
where the imprudent use of law often transgresses the fundamental rights of 
some while attempting to address the grievances of others.)

Instead, it belongs to all of us, with personal commitment, through investment 
of time and talents, by telling our stories, and in how we live our lives, to 
enhance human dignity.  We should resist the temptation to delegate that 
responsibility to government, through its use of power or its 

RE: bigotry and sincere religious belief

[Sisk, Gregory C.]

A quick and belated response to Chip's message.  Quite right.  My post did not 
resolve the problems raised by RFRA and was deliberately framed not to.  
Indeed, I was not trying to place things into a constitutional category either, 
whether of free speech or free exercise.  Instead, I was asking whether - 
setting to one side other aspects of this problem - we at least could reach 
some consensus for an exemption from anti-discrimination laws for those 
declining to provide a direct service for a ceremony or campaign or message to 
which they object.  If we could draft appropriately narrow language to allow 
the wedding photographer or the event host or the songwriter or the advertising 
agency to exercise freedom to choose the matters to which they apply their 
communicative arts, might we then be able to carve out one small space for 
protecting freedom without undermining the general aims of anti-discrimination 
laws?  Probably not, but worth the try, I do think.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 27, 2014 7:40 PM
To: Law  Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

Greg Sisk's post re: how to think about the wedding photographer is just the 
compelled speech argument one more time.  In the case of a photographer, a 
First A claim of compelled speech is plausible, though not entirely persuasive. 
 In the case of a baker, florist, wine vendor, or caterer, the argument that 
their providing service to a same sex wedding involves compelling them to speak 
about the moral/religious bona fides of the ceremony is not even plausible.

But there is a deeper issue lurking in Greg's post.  If the photographer has a 
good compelled speech claim, it is entirely independent of religion.  She can 
have any reason, or no reason at all, to refuse to speak.  She can have 
religious objections, homophobic reactions, or aesthetic concerns about taking 
pictures of two brides or two grooms.  Her reasons are totally irrelevant.  
This is the precise lesson of Minersville v. Gobitis (no free exercise 
exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. 
Barnette (no one can be compelled to salute the American flag).  And if reasons 
are irrelevant, because this is a compelled speech problem, then it extends to 
all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc.  
The photographer cannot be conscripted by civil rights laws into taking and 
displaying photos against her will.  Maybe this is a good result; I have my 
doubts.  But it is NOT a religious exemption, and it does NOT require any 
parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under 
Greg's approach, the problem raised by RFRA's, re: separating religious 
sincerity from phobic bigotry, remains entirely unresolved.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: The pain of discrimination and the role of government

[Sisk, Gregory C.]

But of course!  I quite agree that's how it should be.  I too believe that 
our two Christian evangelists should be able to walk into Greg Lipper's 
hypothetical bakery and be served.

If that were all that is on the table for legal regulation, then we all could 
breath a sigh of relief and quickly come to an amicable agreement on the lion's 
share of the matter.  I might quibble that an expansion of anti-discrimination 
laws to accomplish this simple purpose is a solution in search of a problem, 
given that there are no reports in the media of an epidemic of bakeries or 
grocery stores or other merchants that are refusing to take money from people 
until after checking their sexual orientation or religious or other 
identification card.  In addition, we might still have a much lower stakes 
debate about whether even the principle of basic affording of basic merchant 
goods to everyone should admit to a rare exception where the harm is minimal 
and the idiosyncratic religious claim is severe.  But, again, I'd acknowledge 
that we’d be at least 99 percent of the way there if this were all we are 
talking about.

Unfortunately, unless I've misread the many posts over the last couple of 
weeks, this does not appear to be all that is demanded by advocates of a 
broader anti-discrimination regime that admits of no religious liberty 
exceptions.

Suppose that our two Christian evangelists walk into Greg Lipper’s hypothetical 
bakery and the baker says, “you’re welcome to come in and buy baked goods, but 
I won’t allow any Christian leafleting or prosyletizing of my customers.”  I 
imagine that nearly all of us would agree that the baker would be well within 
his rights to refuse to allow his bakery to be a venue to promote the 
evangelist's message.  Would everyone still agree if the baker applies this 
no-leafletting policy in a “discriminatory” way?  Suppose that the baker does 
not permit the Christian evangelists to hand out flyers, but then he circulates 
for customer signatures his own petition asking Governor Brewer to veto the 
Religious Freedom Restoration Act amendments?  I would hope that most of us 
would stand by the baker here,.  But such a freedom for the baker to so 
discriminate is hard to reconcile with some comments on this list suggesting 
a more absolute value for anti-discrimination.

Or suppose that our intrepid Christian evangelists, exhausted after a Friday 
afternoon of preaching and receiving regular epithets from a hostile street 
audience, arrive at our baker’s door, hungry and thirsty, only to find the 
baker putting out the closed sign, as he explains, “I’m Jewish, so I’m 
closing on Friday evening as the Sabbath is beginning.”  Should our Christian 
evangelists be heard to make a legal claim that the baker is discriminating 
against non-Jews by denying them service on a Friday evening -- and on 
explicitly religious grounds no less?  Again, I hope list members would not 
reach that conclusion.  But then I've been reading posted messages saying that 
merchants of differing religious views should be required to adjust to the 
demands of the majority.

In sum, my prior points about the over- and mis-use of discrimination to 
characterize choices, as well as the danger of allowing government to pressure 
people into proper and decent behavior, do not disappear when we reach the door 
to a business.

Greg Sisk


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Greg Lipper [lip...@au.org]
Sent: Friday, February 28, 2014 7:25 PM
To: Law  Religion issues for Law Academics
Subject: Re: The pain of discrimination and the role of government

But if those evangelicals walked into the corner bakery afterwards, the law 
would require that they be served – even if the owner hated their religious 
beliefs. And that’s how it should be, I think.


On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:

Over the past day, I’ve withheld from posting to the list, wanting to hear 
other points of view, see how the conversation unfolds, and learn from others 
(especially from those with whom I tend to disagree and perspectives that 
contrast with mine).  I hope what follows may be woven into the tapestry of 
today’s other posts.

In reading posts poignantly describing the pain of suffering discrimination, I 
was reminded of something that I observed on the streets of a major American 
city to which I was traveling.  On a major downtown pedestrian thoroughfare, 
two young people, looking to be in their early twenties, were handing out 
flyers and trying to engage passers-by in conversation.  Their t-shirts, 
leaflets, and spoken words readily identified them as evangelical Christians 
preaching the Gospel.  Their persistence in the face of a rather disdainful 
audience, as well as the tone and message, confirmed that they were speaking 
from the heart and acting in furtherance of what

RE: bigotry and sincere religious belief

[Sisk, Gregory C.]

Although Steve's post could be dismissed as filled with overstatements, unfair 
characterizations, demonization of dissenting voices, and setting up strawmen 
to easily knock down, let me take his points at face value and use them as a 
starting point for a conversation that might lower the tension and find some 
common ground.  Much of the back-and-forth accusations that fly past each other 
without true engagement may be traced to (1) the over-use or the mis-use of the 
term discriminate and (2) at least the appearance of overreaching in 
requesting accommodation.  The central point of dispute here really comes down 
to situations that involve a personal decision not to be forced to participate 
in a celebration or an affirmance of something with which one does not agree.  
Yes, other situations may arise and deserve consideration on their own merits.  
But let's set those to one side for now.  If we were to narrow the battlefield 
down to the point of coerced personal participation and identification with a 
position or message and preserving freedom of association in a narrow category, 
perhaps we might find a place where the heat could be lowered, where the 
accusation of discrimination is strained, and accommodations less grudgingly 
accepted.

Steve states that general societal laws . . . would require [religious 
believers] to ignore the sexual orientation of students, employees, customers, 
etc.  Now that is not an accurate description of new anti-discrimination laws, 
which go much further in effect.  But suppose that his description were 
correct.  Indeed, perhaps it should be correct and anti-discrimination laws 
should be recalibrated to fit Steve's description.  If we did so, we might be 
able to establish a common ground in which anti-discrimination laws would be 
harder to challenge on religious grounds and easier to defend as not imposing a 
governmental orthodoxy on others.  If persons of traditional religious faith 
with a dissenting view on sexual morality were simply required to ignore the 
sexual orientation of those with whom study or teach, work, or engage in the 
marketplace, it would indeed be more difficult to defend resistance to such a 
requirement as (1) involving a substantial burden on religious exercise, (2) 
justifying an exemption from anti-discrimination laws, or (3) involving a 
religious principle as opposed to simple hostility.  Of course, few or none of 
the real world religious liberty cases that arise involve such things as a 
grocer refusing to allow someone to purchase a bag of groceries or a physician 
refusing to set someone's broken leg.  But that just goes to show that Steve 
might have pointed us to a place of consensual rest.  An anti-discrimination 
law of such scope would find near universal approbation.

To be sure, there would still be a subset of instances in which religious 
liberty claims would be more powerful as a matter of affirmative association 
more than negative exclusion, although that line is often hard to draw.  I'm 
speaking here about something like a small family business that wants to hire 
only fellow religious believers so as to maintain a spiritual environment at 
work or a retired person who wishes to sublet a room in the house to a 
compatible person of shared religious values.  As long as an exemption for this 
would be restricted to small, intimate settings - that is, truly small 
mom-and-pop style businesses, along the lines that Doug Laycock suggests, and 
perhaps subject to limitations where a hardship or denial of service would 
apply.  But let's set this situation to one side for the moment.

What is more problematic for those of us who advocate for a more robust 
religious liberty regime are those cases, such as the Elane photography case, 
where an individual in either personal or business life is effectively coerced 
by the law to participate in a ceremony or to become a tool to advance an 
ideological message.  In other words, we are not talking at all about being 
required to ignore sexual orientation but rather the opposite.  To focus on 
the most visible case on the matter, the wedding photographer is not being 
asked to simply ignore the sexual orientation of those in a same-sex marriage, 
but to be part of a ceremony in which a same-sex union is affirmed.  
Importantly, this is not a concern that turns on a single situation or type of 
message.  And denial of the right to refuse to participate carries dangerous 
for freedom of religion, thought, association, etc. far beyond the current 
debate about same-sex marriage.  A photographer who objects to being used to 
promote a military program or a political rally or a religious ceremony should 
likewise have the freedom to decline to be used for a message that she chooses 
not to advance.

Now we could, of course, call this refusal to participate discrimination.  
But at some point that term proves too much and becomes diluted by over-use and 
quite distant in 

RE: Statistics on believers and same-sex marriage

[Sisk, Gregory C.]

Don't the statistics that Marci cites make the argument for robust religious 
freedom protection more rather than less compelling for those now or future 
religious minorities who do not wish to be forced to participate in or 
contribute business services to same-sex marriage ceremonies?  Haven't we 
transgressed rather far on to both freedom of religion and freedom of speech if 
the majority's anti-discrimination laws can be used to require a person in the 
minority, at the price of losing a business license and surrendering her 
livelihood, to participate in a ceremony that offends his or her religious 
views?  The events photographer acts not a journalist but a member of the team 
and thus must participate in a ceremony, whether it be a wedding, military 
banquet, or religious occasion.  The baker who is asked not merely to sell a 
generic cake but to create a message by designing a special cake is necessarily 
becoming a part of the program and being asked to communicate a message.  The 
proprietor of a bed-and-breakfast who is asked to dedicate a portion of her 
property to host a ceremony or program of any kind, whether a same-sex marriage 
or a religious ordination ceremony or a bachelor party, is being asked to join 
in the celebration and cannot holds it at arm's length.

Those whose religious views comfortably track the majority opinions on matters 
need not fear oppression, either intentionally or inadvertently.  It was not 
surprising, for example, in my empirical studies of religious liberty cases 
that Episcopalians bring fewer claims for accommodation than Muslims.  The 
primary purpose of religious liberty is to protect the religious minority from 
being intentionally suppressed by a hostile majority or inadvertently 
suffocated by an orthodox majority that is impatient or disdainful of 
accommodation and leaves no meaningful room for alternative views or 
lifestyles.   We should expect better of a society that calls itself free or 
that claims to genuinely value diversity.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 1:52 PM
To: religionlaw@lists.ucla.edu
Subject: Statistics on believers and same-sex marriage

I thought list participants would find the statistics below interesting.  This 
is what I meant when I said that opposition to same-sex marriage among believers
is declining.  It is even more stark when one asks only the younger generation.


http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?ncid=tweetlnkushpmg0055
.

[Image removed by sender.]
inline: ~WRD000.jpg___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Statistics on believers and same-sex marriage

[Sisk, Gregory C.]

Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I've consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage

Replace same-sex marriage with interracial marriage and I can't imagine 
you'd be making the same arguments - or suggest that business-owning opponents 
of interracial marriage were being suffocated by an orthodox majority that is 
impatient or disdainful of accommodation.



On Feb 26, 2014, at 3:24 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:


Don't the statistics that Marci cites make the argument for robust religious 
freedom protection more rather than less compelling for those now or future 
religious minorities who do not wish to be forced to participate in or 
contribute business services to same-sex marriage ceremonies?  Haven't we 
transgressed rather far on to both freedom of religion and freedom of speech if 
the majority's anti-discrimination laws can be used to require a person in the 
minority, at the price of losing a business license and surrendering her 
livelihood, to participate in a ceremony that offends his or her religious 
views?  The events photographer acts not a journalist but a member of the team 
and thus must participate in a ceremony, whether it be a wedding, military 
banquet, or religious occasion.  The baker who is asked not merely to sell a 
generic cake but to create a message by designing a special cake is necessarily 
becoming a part of the program and being asked to communicate a message.  The 
proprietor of a bed-and-breakfast who is asked to dedicate a portion of her 
property to host a ceremony or program of any kind, whether a same-sex marriage 
or a religious ordination ceremony or a bachelor party, is being asked to join 
in the celebration and cannot holds it at arm's length.

Those whose religious views comfortably track the majority opinions on matters 
need not fear oppression, either intentionally or inadvertently.  It was not 
surprising, for example, in my empirical studies of religious liberty cases 
that Episcopalians bring fewer claims for accommodation than Muslims.  The 
primary purpose of religious liberty is to protect the religious minority from 
being intentionally suppressed by a hostile majority or inadvertently 
suffocated by an orthodox majority that is impatient or disdainful of 
accommodation and leaves no meaningful room for alternative views or 
lifestyles.   We should expect better of a society that calls itself free or 
that claims to genuinely value diversity.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Wednesday, February 26, 2014 1:52 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Statistics on believers and same-sex marriage

I thought list participants would find the statistics below interesting.  This 
is what I meant when I said that opposition to same-sex marriage among believers
is declining.  It is even more stark when one

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

[Sisk, Gregory C.]

Every sorry episode in the long American history of suppression of religious 
minorities has been justified by the undoubtedly sincere beliefs of the 
majority at the time that they are on the right side of history and that taking 
additional steps to force the minority to fall into line is merely to advance 
progress.  More than a half century ago, the public demand for fealty to 
America in the face of external and internal threats of totalitarian ideologies 
imposed itself on religious communities who refused to engage in certain public 
displays of loyalty.  Not too long ago, the War on Drugs was extended to 
prohibit ceremonial use of sacred substances.  Quite recently, fears about 
terrorism have been used to adopt measures that target, profile, and denigrate 
persons of Muslim faith.  And now an expansion of anti-discrimination laws to 
cover new categories of protected persons, to include new sectors of society, 
and to apply to new entities, has imposed itself with a heavy hand on certain 
traditionalist religious groups.  In the past, we learned from mistakes in 
overreaching through policy and accepted accommodations to religious minorities 
that expanded freedom without substantially undermining key public policies.  
We need to search for that balance again.  Vigilance in defense of religious 
liberty, especially when the majority is convinced of its righteousness (which 
is almost always), must be renewed in every generation.

In sum, it is dangerous for anyone exercising political power to come too 
readily to the certain conclusion that they are not only absolutely correct 
about the right answer to every issue but absolutely entitled to use whatever 
means are possible to advance that right answer without any concern for the 
impact on those who sincerely disagree, with the presumption of every powerful 
elite that those who think otherwise should learn “to adjust.”  To quote 
Learned Hand, as I did several days ago, “The Spirit of Liberty is the spirit 
that is not too sure that it is right.”


Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, February 26, 2014 2:43 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

I don't have any desire for them to go out of business, but if they are going 
to be in business, they need to operate in the marketplace without
discrimination.   If the business they have chosen does not fit their belief, 
they need to adjust, or move on.   No one is barring religious minorities from 
professions.
What is being suggested is that believers cannot shape the business world and 
customers to fit their prejudices.  The insidious notion that believers have a 
right
not to adjust to the law is the most damaging element of the RFRA movement, not 
just to those harmed by it, but by the believers who are permitted to avoid 
dealing
with the changes that increase human rights, and demand their consideration and 
accommodation.   Believers have enthusiastically supported the subjugation of 
blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are doing is a 
violation of human rights is a disservice to all.   It is an understanding of 
religion removed from history, which
is false.

The ship has sailed on distinguishing homophobic discrimination and race 
discrimination.

Even if the compelling interest test can be overcome (assuming we are dealing 
with balancing and not an absolute right), the least restrictive means test 
remains, and that
is the element that drives cases in favor of the religious actor and against 
those they burden and harm.


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[Image removed by 
sender.]https://www.facebook.com/professormarciahamilton?fref=ts   [Image 
removed by sender.] https://twitter.com/marci_hamilton
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Wed, Feb 26, 2014 3:31 pm
Subject: RE: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses
“He needs to change jobs.” As I said, what you really want is for these people 
to go out of business. Barring religious minorities from professions is a very 
traditional form of religious persecution. Reviving it here is not the solution 
to these disagreements over conscience.

I think that race is constitutionally 

RE: Statistics on believers and same-sex marriage

[Sisk, Gregory C.]

No such logic exists.  Your inference omits my express reference to the 
requirement of a substantial burden and the omission of a compelling public 
interest.  A return to racial segregation and inability to receive services on 
the basis of race would easily qualify as a compelling public interest.  The 
narrow question presented in these cases is whether a religious minority may 
decline to participate in a ceremonial message with which they disagree, 
especially when alternative venues and services are readily available and thus 
no actual burden is imposed on anyone.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Wednesday, February 26, 2014 2:55 PM
To: Law  Religion issues for Law Academics
Subject: Re: Statistics on believers and same-sex marriage

I appreciate your consistency - and your acknowledgement that the logic 
underlying the Arizona legislation would enable a return to racial 
discrimination and segregation (at least when motivated by religious beliefs).


On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:


Yes, I do support religious liberty claims for religious minorities, when a 
substantial burden on exercise of faith is shown and a compelling government 
interest is missing.  I do not limit my support for religious liberty to those 
exercises of religion that correspond to my own views, for that is not freedom 
at all.  I've consistently defended claims by multiple religious minorities, 
from Muslims to American Indian groups and on to Orthodox Jews, as well as 
evangelical Christians and Catholics.  Nor is my plea to accommodate the small 
business owner limited to a particular type of objection.  An events 
photographer should be free, as a matter of both free exercise of religion and 
freedom of speech, to decline to photograph events that communicate a message 
with which she disagrees, whether that be a military deployment send-off event 
(because she is a pacifist) or a same-sex marriage ceremony (because she 
adheres to traditional religious perspectives on sexual morality) or, for that 
matter, a Catholic First Communion (because she regards the Catholic Church as 
oppressive).

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Leaving room for counter-cultural communities on contraception

[Sisk, Gregory C.]

 
with that teaching.
Patrick Henry College and Bob Jones University are right there with your 
hypothetical Catholic university on opposing contraception.  Neither is the 
oasis you describe.  Nor is
Notre Dame, as you know. I am all in favor of counter-cultural communities on a 
wide range of issues, but I do not think that your linkage between 
contraception beliefs and
healthier relationships with men holds water.

Marci




Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[X]https://www.facebook.com/professormarciahamilton?fref=ts   [X] 
https://twitter.com/marci_hamilton


-Original Message-
From: Sisk, Gregory C. gcs...@stthomas.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Thu, Feb 20, 2014 10:13 pm
Subject: RE: Leaving room for counter-cultural communities on contraception

I genuinely do appreciate the respect.  I have been gratified by the 
surprisingly large number of encouraging private messages I have received from 
people of different views politically and about the value of artificial 
contraception.

So I feel somewhat churlish in saying this, but I don’t see that Marci’s 
message is responsive to mine.  Surely she does not mean to suggest that a 
university’s track record of addressing sexual violence has an empirical 
correlation to its position on the use of artificial contraception.  And I 
don’t find any support for such a suggestion in the literature or her article.  
Indeed, reading Marci’s linked article, I find nothing that suggests an 
educational community’s decision to affirm young women and men in treating 
sexuality as a sacred gift and not to distribute contraception could somehow 
lead to sexual violence – indeed, the word “contraception” does not appear in 
her linked article at all.  Nor does she discuss any university or college that 
advances the Catholic Church’s integrated teachings about human dignity and 
sexuality, much less consider the distinctly feminist character of the voices 
of Catholic professional women that I described.

Moreover, as a leader in faculty governance and working directly on sexual 
assault policies on the university campus, I see nothing in the sobering 
statistics and episodes around the country supporting a policy conclusion that 
making contraception more available on a college campus is the answer to end 
sexual assaults.  We cannot so easily avoid engaging with that problem.  The 
problem of sexual violence on college campuses of all kinds and types – public 
and private, elite and regional, religious and non-religious, Catholic and 
secular – must be addressed directly and not avoided based on presumed 
categorizations.  It deserves to be directly addressed with clear policies, 
support systems, and reporting requirements.

Greg Sisk


Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

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 hamilto...@aol.commailto:hamilto...@aol.com
Sent: Thursday, February 20, 2014 7:07 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Leaving room for counter-cultural communities on contraception

I respect Greg's intent here.   But, from where I am sitting, facts are more 
important than lofty goals when it comes to the protection of women from sex 
abuse and assaults.

To the extent that Greg's reasoning is intended to imply that universities 
opposed to contraception are oases of protection for female students, I offer 
my justia.com column today.

http://verdict.justia.com/2014/02/20/sex-assaults-evangelical-colleges-united-nations-vatican

Facts matter in religious liberty debates.


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/

-Original Message-
From: Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu
To: 'religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu' 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 18, 2014 8:55 pm
Subject: Leaving room for counter-cultural communities on contraception
Following up on yesterday’s conversation, let me approach the question of 
Catholic resistance to the contraception mandate as a plea for something more 
than grudging tolerance of different opinion but rather a request for a more 
“liberal” acceptance of a community

RE: Leaving room for counter-cultural communities on contraception

[Sisk, Gregory C.]

I genuinely do appreciate the respect.  I have been gratified by the 
surprisingly large number of encouraging private messages I have received from 
people of different views politically and about the value of artificial 
contraception.

So I feel somewhat churlish in saying this, but I don’t see that Marci’s 
message is responsive to mine.  Surely she does not mean to suggest that a 
university’s track record of addressing sexual violence has an empirical 
correlation to its position on the use of artificial contraception.  And I 
don’t find any support for such a suggestion in the literature or her article.  
Indeed, reading Marci’s linked article, I find nothing that suggests an 
educational community’s decision to affirm young women and men in treating 
sexuality as a sacred gift and not to distribute contraception could somehow 
lead to sexual violence – indeed, the word “contraception” does not appear in 
her linked article at all.  Nor does she discuss any university or college that 
advances the Catholic Church’s integrated teachings about human dignity and 
sexuality, much less consider the distinctly feminist character of the voices 
of Catholic professional women that I described.

Moreover, as a leader in faculty governance and working directly on sexual 
assault policies on the university campus, I see nothing in the sobering 
statistics and episodes around the country supporting a policy conclusion that 
making contraception more available on a college campus is the answer to end 
sexual assaults.  We cannot so easily avoid engaging with that problem.  The 
problem of sexual violence on college campuses of all kinds and types – public 
and private, elite and regional, religious and non-religious, Catholic and 
secular – must be addressed directly and not avoided based on presumed 
categorizations.  It deserves to be directly addressed with clear policies, 
support systems, and reporting requirements.

Greg Sisk


Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, February 20, 2014 7:07 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Leaving room for counter-cultural communities on contraception

I respect Greg's intent here.   But, from where I am sitting, facts are more 
important than lofty goals when it comes to the protection of women from sex 
abuse and assaults.

To the extent that Greg's reasoning is intended to imply that universities 
opposed to contraception are oases of protection for female students, I offer 
my justia.com column today.

http://verdict.justia.com/2014/02/20/sex-assaults-evangelical-colleges-united-nations-vatican

Facts matter in religious liberty debates.


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton

-Original Message-
From: Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu
To: 'religionlaw@lists.ucla.edu' 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 18, 2014 8:55 pm
Subject: Leaving room for counter-cultural communities on contraception
Following up on yesterday’s conversation, let me approach the question of 
Catholic resistance to the contraception mandate as a plea for something more 
than grudging tolerance of different opinion but rather a request for a more 
“liberal” acceptance of a community with an alternative view of the good life.  
At the outset, I emphasize that my primary purpose here is not to persuade you 
that this alternative view is better.  I am not even arguing today that those 
who advocate for ready and cost-free access to artificial contraception should 
refrain from advancing that policy preference through political means.  My aim 
of the moment is much more modest, which is to contend that in a free and 
diverse society, public policy should leave ample breathing room for a 
community with a counter-cultural understanding on these important questions.

I appreciate that contraception is widely viewed throughout the academy as an 
unalloyed positive social good, even a “revolutionary” and necessary step for 
women’s equality.  Indeed, it would not be an exaggeration to describe the 
pro-contraception position as the privileged narrative in the academy.  The 
contrary view is seldom heard in the halls of the typical law school and not 
much respected on the irregular

RE: Leaving room for counter-cultural communities on contraception

[Sisk, Gregory C.]

I genuinely do appreciate the respect.  I have been gratified by the 
surprisingly large number of encouraging private messages I have received from 
people of different views politically and about the value of artificial 
contraception.

So I feel somewhat churlish in saying this, but I don’t see that Marci’s 
message is responsive to mine.  Surely she does not mean to suggest that a 
university’s track record of addressing sexual violence has an empirical 
correlation to its position on the use of artificial contraception.  And I 
don’t find any support for such a suggestion in the literature or her article.  
Indeed, reading Marci’s linked article, I find nothing that suggests an 
educational community’s decision to affirm young women and men in treating 
sexuality as a sacred gift and not to distribute contraception could somehow 
lead to sexual violence – indeed, the word “contraception” does not appear in 
her linked article at all.  Nor does she discuss any university or college that 
advances the Catholic Church’s integrated teachings about human dignity and 
sexuality, much less consider the distinctly feminist character of the voices 
of Catholic professional women that I described.

Moreover, as a leader in faculty governance and working directly on sexual 
assault policies on the university campus, I see nothing in the sobering 
statistics and episodes around the country supporting a policy conclusion that 
making contraception more available on a college campus is the answer to end 
sexual assaults.  We cannot so easily avoid engaging with that problem.  The 
problem of sexual violence on college campuses of all kinds and types – public 
and private, elite and regional, religious and non-religious, Catholic and 
secular – must be addressed directly and not avoided based on presumed 
categorizations.  It deserves to be directly addressed with clear policies, 
support systems, and reporting requirements.

Greg Sisk


Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, February 20, 2014 7:07 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Leaving room for counter-cultural communities on contraception

I respect Greg's intent here.   But, from where I am sitting, facts are more 
important than lofty goals when it comes to the protection of women from sex 
abuse and assaults.

To the extent that Greg's reasoning is intended to imply that universities 
opposed to contraception are oases of protection for female students, I offer 
my justia.com column today.

http://verdict.justia.com/2014/02/20/sex-assaults-evangelical-colleges-united-nations-vatican

Facts matter in religious liberty debates.


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.comhttp://sol-reform.com/

-Original Message-
From: Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu
To: 'religionlaw@lists.ucla.edu' 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Tue, Feb 18, 2014 8:55 pm
Subject: Leaving room for counter-cultural communities on contraception
Following up on yesterday’s conversation, let me approach the question of 
Catholic resistance to the contraception mandate as a plea for something more 
than grudging tolerance of different opinion but rather a request for a more 
“liberal” acceptance of a community with an alternative view of the good life.  
At the outset, I emphasize that my primary purpose here is not to persuade you 
that this alternative view is better.  I am not even arguing today that those 
who advocate for ready and cost-free access to artificial contraception should 
refrain from advancing that policy preference through political means.  My aim 
of the moment is much more modest, which is to contend that in a free and 
diverse society, public policy should leave ample breathing room for a 
community with a counter-cultural understanding on these important questions.

I appreciate that contraception is widely viewed throughout the academy as an 
unalloyed positive social good, even a “revolutionary” and necessary step for 
women’s equality.  Indeed, it would not be an exaggeration to describe the 
pro-contraception position as the privileged narrative in the academy.  The 
contrary view is seldom heard in the halls of the typical law school and not 
much respected on the irregular occasion that it is voiced.  Those who resist 
the use of artificial contraception are regarded at best as being quaint or in 
need of consciousness-raising

Leaving room for counter-cultural communities on contraception

[Sisk, Gregory C.]

Following up on yesterday's conversation, let me approach the question of 
Catholic resistance to the contraception mandate as a plea for something more 
than grudging tolerance of different opinion but rather a request for a more 
liberal acceptance of a community with an alternative view of the good life.  
At the outset, I emphasize that my primary purpose here is not to persuade you 
that this alternative view is better.  I am not even arguing today that those 
who advocate for ready and cost-free access to artificial contraception should 
refrain from advancing that policy preference through political means.  My aim 
of the moment is much more modest, which is to contend that in a free and 
diverse society, public policy should leave ample breathing room for a 
community with a counter-cultural understanding on these important questions.

I appreciate that contraception is widely viewed throughout the academy as an 
unalloyed positive social good, even a revolutionary and necessary step for 
women's equality.  Indeed, it would not be an exaggeration to describe the 
pro-contraception position as the privileged narrative in the academy.  The 
contrary view is seldom heard in the halls of the typical law school and not 
much respected on the irregular occasion that it is voiced.  Those who resist 
the use of artificial contraception are regarded at best as being quaint or in 
need of consciousness-raising and are seen at worst as retrograde believers in 
a subservient role for women as incessant baby-makers.  Through this post, I 
want to challenge this group of open-minded scholars to entertain the 
possibility that women and men of sound mind and good heart, many of feminist 
inclinations, can reasonably and even joyfully embrace an alternative worldview 
that embraces sexuality as a gift but excludes artificial contraception.

The perspective that I sketch here, inartfully, is that shared with me by many 
friends, colleagues, and former students-Catholic women who accept the Church's 
teaching on sexuality and contraception, not as a rigid doctrinal imposition, 
but as a gift.  And these are successful professional women, who have 
satisfying careers as lawyers or law professors, which they have integrated 
with fulfilling personal and family lives.  For on-line examples of these 
voices, although I do not know these women personally, I suggest these links:
http://catholicmoraltheology.com/catholics-contraception-and-feminisms/
http://www.integratedcatholiclife.org/2012/07/lorraine-murray-catholic-womans-journey-with-contraception

For the orthodox Catholic women that I have known in professional settings, 
they have not experienced the ready availability of artificial contraception as 
liberating.  Rather, they have seen the assumption that all women use (or 
should use) artificial contraception as serving to fuel the hyper-sexualized 
environment on college campuses, leading to the familiar hook-up culture and 
its devaluation of human sexuality and degradation of women.  Rather than 
seeing contraception as enhancing equality, these women have seen the 
presumption of contraceptive use as encouraging men to behave irresponsibly and 
to treat women as sexual conquests.  In sum, by resisting the contraception 
narrative, these women have set a different path for romantic relationships.  
They believe they have achieved healthier relationships with men.

When these professional women marry, they engage in discourse and planning with 
their husbands about children, a dialogue that cannot be avoided because 
contraception is not used to make it possible to avoid the question.  Contrary 
to the absurd suggestion that women who do not use artificial contraception 
typically have ten to twenty children, these women know that family planning 
and artificial contraception are not synonymous, and they insist that modern 
women have not lost all capacity for self-control.  While they may choose to 
have larger families than the norm in some circles, the professional Catholic 
women that I know who joyfully follow Church teaching have families with 
children ranging in number from a single child to about half a dozen, with most 
in the two or three range.

Now let us suppose that a particular Catholic community-a Catholic university, 
let us say-wishes to build an oasis in which young men and women have an 
alternative to the contraception culture that dominates most of society.  This 
university builds single-sex dormitories and adopts what we'll label 
parietals that call for person of the opposite sex to leave a student's dorm 
room after a certain time each night.  Every student admitted to the university 
(and every faculty or staff member employed by the university) is well aware of 
the Church's teaching and of the university's considered policies in accordance 
with that teaching.

Knowing that their students are real people and not angels, the Catholic 
university leadership understands that not all 

RE: Notre Dame-- where's the complicit participation? Sincerity

[Sisk, Gregory C.]

Derek Gaubatz’s post concludes with a point that is too often lost in the sound 
and fury about the imposition of the abortificient/contraception mandate on 
employers of faith – which is that the mandate is dubious public policy (even 
on its own terms) and this dispute could have been avoided but for political 
considerations.  This is another sad episode in modern politics in which those 
with power – of either party and both sides of the spectrum – gleefully impose 
their views on opponents by needless overreach when they get a political 
victory.  The last thing that the Catholic bishops or that Notre Dame wanted 
was this legal fight.  The Administration imposed the mandate so broadly to 
score ideological points with its pro-choice constituency, adopting a policy 
with a weak connection to significant public policy or health care needs, given 
the wide and inexpensive availability of contraception.  Regardless of the 
strength of the RFRA and constitutional claims by various employers for 
exemption from the abortifacient/contraception mandate, the lesson that should 
be taken away is the need to stop the scorched earth approach to politics.

I do fear that we have entered into a dangerous period in American politics in 
which winning an election and then passing the legislation that your side 
prefers is not enough.  True political victory, it seems, requires the winners 
to grind the losers into the dust.  Those on the other side of the debate must 
be broken to the wheel of whatever ideology is in the ascendancy at the moment. 
 This take-no-prisoners approach – applied by those on both sides of the 
ideological spectrum when they gain power – has left behind a growing number of 
political, social, and psychological casualties in our civil society.

Witness the understandable fears of people in intimate relationships that they 
will be denied comfort at the hospital bed or their loved ones left without 
benefits after their death because the political winners in many states 
emphasized opposition to same-sex marriage by adopting a Super-DOMA that 
threatens to upset any established relationship between people of the same sex. 
 It was not enough to ban same-sex marriage.  No, it had to be ratched to the 
next level, leaving no doubt as to who was on the losing side.  Or consider the 
efforts in some states by pro-gun forces to not only secure the right to carry 
firearms in public, but to insist on carrying the weapon into private places of 
business and public accommodation.  It isn’t enough to win, it seems; rather, 
we have to make sure the other side must acknowledge our victory by being 
forced to play along with us.  Or we find a wedding photographer in yet another 
state who objects to participating in a same-sex commitment ceremony and finds 
herself under investigation by the state and threatened with sanctions, not 
because of any lack of supply of willing photographers for same-sex ceremonies 
but to set down an ideological marker that “discriminators” must be driven from 
public society.  Likewise, while there are plenty of adoption agencies in 
Massachusetts that place children with same-sex couples, the political powers 
that be in the state could not tolerate a Catholic adoption agency that had a 
different point of view.  Those in political power preferred to see the 
Catholic adoption agency close its doors, despite its niche for hard-to-place 
speacl needs children, rather than accept a deviation from political orthodoxy. 
 And more generally we can look at the tragedy of ruined lives in overflowing 
prisons following from overly aggressive criminal policies that fit a political 
agenda of one kind or another at one time or another.

The actual public policy rationale for the abortifacient/contraception 
administration mandate against objecting employers of faith is shockingly thin 
(and dubiously connected to the text of the legislation enacted by Congress).  
To begin with, no one objects to contraceptive medications being used for a 
multitude of medical purposes.  Neither Notre Dame nor the Little Sisters nor 
even Hobby Lobby have ever objected to the prescription and coverage of 
contraceptive medications for other medical purposes.  That medical need 
argument is a red herring.  Nor does anyone propose that contraception be made 
illegal or banned from the pharmaceutical marketplace.  Notre Dame, the Little 
Sisters of the Poor, and Hobby Lobby are not lobbying for legislative bans or 
organizing boycotts of contraception manufacturers.  Instead, a few employers 
of faith narrowly object to being required to participate in the 
payment/provision of such medications for the very purpose of ordinary 
contraception (by Catholic employers) and for what is seen as accomplishing 
abortion (by many more).  Now we can debate whether these employers really are 
being required to so participate or to be complicit, argued about whether the 
belated partial accommodations created by 

RE: Notre Dame-- where's the complicit participation? Sincerity

[Sisk, Gregory C.]

The question is not about access to health care or to contraception.  No one 
proposes to ban contraception or withdraw it from the market.  Access to 
contraception for those who cannot afford it is already widely available 
through both government and private efforts.  Government subsidizes 
contraception in this country to the tune of $2.37 billion each year (yes, 
that's billion with a b).  Chip Lupu offers us the amicus brief of the 
Guttmacher Institute in making make the medical case for the benefits of the 
mandate.  Others have suggested that the primary motivation behind the 
contraception mandate within the Obama Administration was not a medical need 
that was not otherwise being addressed, but an ideological agenda.  See Karen 
Jordan, The Contraceptive Mandate: Compelling Interest or Ideology? at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366466.  My reading of the 
materials suggests the latter is the more accurate description.  But I suspect 
that this is a matter on which people on this list will leave by the same door 
through which they entered.
I want to encourage us to look beyond this particular episode and beyond the 
Supreme Court's resolution of the case at hand to the broader implications for 
our polity.  Based on the reactions to my prior post, I may have as much 
difficulty as anyone in transcending ideological blinders.  If so I apologize 
for my clumsy expression but would offer my own error in that respect as an 
object lesson for more self-critical evaluation by all of us.  The broader 
issue I raised - in which I used diverse examples designed to prick the 
sensibilities of both sides of the political spectrum (with some success I 
gather) - is the increasing tendency of political winners to then wield the 
powers of government to impose that view directly on others, even to the point 
of conscripting others to serve that agenda.  It no longer is enough to get 
government to do something for us that we want (or stop government from 
preventing us from doing something that we want to do).  Now, when we win 
political power, we want government to use its powers of regulation and 
benefits and taxes to bring everyone else into line, grudging or not.  I think 
the health of our society is being undermined by this absolutist approach to 
political debates and to governance.
Now Sandy Levinson rightly asks whether this debate advances the ball on the 
constitutionality of the mandate before the Supreme Court.  Probably not.  But 
then I'm not contending that it does.  I'm suggesting that avoiding 
constitutional crises is a value in itself.  Looking for a new approach to 
politics that doesn't unnecessarily elevate winners and denigrate losers may be 
more important to the future health of our constitutional republic.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[Sisk, Gregory C.]

Actually, I think non-Catholics mostly would be pleasantly surprised, both on 
the receptivity of the priest-confessor and the wisdom of the response.  To be 
sure, there are some misdeeds that are shared in confession that are understood 
to be such solely from the perspective of the Catholic believer (e.g., failed 
to attend mass, took the Lord’s name in vain, etc.), but most of what is shared 
with a priest are the kinds of faults to which all of us are prone and which 
all (or nearly all) of us regard as faults.  And, following the confession, a 
good priest (which is to say, most priests) responds both in religious terms by 
pronouncing absolution and reconciliation with God, but also speaking about 
reconciliation with one’s neighbors and future personal growth.  Indeed, in my 
own experience – and I do not go to confession nearly as often as I should (one 
more thing to confess, I guess) – is that the priest usually engages me in a 
common-sense and real-world dialogue about why I have fallen short, what are 
the obstacles in my path, and what steps I should take to overcome those 
obstacles.  Penance may include prayer (the traditional, “say, ten ‘Our 
Father’s) but more and more often will include steps to compensate for harm to 
others, efforts to assist others in a similar situation, charitable activities, 
etc.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 05, 2013 4:17 PM
To: Law  Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

My sense is that I (as someone who is irreligious) would get 
relatively little solace or even wise counsel from speaking to an average 
Catholic priest about my troubles and misdeeds, at least unless I was at least 
contemplating converting to Catholicism.  Unsurprisingly, the priest would 
respond in a way that fits well the beliefs of Catholics, but not my own.  
(There might be some priests who are inclined to speak to the secular in 
secular philosophical terms, but I assume they aren’t the norm.)

Religious people, then, have the ability to speak 
confidentially to those moral advisors whose belief systems they share.  
Secular people do not.

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, December 05, 2013 9:33 AM
To: Law  Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

Is that accurate? It may vary, but I thought the privilege could be claimed for 
any confidential communication made to a clergy member in his/her professional 
capacity as a spiritual advisor. The person seeking that counsel need not 
necessarily be a co-communicant. I don't think this is just hair-splitting. 
It's not analogous to a statement that men as well as women can seek medical 
care for pregnancy.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[Sisk, Gregory C.]

Many reasons can be offered for the venerable privilege that originated as the 
priest-penitent privilege, including as Doug notes that the penitent having the 
confidence that confession is sacrosanct will be willing to share that which he 
or she withholds from all others and thereby be in a position to receive moral 
instruction and a direction for reconciliation from a priest that benefits all 
in society (much as does a lawyer for a client who confesses to past 
wrongdoing).

But another reason for this kind of religious accommodation of something so 
central to a faith is to consider what kind of a society we would be without 
it.  To tell someone that a basic sacrament or what is directly related to the 
sacramental nature of the church – whether it be use of an intoxicating 
substance in communion, confession to a priest to be reconciled to God, 
selection of ministers by apostolic succession – is forbidden or subject to the 
intrusive examination and regulation of the government should be most 
disturbing of all.  Without an accommodation to Catholic churches on use of 
wine during prohibition or in a dry county, without protection of the 
confidentiality of the confessional through a privilege, without selection of 
priests by apostolic succession free of the kind of government rules and 
judicial monitoring that are imposed by anti-discrimination statutes, the 
Catholic faith simply could not be observed in this country – other than by 
resort to underground groups and dissident activities.  (And, I recognize, 
other less mainstream faiths would be even more likely to suffer such 
governmental invasion, as witness the plight of Native American religions and 
others).

To be sure, there are and have been governments that require clergy to serve an 
informants on the people – not just to what they have witnessed as wrongdoing 
but what they hear through confession by the people.  And we have seen 
governments that demand a role in selecting or approving bishops and other 
ministers.  The China of today and the Poland of the communist era come most 
readily to mind.  That is not the kind of government that we Americans claim to 
have.

Those of us of faith appreciate that on many things we may be forced on a 
regular basis to balance that which is a demand of or influence from our faith 
against our civic duties and the strictures of the secular order.  I believe 
strongly that accommodation on many of these matters is appropriate, but 
appreciate that reasonable people will be of differing viewpoints in 
application in many instances.  Governmental control over sacraments, though, 
is quite another thing, ratcheting up the violation of religious freedom to a 
much higher level.  When worship itself is subjected to governmental monitoring 
and regulation, religious freedom becomes a hollow pledge.

I am not given to hyperbole.  I am more likely to be saddened than outraged 
when I see religious rights violated in this country.  And, as noted, I 
frequently can appreciate, if not be persuaded by, the opposing viewpoint.  I 
recoil from those, on both left and right, who exaggerate a dispute of the 
moment and contemplate an apocalyptic outcome justifying an extreme response.  
And I roll my eyes when some self-important celebrity or commentator threatens 
to leave the country if this or that policy is enacted or this or that 
politician is elected (and wish they would carry through on the threat 
afterward).  But a government that overreaches so far as to deny me the 
sacrament of confession, for example, would be a society to which I could no 
longer give my loyalty as a citizen.  Fortunately, despite some worrying 
remarks here and there, now and then, I remain confident that my fellow 
citizens will not bring us to that sad state of affairs.

Greg Sisk

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Sisk, Gregory C.]

I wonder how far some would be willing to take this proposition, that a 
parent's financial support for benefits to an adult child can rise to the level 
of coercion/leverage that if exercised with religious motivations could have 
constitutional implications.

Let me offer a different scenario, one in which the government's role is 
diminished but still very significant in the effect it plays on options:  
higher education choices.

Suppose that Sue is graduating from high school at the age of 18.  She wants to 
go to college.  To be sure, no law requires a parent to finance an adult 
child's college education.  But federal and state financial aid programs, as 
well as those of all colleges, will evaluate her need based on her parents' 
income and assets.  If her parents have any substantial income and assets, Sue 
will be found to have little or no need, thus greatly restricting her ability 
to obtain grants and even loans on her own.  Because she likely will have a low 
credit score, she will find it difficult to get significant educational loans 
in the private market, without a parent co-signing the loan.  In sum, her 
choices of where to attend to college are significantly restricted - perhaps 
even precluded altogether (in the near term at least) - unless her parents are 
willing to assist (which of course is the assumption underlying federal 
financial aid programs).

Now suppose that Sue has a great high school GPA, great test scores, and great 
extra-curriculars (and of course writes a very good admissions essay), 
resulting in her admission to both Princeton and Notre Dame.  For various 
reasons, Sue would like to go to Princeton.  But Sue's parents, as committed 
Catholics, tell her they are willing to help pay for her to go to Notre Dame 
but will contribute nothing to help her attend Princeton.  As a practical 
matter, then, Princeton is off the table for Sue.  She can refuse to attend 
Notre Dame of course, but then she likely will have to cobble together funds 
from some source to attend the local public university - and even that lower 
cost institution may prove difficult or beyond reach for an adult child who, 
under federal, state, and college financial aid parameters, is regarded as 
having no need.

Remembering that the provision of financial aid by the federal and state 
governments, with set parameters based on parent financial resources, plays a 
significant role in creating this dilemma for Sue.  Does that mean that her 
parents' decision somehow transgresses constitutional limitations regarding 
interaction with religion?  And remember as well that Sue's parents could 
always have chosen not to provide her with aid to any college, Princeton, Notre 
Dame, or State U (just as a parent has no legal obligation to offer any health 
insurance benefits for an adult child).  Or is this hypothetical wholly lacking 
in adequate analogies to the health insurance scenario?

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 16, 2013 1:40 PM
To: Law  Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

There's much to what Chip says in general.  But, as applied, I 
wonder.  If refusing to support your adult child is an externality, then 
nearly everything becomes an externality.  (Incidentally, does the ACA even 
purport to legally require parents to include adult children under their 
policy?  If a parent is legally entitled to just not include an 18-year-old on 
his insurance, how is it an externality on the 18-year-old if the parent 
seeks a less than full policy?)  If we have gotten to the point that adult A's 
refusal to include adult B under a benefit plan that adult A has earned as part 
of his job is a fine imposed on B, then I wonder how the 
externality/nonexternality distinction can really be made to work.

Incidentally, it seems to me -- despite the Court's disclaimer 
in Sherbert -- people in Sherbert's shoes do impose an external cost on others, 
either taxpayers or on their former employers, who have to pay more in 
unemployment insurance as a result of the claims.  That's one reason I think 
Sherbert was wrong, but, again, that's the law.

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 11:07 AM
To: Law  Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Cutter v. Wilkinson, and other 

RE: Minneapolis Taxicab Controversy

[Sisk, Gregory C.]

Thanks very much!  This is good to know.  Our piece on Muslim religious liberty 
in the federal courts was accepted at the Iowa Law Review on Friday, so it has 
a home now.

Greg


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marie A. Failinger [mfailin...@gw.hamline.edu]
Sent: Monday, March 12, 2012 11:05 AM
To: Law  Religion issues for Law Academics
Subject: Re: Minneapolis Taxicab Controversy

Here is what I have learned about the Minneapolis cab controversy.  According 
to the civil rights leader I spoke with, the controversy started because of the 
fatwa referred to below. After it came out and cabdrivers began to follow it, 
other imams in the Twin Cities came out with opinions indicating that it was 
not forbidden to carry passengers with alcohol.  (Sounds like a federal court 
split-in-circuits type dustup:)   Most of the cab drivers followed the other 
imams' opinions and kept working under the MAC must carry rules.  The leader 
said that she had not recently heard anything regarding the legal action.


Marie A. Failinger

Professor of Law
Editor, Journal of Law and Religion
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
mfailin...@hamline.edu (email)


 Marie A. Failinger mfailin...@gw.hamline.edu 3/8/2012 9:17 AM 
Marty, the fatwa is described in the following Star Tribune article, 
http://www.startribune.com/local/11586646.html (which also reports one local 
well-respected imam's opinion that carrying a disability service dog should not 
pose a problem for Muslim cabdrivers.)

Marie A. Failinger
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Religious objections vs. medical objections

[Sisk, Gregory C.]

As a matter of what is a reasonable accommodation, Eugene’s points are 
certainly salient to me, not so much because one is a medical objection and the 
other religious but based on what is reasonable in specific context.  I raised 
the example of the Target cashier who was Muslim and wished to avoid touching 
pork, and the contrasting example of a cashier who was allergic to peanuts, not 
so much to insist that the one be accommodated (although I think it should be) 
as to highlight the tone of the public objections to the Muslim cashiers as a 
further indication of community antipathy (or, more accurately, the antipathy 
of the vocal objectors).  Interestingly, Target in fact did accommodate the 
Muslim employees, concluding they were required as a matter of law under Title 
VII to do so (regardless of the assertions by some that the request was 
un-American) and that the easiest accommodation was to shift them from the cash 
register to other positions within the company.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2012 6:29 PM
To: Law  Religion issues for Law Academics
Subject: Religious objections vs. medical objections

It may well be that there were specifically anti-Muslim 
statements made in the Target controversy that Greg describes.  But it seems to 
me that, in general, the analogy between religious objections and medical 
objections tends to be somewhat overstated.  (I thought the same of the Third 
Circuit Judge Alito opinion in Fraternal Order of Police v. City of Newark.)

For instance, I imagine that many an employer will gladly give employees 
extended leave for serious illness, perhaps even weeks’ worth of paid leave and 
months’ worth of unpaid leave.  Does it follow that it must give the same leave 
to people who want to go on a months-long religious pilgrimage?  Likewise, an 
employee might make many accommodations for employees whose medical conditions 
make it impossible for them to do a certain job, even when that involves a far 
greater than de minimis cost.  The employee might be required to do so by 
disability law, but might sometimes simply choose to do that in order to help 
someone who is sick or injured.  Does it follow that it must make similarly 
high-cost accommodations for religious employees?

I don’t think so.  It seems to me that an employer can reasonably conclude 
that, as a general matter, health-based objections are less likely to be 
broadly shared (there will be fewer cashiers with peanut allergies than Muslim 
cashiers, at least in areas with a high density of Muslim immigrants), and less 
likely to be perceived as slights even by unbiased customers.  No customer who 
notices that a cashier refuses to handle peanut products will take that as a 
personal slight; but even customers who aren’t hostile to Islam as such might 
perceive religious objection to the handling of pork or alcohol as a statement 
that the customer’s religious beliefs are (in the cashier’s view) wrong, or 
that the customer’s eating habits are “unclean” and drinking habits are 
unwholesome.

And beyond this, it seems to me quite permissible (though not the only 
permissible view) for an employer to conclude that undoubted, scientifically 
provable medical risk deserves more accommodation than subjective, individually 
felt religious belief.  Moreover, when it comes to legal compulsion, I would 
think (see TWA v. Hardison) that imposing the costs of one person’s religious 
practice on others raises objections that are more serious than just imposing 
the costs of one person’s disability on others would.

Or am I mistaken on these things, and employers who generously provide 
substantial accommodations for those who are sick, allergic, or disabled must 
provide equally substantial accommodations for those who have religious 
objections?

Eugene

Greg Sisk writes:

And given that this episode occurred at the same time that Muslim cashiers at 
Target asked not to be required to handle pork, it was fell into a context in 
which simple accommodations offered to others – such as allowing a cashier 
allergic to peanuts not to handle peanuts or peanut butter – became the subject 
of vehement public objection when Muslims were asking for the same kind of 
thing.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone 

RE: Requirement that cabbies transport alcohol = tiny burden?

[Sisk, Gregory C.]

 in a culture that 
mirrors their views.That is called Balkanization

Marci


On Mar 6, 2012, at 4:48 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:
As Eugene suggestions, the accommodation by use of lights for Muslim cabbies 
who objected to transporting visible liquor had every prospect of success.  
Even airport officials agreed that it was an ingenious solution.  It would have 
been seamless and invisible, as the dispatcher would flag over a taxi without 
the light for those transporting liquor, so that the passenger would not be 
inconvenienced or even realize what had happened.  And this accommodation was 
abandoned, not because of any concrete showing that it caused any problems for 
passenger, but by the confession the airport commission’s spokesman, because of 
a “public backlash” of emails and telephone calls.  The spokesman said that 
“the feedback we got, not only locally but really from around the country and 
around the world, was almost entirely negative.  People saw that as condoning 
discrimination against people who had alcohol.”  And not only did the airport 
commission then revoke the accommodation, it began to treat the Muslim cabbies 
even more harshly.  Where previously the punishment for refusing a fare was to 
be sent to the end of the line (which was a financial hardship because the wait 
might be for additional hours), now the commission would suspend or revoke the 
cab license.  It is impossible, in my view, to understand the chain of 
circumstances as anything other than antipathy toward Muslims – and the tenor 
of the “public backlash” makes that even more obvious.

The Somali cab driver episode is described in the introduction to an empirical 
study that Michael Heise and I have currently submitted to law reviews, finding 
that, holding all other variables constant, Muslims seeking religious 
accommodation in the federal courts are only about half as successful as 
non-Muslims.  A draft of the piece is on SSRN at:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Requirement that cabbies transport alcohol = tiny burden?

[Sisk, Gregory C.]

As Eugene suggestions, the accommodation by use of lights for Muslim cabbies 
who objected to transporting visible liquor had every prospect of success.  
Even airport officials agreed that it was an ingenious solution.  It would have 
been seamless and invisible, as the dispatcher would flag over a taxi without 
the light for those transporting liquor, so that the passenger would not be 
inconvenienced or even realize what had happened.  And this accommodation was 
abandoned, not because of any concrete showing that it caused any problems for 
passenger, but by the confession the airport commission's spokesman, because of 
a public backlash of emails and telephone calls.  The spokesman said that 
the feedback we got, not only locally but really from around the country and 
around the world, was almost entirely negative.  People saw that as condoning 
discrimination against people who had alcohol.  And not only did the airport 
commission then revoke the accommodation, it began to treat the Muslim cabbies 
even more harshly.  Where previously the punishment for refusing a fare was to 
be sent to the end of the line (which was a financial hardship because the wait 
might be for additional hours), now the commission would suspend or revoke the 
cab license.  It is impossible, in my view, to understand the chain of 
circumstances as anything other than antipathy toward Muslims - and the tenor 
of the public backlash makes that even more obvious.

The Somali cab driver episode is described in the introduction to an empirical 
study that Michael Heise and I have currently submitted to law reviews, finding 
that, holding all other variables constant, Muslims seeking religious 
accommodation in the federal courts are only about half as successful as 
non-Muslims.  A draft of the piece is on SSRN at:  
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1917057

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2012 12:28 PM
To: Law  Religion issues for Law Academics
Subject: Requirement that cabbies transport alcohol = tiny burden?

My sense is that the system would work better than Steve 
thinks, since I suspect that it would be rare that six cabbies in a row will 
have this objection.  It's true that, at least according to 
http://www.startribune.com/462/story/709262.html, most cabbies in Minneapolis 
are Somalis, and many of them are Muslims (by which the story likely means 
observant Muslims).  But my guess is that no more than a third or so will 
likely have this objection, and that most will take whatever fares they want.  
This might be why the Minneapolis Metropolitan Airports Commission was indeed 
planning to institute a color-coded light scheme (see the story linked to 
above); it would be interesting to see if this was tried and what the results 
were.  I realize that it's speculation both ways, but, especially given that 
Minnesota courts take a Sherbert/Yoder view of the state religious freedom 
provision, I would think that the burden would be on the government to try 
something and show it fails.

On the other hand, I'm not sure how one can get to the 
conclusion that this is a tiny burden on the cabbies.  Apparently the cabbies 
believe their religion bars them from transporting alcohol; that may seem 
unreasonable to us, but our judgment about reasonableness shouldn't matter for 
substantial burden purposes.  And if the claim is that the burden is tiny 
because they can just get a different job, I just don't see how this can be 
so, especially given cases such as Sherbert:  For many unskilled immigrants, 
there are very well-paying jobs out there, especially in this economy.  Perhaps 
the burden might be justified, but how can we really say that it's tiny?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, March 06, 2012 10:14 AM
To: Law  Religion issues for Law Academics
Subject: Re: Israeli Postal Workers Object to Delivering New Testaments

It is hard to set up such a system for cab drivers -- think of cabbies waiting 
at an airport where 6 in a row refuse passengers based on their possession of a 
bottle of wine.  It may be a longish wait or even a very long wait for the 
non-discriminating cabbie.  Or just hailing one on the street -- where would 
the sign be displayed?  When would the discussion take place?  How?
Tiny burden on those cabbies, it seems to me.  And if they can't abide by the 
rules, get a different job.
Public accommodations and 

RE: Conflicts between religious exefcise and gay rights and cudgels

[Sisk, Gregory C.]

Vik Amar and Alan Brownstein offer an attractive point of middle, if not
common, ground on these questions.  If we are to live together in this
diverse society, we need to find a means of resolving cultural
differences other than by scorched earth tactics.  Adopting a gay civil
rights regime in which few or no exceptions are allowed for persons of
religious conscience, as indeed has been proposed in some jurisdictions,
is just as intolerant toward difference as was the former regime in
which the only legal response to homosexuality was criminalization.  To
treat persons of traditional religious values as second-class citizens
who may not participate in the economy without surrendering the values
that form their identity is just as much of an injustice as was treating
homosexuals as second-class citizens who should be excluded from public
life.  Seeking to find a place of balance and extending tolerance toward
all is no mean task, but it is a worthy goal.  If those who achieve
political power in a particular jurisdiction, local or state, seek to
balance the genuine needs of people individuals for access to the
economy in terms of jobs, housing, and accommodations with the
protection of individual religious consicence and respect for religious
identity, then we all may better weather the present cultural
transition, whether it may lead to a monumental changes of attitudes
across the spectrum of mainstream America or instead to a place of more
permanent difference.

 

As we search for that balance, the traditional exemptions in civil
rights laws based upon size/numbers and types of activities may serve us
well.  Moreover, as a practical matter, overly-expansive and rigid
applications heighten cultural tensions. Thus, excepting smaller
employers and family home rentals, for example, where the impingement of
government-coerced directives upon intimate associations is most
profound, serves to protect conscience at its most poignant while not
having a meaningful effect on the economic availability of jobs and
housing.  By contrast, the larger scale employer and the multiple-unit
apartment owner generally have a lesser claim on intrusion into private
affairs and consicence and the exclusion of those from a civil rights
law, even on religious conscience grounds, might undermine the
protection of the laws.  (Of course, all of this assumes that the
proponents for new civil rights protections have made a concrete
empirical record of the need for any expansion of protected categories
to serve demonstrated economic needs, because the use of civil rights
laws primarily to make a political or moral point is a dubious and
arguably tyrannical exercise of governmental power).  Similarly, the
nature of the activity should be considered.  The easiest case for
exemptions covers religiously-affiliated institutions, as imposing a
government standard on to a religious entity intrudes directly on
religious liberty.  Characterizing professional services as a public
accommodation subject to civil rights rules also trespasses more closely
on conscience, as requiring an individual to offer such personal
services is much more burdensome than simply being required to open a
restaurant or hotel to all consumers.

 

The problem is a vexing one, on which people of good faith will differ
in working out the details of solutions.  But simply allowing whoever
secures political power to impose their preferences through the use of
governmental power, with disregard for the difficulties experienced by
those who may become political minorities, is unworthy of our American
tradition.

 

Gregory Sisk

Orestes A. Brownson Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

[EMAIL PROTECTED]

http://personal2.stthomas.edu/GCSISK/sisk.html

Publications:  http://ssrn.com/author=44545

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Monday, August 04, 2008 7:06 PM
To: Law  Religion issues for Law Academics
Subject: RE: Conflicts between religious exefcise and gay rights and
cudgels

 

As someone who, in times long past, has had the decidedly miserable
experience of looking unsuccessfully for jobs and housing for
significant periods of time, I do not think for a moment that people can
always find alternative jobs or quality places to live from other
providers if they are subject to discrimination. Both jobs and housing
can often be hard to find - even when you are not the victim of
discrimination. 

 

But when alternative services are clearly available, I think Art is
correct that what is at issue here is a clash of protected liberty and
equality rights that cause somewhat analogous harms.

 

As Vik Amar and I wrote recently,

 

Just as it makes no sense to tell a gay person who has been living with
his partner for 20 years to end his relationship, or to stop being gay
and enter into 

RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Sisk, Gregory C.]

Human beings are not generic round pegs that are carefully shaved down to a
uniform size on a lathe so as to fit perfectly into every round hole.  When
society, through the force of law, demands that everyone be the same and
behave the same, demanding that people surrender their deeply-held religious
beliefs so as to be an efficient cog in the societal machine, then we have
lost our liberty.  Instead, being part of a diverse community means making
reasonable accommodations for religious views, thus making it possible,
within reasonable parameters, for people from every faith to fully
participate in our public and economic life.

The question is finding that right balance between reasonable accommodation
for persons with deeply held religious beliefs and the need for effective
performance of the job at hand.  If it is impossible to make an
accommodation and the requirement is an important part of the task at hand,
then accommodation would not be required.  Thus, for example, if every
flight attendant were Muslim, allowing all flight attendants to refuse to
serve alcohol to passengers might be an unreasonable accommodation (although
we certainly could as a society then discuss whether accommodation was a
sufficiently important and respectful measure as to justify removing service
of alcohol from airplane transportation, as being able to imbibe alcohol
while sitting on a plane is hardly a civil right (although it is a privilege
that I admit to enjoying).)  But if a one flight attendant out of four on a
plane was a Muslim and were to ask to be the person who hands out pillows or
food or soft drinks, rather than be the one who fills drink orders, that
would be a simple accommodation that inconveniences no one and respects the
dignity and individuality of the person involved.  That these questions
require a case-by-case analysis -- rather than imposition of absolutist
rules -- simply reflects that we are human beings and not cattle.

In any event, I think the Minneapolis-St. Paul airport and the Muslim cab
drivers should be commended for seeking to find a balance in a way that
addresses all concerns and shows respect for all persons.  That we can
imagine another set of circumstances in which reasonable accommodation would
not be possible is no argument to refuse to accommodate in circumstances
where it can be accomplished with little inconvenience.  We ought to be
grateful that we still live in a society where, at least in some regions and
in some circumstances, reasonable people of good faith are wiling to look
for a solution that doesn't involve excluding people's whose views are not
our own or imposing a rigid and exclusive bureaucratic rule by the majority
upon a minority group.

Greg Sisk

Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html

-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Friday, September 29, 2006 10:50 PM
To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu
Subject: RE: FW: 75% of Minneapolis airport taxis refuse
customerswithalcohol

we should not force someone to take a job if they must break religious
beliefs, that is too coercive; but surely we cannot run a society if
people who have an obligation to do a job (pick up fares) refuse to do
that job. COnsider this. What if all 75% of the Muslim cabbies took this
position, and then, over time, 95% of the cabbies were Muslims who would
not pick up certain fares?  And if 25% of all flight attendants are
Muslim and refuse to serve drinks on planes, do we color code our
planes; or our amtrack trains?  Can the conductor on the train refuse to
sell a ticket to the passenger who is legally drinking on the train?

Paul Finkelman

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

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/29/06 5:37 PM 
Sandy:  I still wonder why this isn't just assuming the conclusion.
One could equally well say that unemployment beneficiaries must take any
job for which they're qualified, end of story, having been granted
unemployment compensation on those terms.  Or one could say that a
restaurant given a valuable liquor license must open seven days a week,
end of story, notwithstanding the fact that its owner feels a religious
obligation to close Saturdays or Sundays.
 
The question here is whether it's proper for those who define the
rules to come up with an exception that accommodates the licensee's
religious beliefs, while at the same time avoiding inconvenience to the
public.  It's hard to come up with such an accommodation for the postal
worker, but not that hard, I think, for the cab drivers (the
color-coding being a pretty good idea).  If the airport is willing to
accommodate the drivers, why 

RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Sisk, Gregory C.]

It's only hard to imagine that telling a Muslim cab driver to knowingly
assist someone in transporting alcohol could be a burden on faith if you're
unwilling to put yourself, even for a moment, in that person's shoes and
consider the matter from the point of view of the believer involved, rather
than insisting upon evaluating by one's own worldview. The sincerity of the
Muslim cab drivers is denied by no one who is familiar with the situation
here in the Twin Cities.  They sincerely believe that they are directly
assisting evil if they knowingly participate in the transportation of an
illicit substance.  That's not my worldview either, but I have no difficulty
understanding it and see no reason not to respect and accommodate to it.

Paul's absolutist standard of if you're hired to do a job, just do it is
so rigid that it would lead to innumerable instances of injustice and
disrespect for diversity in our society, as well as create situations in
which certain elements of the economy and public life would be closed to
people of certain faiths, not for reasons of necessity but merely of
efficiency and convenience.  By effectively saying that cab driving is off
limits to Muslims or being a physician is off limits to Catholics (by reason
of rules requiring training or assistance in abortion) is to make people of
certain faiths second-class citizens and alienated from society.  That is
not a healthy road down which to travel. Nor should we forget that the
majority makes the rules, and often are less than willing to consider the
effect imposed on the minority.

Of course, we cannot allow police officers or fire fighters to decide
whether to respond to a particular location on religious grounds.  Likewise,
we cannot allow military servicemembers to refuse commands to participate in
military action because of religious pacifism.  But most situations don't
require such strict rules or refusal to accommodate.  A person should be
able to practice medicine, without being required to participate in
abortions or assisted suicide.  A religiously-affiliated hospital should be
able to provide medical services and employ hundreds, without being required
to make its facilities available for abortions.  A lawyer should be able to
practice law, without being forcibly appointed by a court to represent
someone seeking an abortion or the right to kill themselves.  The owner of a
commercial building should be able to participate in the commercial leasing
market, without being required to accept the lease of the adult bookstore or
the strip club.  A bank loan officer should be able to hold a job, without
being assigned to the account of the local pornography industry (assuming
another employee could be so assigned).  A Jewish person should be able to
obtain most jobs, without being required to work on the Sabbath (when such
accommodation is reasonable).  A traditional Muslim woman should be
permitted to hold a job, without being required to remove her veil, at least
for other than safety reasons.  By making such accommodations, we ensure
that our society remains open to people from all faiths and we avoid the
incalculable harm of damaging a person of faith for no reason other than
custom, bureaucracy, the arrogance of a majority, or mere convenience.

As for Paul's other hypotheticals, once again, each requires a case-by-case
analysis as reasonableness, rather than strict and broad rules just for the
sake of efficiency and uniformity.  And in fact we do in many sectors of
society allow people to make judgments based on modesty of clothing.  No
shirt, no shoes, no service.  Does that impinge on people's preferences for
lighter clothing, particular along a beach or during the summer?  Yes.
Should we deny the store that prerogative?  Can we allow the same
accommodation for cab drivers, perhaps not.  I am comfortable living with a
vibrant and healthy and diverse society in which things are not the same
everywhere and in every circumstance.  That's the human condition.

Greg

Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html


-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Saturday, September 30, 2006 12:52 PM
To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu; [EMAIL PROTECTED]
Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco
hol

Hard to imagine how telling a cab driver to pick up a passenger shaves
down the person's faith.
Let's try it another way:  suppose devoutly Muslim (or Jewish) men
drave susbtantial numbers of cabs and refuse to pick up fares of women
who are not modestly dressed.  No shorts or short skirts?  Are you
prepared to say that their first amendment rights to dress as they wish
should be trumped by the religious beliefs of someone who holds a
licence that says he must pick up all passsengers?

I 

RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco hol

[Sisk, Gregory C.]

Paul's distinction doesn't hold up.  Part of doing the job is doing it on
the days assigned to work.  It is just as sensible to define the job of
being a cab driver as accepting assignments on equal terms with other
employees to work on Saturday, as it is to define it as picking up every
fare at the airport.  If an accommodation is appropriate for a Sabbath
observer (and I gather that Paul agrees it is), which means of course that
someone else may be inconvenienced by having to work on Saturday or Sunday
(or by the employer in having to pay more to get someone to work on the
weekend), then a reasonable accommodation is appropriate for other incidents
of the employment, such as how the task is undertaken, adjustments made to
the way it is performed, or assignments within the employee pool of
different elements of the task.  These elements of the job are no more or
less part of the employment than the days of work that are assigned.

Greg

Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html


-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Saturday, September 30, 2006 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: RE: FW: 75% of Minneapolis airport taxis refuse customerswithalco
hol

not about days off, but about doing the job on the days you work; one is
an accommodation to religious needs but it gets the job done and leaves
NO discretion to the employee to decide who to serve and who not to
serve; this system means some people won't get picked up and won't know
why and sets the stage for discrimination.  the day off does not exempt
workers from doing the job when they are at work; the Minn. program
does.

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

518-445-3386 
[EMAIL PROTECTED]
 [EMAIL PROTECTED] 09/30/06 4:09 PM 
Greg's analysis seems entirely right to me.  To add just one
item, would we respond to religious requests for days off with You were
hired to do a job Tuesday to Saturday, do it?  Say that taxicabs were
expected to be on duty Monday through Friday until 10 pm, and someone
asked for an exemption for Friday evenings.  Should we just reject such
a request, on the theory that there may be other such requests that
would be too burdensome?  Or should we see if we can accommodate the
person (for instance, because there are enough other cab drivers who are
willing to work Friday evenings)?  The question here, recall, isn't even
whether the airport authority has a state constitutional obligation to
accommodate the religious objection -- only whether it's proper for it
to do so if it wants to.

Eugene

 -Original Message-
 From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] 
 Sent: Saturday, September 30, 2006 11:20 AM
 To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu'
 Subject: RE: FW: 75% of Minneapolis airport taxis refuse 
 customerswithalco hol
 
 It's only hard to imagine that telling a Muslim cab driver to 
 knowingly assist someone in transporting alcohol could be a 
 burden on faith if you're unwilling to put yourself, even for 
 a moment, in that person's shoes and consider the matter from 
 the point of view of the believer involved, rather than 
 insisting upon evaluating by one's own worldview. The 
 sincerity of the Muslim cab drivers is denied by no one who 
 is familiar with the situation here in the Twin Cities.  They 
 sincerely believe that they are directly assisting evil if 
 they knowingly participate in the transportation of an 
 illicit substance.  That's not my worldview either, but I 
 have no difficulty understanding it and see no reason not to 
 respect and accommodate to it.
 
 Paul's absolutist standard of if you're hired to do a job, 
 just do it is so rigid that it would lead to innumerable 
 instances of injustice and disrespect for diversity in our 
 society, as well as create situations in which certain 
 elements of the economy and public life would be closed to 
 people of certain faiths, not for reasons of necessity but 
 merely of efficiency and convenience.  By effectively saying 
 that cab driving is off limits to Muslims or being a 
 physician is off limits to Catholics (by reason of rules 
 requiring training or assistance in abortion) is to make 
 people of certain faiths second-class citizens and alienated 
 from society.  That is not a healthy road down which to 
 travel. Nor should we forget that the majority makes the 
 rules, and often are less than willing to consider the effect 
 imposed on the minority.
 
 Of course, we cannot allow police officers or fire fighters 
 to decide whether to respond to a particular location on 
 religious grounds.  Likewise, we cannot allow military 
 servicemembers

RE: FW: 75% of Minneapolis airport taxis refusecustomerswithalco hol

[Sisk, Gregory C.]

 for 
 days off with You were hired to do a job Tuesday to 
 Saturday, do it?  Say that taxicabs were expected to be on 
 duty Monday through Friday until 10 pm, and someone asked for 
 an exemption for Friday evenings.  Should we just reject such 
 a request, on the theory that there may be other such 
 requests that would be too burdensome?  Or should we see if 
 we can accommodate the person (for instance, because there 
 are enough other cab drivers who are willing to work Friday 
 evenings)?  The question here, recall, isn't even whether the 
 airport authority has a state constitutional obligation to 
 accommodate the religious objection -- only whether it's 
 proper for it to do so if it wants to.
 
   Eugene
 
  -Original Message-
  From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED]
  Sent: Saturday, September 30, 2006 11:20 AM
  To: 'Paul Finkelman'; Volokh, Eugene; 'religionlaw@lists.ucla.edu'
  Subject: RE: FW: 75% of Minneapolis airport taxis refuse 
  customerswithalco hol
  
  It's only hard to imagine that telling a Muslim cab driver to 
  knowingly assist someone in transporting alcohol could be a 
 burden on 
  faith if you're unwilling to put yourself, even for a 
 moment, in that 
  person's shoes and consider the matter from the point of 
 view of the 
  believer involved, rather than insisting upon evaluating by 
 one's own 
  worldview. The sincerity of the Muslim cab drivers is 
 denied by no one 
  who is familiar with the situation here in the Twin Cities.  They 
  sincerely believe that they are directly assisting evil if they 
  knowingly participate in the transportation of an illicit 
 substance.  
  That's not my worldview either, but I have no difficulty 
 understanding 
  it and see no reason not to respect and accommodate to it.
  
  Paul's absolutist standard of if you're hired to do a job, just do 
  it is so rigid that it would lead to innumerable instances of 
  injustice and disrespect for diversity in our society, as well as 
  create situations in which certain elements of the economy 
 and public 
  life would be closed to people of certain faiths, not for 
 reasons of 
  necessity but merely of efficiency and convenience.  By effectively 
  saying that cab driving is off limits to Muslims or being a 
 physician 
  is off limits to Catholics (by reason of rules requiring 
 training or 
  assistance in abortion) is to make people of certain faiths 
  second-class citizens and alienated from society.  That is not a 
  healthy road down which to travel. Nor should we forget that the 
  majority makes the rules, and often are less than willing 
 to consider 
  the effect imposed on the minority.
  
  Of course, we cannot allow police officers or fire fighters 
 to decide 
  whether to respond to a particular location on religious grounds.  
  Likewise, we cannot allow military servicemembers to refuse 
 commands 
  to participate in military action because of religious 
 pacifism.  But 
  most situations don't require such strict rules or refusal to 
  accommodate.  A person should be able to practice medicine, without 
  being required to participate in abortions or assisted suicide.  A 
  religiously-affiliated hospital should be able to provide medical 
  services and employ hundreds, without being required to make its 
  facilities available for abortions.  A lawyer should be able to 
  practice law, without being forcibly appointed by a court 
 to represent 
  someone seeking an abortion or the right to kill themselves.  The 
  owner of a commercial building should be able to participate in the 
  commercial leasing market, without being required to accept 
 the lease 
  of the adult bookstore or the strip club.  A bank loan 
 officer should 
  be able to hold a job, without being assigned to the account of the 
  local pornography industry (assuming another employee could be so 
  assigned).  A Jewish person should be able to obtain most jobs, 
  without being required to work on the Sabbath (when such 
 accommodation 
  is reasonable).  A traditional Muslim woman should be permitted to 
  hold a job, without being required to remove her veil, at least for 
  other than safety reasons.  By making such accommodations, 
 we ensure 
  that our society remains open to people from all faiths and 
 we avoid 
  the incalculable harm of damaging a person of faith for no reason 
  other than custom, bureaucracy, the arrogance of a 
 majority, or mere 
  convenience.
  
  As for Paul's other hypotheticals, once again, each requires a 
  case-by-case analysis as reasonableness, rather than strict 
 and broad 
  rules just for the sake of efficiency and uniformity.  And 
 in fact we 
  do in many sectors of society allow people to make 
 judgments based on 
  modesty of clothing.
  No shirt, no shoes, no service.  Does that impinge on people's 
  preferences for lighter clothing, particular along a beach 
 or during 
  the summer?  Yes.
  Should we deny the store

RE: teaching about religion in the public schools

[Sisk, Gregory C.]

Alans post raises an important
point, which is that when we expect, or even mandate, public schools to address
controversial matters or matters that strike close to home for people, in terms
of their strongest values and personal lives, sticky questions may arise.
Ill duck the specific questions Alan raises about teaching on religion
for now  although I think them to be unavoidable questions for a school
system  and instead suggest that one could sketch a similar series of anguishing
questions for how a public school would address issues of race, economic class,
political affiliation, and sexual orientation. To take just the latter as
an example, a quality education to prepare a student for life in the modern
American culture could not ignore altogether the controversies about homosexual
orientation and same-sex marriage. But given the strong divisions in our
culture, a balanced educational approach ought to tread along a careful line
between presenting accurate information and proselytizing either for
traditional values or in favor of the moral neutrality or societal benefits of
homosexual unions.



What Im saying is this: the
fact that teaching about sensitive topics, whether religion or race or sexual
orientation, is difficult is not necessarily a reason not to do it. That a
difficult subject is challenging to convey, and a fully satisfactory resolution
may prove always elusive, doesnt mean that the matter isnt worth
the effort. (Note that I dont understand Alan here to be saying
otherwise, I was just using his post as a springboard to anticipate the
argument that some may make, and have made in the past, that these kinds of sticky
problems prove the impossibility and impropriety of teaching about religion in
public schools.)



Greg Sisk



-Original Message-
From: Alan Brownstein
[mailto:[EMAIL PROTECTED] 
Sent: Thursday, January 26, 2006
1:39 PM
To: religionlaw@lists.ucla.edu
Subject: teaching about religion
in the public schools



There is a long article in
yesterdays WSJ about the conflicts that have arisen in the California
Department of Educations textbook review process. 



At least to my mind, the article
raises a variety of interesting questions.



1.
Is there a constitutional problem if a public school
teaches children what members of their religion and other religions purport to
believe  and those teachings are challenged on the grounds that they:



a.
misrepresent the religions teachings

b.
denigrate the tenets of a particular faith

c.
favor one or more religions over others -- or
one understanding of what a religion stands for over another when there is
internal conflict as to the religions precepts.



2.
Under Scalias understanding of the
Establishment Clause, might a school only teach students about monotheistic
faiths and ignore any discussion of other religions.



3.
The article describes a disagreement among Hindu
organizations and scholars on the question of whether Hinduism is monotheistic
or polytheistic. Who gets to answer that question (both for the purpose of
determining what is taught in school and with regard to the preferences Scalia
would extend to monotheistic religious displays)? Is that a matter for
political determination or constitutional adjudication?





Alan Brownstein

UC Davis






___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: The Holiday That Dare Not Speak Its Name

[Sisk, Gregory C.]

Title: Message









Even to the extent that Merry
Christmas is a religious _expression_ by the speaker, and surely it is
some of the time (and by some speakers all of the time), to chastise the person
who offers Merry Christmas as a greeting or to expect the courteous
speaker to self-censor that rather minimalist religious sentiment strikes me as
precisely the kind of arid and artificial denial of self-identity that we tend
to reject today for almost every other segment of society. In a society
that is affirmatively pluralistic in the public setting, rather than
reluctantly tolerant (or worse, intolerant), we ought to encourage every person
to positively express him or herself in a manner that upholds individual dignity
and identity as part of a community of deeply shared meaning. For a
student to resist a congratulatory message expressed by a Jew as Mazeltov
appears to me to be the equivalent of saying, if you have to be Jewish,
at least try to keep it to yourself so that I am not made uncomfortable and do
not have to acknowledge you as a Jew. For a Christian to deliberately
refrain from sharing words of Merry Christmas or Happy
Easter at those points in the year corresponding to the two greatest
celebrations of the Christian faith likewise would involve a degree of
self-denial and suppression of identity. What is important about the
_expression_ in either case is not as much what it means to the recipient as in
how it expresses the sincere conviction and associational values of the speaker.
We ought to encourage more such positive expressions by members of diverse
religious communities rather than strip the public square of all religious
_expression_, thereby creating a naked secularism that leaves us all feeling cold
and alienated.



Greg Sisk





Gregory Sisk

Professor of Law

University of St. Thomas School
  of Law (Minneapolis)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN 55403-2005

651-962-4923

[EMAIL PROTECTED]

http://personal2.stthomas.edu/GCSISK/sisk.html







-Original Message-
From: Volokh, Eugene
[mailto:[EMAIL PROTECTED] 
Sent: Monday, November 28, 2005
4:19 PM
To: Law  Religion issues for
Law Academics
Subject: RE: The Holiday That Dare
Not Speak Its Name





 It
seems to me that the longstanding tradition has been to act as if all customers
are people who accept a statement of best wishes as a statement of best wishes.
It's not Havea meaningful celebration of the birth of Jesus, our
Lord. (Interestingly, in Russian, the Happy Easter greeting is
Christ has risen and the expected response is Truly, he has
risen, so such overtly religious greetings may well be present in many
cultures.) It's Merry Christmas. I'm a secular Jew, and
I'm quite able to have a merry Christmas, even without celebrating it as a
religious holiday; when people say it to me, I assume that they're just wishing
me a nice time on a day off, not a religiously meaningful experience.
Among other things, I suspect they realize that even many people who are
nominally Christians really don't experience Christmasas a religiously
meaningful experience, but likely just as an occasion to have a nice family
meal. 












There's no more cause for non-Christians to bristle at Merry Christmas than for
Chinese-Americans or for Jews to bristle at Happy New Year. Happy
New Year isn't an assertion that everyone ought to accept the Roman-/Christian-based
calendar as the proper one; it's a statement of best wishes on a particular day
off, and for the days to come. Merry Christmas seems to me to
be little different.











 If you want to change the
Merry-Christmas-wishing tradition, fine. But expect people who like the
tradition, and want it to continue, to disapprove of your attempts, and to try
to combat them. I see no reason to fault them for such an attitude.











 Eugene











-Original
Message-
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Monday, November 28, 2005
1:13 PM
To: Law  Religion issues for
Law Academics
Subject: Re: The Holiday That Dare
Not Speak Its Name







The assumption that many of us do
bristle is indeed correct -- I know I do (and more importantly, my
kids do). But geez -- it's only bristling, not
outrage.











That is to say: The point is
not that bristling deserves accommodation. It probably does;
but big deal. Rather, the point is that my religion deserves respect (not
accommodation) -- or rather, that each of us deserves the basic respect of not
having our vendors simply assume we all celebrate the same (majoritarian)
holidays. The longstanding tradition has been to act as if
all customers are Christians. Sure, the majority of people
enjoy it -- because in their case, the assumption, the
generalization,is correct. That's a tradition worth changing.





























- Original Message - 



From: Volokh, Eugene
[EMAIL PROTECTED]





To: Law  Religion issues
for Law Academics 

RE: The Holiday That Dare Not Speak Its Name

[Sisk, Gregory C.]

Title: Message








I appreciate Alans point and, as
applied to a specific relationship between colleagues or friends, I dont
disagree. I was speaking of the public square and of general greetings offered
to strangers or casual acquaintances. For Christians to offer a generic Merry
Christmas to passersby, or while standing in line at the grocery store, or
as a word of thanks to the person who holds the door open for them at the post
office, or with a wave to a neighbor down the street is a positive _expression_
of religious sentiment. To expect Christians to carefully suppress such
natural expressions of joy around Christmastime whenever they pass into a
public setting is, I submit, to expect a not insignificant degree of
self-denial. By contrast, when I interact with my Jewish friends and
colleagues, my behavior is individually-tailored, not just on religious matters
but as a part of our friendship and based upon our relationship. In
keeping with Alans point, I would not wish a Jewish friend a Merry
Christmas or Happy Easter, although I frequently receive such a greeting from
them. However, I might well share with Jewish or Muslim friends my plans
for the Christian holidays and what they mean to me, just as I welcome and often
receive the same in return with respect to Yom Kippur or Passover or Ramadan. 

Greg



-Original Message-
From: Alan Brownstein
[mailto:[EMAIL PROTECTED] 
Sent: Monday, November 28, 2005
5:03 PM
To: Law  Religion issues for
Law Academics
Subject: RE: The Holiday That Dare
Not Speak Its Name



Im sorry, Greg. I
just dont get it. I would say Mozel Tov to my Christian friends. I would
not wish them a Happy Passover. I certainly do not feel that I am practicing
self-denial and the suppression of my identity when I wish my Christian friends
a Happy Easter, but refrain from wishing them a Happy Passover. Why would you
feel that you are suppressing your identity if you wished me a Happy Passover
instead of a Happy Easter?



Alan Brownstein











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sisk, Gregory C.
Sent: Monday, November 28, 2005
2:51 PM
To: 'Law  Religion issues for
Law Academics'
Subject: RE: The Holiday That Dare
Not Speak Its Name





Even to the extent that
Merry Christmas is a religious _expression_ by the speaker, and
surely it is some of the time (and by some speakers all of the time), to chastise
the person who offers Merry Christmas as a greeting or to expect
the courteous speaker to self-censor that rather minimalist religious sentiment
strikes me as precisely the kind of arid and artificial denial of self-identity
that we tend to reject today for almost every other segment of society.
In a society that is affirmatively pluralistic in the public setting, rather
than reluctantly tolerant (or worse, intolerant), we ought to encourage every
person to positively express him or herself in a manner that upholds individual
dignity and identity as part of a community of deeply shared meaning. For
a student to resist a congratulatory message expressed by a Jew as
Mazeltov appears to me to be the equivalent of saying, if
you have to be Jewish, at least try to keep it to yourself so that I am not
made uncomfortable and do not have to acknowledge you as a Jew.
For a Christian to deliberately refrain from sharing words of Merry
Christmas or Happy Easter at those points in the year
corresponding to the two greatest celebrations of the Christian faith likewise
would involve a degree of self-denial and suppression of identity. What
is important about the _expression_ in either case is not as much what it means
to the recipient as in how it expresses the sincere conviction and
associational values of the speaker. We ought to encourage more such
positive expressions by members of diverse religious communities rather than
strip the public square of all religious _expression_, thereby creating a naked
secularism that leaves us all feeling cold and alienated.



Greg Sisk





Gregory Sisk

Professor of Law

University of St. Thomas School of
Law (Minneapolis)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN 55403-2005

651-962-4923

[EMAIL PROTECTED]

http://personal2.stthomas.edu/GCSISK/sisk.html
















___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Catholic views as to the relative harm of mass murder of the unborn vs. some risk of some Catholics converting to Protestantism

[Sisk, Gregory C.]

The Mass is the liturgical heart of the Catholic faith, especially with the
Catholic belief that Jesus Christ is truly present in the Eucharist.  Thus,
if supporting the free speech and free exercise of believers in other
religions could bring about the twilight of the Catholic Mass, I would find
it difficult to reconcile a belief in civil liberties and my faith.  But I
simply cannot see how one could find the dots so as to connect my support
for a vigorous protection of free speech and a revitalized free exercise
doctrine with an abandonment or depreciation of the Catholic Mass.  And I am
comforted in this view by the knowledge that Pope Benedict and his
predecessor John Paul the Great, as well as the American episcopate,
likewise have seen great merit in strengthening positive relationships among
people of diverse faiths and in supporting a robust public regime of
religious freedom.

Nor can I understand how acting in solidarity with evangelical and other
traditionalist Protestant Christians (and for that matter with
non-Christians) to protect the life of the unborn weakens my Catholic faith
or threatens the survival of the Catholic Church.  My Catholic faith is not
so thread-bare that it might unravel through my interaction with others who
think differently or who might question some of my doctrinal beliefs.

Are there Catholics who have converted to Protestant Christianity?  Of
course.  Has this happened by reason of interfaith efforts to protect unborn
human life or traditional marriage or similar matters?  Has the alliance of
orthodox Catholics and traditionalist Protestants on certain issues of
public concern been associated with an exodus of persons from Catholicism
into Protestantism?  I find it hard to believe that the devout Catholics who
are drawn by their faith to participate in public religious witness are
peculiarly vulnerable to losing their faith.

But if conversion of Catholics to evangelical Christianity or other
Protestant beliefs were to occur, would the Catholic Church regard all such
persons as bound for the eternal fires of Hell?  Hardly.  While the Catholic
Church teaches that anyone who recognizes the truth of the Catholic faith
and despite that knowledge abandons the Church thereby has fallen out of
grace, that teaching applies only to the person who deliberately acts
contrary to his or her convictions.  While the Catholic Church believes that
the fullness of the Christian life may be experienced only within the Church
and that the Catholic Church provides the greatest hope of salvation, the
Church regards faithful Christians in Protestant denominations as remaining
in imperfect communion with the Catholic Church (whether they so regard
themselves or not). (And for that matter, Catholics do not regard our elder
brothers in faith, that is, Jews, or other sincere adherents to other
non-Christian religions as damned either.)  Some may regard the Catholic
viewpoint as arrogant or triumphalist, because the Catholic Church believes
it possesses the full deposit of the faith conveyed to her by Christ Jesus
himself, but it is far from a general condemnation to eternal damnation of
non-Catholics.

Frankly, if I were shown a vision that my beloved daughter would either
become a casual Catholic who attended Mass at Christmas and Easter and
otherwise ignored Church teaching and eschewed Catholic worship or instead
become a dynamic and engaged Protestant for whom faith would be a meaningful
part of her life, my only hesitation in choosing the Protestant alternative
for her would be the fond hope that if she remained Catholic she might
eventually be fully renewed in the Catholic faith (but of course that return
to Catholic devotion could occur even if she became a Protestant Christian
for a time, as witness my own wife).

In any event, and in my experience, cooperation between orthodox Catholics
and traditionalist Protestants is as likely (or more so) to result in
movement toward the Catholic Church as away from it.  Given the consistent
and heroic witness of the Catholic Church in favor of protection of unborn
human life, many former Protestant Christians have found themselves drawn
into the Catholic Church.  For that reason and many others, I am among them.

Greg Sisk


Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html


-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, November 08, 2005 4:01 PM
To: Law  Religion issues for Law Academics
Subject: Catholic views as to the relative harm of mass murder of the unborn
vs. some risk of some Catholics converting to Protestantism

I surely don't wish to trivialize the Mass, which is most
certainly very important for Catholics.  Saying that preventing mass
murder is worth running the risk of X hardly means that X is trivial.  I
also 

RE: Harm to Others as a Factor in Accommodation Doctrine

[Sisk, Gregory C.]

I hope I don't unduly belabor the matter, and those who think I do can hit
the delete button and rest assured I won't prolong it in future messages
(absent some unexpected expression of demand).  As Michael Newsom well
explains, the rule of celibacy for Catholic priests is a rule of discipline
that has never been universal in time or place for the Catholic Church,
while the determination that priests must be male is doctrine grounded in
tradition and scripture.  The Church's teaching about Men and Women and the
unique gifts that each brings to life is far more complex and nuanced than
can be captured in the simple observation that all priests are male,
although some unfortunately are quick to cite that as a nutshell description
of the Church and its attitude toward women.  Moreover, the reservation of
priestly ordination to men primarily is a reflection of humility on the part
of the Church, which observes that all of the apostles who stood at the
beginning of the apostolic succession were male and that God has not
revealed to the Church any basis for presuming on its own to depart from
Christ's example.  Again, the question of ordination, and its meaning for
equality of the genders, raises matters of Catholic Church teaching and
theology beyond what most of the members of list undoubtedly wish to explore
on a list reserved to law and religion.

I also would add that, contrary to a suggestion made on this list, the
dispensation for former Episcopal (and, for that matter, Lutheran) clergy
who were married before conversion to Catholicism involved no bending of the
rules as such because their situation was not comparable to other Catholic
priests of the Latin Order and because their treatment is fully in accord
with that for Catholic priests of the Eastern Rite.  Catholic priests of the
Latin Rite, which account for the vast majority of the Catholic priesthood,
especially in the United States, knowingly take an oath of celibacy upon
their ordination.  By contrast, former Episcopal and Lutheran clergy who
were married during their ordained lives in their prior denomination did not
take such an oath.  Thus expecting them to abandon their spouses in order to
continue ordained ministry in full communion with Rome would be
inappropriate and unfair.  When they converted to the Catholic Church and
sought to have their prior ordination renewed in a manner that the Catholic
Church regards as genuinely in line with apostolic succession, the Church
generously has accepted that those who were married cannot take the same
oath of celibacy.  However, former Episcopal and Lutheran clergy who were
not married indeed are required to take that oath, and married Catholic
priests whose spouses die before them are not permitted to remarry.

In addition, this understanding for converting clergy is similar to that for
priests of the Eastern Rite, that is, the Byzantine Catholic Church.  The
Eastern Rite is present primarily in that part of the world in which the
Orthodox Church prevails, and thus Byzantine Catholics follow many of the
same religious customs as the Orthodox Church.  However, Eastern Rite
Catholics have maintained communion with Rome and accept the Pope as head of
the Church.  Men who married before ordination may become priests in the
Eastern Rite of the Catholic Church (at least in those nations where the
Latin Rite does not prevail), although men who were not married before
ordination may not marry and those whose spouses precede them in death may
not remarry.  In the Eastern Rite, all bishops are selected from among the
monks, who do take an oath of celibacy.  Thus, throughout the world, in all
rites and all circumstances, bishops in the Catholic Church are celibate and
married only to God.

Because celibacy is a disciplinary rule rather than a doctrine, the argument
is made from time to time from certain quarters that it should be changed to
accommodate to cultural trends or the difficulty in recruiting sufficient
numbers of priests.  The opposing argument is not only one of tradition but
that, especially today, the powerful message of celibacy is a needed
antidote to the sex-obsessed society in which we live.  It also spares the
Catholic Church the scandal that various denominations have experienced of
divorce among the clergy, including notorious cases of serial divorces.
Interestingly, polls of Catholic priests finds that the older generation are
somewhat more likely to support a rollback of celibacy, while younger
priests ordained during the papacy of John Paul II accept the discipline of
celibacy as an integral part of their vocation.

Greg Sisk


-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 15, 2005 6:31 PM
To: Law  Religion issues for Law Academics
Subject: RE: Harm to Others as a Factor in Accommodation Doctrine

Actually, there is a considerable difference between, for want of a better
term, the squabbling and accommodation between Catholics and 

RE: Free Exercise, Free Speech, and harm to others

[Sisk, Gregory C.]

While free exercise and free speech may be different in many respects, and
indeed most constitutional rights differ from all other rights, as they are
not merely fungible from one to another, I don't think Eugene Volokh's
thoughtful hypotheticals satisfactorily dispose of the argument that free
exercise and free speech ought not be treated differently in the amount of
burden that we accept (or the courts ought to accept) upon the public or
others.  The problem with Eugene's hypotheticals, as I see it, is that the
burdens outlined are not comparable, in part because one involves
non-physical speech and the other involves conduct (as Jim Maule observes),
but also simply because of the anticipated degree of negative impact upon
persons other than the one exercising the right.

Just to look at the first pair of hypotheticals:  While Jerry Falwell is
postulated to have experienced emotional distress as a result of both
incidents, I submit that we intuitively would recognize that the immediacy
and intrusiveness of the harm differs greatly when we compare reading a
scurrilous reference to one's self in a periodical with experiencing an
almost physical trespass accompanied by the use of loud sounds that cannot
easily be escaped and, perhaps most importantly, that occurs at one's place
of sanctuary, the home.  Thus, while I agree that the free speech claim in
that pair of hypotheticals is stronger than the free exercise claim, I don't
see the two cases as truly comparable in terms of the degree and perhaps the
nature of the harm, even if both forms of harm are generally categorized as
emotional distress.

Thus, for a set of hypotheticals comparing the strength of free speech and
free exercise claims to be truly comparable, the nature or at least the
degree of harm must also be comparable.  While not neatly involving parallel
factual settings or messages, consider these two scenarios:  First, we again
have the offensive parody of Jerry Falwell in Larry Flynt's Hustler
magazine, in which Flynt invokes freedom of speech as a defense against a
claim for emotional distress.  Second, we have a homosexual couple that is
rejected as tenants by a homeowner of traditional religious values for the
spare room in her house, in which the homeowner invokes free exercise as a
defense as a claim for discrimination by the homosexual couple under a
municipal gay rights ordinance.  Assume for the sake of argument that other
rental opportunities for homosexual couples are available in that community
(a reasonable assumption, as a municipality in which political support
exists for enactment of a gay rights law involving housing is unlikely to
one in which such discrimination is omnipresent across the community, but
even if you find the assumption more debatable, I ask you to accept it for
this hypothetical).

Under that hypothetical, then, the claim of the homosexual couple, although
framed as housing discrimination and seeking the remedy of an injunction, in
practical terms is about the emotional distress of having experienced
discrimination by being rejected as a tenant on the basis of sexual
orientation.  Isn't that experience of emotional distress comparable to that
of Jerry Falwell who was targeted for sexualized slurs based upon his
religious and political views?  In both instances, the complaining party
understandably and sincerely has suffered an emotional injury (as I'll
assume for this hypothetical, as I doubt that Jerry Falwell truly was that
distressed).  But both emotional injuries are unaccompanied by any physical
component and both involve primarily upset feelings.  By that analysis,
shouldn't the free exercise claim of the homeowner be regarded as equally
viable as the free speech claim of Larry Flynt?

(And if you don't like my hypotheticals, feel free to formulate your own, in
which the comparability of harm is the pivot point rather than comparable
factual settings.)

Greg Sisk


Gregory Sisk
Professor of Law
University of St. Thomas School of Law (Minneapolis)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
[EMAIL PROTECTED]
http://personal2.stthomas.edu/GCSISK/sisk.html




-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 14, 2005 11:59 AM
To: Law  Religion issues for Law Academics
Subject: Free Exercise, Free Speech, and harm to others

Brad's and Marc's posts raise an excellent question:  If free
speech means that people have the constitutional right to impose burdens
on others, why shouldn't free exercise operate the same way?  The same
can be said of other rights, incidentally:  For instance, the Compulsory
Process Clause right gives criminal defendants very substantial powers
to constrain others' liberty.  (I set aside here the permissible scope
of legislative accommodations, and focusing on what's constitutionally
compelled.)

I think that free speech and free exercise *are* different this
way, and let me briefly try to 

RE: Free Exercise, Free Speech, and harm to others

[Sisk, Gregory C.]

I accept Eugene's observation that my comparison cases suffer from
inadequate similarity comparison purposes.  Perhaps at some point I'll try
harder to develop less inferior paired hypotheticals to better express my
point (perhaps that task will seem more appealing in a few weeks when I'm
grading blue books).

But I still am not convinced either (1) that a greater degree of burden from
speech is acceptable because freedom of speech is a more robust
constitutional right than free exercise, or (2) that the harms identified in
the Flynt/Glynt hypotheticals are truly comparable and thus illustrate the
point.  Indeed, in the Glynt hypothetical, if Mary Glynt engaged in the same
expression by bull-horn at the house window but offered a free speech rather
than free exercise justification, the result would be the same -- she still
would lose.  Thus, it isn't the nature of the right that explains the
differing results but something about the nature of the intrusion or the
harm or the presence or absence of an attenuated link between them.

Along these same lines, I'm persuaded that Eugene has a point that we permit
a larger range of expression under freedom of speech than conduct under free
exercise.  But isn't that in part because speech is different from conduct
(as Jim Maule suggested) rather than because the constitutional rights
underlying one or the other are at different points in the hierarchy of
constitutional values?  While speech may and sometimes does cause harm, it
almost always does so indirectly, as it depends for efficacy upon persuading
someone else that the message is credible or that a response should be made.
Thus, speech that is harmful depends upon a chain from the speaker through
the medium to a recipient who in turn chooses to respond in a manner that
induces harm to the recipient or someone else.  Even speech that is intended
to cause harm may prove ineffective due to breaks in the chain, especially
if the recipient finds it uninteresting or unpersuasive. By contrast,
conduct -- whether expressive in nature or not -- is immediate and if that
conduct is harmful, the harm is rather directly realized.

And related to that, I still think -- although my clumsy hypotheticals may
not have illustrated it well -- that the harms involved may be different in
nature or degree.  While one subjectively and understandably might regard
being slandered before millions of readers as a greater source of distress
than being momentarily accosted at one's home by a loud protester, the law
always has treated a physical invasion as different from an emotional
response, even an induced emotional response.  Indeed, some strains of law
even today still preclude recovery in tort for emotional distress that is
unaccompanied by physical injury.  If there is anything to what I'm trying
to say here, would it not follow that different treatment of the trespasser
who asserts a free exercise defense from the magazine writer who claims
freedom of speech turns not upon which actor invokes which constitutional
protection but rather upon the nature of the impact caused by the underlying
conduct/expression?

Greg Sisk



-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 14, 2005 3:57 PM
To: Law  Religion issues for Law Academics
Subject: RE: Free Exercise, Free Speech, and harm to others

I appreciate Greg's thoughtful analysis, but I think that
ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's
rights doesn't resolve the problems.  I would feel *much* more
distressed by knowing that millions (?) of people are reading about how
I supposedly had sex with my mother in an outhouse (even if they know
it's a gag) than by a few nights of loud noise outside my house.

Likewise, I suspect that the more-or-less three-year-long
boycott in Claiborne Hardware affected local businesses more than the
occasional blockage would affect the business of an abortion clinic.
It's true that this may be so because the boycott went on for a long
time, while the blockage in my hypothetical wouldn't.  But under free
speech law, even speech urging a long boycott can't be punished -- and
even one instance of entrance blockage, which would cause vastly less
damage than the boycott, would be punishable, whether or not it's
religiously based.  So people are constitutionally entitled to inflict
considerably greater harms through the communicative impact of their
speech than through the religiously motivated conduct.  Or am I mistaken
here?

As to the housing discrimination scenario, I just think Greg's
comparison cases are actually not terribly similar.  The gay couple's
claim isn't necessarily that they're deeply emotionally distressed --
rather, it is that they have a legal right to equal treatment,
regardless of whether the unequal treatment is terribly distressing.
Maybe this right flows from a general sense that the unequal treatment
is usually distressing, but it 

RE: Protestants and non-Protestants

[Sisk, Gregory C.]

Very well said Tom.



-Original Message-
From: Berg, Thomas C.
[mailto:[EMAIL PROTECTED] 
Sent: Thursday, March 03, 2005
11:25 AM
To: 'Law  Religion issues for
Law Academics'
Subject: RE: Protestants and
non-Protestants



Marci  Maybe I
should be proud to coin a term, although its likely too ugly to catch
on. I just meant to refer to the idea that when the Court bans or removes
government-sponsored religious symbols or ideas, while leaving secular symbols
and ideas intact, this makes government more secular than the society is.
If government is a major player in _expression_ in society, then government can
have a real effect of secularizing society. You can make the case that
this is true with respect to public education, when the government plays such a
huge role in forming children day after day. If public schools promote
various secular ideas to children but not religious ideas, this creates the
danger of skewing them toward the secular. As I said, I dont think
that the answer to this is to maintain government sponsorship of religion or
particular religious ideas; such sponsorship has many problems, and there are
usually better alternatives. But my points were that: (1) The
belief that government is having this secularizing effect, and that its
a problem, is (rightly or wrongly) held by people across varying faiths, not
just by evangelical Protestants. (2) To ensure that a secular government doesnt
secularize society, government can take steps to preserve a vigorous private
sector in religion.





---

Thomas C. Berg

Professor of Law

Co-Director, Terrence J.
Murphy Institute


for Catholic Thought, Law, and Public Policy

University of St. Thomas
School of Law

MSL 400 -- 1000 La Salle
Avenue

Minneapolis, MN
55403-2015

Phone: (651) 962-4918

Fax:(651) 962-4996

E-mail: [EMAIL PROTECTED]

---









-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday, March 02, 2005
8:53 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Protestants and
non-Protestants







Tom--
What is artificial secularization? I've never heard that term
before. 











Marci

















In a
message dated 3/2/2005 8:10:47 P.M. Eastern Standard Time, [EMAIL PROTECTED]
writes:





think
that we avert our eyes to reality if we don't acknowledge that
traditionalist believers from different faiths now very often share the
belief that removal or barring religious symbols from public events or
institutions is a form of artificial secularization that is not consistent
with the Religion Clauses. This is not just a fundamentalist or
evangelical
Protestant thing. As to whether that belief is correct, my own view is
that
removing these influences does raise real concerns about artificial
secularization, but that usually the far better approach is to welcome
private religious speech of various groups into the public square and public
institutions, rather than have the state sponsor what will typically be
watered-down majoritarian practices. But the point is that the belief is
there among people of various faiths.
















___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: The quid pro quo theory

[Sisk, Gregory C.]

The grid or integrated approach to the Religion Clauses (or more
accurately, singular Clause) articulated by Chip Lupu is a most valuable way
to explore the clauses.

With acknowledgement of our considerable indebtedness to Chip, our
forthcoming Ohio State Law Journal empirical study of religious liberty
decisions in the lower federal courts further develops each of those four
grids as models -- Pro-Religion (Weak EC, Strong FE), Anti-Political (Strong
EC, Strong FE), Judicial-Restraint (Weak EC, Weak FE), and Pro-Secular
(Strong EC, Weak FE) -- and tests them in practice.  The results were rather
interesting (i.e., Catholic judges almost significant on the Pro-Religion
Model, while Jewish judges were signficantly correlated with the
Anti-Political Model).  Although the reprints have been slow to arrive, a
link is set out below:

http://personal2.stthomas.edu/GCSISK/Siskwebpagestuff/Sisk.Searching.Soul.pd
f

(Note that if the link breaks across a line in your e-mail, you may need to
cut and paste it into your browser for it to work.)

Michael's description of where a person with a particular interest would be
located among those models strikes me as correct, with the exception of
describing those in the Weak EC, Weak FE category as only interested in
protecting the prerogatives of the majority.  Although this is not the
category into which I would place myself (while the models are by nature
somewhat crude, I'd probably fall into the Pro-Religion category), I cannot
imagine that those who adopt the Weak EC, Weak FE approach on principle
would see themselves merely as endorsing the tyranny of the majority.
Rather, giving each position its full due, this is best understood as a
Judicial-Restraint approach that reflects a distrust of the judiciary and an
attendant preference for democratic institutions including the capacity of
those institutions to provide protection to minorities.

Greg Sisk

-Original Message-
From: Lupu [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, June 16, 2004 3:42 PM
To: Law  Religion issues for Law Academics
Subject: RE: The quid pro quo theory

The piece to which Michael Newsom refers is The Trouble with 
Accommodation, 60 GW L Rev. 743, 779-781(1992). But the 4th 
category is Weak EC, Weak FE (Michael accidentally wrote the 4th 
one as a repeat of the third).

Chip Lupu

 On 16 Jun 2004 at 16:26, Newsom Michael wrote:

 I apologize for responding to this post at this late date.  However, I
 want to refer everybody to Lupu's piece (the name of which escapes me)
 in which he establishes a grid analysis of the two clauses.
 
 If I understand him aright, it goes something like this:
 
 (1) Strong EC, Strong FE
 (2) Strong EC, Weak FE
 (3) Weak EC, Strong FE
 (4) Weak EC, Strong FE.
 
 Those interested in protecting minority rights might find themselves
 in group (1).
 
 Those interested in protecting the prerogatives of the majority might
 find themselves in group (4).
 
 Those interested in promoting religious values, and the role of
 religion in public life might find themselves in group (3).
 
 Those interested in keeping religion at bay or in check might find
 themselves in group (2).
 
 These four pairings capture rather nicely the dynamic and the dilemma
 of the Religion Clauses.  Add a dash of Protestant Empire (or any
 other large historical construct if this one doesn't work), a pinch of
 race (particularly as it intersects with religion), and we are off and
 running. 
 
 -Original Message-
 From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
 Sent: Thursday, June 10, 2004 12:30 AM
 To: Law  Religion issues for Law Academics
 Subject: The quid pro quo theory
 
 I've always been puzzled about this quid pro quo theory of the
 Religion Clauses.  There is no religion as a source of values and
 beliefs; there are *religions* (or denominations) as a source of
 values and beliefs.  Many of them may share many values, but they will
 also differ on many values and goals.  The members of the religions
 will be different, too.  True, there are some cultural battles in
 which secularists are aligned on one side and religious observers of
 many faiths on another.  But those are only a small fraction of all
 potential battles over values and beliefs, it seems to me; and even in
 those, a person's religious denomination is likely to be as important
 as his felt religiosity.
 
 Is there much reason to believe that the religions -- or, perhaps more
 importantly, religious believers -- benefited by rigorous Free
 Exercise Clause protection will be the same as the ones burdened by a
 rigorously enforced Establishment Clause?  Historically, Catholics
 have been quite burdened by a rigorous Establishment Clause, and have
 gotten very few benefits from the Free Exercise Clause, even when it
 was relatively rigorous.  (They might have gotten some benefits from
 religious accommodations, such as the sacramental wine exemption, but
 not from the Free Exercise Clause as such.)  On the other 

RE: Do philosophy departments violate the Constitution?

[Sisk, Gregory C.]

Having initiated the thread on invited speakers, let me take a tentative try
at Mark Tushnet's hypothetical:

Some preliminary thoughts setting the context:  First, religious speech
plainly has some difference than political speech, else the Establishment
Clause would mean nothing.  The government plainly may fund political
speech, including political speech that is controversial or that offends
portions of the citizenry.  But it may not direct fund or promote religious
speech.  Nonetheless, when the government may create a forum in which
religious expression properly may participate on equal terms with other
speech.  Indeed, for government to exclude religious expression from such a
forum would put government in the position of making a negative comment on
the value of religious speech and, even worse, having to evaluate discourse
to determine which types of speech are religious and which are not.

Second, what the Establishment Clause precludes is religious expression by a
governmental actor, that is, when the expression is made by an institution.
Religious expression by an individual in a forum created by government, at
least if open in some meaningful sense to other viewpoints, is not
legitimately regarded as expression by the governmental institution.

Applying that to Mark's hypothetical:  If the philosophy department were to
permit the instructor to offer a course in Christian or Catholic ethics, I
do not think that alone would infringe upon the Establishment Clause.  Even
if the instructor expressed his own viewpoint as one in which ethical
thinking was formed by religious faith, that would not in my view be
legitimately treated as the equivalent of institutional thought, any more
than would a scholar at a public university publishing scholarship from a
religious perspective.  While the courts understandably have been troubled
by such religiously-influenced teaching at the elementary (and secondary)
education levels due to the impressionability of children, higher education
has not been treated in the same manner and for good reason.  Yes, I admit
that if a department at a public university began to offer a
disproportionate number of courses from a religious perspective, at some
point a line would be crossed in which the religious perspective would
justifiably be regarded as that of the institution, which establishment
principles would preclude.  But offering one such course comes nowhere near
the line.

But of course Mark's hypothetical poses the opposite:  The philosophy
department rejects the proposed course by defining philosophy as not
including religious perspectives.  Does Rosenberger preclude that decision?
While I would question the wisdom of the philosophy department's decision, I
tentatively conclude that it falls within the realm of reasonable academic
choices about curriculum (at least if not motivated by an anti-religious
animus).  As a discipline, there are those who conceive of philosophy as
being based solely upon human reasoning without any supernatural or
transcendal elements.  If philosophy is defined by a department as based
upon human reasoning, a course that is grounded in purely theological
elements would be outside the scope of the forum.  I understand Rosenberger
as focused more upon freedom of religious expression in the context of a
generally open forum for ideas, not as dictating choice of curriculum for an
academic division.  Again, I think it is a rather crabbed understanding of
philosophy and deprives students of exposure to an important perspective on
values, but not every foolish decision is of constitutional significance.

(Note that I would feel differently if the instructor was also told that
while teaching other ethics courses he could never express a viewpoint that
had a religious basis.)

Greg Sisk



-Original Message-
From: Mark Tushnet [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, January 28, 2004 8:37 AM
To: Law  Religion issues for Law Academics
Subject: Do philosophy departments violate the Constitution?

I'd like to suggest a slight variant on the issues opened up by the 
discussion of invited speakers.  Consider the philosophy department in a 
public university.  It offers a number of courses in ethics, in which 
teachers survey the field and -- importantly for the problem -- present 
their own views about what general approach to ethics (utilitarianism, 
Kantianism, and the like) is correct/most defensible.  Many of these 
courses spend a substantial amount of time on ultimate issues of life 
(of a sort that addressed -- in a different way -- in theology 
departments in religiously affiliated universities).  [I invite people 
to tinker with the set-up in ways that make the following question more 
pointed.]  Under Rosenberger, is the department violating the 
Constitution if it rejects a course proposal by a fully qualified 
instructor (Ph. D. in philosophy, with a specialization in ethics, and 
an advanced theological degree relevant to the 

RE: Talking across different world-views [Was: Civil unions and m arriage]

[Sisk, Gregory C.]

That question -- what benefits should be extended to same-sex couples -- is
beyond the scope of my most recent argument and, indeed, different answers
are consistent with the complementarity justification I offered for
marriage.  My immediate point on this go-around was that marriage between a
man and a woman has unique and manifest value that justifies special
treatment or at least could rationally be viewed by a legislature as so
justifying special treatment, whether or not special treatment also is
afforded to other relationships.  In other words, marriage between a man and
a woman warrants special protection on its own merits, quite independently
of whether other relationships should be recognized to a greater or lesser
degree.

However, to be more responsive, and stepping beyond the scope of my most
recent posting (given that I've outlined more general arguments in past
postings), in terms of the types of benefits that Professor Newsom suggests
in his message, I would support legislation that allows any adults to
contract for such benefits, whether same-sex couples or otherwise.

Greg Sisk


-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED] 
Sent: Monday, December 08, 2003 1:56 PM
To: Law  Religion issues for Law Academics
Subject: RE: Talking across different world-views [Was: Civil unions and
marriage]

I would be curious to know what economic benefits Sisk would grant -- or
deny same sex couples.  The same holds true for a range of domestic
issues such as inheritance, visitation, medical treatment and the like.
Perhaps if I new what benefits -- if any -- he would extend to same sex
couples, then perhaps I could better assess his arguments. 


___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Talking across different world-views [Was: Civil unions and marr iage]

[Sisk, Gregory C.]

I apologize for a lengthy posting, but will then step back for all (or at
least most) of the rest of the day:

Alan Brownstein made this point in his recent posting, which I think
honestly and sincerely reflects the opinion of many others on this list as
well, as reflected in of our earlier debate when the Massachusetts decision
first came down.  He said:  This [the same-sex marriage debate] is one of
the very few situations in which I read arguments from scholars I respect
intellectually and not only disagree with their position, but find that
their contentions make virtually no sense to me at all.  As I suggest at
the end of this long posting, I think this observation has larger
implications for the legal academy and for constitutional discourse.

When I read many of the earlier postings in response to my inartful and
inexpert outlining of the arguments against same-sex marriage, I think it
fair to say that many others as well, while respectful and appreciative of
the alternative viewpoint I and others offered, likewise were left unable to
find any coherence in those arguments.  In other words, we had what was not
merely a disagreement but an inability to connect, an impossibility of true
engagement because of the gulf between us in terms of world-view.

For example, consider just one of many arguments, and one with which I do
agree, to support the legal definition of marriage as between one man and
one woman:  This is society's recognition of the unique complementarity of
male and female, in which each brings different but vital gifts to the union
and thereby creates a whole that is far more than the sum of its parts.  As
one editorialist stated, I believe it was Jeff Jacoby, marriage is designed
to join difference to difference, not add same to same.  Not incidentally,
the sexual element of the complementarity of male and female is also the
only means by which the next generation comes into being, which further
confirms the special place and status that ought to be accorded to legal
commitments based upon this joining together of the separate genders.

(Note that acceptance of this argument, standing alone, would not preclude
society from recognizing other relationships as having meaning and being
deserving of certain legal benefits, provided that the special status of
marriage is preserved.  To be sure, by recognizing the uniqueness of the
male-female joinder, legally and sexually, it becomes more difficult to
justify giving any special status to same-sex sexual relationships over
other committed adult relationships not grounded upon sexual connection,
i.e., children caring for elder parents, brothers or sisters living together
as a committed household, etc.)

In making the complementarity argument, which strikes me as self-evidently
reasonable, if not incontestable, I know I would still be confronted on this
list with the sincere suggestion that my argument is not merely wrong but
lacks any rational basis.  Accordingly, those responding would suggest, no
democratic constituency should be permitted to act upon the complementarity
justification, but rather judicial intervention to impose a different rule
by decree is warranted.

How can this be?  How can we as legal scholars have reached a point where
the constitutionality of a legislative determination depends upon which
world-view a scholar or jurist has adopted, leaving others outside of the
realm of reasonable discourse?  And is it not strange that the position now
found to be alien and inexplicable within the legal academy is one that has
been adhered to by every one of the 50 states and indeed across the planet
for centuries?  Or rather than this position truly being irrational, could
it be that we in the legal academy are experiencing a failure of
imagination, an inability to understand others because we have become
isolated from other intellectual and cultural spheres in our society?  Could
it be, as I suggest below, that our inability to understand and appreciate
(even when withholding agreement) cultural conservative arguments is
attributable in substantial part to the intellectual homogeneity of the
legal academy in particular and the larger university in general?

In this regard, let me suggest, based upon my admittedly anecdotal
experience, that the difficulty in understanding across the gap -- within
the legal academy but not necessarily elsewhere -- is largely from left to
right rather than the other way around.  I say this, not because
conservatives are better able to appreciate difference (yes, I can hear now
the response that the opposite of course must be true), but because
conservatives in the legal academy have no choice but to learn to do so.  By
contrast, liberal law professors are less likely to have regular encounters
with those whose views are so significantly different as to begin from
wholly different premises on questions of culture and society.  For example,
I have not heard cultural conservatives on this list suggest 

RE: Talking across different world-views [Was: Civil unions and marriage]

[Sisk, Gregory C.]

I certainly never suggested that there is no a value to education, either in
terms of society and governance.  Education (at least of the formal,
university-style) of course is not everything, as Jim Maule quite eloquently
observes.  As Bill Buckley once said, I should prefer to be governed by the
first 100 names in the Boston phone book than by the faculty of the Harvard
Law School.  But as a general proposition, education is much to be
encouraged.  Else, I am much to be pitied in my choice of career.

Rather, I intended to reject the assumption that cultural conservatives
should be lumped into a group of unwashed, uneducated, ignorant masses,
unworthy of any role in the legal academy and, apparently, in democratic
governance.  The conservatives are stupid argument, as it was aptly
labeled by a friend in an e-mail sent to me off-list today, is a pretty thin
reed upon which to explain the ideological homogeneity of the legal
professoriate.

We live in one of the most well-educated societies in the history of the
world, and yet conservatism remains alive and well in America, but not in
the isolated and artificial world of the legal academy.  Why is this?  Even
if we thought that liberals were better-educated in general, that
observation at most would predict some disparity, not the near exclusion
altogether of the minority viewpoint from the legal professoriate -- unless
one is willing to make the extreme assumption that no well-educated person
could be a cultural conservative (or that such is an extremely rare
species).  (And, Sandy is right, as I had noted earlier, that economic
conservative viewpoints are better represented in the legal academy.)

If the AALS's regularly expressed homage to diversity as an educational
value is more than a thinly-veiled attempt to increase liberal hegemony (to
adopt leftist phrases) -- and I sincerely don't think that it is only that,
although my faith is waning -- then ensuring that the voices of cultural
conservatives, evangelical Christian intellectuals, etc. also are heard
within the walls of the legal academy is a vitally important goal.  Sadly, I
rarely have heard anything but silence from the advocates of diversity when
the ideological imbalance of law faculties is repeatedly established by
empirical evidence.

Greg Sisk


-Original Message-
From: Mark Graber [mailto:[EMAIL PROTECTED] 
Sent: Saturday, December 06, 2003 6:12 PM
To: [EMAIL PROTECTED]
Subject: RE: Talking across different world-views [Was: Civil unionsand
marriage]

I remain puzzled by how I figure out divesity (shameless plug, my little
contribution to this is a piece entitled, The Banality of Diversity).
Presumably, we all agree that all forms of good work should be represented.
As to what constitutes good work, we disagree.  And diversity doesn't help.
All of us think we speak in distinctive voices.

And for better or worse, there is good deal of evidence that opinions on a
number of issues correlate by education.  A lot of explanations are
possible.  No one explanation probably fits all.  Maybe Madison and most of
the framers were wrong when they thought some people had better political
capacities than others.  Jackson took the opposite view, and while most
academics used to be good Whigs (and formerly conservatives were good
Whigs), most Americans are Jacksonian Democrats.  Indeed, I think Jacksonian
claims that the educated simply have different interests and biases than
good Americans sufficiently reasonable to admit populists into the academy,
even if my Whiggish views are wrong.  But I confess to thinking most of a
liberal arts education rather pointless if all we do is influence interests,
rather than develop more intelligent values.  And just as Professor Sisk is
in the minority on marriage issues, so I'm probably in the minority with my
open claim that educated people are far better able to govern than
uneducated people, and not just because we know you can;t turn lead into
gold.  Does it mean we give up.  Of course not.  But the rules of the game
are that we do not get published or have more colleagues who think like us
until we can convince those in power in different places that our opinions
are (almost) as reasonable as theirs.

I'm reasonably confident that a good many of us in the academy who are
liberals read enough essays by conservatives, particularly those of us who
spend a good tdeal of time doing intellectual history.  

Mark A. Graber
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
___
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

RE: Talking across different world-views [Was: Civil unions and m arriage]

[Sisk, Gregory C.]

 by which the
next generation comes into being.  This physical difference, however, is
not itself sufficient to sustain a prohibition on same-sex marriage, even if
rational basis were the standard.  Even assuming that the state interest
here is in retaining a certain level of child-bearing, and even apart from
the fact that sexual intercourse between persons of opposite sexes no longer
is the only means by which the next generation comes into being, I see no
reason why the same-sex marriage prohibition would affect, or be at all
relevant to, the ability or proclivity of persons to combine sperm and egg
to create an embryo, whether through intercourse or otherwise.  Perhaps for
those reasons, I do not understand Prof. Fisk to be relying upon the
physical differences between sexes as an independent justification for
denying gays and lesbians the right to marry.

- Original Message - 
From: Sisk, Gregory C. [EMAIL PROTECTED]
To: 'Law  Religion issues for Law Academics' [EMAIL PROTECTED]
Sent: Saturday, December 06, 2003 4:36 PM
Subject: Talking across different world-views [Was: Civil unions and
marriage]


 I apologize for a lengthy posting, but will then step back for all (or at
 least most) of the rest of the day:

 Alan Brownstein made this point in his recent posting, which I think
 honestly and sincerely reflects the opinion of many others on this list as
 well, as reflected in of our earlier debate when the Massachusetts
decision
 first came down.  He said:  This [the same-sex marriage debate] is one of
 the very few situations in which I read arguments from scholars I respect
 intellectually and not only disagree with their position, but find that
 their contentions make virtually no sense to me at all.  As I suggest at
 the end of this long posting, I think this observation has larger
 implications for the legal academy and for constitutional discourse.

 When I read many of the earlier postings in response to my inartful and
 inexpert outlining of the arguments against same-sex marriage, I think it
 fair to say that many others as well, while respectful and appreciative of
 the alternative viewpoint I and others offered, likewise were left unable
to
 find any coherence in those arguments.  In other words, we had what was
not
 merely a disagreement but an inability to connect, an impossibility of
true
 engagement because of the gulf between us in terms of world-view.

 For example, consider just one of many arguments, and one with which I do
 agree, to support the legal definition of marriage as between one man and
 one woman:  This is society's recognition of the unique complementarity of
 male and female, in which each brings different but vital gifts to the
union
 and thereby creates a whole that is far more than the sum of its parts.
As
 one editorialist stated, I believe it was Jeff Jacoby, marriage is
designed
 to join difference to difference, not add same to same.  Not incidentally,
 the sexual element of the complementarity of male and female is also the
 only means by which the next generation comes into being, which further
 confirms the special place and status that ought to be accorded to legal
 commitments based upon this joining together of the separate genders.

 (Note that acceptance of this argument, standing alone, would not preclude
 society from recognizing other relationships as having meaning and being
 deserving of certain legal benefits, provided that the special status of
 marriage is preserved.  To be sure, by recognizing the uniqueness of the
 male-female joinder, legally and sexually, it becomes more difficult to
 justify giving any special status to same-sex sexual relationships over
 other committed adult relationships not grounded upon sexual connection,
 i.e., children caring for elder parents, brothers or sisters living
together
 as a committed household, etc.)

 In making the complementarity argument, which strikes me as self-evidently
 reasonable, if not incontestable, I know I would still be confronted on
this
 list with the sincere suggestion that my argument is not merely wrong but
 lacks any rational basis.  Accordingly, those responding would suggest, no
 democratic constituency should be permitted to act upon the
complementarity
 justification, but rather judicial intervention to impose a different rule
 by decree is warranted.

 How can this be?  How can we as legal scholars have reached a point where
 the constitutionality of a legislative determination depends upon which
 world-view a scholar or jurist has adopted, leaving others outside of the
 realm of reasonable discourse?  And is it not strange that the position
now
 found to be alien and inexplicable within the legal academy is one that
has
 been adhered to by every one of the 50 states and indeed across the planet
 for centuries?  Or rather than this position truly being irrational, could
 it be that we in the legal academy are experiencing a failure of
 imagination, an inability to understand