Fourth Circuit and Prisoner Religious Freedom claim - Right to an interpreter for deaf inmate to attend religious services
Just out from the Fourth Circuit. The case involves claims asserted by a person deaf since birth regarding the right to be provided with an interpreter by the Bureau of Prisons. While the majority of the opinion deals with the right to an interpreter in connection with medical appointments, appellant also claimed a violation under the First Amendment and RFRA since he claimed he could not attend (or understand) religious services without an interpreter. The district court granted BOP summary judgment on the religion claims on the ground that they were moot based upon the promise of the BOP to provide an interpreter for religious services upon request in the future. The Fourth Circuit disagreed and held that the issue was not moot based upon the BOP change in position during the litigation. The First Amendment and RFRA claims (along with others) have been remanded for trial. http://www.ca4.uscourts.gov/Opinions/Published/156826.P.pdf Will Esser ___ 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: Arizona, Indiana . . . and now Georgia
Paul, Thanks for your questions and my apologies for the delayed response (I was tied up on other matters yesterday). A few important points: (a) It is important to look at exactly what the City of Charlotte proposed ordinance (Ordinance 7056) did. (You can find a copy here: https://www.municode.com/library/nc/charlotte/codes/code_of_ordinances ) Prior to the enactment of the Ordinance, City of Charlotte Code Section 12-59 provided that it was "unlawful to deny a person, because of sex, the full and equal enjoyment" of goods, services, facilities, etc. However, that section had a specific carveout such that it did not apply to "Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private." Ordinance 7056 eliminated the restroom carveout exception. That meant that public accommodations could not lawfully keep men out of women's restrooms and shower rooms and vice versa. In other words, it really didn't matter how you defined a man or a woman because the elimination of the carveout literally meant that any person regardless of looks, gender, or any other factor could use whatever bathroom or shower room they wanted. It made all bathrooms and shower rooms in public accommodations gender neutral. It was this provision which led to such an uproar and led legislative leaders to refer to the ordinance as "radical." Many parents had grave concerns over privacy and protecting children (especially girls) from sexual offenders who could view the ordinance as their opportunity to take advantage of a setting which was previously off limits to them. (I think that almost all people will agree that a provision that permits the YMCA to keep boys and girls separate at its showers and locker rooms is a good and proper provision). (b) The Charlotte City Council passed the bill solely to make a political statement and not because of any significant problem which existed. There were no instances in which individuals had been prosecuted for using the bathroom of their choice. There were no instances in which individuals were not allowed to use a bathroom. At most, the only evidence presented were the stories of a few individuals who said that they had to use a bathroom other than the one of their choice and that this made them feel uncomfortable. (c) The statute passed by the NC legislature provides that individuals must use the bathroom based upon their biological sex as shown on their birth certificate. However, North Carolina law (NCGS 130A-118) provides that a person can request an amendment to their birth certificate to change the listed sex on their birth certificate. Thus, for individuals who undergo sex reassignment surgery, they can amend their birth certificate to address the issue. No, there won't be any guard or DNA check at bathrooms in NC places of public accommodation. There were not before, and the new law does not implement any. The statute does not have any associated penalties for using a bathroom other than the one associated with the biological sex shown on your birth certificate. If the Charlotte City Council had not decided to eliminate common sense restrictions that allowed for unisex bathrooms, the NC legislature would not have taken the steps it did. (I recognize we are getting a little far afield from law and religion at this point, and I beg Eugene's indulgence.) Will Esser From: Paul Finkelman <paul.finkel...@yahoo.com> To: Will Esser <willes...@yahoo.com>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>; Eugene Volokh <vol...@law.ucla.edu> Sent: Wednesday, March 30, 2016 1:04 PM Subject: Re: Arizona, Indiana . . . and now Georgia This is a response to Will Esser's post (below). Will, how do you define a man or a woman? How will you know one when you see one? This is not rhetorical. If all your identification papers -- passport, driver's license, medicare card identify you as a woman (or a man), then you are legally a woman or a man. In fact, the law you are complaining about would NOT have allowed Men to use the men's room and women to use the women's room. Indeed, as the pictures I have appended below indicate, this law will make Men use the women's room and Women use the men's room But, if we take you seriously, then there should be a guard at the door of every public bathroom, checking IDs (or perhaps checking body parts) to determine who goes into which room? And exactly how would you do that? Will we to a DNA test at every bathroom? Or a full body search? I append pictures of transmen who would have to use the women's bathroom. Really? ** Paul FinkelmanArielF. Sallows Visiting Professor of Human Rights LawCollegeof LawUniversityof Saskatchewan15Campus DriveSaskatoon,SK S7N 5A6 canadapaul.finkel...@yahoo.com c) 518.605.0296 andSenior
Re: Assessing a Proposed Solution to the KY Case
To Kevin's point, a somewhat similar accommodation is playing out in North Carolina. As readers of this list will recall, North Carolina passed legislation which allows magistrates to opt out of performing any marriages, provided that each county was required to continue to make secular marriage services routinely available in each county. Recently, all of the magistrates in one county (McDowell County) opted out of performing marriages. However, marriages are still performed in McDowell County because magistrates in neighboring Rutherford County drive over on a regular weekly basis to make the marriage service available. http://www.wbtv.com/story/30001008/mcdowell-co-magistrates-recuse-themselves-from-performing-same-sex-marriages Not that this addresses the current procedural situation with Davis, but it certainly provides a model which the Kentucky legislature might consider during its next session. Plus, as I understand Kevin's proposed accommodation, it has the added advantage of not even requiring government employee travel from one county to the next. It would simply have deputy clerks in one county issue marriage licenses "under the authority of" a county clerk who had no religious objection to the issuance of the licenses, even if that county clerk happened to physically reside in another county. As long as state law permitted such issuance and validity of the licenses, this seems like a reasonable solution. Will Esser From: "Walsh, Kevin" <kwa...@richmond.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Wednesday, September 16, 2015 7:31 AM Subject: RE: Assessing a Proposed Solution to the KY Case I agree that only the office holder gets an exemption, not a unit of government. My argument is premised on the office holder getting an exemption, and so is Davis's. Once an office holder is recused, the question becomes who carries out the duties instead. That turns on who has legal authority. If a federal trial judge recuses from a capital case because she cannot sign a death order as a matter of religious conscience, the case has to go to another judge. And that is so even though the recused judge has law clerks, a courtroom deputy, and other assistants who sign pieces of paper under the judge's authority. The judge's recusal takes out everyone in the chambers, as they have no authority independent of her. As I understand Davis's position on state law, the authority of her deputy clerks is related to the authority of her office as the authority of law clerks is related to the authority of the office of judge. The county clerk's recusal takes out everyone in the office, as they have no authority independent of her. These results follow from a _personal_ exemption, not one granted to _the office_ of district court judge or _the office_ of county clerk. One pressure point on this position is Davis's understanding of state law. Marty has set out another reading that, if correct, would make the law clerk analogy inapposite. Deputy clerks can sign marriage licenses (whereas law clerks cannot sign death orders). But if Davis is right about state law, then the law clerk analogy holds. There is no more an Establishment Clause problem flowing from the need to bring in another judge than there is from the need to bring in another county clerk. If the substitution is seamless from the point of view of the applicant, as it would be if implemented in the manner I proposed, there are also no problems arising from the fact that the other clerk's geographic location may be distant. The licenses still get issued out of the recused clerk's physical plant, as if a substitute judge were sitting in a recused judge's courtroom and using the recused judge's staff. Kevin From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [dlayc...@virginia.edu] Sent: Tuesday, September 15, 2015 9:44 PM To: Law & Religion issues for Law Academics Subject: Re: Assessing a Proposed Solution to the KY Case The judge who recuses does not try to prevent his whole court from deciding the death penalty case. He recuses himself, personally; he does not recuse the government authority. Davis did not seek merely to recuse herself; she sought to prevent her whole office from issuing marriage licenses. And having them issued under the authority of another county is another way of disabling her whole office. This is the fundamental confusion between the unit of government, which has no religion, and the office holder, who does. Whatever the Establishment Clause might say about the issue, the Kentucky RFRA analysis is clear -- only the office holder gets an exemption. Not the unit of government. On Wed, 16 Sep 2015 01:02:53 + "Walsh, Kevin" <kwa...@richmond.edu> wrote
Fourth Circuit RLUIPA / Free Exercise Case
Just out from the Fourth Circuit. http://www.ca4.uscourts.gov/Opinions/Published/137529.P.pdf The prisoner in this case went by the notable name of Jesus Emmanuel Jehovah. The short summary is that the Court reversed the district court's dismissal and summary judgment orders on prisoner's claims related to: (a) Prison policy allegedly preventing inmate from taking communion in the manner required by his religious beliefs (red wine and consuming bread dipped in honey, olive oil, sugar, cinnamon, and water) (b) Inability to secure a job that would allow him to observe both of his Sabbaths (the Old Jewish Sabbath (Friday sundown to Saturday sundown) or the New Christic Sabbath (Sunday at sunset to Monday at sunrise). (c) Housing him with people who are anti-Christian and unbelievers (interestingly, his list of problematic cellmates even included one described as a false/non-practicing insincere Christian) It looks like the state conceded that its policy on having a wine ban for communion was not the least restrictive means available, so I assume that will get worked out with a new policy and compromise before the district court. It will be interesting to see what happens with the other two claims on remand. Will Will Esser Charlotte, North Carolina ___ 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: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
Sandy,
Thanks for your thoughts. Out of curiosity, what would your proposed
protection look like in this case? Stated another way, would it be:
(a) A judicially created exception under the Free Speech clause? or
(b) A legislative exemption built into non-discrimination laws (e.g. No
provider of public goods or services shall be required to engage in any oral or
written speech with which they disagree, and the refusal to engage in such
speech as part of the provision of public goods or services shall not
constitute a violation of applicable non-discrimination laws.)
I'm not familiar with any legislatively enacted speech exceptions to
non-discrimination laws (but perhaps other members of the list are).
Will
Will Esser
Charlotte, North Carolina From: Levinson, Sanford V
slevin...@law.utexas.edu
To: 'Will Esser' willes...@yahoo.com; religionlaw@lists.ucla.edu
religionlaw@lists.ucla.edu
Sent: Wednesday, April 8, 2015 4:09 PM
Subject: RE: Colorado bakery case - No violation of non-discimination laws for
refusal to bake cake with anti-gay message
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{}#yiv4046931561 Most of us no long bother to differentiate “freedom of speech”
from “freedom of expression,” but I think this is an excellent occasion to do
so. I inclined to believe that customers should not have the right to force
bakers to engage in what ordinary language would define as “speech” that
offends them. Thus I’d protect the baker who, while grudgingly conceding the
duty to bake a cake for a reception after a same-sex wedding, refused to write
the word “Congratulations” on top of it. So for me it’s an easy case that the
baker need not write out a repugnant message for the bigot in the Colorado
case. But if the bigot introduced himself as a member of one of the egregious
Identity sects in Idaho who wanted a cake to consume at the monthly meeting,
and did not request that the baker write out the offensive message, then I
would have no difficulty saying that the Identity bigot is entitled to the cake
and that the baker would be liable under a relevantly worded
anti-discrimination law. If, on the other hand, we (extravagantly) view the
cake sans wordage as itself protected “expression,” the analysis might become
more difficult and we have to start balancing, perhaps. But I see no need to
balance anything with regard to an otherwise valid Civil Rights Act that
prevents businesses from engaging in discriminatory business practices. As
Freud might put, sometimes a cake is just a cake. sandy
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Will Esser
Sent: Wednesday, April 08, 2015 12:31 PM
To: religionlaw@lists.ucla.edu
Subject: Colorado bakery case - No violation of non-discimination laws for
refusal to bake cake with anti-gay message There was a reported
story yesterday which begins: The Colorado Civil Rights Division has ruled
that a baker who refused to make cakes with anti-gay messages did not
discriminate.
https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html
It goes on to discuss the following from the ACLU Colorado legal director:
Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited
the same legislation, which forbids discrimination based on race, sexual
orientation, religion or sex, to rail against Azucar Bakery. “This man tried to
claim he also experienced a violation of the public accommodations statute but
he was not discriminated against because he’s Christian,” he said in an
interview with Yahoo News. “They had a policy that they apply across the board;
they are not going to make a cake with such offensive, over-the-top language or
images.” Two points: (1) Does anyone have a copy of the actual ruling (by
letter or opinion) from the Colorado Civil Rights Division? I did a quick
search and could not locate. (2) Part of the recent discussion about the
Indiana RFRA has caused me to think hard about the way in which categories are
being
Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
There was a reported story yesterday which begins: The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate. https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html It goes on to discuss the following from the ACLU Colorado legal director: Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the same legislation, which forbids discrimination based on race, sexual orientation, religion or sex, to rail against Azucar Bakery.“This man tried to claim he also experienced a violation of the public accommodations statute but he was not discriminated against because he’s Christian,” he said in an interview with Yahoo News. “They had a policy that they apply across the board; they are not going to make a cake with such offensive, over-the-top language or images.” Two points: (1) Does anyone have a copy of the actual ruling (by letter or opinion) from the Colorado Civil Rights Division? I did a quick search and could not locate. (2) Part of the recent discussion about the Indiana RFRA has caused me to think hard about the way in which categories are being drawn, for instance what is included within the various categories of protected classes in non-discrimination statutes. For instance, in the Elane Photography case, the court rejected the photographer's argument that she was not discriminating on the basis of sexual orientation but just on the basis of conduct (i.e. she was fine taking pictures of gay customers, but did not want to participate in a wedding ceremony). The NM Supreme Court rejected that distinction and said that the category of discrimination based on sexual orientation included same-sex weddings. In particular the court stated: The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA. How would that same reasoning apply to the Colorado bakery case? The story describes the particular Colorado message as follows: In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay messages, such as “Homosexuality is a detestable sin. Leviticus 18:22.” He also wanted the cake to include two men holding hands with a large X over them.She agreed to make the dessert in the shape of a book but declined to include the hateful content. What result is reached if we substitute the word religion for sexual orientation and apply the same rationale from Elane Photography (i.e. The difficulty in distinguishing between status and conduct in the context of [religion] is that people may base their judgment about an individual's [religion] on the individual's conduct.)? (Example: I don't discriminate against Jews, just against people who wear yarmulkes. Or I don't discriminate against Catholics, just against people who attend Mass on Sundays). How is a distinction drawn between this ruling and Elane Photography? Does a court have to make a finding regarding how closely correlated particular conduct is to a protected class in order to find that they are essentially synonymous? And if so, how would a court even determine close correlation? Some of this is just initial thoughts and questions on reading the story. I welcome any thoughts or comments. [Note: For discussion sake, let's put aside the issue of whether the person seeking the cake really wanted the cake or just wanted to force the baker to convey a message which the baker did not want to convey. I don't believe the motivation of the person seeking the public good or service is relevant to the inquiry of whether the non-discrimination law was violated, regardless of which side of the aisle the person seeking the cake sits on.] Will Will Esser Charlotte, North Carolina ___ 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.
RFRAs, Non-profits and Abortion / Contraceptive services for Refugee Children
Given the recent post discussions about RFRAs and religious accommodation carveouts for non-profits, I was interested to see the recent ACLU announcement (on, I note, April 3, Good Friday) about its FOIA lawsuit to ask a federal court to order the federal government to release documents related to how groups that are awarded government funding contracts are restricting refugee and undocumented immigrant teenagers' access to reproductive health services, including contraception and abortion. https://www.aclu.org/reproductive-freedom/religious-organizations-obstruct-reproductive-health-care-unaccompanied-immigra As I understand the issue, in a nutshell, Catholic Charities and other faith-based organizations have for many years accepted government contracts to provide housing and related services for refugee children while they await various immigration hearings (including the possibility of deportation hearings). The federal government recently introduced proposed interim rules that all contracting agencies, including religious non-profits, must provide the refugee children with health care services including emergency contraception and abortion services. The United States Conference of Catholic Bishops and other faith-based organizations objected to the proposed interim rules and argued, among other things, that an accommodation was required under the provisions of the federal RFRA. One of the arguments the USCCB made is that the government cannot meet its burden under RFRA because the USCCB has been providing services to refugee children for many years without the constraints that the interim final rule would create. Yet there have been no reported problems in terms of services to clients. The final rule therefore does not seem to remedy an actual problem or to address any actual past adverse impacts on clients served. The text of the USCCB letter is here: http://www.usccb.org/about/general-counsel/rulemaking/upload/02-20-15-comments-UM.pdf This will be an interesting case to follow as it may test the limits of the federal RFRA as applied to religious non-profits, and may offer some guidance on how state RFRAs can address the same issue. Will Will Esser Charlotte, North Carolina ___ 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: RFRAs, Non-profits and Abortion / Contraceptive services for Refugee Children
Thanks, Art. When I said this case I was, of course, talking about this particular fact pattern and looking ahead to the likelihood of a follow-up lawsuit from the ACLU and a defense from the non-profits. You are correct that the FOIA case standing alone does not raise the RFRA issue. You are also correct that the ACLU's statement (and possibly its complaint, although I have not located a copy) asserts differing factual details from the USCCB letter. Those facts may play into the RFRA analysis, probably on the compelling interest prong. Best, Will Will Esser Charlotte, North Carolina From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, April 7, 2015 1:50 PM Subject: Re: RFRAs, Non-profits and Abortion / Contraceptive services for Refugee Children I don't know the facts, but the ACLU's statement asserts, contrary to the Bishops' letter, that Reports from workers interacting with these teens indicate that, because of USCCB’s refusals, teens are not getting the care they need. Reports also indicate that some organizations are using their religious beliefs to force teens to leave their program, uprooting the teen from familiar surroundings and the lifeline of their social worker, if they need reproductive care. This is only a FOIA case seeking documents from HHS, so I don't think it has the potential to test the limits of the federal RFRA as applied to religious non-profits. There may be a subsequent case that will have that potential. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Tue, Apr 7, 2015 at 12:58 PM, Will Esser willes...@yahoo.com wrote: Given the recent post discussions about RFRAs and religious accommodation carveouts for non-profits, I was interested to see the recent ACLU announcement (on, I note, April 3, Good Friday) about its FOIA lawsuit to ask a federal court to order the federal government to release documents related to how groups that are awarded government funding contracts are restricting refugee and undocumented immigrant teenagers' access to reproductive health services, including contraception and abortion. https://www.aclu.org/reproductive-freedom/religious-organizations-obstruct-reproductive-health-care-unaccompanied-immigra As I understand the issue, in a nutshell, Catholic Charities and other faith-based organizations have for many years accepted government contracts to provide housing and related services for refugee children while they await various immigration hearings (including the possibility of deportation hearings). The federal government recently introduced proposed interim rules that all contracting agencies, including religious non-profits, must provide the refugee children with health care services including emergency contraception and abortion services. The United States Conference of Catholic Bishops and other faith-based organizations objected to the proposed interim rules and argued, among other things, that an accommodation was required under the provisions of the federal RFRA. One of the arguments the USCCB made is that the government cannot meet its burden under RFRA because the USCCB has been providing services to refugee children for many years without the constraints that the interim final rule would create. Yet there have been no reported problems in terms of services to clients. The final rule therefore does not seem to remedy an actual problem or to address any actual past adverse impacts on clients served. The text of the USCCB letter is here: http://www.usccb.org/about/general-counsel/rulemaking/upload/02-20-15-comments-UM.pdf This will be an interesting case to follow as it may test the limits of the federal RFRA as applied to religious non-profits, and may offer some guidance on how state RFRAs can address the same issue. Will Will Esser Charlotte, North Carolina ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others
Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message
I note the following story today which begins: The Colorado Civil Rights Division has ruled that a baker who refused to make cakes with anti-gay messages did not discriminate. https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html It goes on to discuss the following from the ACLU Colorado legal director: Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the same legislation, which forbids discrimination based on race, sexual orientation, religion or sex, to rail against Azucar Bakery.“This man tried to claim he also experienced a violation of the public accommodations statute but he was not discriminated against because he’s Christian,” he said in an interview with Yahoo News. “They had a policy that they apply across the board; they are not going to make a cake with such offensive, over-the-top language or images.” Two points: (1) Does anyone have a copy of the actual ruling (by letter or opinion) from the Colorado Civil Rights Division? I did a quick search and could not locate. (2) Part of the recent discussion about the Indiana RFRA has caused me to think hard about the way in which categories are being drawn, for instance what is included within the various categories of protected classes in non-discrimination statutes. For instance, in the Elane Photography case, the court rejected the photographer's argument that she was not discriminating on the basis of sexual orientation but just on the basis of conduct (i.e. she was fine taking pictures of gay customers, but did not want to participate in a wedding ceremony). The NM Supreme Court rejected that distinction and said that the category of discrimination based on sexual orientation included same-sex weddings. In particular the court stated: The difficulty in distinguishing between status and conduct in the context of sexual orientation discrimination is that people may base their judgment about an individual's sexual orientation on the individual's conduct. To allow discrimination based on conduct so closely correlated with sexual orientation would severely undermine the purpose of the NMHRA. How would that same reasoning apply to the Colorado bakery case? The story describes the particular Colorado message as follows: In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay messages, such as “Homosexuality is a detestable sin. Leviticus 18:22.” He also wanted the cake to include two men holding hands with a large X over them.She agreed to make the dessert in the shape of a book but declined to include the hateful content. What result is reached if we substitute the word religion for sexual orientation and apply the same rationale from Elane Photography (i.e. The difficulty in distinguishing between status and conduct in the context of [religion] is that people may base their judgment about an individual's [religion] on the individual's conduct.)? (Example: I don't discriminate against Jews, just against people who wear yarmulkes. Or I don't discriminate against Catholics, just against people who attend Mass on Sundays). How is a distinction drawn between this ruling and Elane Photography? Does a court have to make a finding regarding how closely correlated particular conduct is to a protected class in order to find that they are essentially synonymous? And if so, how would a court even determine close correlation? Some of this is just initial thoughts and questions on reading the story. I welcome any thoughts or comments. [Note: For discussion sake, let's put aside the issue of whether the person seeking the cake really wanted the cake or just wanted to force the baker to convey a message which the baker did not want to convey. I don't believe the motivation of the person seeking the public good or service is relevant to the inquiry of whether the non-discrimination law was violated, regardless of which side of the aisle the person seeking the cake sits on.] Will Will Esser Charlotte, North Carolina ___ 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: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Alan,
Thanks for your post. However, both of the examples that you used to
illustrate dignitary harms involve affirmative conduct of the person causing
the harm (i.e. battery and trespass). In the wedding photographer example,
however, the opposite is true. In that example, the alleged dignitary harm is
caused by the decision of the individual not to engage in conduct (i.e. the
wedding photographer says that she is happy to photograph gays and lesbians who
come in to have their pictures taken, but simply wants to abstain from
participating in the same-sex wedding).
And more specifically, the alleged dignitary harm is explicitly tied to the
reason the wedding photographer is refusing to participate. In other words,
the wedding photographer is allowed to refuse to shoot the wedding for a myriad
of non-discriminatory reasons (e.g. I'm on vacation then, I don't shoot
weddings for people with tattoos, etc.) and those do not cause dignitary harm
(or they cause dignitary harm based on unprotected classifications) (e.g. I
don't photograph fat people). So it is in fact, the reason for the refusal to
participate (i.e. the religious viewpoint that participating in a same-sex
wedding ceremony violates religious precepts) which makes the difference under
the relevant non-discrimination law and it is the reason for the refusal which
causes the dignitary harm.
It seems to me that whether there is affirmative action by the viewer versus
simply refusing to participate makes a substantial difference when talking
about dignitary harms.
And on a related point, I'm not so sure that I agree with your initial premise
that the refusal to engage in conduct which the religious believer views as
violating her sincerely held religious beliefs is conduct and not speech.
After all, actions speak louder than words and oftentimes the most expressive
statement someone can make is refusing to participate in conduct. (Not that
I've given this point much prior thought, so I'd welcome anyone pointing me to
cases which elaborate on this distinction about whether the refusal to perform
an action constitutes conduct versus speech).
Will Will Esser Charlotte, North Carolina
From: Alan E Brownstein aebrownst...@ucdavis.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thursday, April 2, 2015 2:48 PM
Subject: RE: Dignitary Injury as an argument against religious exemptions to
non-discrimination laws
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{}#yiv9811712642 Will and Chip’s exchange ended on such a thoughtful and
positive note (which I greatly appreciate) that I hesitate to add another post
to this thread out of fear it might break the spell. I agree with Will and
Chip’s discussion about when and whether speech by itself constitutes
discrimination for the purposes of civil rights laws. When we are talking
about exemptions from anti-discrimination laws, however, the core issue isn’t
dignitary harms that result from a proprietor’s speech. It is dignitary harms
that result from the proprietor’s conduct. (I assume we all agree that a
discriminatory refusal to serve a customer or to hire a job applicant is
conduct and not speech.) And while both speech and conduct can cause
dignitary harms, we typically don’t equate the two and excuse the latter
because we would tolerate the former. I may have no recourse if someone insults
me because I’m a Jew. Indeed, the person insulting has a First Amendment right
to express anti-Semitic statements. But if he spits on my shirt or knocks my
yarmulke off my head (which given my bald head takes very little force), I may
not be able to get a pound of flesh for redress, but I can sue the person
Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Chip, Your example misses my point, so let me restate. Here is a recap of where I think we are: 1. You argue against religious exemptions to non-discrimination laws on two grounds, i.e. because of (a) material injury and (b) dignitary injury.2. The material injury is the lost opportunity to receive the good or service at the price or quality offered by a particular business.3. The dignitary injury is (in your example) the wound to the dignity of the couple by having to hear a viewpoint from the business owner which they find offensive or with which they disagree. I'm pushing back, because I'm not sure that both of these prongs can be used to support your argument. Let's assume the material injury prong is ABSENT in each situation so that we can just test the sufficiency of the dignitary injury prong (i.e. the wedding photographer WILL in fact provide photography services for both opposite and same-sex weddings, and the bookseller will sell anti-Christian books to everyone). Let's go a step further and say that the speech which wounds the dignity of the couple is present in EVERY situation (i.e. the photographer notifies ALL her customers regarding her belief about the morality of same-sex marriage, not just same-sex couples). As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared to accept the material injury argument as a basis for not granting a religious exemption to the local non-discrimination law, but not the dignitary injury argument. It held that the photographer posting a sign in the studio stating her views about same-sex marriage was permissible, so long as she still made the service available. In other words, the Court appeared to specifically permit the photographer to engage in the conduct which you contend causes the dignitary injury so long as the service was still provided and there was no material injury. Do you disagree with the NM Supreme Court on that point? If not, I think the dignitary injury prong has to be rejected as a rationale to support the argument against religious exemptions to non-discrimination laws. That would leave your argument relying solely on the material injury prong (which is a topic for another thread). Stated another way, I'm having a hard time understanding the dignitary injury argument as anything other than a position that people should not have to hear certain viewpoints with which they disagree, even if goods and services are otherwise being provided. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 10:38 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The vendor does not have to be respectful of the beliefs of his customers. How would he know the content of those beliefs? But he cannot be disrespectful of the class of people to which the customers belong, or the class to which he thinks the customers belong, If those classes are protected by the antidiscrimination law. They are entitled to the full and equal enjoyment of the goods he is selling, without any selectivity based on their race, religion, etc. A bookstore owner can sell anti-Christian books, but he must offer to sell them to Christians and non-Christians alike. Sent from my iPhone On Apr 1, 2015, at 9:41 PM, Will Esser willes...@yahoo.com wrote: Chip, Thanks for the explanation, which is helpful. But I want to push a little farther on this concept of dignitary injury. You state that the dignitary injury is more serious because it has wounded the couple with this disrespect. But how far can that argument really go? Are you saying that public non-discrimination laws not only require the provisions of goods and services to all comers, but also require that those services be provided in a way that will be viewed as respectful of the particular beliefs of the customers? If that is the case, does the photographer who has the Piss Christ photograph by Andres Serrano hanging on the wall of their shop (i.e. a photograph which very clearly singles out Christians for disrespect and dignitary injury) also run afoul of public non-discrimination laws even if the photographer is otherwise willing to perform photography services for Christians? Or use the same example but substitute in the cover of the Charlie Hebdo magazine depicting the Prophet Muhammad? Mark pointed it out in several of his later posts, but I'm troubled about how this concept of dignitary injury logically plays out and whether your argument essentially means that anyone involved in businesses which provide public services are required to check their free speech and opinions at the door. There are, after all, many categories of things that a business owner could say which would be gravely disrespectful and injure the dignity
Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Chip, Thanks for that clarification. For consistency then, does your position run both ways regardless of the viewpoint expressed? For instance, given your view of dignitary injury, would it apply to prohibit the business owner who supports same-sex marriage from posting a sign that says: I believe that all marriage is equal and that same-sex sexual activity is every bit as good, moral and right as opposite same-sex sexual activity. An evangelical Christian or Catholic upon seeing such a sign could very easily argue that such a statement disrespected their religion (which taught the opposite) and therefore they had suffered a dignitary injury based on the posting of the sign, thereby adversely affecting their equal enjoyment of the goods and services . . . .without discrimination on the basis of religion. (The same is true of my example with the photographer who proudly displays the Serano Piss Christ photograph in their studio. It's hard to see how that would not constitute a dignitary injury to Christians which could affect their equal enjoyment of the goods and services provided by the photographer). Where do you draw the line on what viewpoints can be expressed and which cannot by the business owner? Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, April 2, 2015 7:38 AM Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws I disagree with the New Mexico Supreme Court. Telling some customers that their business is unwelcome represents a denial of equal enjoyment of the goods and services . . . without discrimination on the basis of race, gender, sexual orientation, et cetera. Sent from my iPhone On Apr 2, 2015, at 7:15 AM, Will Esser willes...@yahoo.com wrote: Chip, Your example misses my point, so let me restate. Here is a recap of where I think we are: 1. You argue against religious exemptions to non-discrimination laws on two grounds, i.e. because of (a) material injury and (b) dignitary injury.2. The material injury is the lost opportunity to receive the good or service at the price or quality offered by a particular business.3. The dignitary injury is (in your example) the wound to the dignity of the couple by having to hear a viewpoint from the business owner which they find offensive or with which they disagree. I'm pushing back, because I'm not sure that both of these prongs can be used to support your argument. Let's assume the material injury prong is ABSENT in each situation so that we can just test the sufficiency of the dignitary injury prong (i.e. the wedding photographer WILL in fact provide photography services for both opposite and same-sex weddings, and the bookseller will sell anti-Christian books to everyone). Let's go a step further and say that the speech which wounds the dignity of the couple is present in EVERY situation (i.e. the photographer notifies ALL her customers regarding her belief about the morality of same-sex marriage, not just same-sex couples). As Mark pointed out, the New Mexico Supreme Court in Elane Photography appeared to accept the material injury argument as a basis for not granting a religious exemption to the local non-discrimination law, but not the dignitary injury argument. It held that the photographer posting a sign in the studio stating her views about same-sex marriage was permissible, so long as she still made the service available. In other words, the Court appeared to specifically permit the photographer to engage in the conduct which you contend causes the dignitary injury so long as the service was still provided and there was no material injury. Do you disagree with the NM Supreme Court on that point? If not, I think the dignitary injury prong has to be rejected as a rationale to support the argument against religious exemptions to non-discrimination laws. That would leave your argument relying solely on the material injury prong (which is a topic for another thread). Stated another way, I'm having a hard time understanding the dignitary injury argument as anything other than a position that people should not have to hear certain viewpoints with which they disagree, even if goods and services are otherwise being provided. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Cc: Law Religion Issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 10:38 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The vendor does not have to be respectful of the beliefs of his customers. How would he know the content of those beliefs? But he cannot be disrespectful of the class of people to which the customers belong, or the class to which he
Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws
Thanks Chip. Looks like your last post to me was not copied to the list, so I've copied here for the benefit of all. Your point about permissible legislative decisions on opt-outs is a good one, and the concept of allowing religious opt-outs conditioned on posting a sign notifying the public about the religious opt-out in order to avoid dignitary injury issues seems like a fair compromise position. It certainly seems like it would remove the dignitary injury issue from the equation, and could represent the legislature's determination that the material injury by itself was not significant enough (given the general availability of goods and services in the marketplace otherwise) to negate the importance of religious exemptions. I haven't seen that particular compromise proposed in any of the discussed legislation, but it is a concept worth further thought. Same best wishes to you and yours. May all those with strong feelings on these topics be willing to rationally debate the issues in the same manner as those on this list and focus on arriving at a resolution which respects the interests of all involved in our diverse society. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com Sent: Thursday, April 2, 2015 9:28 AM Subject: Re: Dignitary Injury as an argument against religious exemptions to non-discrimination laws That's a good question, Will. Before I answer, let me clarify that the legislature can permit the disclaiming sign (We serve all, but we are opposed to same sex marriage.) The legislature can also permit religious opt-outs from serving all, on the condition that a sign be posted, so as to spare same sex couples the embarrassment and dignitary injury of walking in and then being turned away. These are discretionary legislative decisions, neither required not forbidden by the First A. Where to draw the line about vendor expression in the workplace? Certainly not over the goods that are being sold -- ham or kosher meat; Piss Christ copies or reverent Christmas cards. That's what is for sale, for all who want to purchase. So we're left with the cases of messages (not goods for sale) that express borderline hostility to some customers, and now the line is hard to draw - Confederate flags on the wall? Quasi-pornographic photos of women? No easy answers here, any more than there are in borderline hostile environment cases of sexual harassment in the workplace. I would suggest something like if the reasonable customer would be made to feel unwelcome, on the basis of race, etc, by the message(s) [NOT by the goods for sale], then the message is inconsistent with a law of non-discrimination. I know that will leave grey areas and uncertainty. But that doesn't bother me, because this is speech zoning -- the same vendor can fly Confederate flags at home, speak out in political fora against same sex marriage, etc. I can't do better than this in the abstract. I don't expect to persuade you. But I do think that the argument that people have a right to bring their religion into their business (by all means, sell Christmas ornaments and Passover Matzoh; close on your Sabbath) can be blocked with an argument that says not if the expression of their religion to customers is in effect an attempt to deny equal access to goods and services to a class of people protected by civil rights laws. Passover, Good Friday, and Easter Sunday coming up -- peace, hope, and freedom to all on the list, whether or not you recognize or celebrate any of those holidays. On Thu, Apr 2, 2015 at 8:30 AM, Will Esser willes...@yahoo.com wrote: Chip, Thanks for that clarification. For consistency then, does your position run both ways regardless of the viewpoint expressed? For instance, given your view of dignitary injury, would it apply to prohibit the business owner who supports same-sex marriage from posting a sign that says: I believe that all marriage is equal and that same-sex sexual activity is every bit as good, moral and right as opposite same-sex sexual activity. An evangelical Christian or Catholic upon seeing such a sign could very easily argue that such a statement disrespected their religion (which taught the opposite) and therefore they had suffered a dignitary injury based on the posting of the sign, thereby adversely affecting their equal enjoyment of the goods and services . . . .without discrimination on the basis of religion. (The same is true of my example with the photographer who proudly displays the Serano Piss Christ photograph in their studio. It's hard to see how that would not constitute a dignitary injury to Christians which could affect their equal enjoyment of the goods and services provided by the photographer). Where do you draw the line on what viewpoints can be expressed and which cannot by the business owner? Will Will Esser Charlotte, North
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Thanks for the explanation, which is helpful. But I want to push a little farther on this concept of dignitary injury. You state that the dignitary injury is more serious because it has wounded the couple with this disrespect. But how far can that argument really go? Are you saying that public non-discrimination laws not only require the provisions of goods and services to all comers, but also require that those services be provided in a way that will be viewed as respectful of the particular beliefs of the customers? If that is the case, does the photographer who has the Piss Christ photograph by Andres Serrano hanging on the wall of their shop (i.e. a photograph which very clearly singles out Christians for disrespect and dignitary injury) also run afoul of public non-discrimination laws even if the photographer is otherwise willing to perform photography services for Christians? Or use the same example but substitute in the cover of the Charlie Hebdo magazine depicting the Prophet Muhammad? Mark pointed it out in several of his later posts, but I'm troubled about how this concept of dignitary injury logically plays out and whether your argument essentially means that anyone involved in businesses which provide public services are required to check their free speech and opinions at the door. There are, after all, many categories of things that a business owner could say which would be gravely disrespectful and injure the dignity of customers (e.g. My are you fat. You are so ugly I can't stand to look at you etc.). The marketplace (particularly in this age of social media) would quickly penalize such disrespect in an economic manner, but I had never viewed it as within the purview of non-discrimination laws to protect citizens from speech that they found disrespectful. I welcome your thoughts. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Will Esser willes...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 6:35 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights Thanks for the question, Will. If the kosher butcher gets that exemption, he will sell pork to no one. He never has and never will carry pork in his shop. He also does not sell soda, cars, or wedding cakes. If you want that stuff, you must go elsewhere. Is that a cost to third parties?'' No more than that imposed by any (that is, every) other merchant who sells less than everything. Compare that to a discriminatory refusal to sell. Baker A does sell wedding cakes, but not to same sex couples. Two injuries -- material and dignitary. The material injury is the lost opportunity to buy a cake at the quality and price offered by that baker. Maybe you can do as well or better elsewhere, nearby, or maybe not. The dignitary injury is more serious -- the couple is seeking goods to celebrate one of the most important and special days of their lives. And the baker says, in effect, I do not respect your marriage as a marriage. In my belief system, it is not a marriage at all, because you are of the same sex. (The baker might also think or say that in his view the relationship is disordered, or an abomination, and/or against God's plan, but let's assume he says nothing like that all.) The baker has wounded the couple with this disrespect, and done so in regard to a day that has significant meaning in their lives. Those are the focused, third party harms in the refusal to sell goods or services to some that you sell to others, especially (though not only) for a wedding reception. On Wed, Apr 1, 2015 at 4:38 PM, Will Esser willes...@yahoo.com wrote: Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex
Re: Eugene's Blog Post on Liberals and Exemption Rights
Chip, Can you expound on your argument that wedding vendor exemptions from public accommodations laws allow material and dignitary injury to potential customers and that liberals only oppose exemptions that impinge on the welfare of third parties? It seems that both sides agree that the kosher butcher deserves a religious exemption, and yet granting that exemption imposes some cost on third parties (i.e. anyone who wishes to purchase pork must go elsewhere, which could involve multiple trips to different butchers, or may mean spending more time and money to go to a butcher further away). So it's not really that there is no cost to third parties, but perhaps simply a cost which society is more ready to accept (i.e. Go buy your pork somewhere else.) As I understood the third-party harm argument in Hobby Lobby, the argument was that without insurance coverage, female Hobby Lobby employees would be unable to afford coverage of the particular, objectionable contraceptives and therefore the third party harm was equivalent to total lack of access. Given modern changes in societal perspectives, I have not heard the same argument about a total lack of access when it comes to wedding vendors for same-sex wedding ceremonies. Under the assumption the goods and services are otherwise generally available in the marketplace (i.e. there are plenty of wedding photographers, bakers, etc. who would be happy for the business of same-sex weddings), what is the distinguishing factor which causes material and dignitary injury in the wedding vendor exemptions scenario but not in the kosher butcher example? In both, the customers want a service which they can get in the marketplace (although perhaps not from the exact person or place they want it). And in both, the reason for not providing the service is the same (i.e. violation of a sincerely held religious belief). Thanks in advance for clarification. Will Will Esser Charlotte, North Carolina From: James Oleske jole...@lclark.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, April 1, 2015 3:22 PM Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights The butcher example Chip gives is why I suggested last spring that the Court might want to read the Lee language not as an absolute rule, but rather, a strong presumption against exemptions in the commercial realm that can be overcome in the very rare case where the basis for the presumption (a third-party harm) does not exist. Alas, the Court instead simply discarded the Lee language wholesale by saying RFRA went further than the pre-Smith law. - Jim On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote: I do not think most liberals oppose exemptions for businesses per se -- imagine a law that compelled a butcher to carry products in conflict with religious dietary laws to which the butcher and his customers subscribe. Liberals oppose exemptions that impinge on the welfare of third parties -- Hobby Lobby (those female employees still do not have contraceptive coverage) or wedding vendor exemptions from public accommodations laws (those exemptions allow material and dignitary injury to potential customers). U.S. v. Lee involved injury to other family members of Amish employees, as well as others in the social insurance pool. On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: “[l]iberals who opposedSmith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection? Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics
Referral for Public Accommodation Non-Discrimination Laws and Religious Accommodations Resource?
All: Please pardon the interruption and allow me to request any recommendations for a good resource on the current status of the law relating to public accommodation non-discrimination laws and how those laws have addressed religious liberty concerns. Here is the context: On Monday, the City of Charlotte went through a significant debate regarding a proposal to add certain protected classes to the City's non-discrimination ordinance, including the addition of the following categories: marital status, familial status, sexual orientation, gender identity, and gender expression. There was significant public reaction to the proposal (both for and against - indeed, there were over 120 speakers who spoke on the proposed ordinance amendment over the course of 4+ hours). Among the concerns raised was the fact that the proposed ordinance did not contain any exemptions or accommodations for (a) religious charitable and educational organizations who may be deemed to provide certain public accommodation services (e.g. Catholic Charities) or (b) for individuals / business owners for whom participation in a same-sex marriage ceremony would violate their sincerely held religious beliefs (e.g. the Coeur d'Alene litigation). At the end of the evening, the Charlotte City Council voted 6-5 against passage of the proposed ordinance (although it appears the ordinance failed to pass primarily for reasons other than the concerns about religious liberty). The issue is going to continue to be discussed and debated in Charlotte for some time, and I am certain it will be put back up for vote before the City Council in the not too distant future. There are individuals in the community who have expressed an interest to better inform themselves on the state of the law in this area (i.e. what are other cities and states doing, what kind of religious accommodations have been granted, what are the status of lawsuits dealing with religious exemptions to such provisions, etc.) I would appreciate it if anyone could point me to some good reading material that would provide a good overview of this area. Feel free to email me any recommendations offlist at willes...@yahoo.com. Best regards, Will Will Esser Charlotte, North carolinawilles...@yahoo.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Looking for a Recommended Resource on Public Accommodation Non-Discrimination Laws and Religious Accommodations
All: Please pardon the interruption and allow me to request any recommendations for a good resource on the current status of the law relating to public accommodation non-discrimination laws and how those laws have addressed religious liberty concerns. Here is the context: The City of Charlotte just went through a significant debate last night regarding a proposal to add certain protected classes to the City's non-discrimination ordinance, including the addition of the following categories: marital status, familial status, sexual orientation, gender identity, and gender expression. There was significant public reaction to the proposal (both for and against - indeed, there were over 120 speakers who spoke on the proposed ordinance amendment over the course of 4+ hours). Among the concerns raised was the fact that the proposed ordinance did not contain any exemptions or accommodations for (a) religious charitable and educational organizations who may be deemed to provide certain public accommodation services (e.g. Catholic Charities) or (b) for individuals / business owners for whom participation in a same-sex marriage ceremony would violate their sincerely held religious beliefs (e.g. the Coeur d'Alene litigation). At the end of the evening, the Charlotte City Council voted 6-5 against passage of the proposed ordinance (although it appears the ordinance failed to pass primarily for reasons other than the concerns about religious liberty). The issue is going to continue to be discussed and debated in Charlotte for some time, and I am certain it will be put back up for vote before the City Council in the not too distant future. There are individuals in the community who have expressed an interest to better inform themselves on the state of the law in this area (i.e. what are other cities and states doing, what kind of religious accommodations have been granted, what are the status of lawsuits dealing with religious exemptions to such provisions, etc.) I would appreciate it if anyone could point me to some good reading material that would provide a good overview of this area. Feel free to email me any recommendations offlist at willes...@yahoo.com. Best regards, Will Will Esser Charlotte, North carolinawilles...@yahoo.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Religious Exemptions from Vaccination Laws
In light of the recent Listserv discussion, I note that there is an interesting op-ed in the Charlotte Observer this morning regarding North Carolina's religious exemption to vaccinations. http://www.charlotteobserver.com/2015/02/03/5491428/an-nc-loophole-on-vaccinations.html The editorial board expresses what may be the common lay opinion on the matter, namely: Like many states, North Carolina allows exemptions for medical reasons, such as allergies, and religious beliefs. The medical exemption requires a request from a licensed physician, but the religious exemption requires merely a statement that includes the name and date of birth of the person for whom the exemption is being requested. No elaboration on the religious objection is needed, nor any evidence of religious affiliation or faith. That’s a loophole that allows parents to game the system to avoid vaccination, and there are helpful anti-vaccine web sites that coach North Carolina parents on how to craft a letter that meets the requirements and won’t raise the eyebrows of public officials. Although North Carolina is among the states with the highest vaccination rates, parents across the country are increasingly taking advantage of exemptions. N.C. officials should minimize the public health risk by tightening its loophole so that people with legitimate religious objections to vaccinations, such as the Amish, are distinguishable from those who merely have personal or philosophical objections. Those who have the latter are welcome to deny vaccinations for their schoolchildren. But those children shouldn’t be allowed in school. (Emphasis added) Assuming that a legislature were looking to craft a revised religious exemption that allowed for legitimate religious objections but weeded out others, what would the language of the exemption look like? Is it even possible to craft such an exemption or will courts be inclined (as they generally have been) to defer to the sincerity of the religious belief of the individual and not attempt to distinguish between legitimate and illegitimate religious objections? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Homeschooling, vaccinations, and Yoder
Eugene,
Your points are well taken and mirror the argument I would expect the
government to make. Let me follow up with two points / questions to push on
the larger issue a bit:
(a) When you say you agree that the vaccination analysis might vary by specific
vaccine, I assume you mean that the government might have a harder time proving
a compelling governmental interest for some vaccines versus others when trying
to argue against a religious exemption. That analysis could vary based upon
(i) how effective the vaccine is (for instance, the HPV vaccine only provides
protection against 2 of the approximately 40 HPV viruses, although those 2
appear to account for about 70% of the reported cervical and anal cancers
related to HPV -
http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ); (ii) how
contagious the disease is / how it spreads; and (iii) the seriousness of the
effects of the disease (i.e. likelihood of death or serious long-term health
consequences for those affected). I think we are in agreement on this point,
but would appreciate the confirmation.
(b) The question I was raising with regard to the priest / nun hypothetical was
whether the proposed action or inaction of the party seeking a religious
exemption would (or should) affect the analysis in any way. Using the MMR
vaccine as an example, I can see the government saying that the actions or
inactions of the religious objector are irrelevant because children can be
exposed to the MMR viruses at all times regardless of what the parents or
children otherwise do (i.e. there is no realistic way in our society to prevent
exposure to a virus that spreads through nose, throat and mouth droplet
transmission). However, that same argument does not work as well with regard
to HPV. After all, as the government admits: The surest way to eliminate risk
for genital HPV infection is to refrain from any genital contact with another
individual. See Item 3 -
http://www.cancer.gov/cancertopics/factsheet/Prevention/HPV-vaccine ) If a
religious objector says, I've got a less restrictive way to deal with the
problem, i.e. avoidance of extra-marital sexual activity, does the government
get a pass on its burden by arguing that Everyone's doing it and we think you
will too, no matter what you tell us?
I recognize that the HPV vaccine may be an outlier on this, but I think it
provides good material to try to figure out where the boundaries are in this
debate over vaccinations and religious exemptions.
I look forward to your thoughts.
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
From: Volokh, Eugene vol...@law.ucla.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Monday, February 2, 2015 1:34 PM
Subject: RE: Homeschooling, vaccinations, and Yoder
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{}#yiv7149436468 I agree that the vaccination analysis might
well vary, in some situations, by the specific vaccine involved. But I’m not
sure that the priest/nun hypothetical really illustrates that. One can
intend to be a priest or nun, but people are notoriously fallible (I believe
Christianity has a thing or two to say about that), and have been known to
lapse despite their best intentions. Plus of course priests and nuns sometimes
deliberately leave the religious life, and 14-year-olds who intend to become
priests and nuns sometimes change their mind before they can actually join.
Now, to be sure, HPV spread (like HIV spread) disproportionately
stems from those who have more sexual partners than from those who have fewer.
But it’s very hard for the government to know with any confidence
Re: Homeschooling, vaccinations, and Yoder
One point which has not been mentioned in this thread is that homeschoolers and religious communities oftentimes object to vaccination on a vaccine specific basis, rather than an across-the-board objection to all vaccines. For instance, as various states have considered adding the HPV vaccination (http://www.ncsl.org/research/health/hpv-vaccine-state-legislation-and-statutes.aspx ), there has been substantial debate in religious communities over the necessity for a vaccination related to a sexually transmitted disease. It strikes me that the government's interest with regard to vaccinations may vary widely based upon the particular vaccination involved (i.e. the government would certainly seem to have a more compelling public health argument for vaccination of diseases which are airborne or passed by mere physical contact, whereas the argument appears far less compelling when dealing with diseases passed solely through sexual activity). After all, what would the government's compelling interest be to require HPV vaccination if a particular student stated that they intended to be a priest or nun and adhere to an oath of perpetual celibacy (or more likely, that the students simply meant to practice abstinence)? Stated another way, if vaccination is analyzed under a third party burden perspective, doesn't that analysis vary by the specific vaccine involved? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina From: Richard Dougherty dou...@udallas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, February 2, 2015 11:39 AM Subject: Re: Homeschooling, vaccinations, and Yoder If I remember correctly, in Texas the tipping point was a court decision, Leeper v. Arlington, in which the court recognized home schools as private schools under Texas law. Richard Dougherty On Mon, Feb 2, 2015 at 9:56 AM, Ira Lupu icl...@law.gwu.edu wrote: I did very similar research for a piece I wrote in the B.U. L. Rev. in 1987, and found exactly the same thing -- courts very much resisted extending Yoder into a general right to home school. They distinguished Yoder based on age of the children and character of the relevant religious community (recall the emphasis in Yoder on Amish self-reliance over a long period of time). Legislatures and agencies did the work of extending the right to home school to a much broader population. On Mon, Feb 2, 2015 at 10:50 AM, Berg, Thomas C. tcb...@stthomas.edu wrote: Neal Devins’s article in the George Washington Law Review (1992 I think) documents this dynamic: home-schoolers losing in court afterYoder but then prevailing in legislature and agencies. -Thomas C. BergJames L. Oberstar Professor of Law and Public PolicyUniversity of St. Thomas School of LawMSL 400, 1000 LaSalle AvenueMinneapolis, MN 55403-2015Phone: (651) 962-4918Fax: (651) 962-4996E-mail:tcberg@stthomas.eduSSRN:http://ssrn.com/author=261564Weblog:http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Doug Laycock Sent: Monday, February 02, 2015 8:31 AM To: 'Law Religion issues for Law Academics' Subject: RE: Homeschooling, vaccinations, and Yoder This is impressionistic and not based on a systematic survey, but home schoolers lost most of their cases challenging restrictions on home schooling. For better or worse, courts said Yoder was only about the Amish. Home schoolers won their battle in most states politically, through the legislature or through continued pressure on the relevant state agencies. Douglas LaycockRobert E. Scott Distinguished Professor of LawUniversity of Virginia Law School580 Massie RoadCharlottesville, VA 22903 434-243-8546 From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Volokh, Eugene Sent: Monday, February 02, 2015 1:00 AM To: Law Religion issues for Law Academics Subject: Homeschooling, vaccinations, and Yoder I agree that homeschooling is a possible constraint on the effectiveness of schooling-based immunization, though given the burdens of homeschooling, I’m not sure how many people’s homeschooling choices are going to be driven primarily by vaccination preferences. But can you elaborate, please, on Yoder leading to “unregulated home schooling”? As I read Yoder, it authorized an exemption from schooling – with no requirement for further study, no requirement of passing various tests, etc. –for ages 14 and up, and pretty strongly suggested that no exemption from schooling would be available for materially younger children. Most homeschoolers, especially those who homeschool in the prime vaccination years, wouldn’t really get the benefit of Yoder as such. More broadly, I don’t think there’s much
Catholic Charities, Immigration and Executive LGBT Order
I was struck by the recent timing of news articles dealing with immigration as well as the President's executive LGBT order prohibiting employment discrimination based on sexual orientation. For instance, the Baltimore Sun Times had this article regarding Catholic Charities' offer to assist the federal government in housing Central American children: Catholic Charities wants to care for about 50 children from Central America at a campus in Baltimore County, seeking a role in the immigration crisis even though the consideration of other sites in Maryland has met with fierce local opposition. The organization plans to apply to federal officials to house the children at St. Vincent's Villa, a residential facility on Dulaney Valley Road, Catholic Charities head William J. McCarthy Jr. confirmed Thursday night. Read more: http://www.baltimoresun.com/news/maryland/baltimore-county/lutherville/bs-md-co-immigrant-children-20140717,0,5935535.story#ixzz38CmqLVLi From a practical application standpoint, does the executive order have any effect upon religious charitable organizations' ability to obtain / administer federal social programs and grant funds such as this? In other words, assuming Catholic Charities does not offer employee benefits to same sex partners, does that mean that it is automatically disqualified from participating in federal programs? I welcome the thoughts of those who have looked into this issue further, as it seems like an area which could generate significant interest among religioius charities and non-profits in the coming months. Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina ___ 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: United Church of Christ v. North Carolina - same-sex marriage
Michael, Let me take a stab at this. To the extent the lawsuit is based on the allegation that the North Carolina statute makes it a misdemeanor for clergy to perform a same-sex marriage ceremony, I think the plaintiffs are going to have trouble making that argument based on the relevant statutory language. Plaintiffs quote to the relevant statutes (N.C.G.S. 51-6 and 51-7) at paragraph 91 of their complaint (and I've included links to the statutes below). 51-6 states that no person authorized to perform a marriage shall perform a ceremony of marriage between a man and woman . . . until there is delivered to that person a license for the marriage of said persons. http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-6.html Given the underlined language, Section 51-6 therefore only applies on its face to a ceremony between an opposite sex couple. 51-7 then states that it is a misdemeanor for [e]very minister, officer or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law. http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-7.html The any couple language in 51-7 clearly refers back to a man and woman language in 51-6, particularly since that is the only situation in which the law requires a license to first be presented to the particular clergy member performing the ceremony. Said another way, the North Carolina statutes as written simply do not apply on their face to the situation in which a religious clergy member performed a marriage ceremony involving anyone other than a man and woman. Thus, it appears based on the statutory language that clergy members would be free to perform same-sex ceremonies without fear of any prosecution, but the result of those ceremonies would simply not be recognized as a valid marriage by the State of North Carolina. Thus, while Plaintiffs state that they filed the case to assert their right to freely perform religious services and ceremonies consistent with their beliefs and practices (Complaint para. 53), the referenced statutes on their face don't prohibit such services or ceremonies. If my interpretation of the NC statutes is correct, doesn't that mean that Plaintiffs' claims for free exercise are really not a claim to freely perform whatever religious services and ceremonies they want (since they can already do that), but really a claim to force the state to recognize or attribute certain characteristics to the religious ceremonies that they perform? The equal protection claim is, of course, subject to a totally different analysis, but in light of the NC statutory language, it strikes me that the free exercise claims are pretty weak in this case. They are different than the free exercise claims in Hobby Lobby which dealt with government mandated conduct, as opposed to the present case which involves government recognition of the effect of certain religious ceremonies. Best regards, Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina You are anxious and worried about many things. There is need of only one thing. Luke 10:41-42 From: Michael Peabody peabody...@gmail.com To: religionlaw@lists.ucla.edu Sent: Tuesday, April 29, 2014 8:14 PM Subject: United Church of Christ v. North Carolina - same-sex marriage Greetings, Yesterday (4/28) the General Synod of the United Church of Christ (UCC) sued the state of North Carolina in Federal court (link to complaint: http://uccfiles.com/pdf/complaint.pdf) claiming that a constitutional amendment (Amendment One) prohibiting same-sex marriage is unconstitutional under the Free Exercise Clause. They have also sued under a theory of expressive association, denial of due process, and denial of equal protection. North Carolina appears to be rather unique in that it potentially (if not in practice) makes it a misdemeanor for clergy to perform a same-sex marriage ceremony, so in addition to the potential harm to same-sex couples, there's a threat of harm to members of the clergy. (Misdemeanor is based on the fact that it's illegal to marry a couple without having an official certificate, and same-sex couples will never get an official certificate, ergo misdemeanor.) What makes this case particularly interesting is the free exercise argument, which seems to be virtually (or at least politically) unbeatable. I can imagine a scenario where conservative churches bring their Bibles to the debate to argue that their version of the sacrament of marriage is correct, while progressive churches do the same thing, and the court is asked to decide whether one version of the sacrament is incorrect and shall not be practiced under pain of misdemeanor charges for the offending clergy
Re: The nonprofit contraception services cases
Marci, Could you provide a bit more context on your statement below: What strikes me as odd is that a university would welcome nonbelievers as ND does and publicly support the free exercise of religion, but then tell its nonbelieving female students that they must follow the school's beliefs on reproductive health and not their own. What exactly strikes you as odd? Are you implying that the the nonbeliving female students beliefs about reproductive health constitute the free exercise of religion? As I understand it, ND policy states two things: (a) All students attending ND are expected to adhere to the ND conduct code, which includes no sexual relations between unmarried individuals, regardless of gender; and (b) ND is religiously opposed to paying for contraception for students or employees and therefore wants such coverage excluded from the health insurance it provides. I would appreciate it if you would provide some further clarity on your statement. Thanks. Will Esser Charlotte, North Carolina From: Marci Hamilton hamilto...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Tuesday, January 7, 2014 1:01 PM Subject: Re: The nonprofit contraception services cases Courts can always test sincerity and the substantiality of the burden though in these cases, several courts have treated substantial as functionally irrelevant. What strikes me as odd is that a university would welcome nonbelievers as ND does and publicly support the free exercise of religion, but then tell its nonbelieving female students that they must follow the school's beliefs on reproductive health and not their own. The element in all of these cases that is most troubling in my view is the intent by the entity in power -- school or employer -- to impose its faith on nonbelievers it brings in itself. It is most troubling for the for-profit employer like Hobby Libby though, because the employer may not discriminate in hiring based on religion. So there is a legally created arrangement that employees should be able to presume their livelihood is not related to their faith but rather their contributions to the marketplace as employees. Why HL would then think it can or should tailor compensation benefit packages by faith is troubling. And new given it did not do so before the ACA, at least according to press accounts. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 7, 2014, at 12:23 PM, mallamud malla...@camden.rutgers.edu wrote: 1. I have a problem over Notre Dame applying its religious beliefs to the provision of health services to others. In drawing lines about religious freedom in a free society, I would say that, while in appropriate cases the state can protect one's religious freedom in one's own health care or own conduct, a doctrine that allows a person or institution to govern my health care goes too far. I realize that prevailing doctrine may have passed me by, but I have to wonder how serious the interference with religion is when the law requires a University to provide its employees with the ability to choose to have procedures that offend the person's or institution's religious principles. I realize this may be repetitious, but Derek's comment provoked me. 2. I do think that if a court is not permitted to determine the sincerity of beliefs or substantiality of the alleged interference, there is a serious problem. Those of you who thought a religion based on our creator's endowment of us with certain inalienable rights was ludicrous should see this article: Group wants Satan monument placed where one of the Ten Commandments stood By Sean Murphy, Associated Press Posted: 01/06/2014 09:21:44 PM PST Updated: 01/06/2014 09:21:46 PM PS http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews It sounds like the beginning of a joke: A Hindu leader, the satirical Church of the Flying Spaghetti Monster and a satanic group all applied for a monument... The satanic group wants a statue of Satan placed at the Oklahoma state Capitol where a Ten Commandments monument was placed in 2012. Similar requests have been made by a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster. The New York-based Satanic Temple formally submitted its application to a panel that oversees the Capitol grounds, including an artist's rendering that depicts 7-foot-tall Satan as Baphomet, a goat-headed figure with horns, wings and a long beard that's often used as a symbol of the occult. In the rendering, Satan is sitting in a pentagram-adorned throne with smiling children next to him
Re: The nonprofit contraception services cases
And if the government admits that the services are not going to be provided by either the Little Sisters directly or by the Christian Brother Services as TPA, why is the government so vigorously opposing the issuance of an injunction? Why force the Little Sisters to execute a certification that has no practical effect of any kind? It seems like the prudent and practical thing for the government would be to simply consent to the injunction, rather than spending significant taxpayer dollars on a case which (given its specific facts) does not advance any governmental interest. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, January 3, 2014 12:08 PM Subject: Re: The nonprofit contraception services cases Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
South Carolina judge nullifies church vote over new pastor
I thought listserv members would be interested in this news story out of South Carolina regarding a battle over control of the Flint Hill Baptist Church. The news article does not reference any First Amendment concerns over the judge's involvement, but I would have to believe that issue will be raised since the judge was having to decide who were members of the church in good standing entitled to vote on church matters. http://www.charlotteobserver.com/2013/09/17/4321879/judge-orders-vote-at-rock-hill.html Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina You are anxious and worried about many things. There is need of only one thing. Luke 10:41-42 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
Brad is exactly right in his distinction. This case is easily distinguishable from the case of the taxi cab driver (which has been previously discussed on the list) or other services for which there may be no other reasonably available substitute. Nor is it similar to those cases in which it may be challenging to protect the conscience rights of the individual while guaranteeing that the particular service is still available (as discussed with regard to pharmacists and nurses). Every indication is that there were plenty of photographers in New Mexico who would have willingly taken pictures of the same-sex wedding ceremony. From the factual description in the opinion, it appears the photographer was very polite in expressing her religious views and why she would not photograph the ceremony (and even thanked the plaintiff for inquiring about her services). Thus, it is clear that the only reason the photographer was pursued was because the plaintiffs were insistent upon using the law to force her to actively participate in a ceremony which violated her religious beliefs. I find it intriguing that the NM Supreme Court made a point of saying that although public accommodation businesses must comply with the New Mexico Human Rights Act, such businesses retain their First Amendment rights to express their religious or political beliefs. They may, for example, post a disclaimer on their website or in their studio advertising that they oppose same-sex marriage but that they comply with applicable antidiscrimination laws. How far does this reasoning really go? Does it mean that a photographer is free to express her religious and political viewpoints as much as she wants in a business context so long as she still provides the photography service? For instance, what if a wedding photographer expresses his/her religious beliefs by prominently posting the following in the studio: Our owners and photographers are faithful _ [fill in the blank: Christians, Muslims, Orthodox Jews etc.]. As part of our religion, we firmly belief that homosexual / same-sex sexual behavior is immoral and sinful. We believe that marriage is the union of one man and one woman and that any event claiming to be a marriage between two people of the same sex is an abomination. That being said, we are required by the terms of the NMHRA to photograph even ceremonies we consider abhorrent. However, because photography can convey the message that a photographer consented to or approved a particular ceremony, we reserve the right to include a disclaimer on each and every photograph that we take disclaiming any consent or approval of the particular ceremony and stating our religious positions. We also reserve the right if photographing outside the studio to publicly display signs and wear clothing expressing our religious convictions and disapproval of the ceremony. The rights herein reserved are not limited to same-sex ceremonies but specifically cover any type of event to which the photographers have a religious or political objection. Photographs on which the photographer choses to place a disclaimer may not be displayed or otherwise used without the disclaimer included at all times. The opinion appears to bless such an approach when it says that Elane Photography is free to disavow, implicitly or explicitly, any messages that it believes the photographs convey. The NMHRA prohibits a public accommodation from mak[ing] a distinction, directly or indirectly, in offering . . . its services. So is any disclaimer or similar message ok under the Court's ruling solely provided that the photographer actually takes the pictures? Or do others interpret the Court's language on this point differently? Will Will Esser --- Ad Majorem Dei Gloriam Private Practice Charlotte, North Carolina From: Brad Pardee bp51...@windstream.net To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Friday, August 23, 2013 12:06 AM Subject: RE: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays This is not correct. The issue is neither the customers' identity or the free market. It is about the merchant being required to participate in events that they cannot participate in by virtue of the tenets of thier faith in order to engage in commerce. As I wrote, If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination. That is not an issue here. The Christian Scientist as doctor is a false parallel. The two are mutually exclusive. The cases of the photographer, the baker, and the psychologist are not at all cases of mutual exclusivity. Photographers and bakers are fully able to take pictures and bake and still be live in accordance with their religious beliefs
St. Stanislaus Church opinion
Does anyone have a copy of the St. Stanislaus church opinion referenced in this article? http://www.stltoday.com/lifestyles/faith-and-values/court-sides-with-st-stanislaus-in-dispute-with-archdiocese/article_a29b9b29-ef5f-5167-ba42-ca017ba8f366.html The article describes the ruling as: a sweeping — and shocking, according to church-state scholars — legal victory over the Archdiocese of St. Louis. The ruling, by St. Louis Circuit Judge Bryan Hettenbach, affirmed St. Stanislaus' ownership of its property and its right to craft bylaws that limit the authority of the Roman Catholic Church over the small Polish congregation. Read more: http://www.stltoday.com/lifestyles/faith-and-values/court-sides-with-st-stanislaus-in-dispute-with-archdiocese/article_a29b9b29-ef5f-5167-ba42-ca017ba8f366.html#ixzz1pHaqO7QO If anyone can direct me to a copy, that would be much appreciated. Thanks. Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) ___ 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 contraception mandate under Empoyment Division v Smith
Brad, In the complaint filed by Belmont Abbey College challenging the contraception mandate, the Becket Fund argues that the contraception mandate is not a law of general applicability because among other things (a) it does not apply to all employers (for instance it does not apply to employers with fewer than 50 employees); (b) it does not apply to certain grandfathered insurance plans; and (c) it provides for a system of individualized exemptions by allowing HHS the ability to grant waivers in response to individualized requests. You can access the complaint here: http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf) Maybe the question to be asked is which law must be of general applicability? In Smith, it strikes me that the peyote statute was a stand alone criminal law. In this instance, I understood that the contraception mandate was just one component of the overall federal healthcare reform act. So it seems to me that in interpreting whether the law is one of general applicability, a court would be required to look at the entire healthcare reform act and determine what waivers and exemptions were included in it, rather than just narrowly focusing on the contraception mandate itself. Thoughts? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) --- On Sat, 2/11/12, Brad Pardee bp51...@windstream.net wrote: From: Brad Pardee bp51...@windstream.net Subject: The contraception mandate under Empoyment Division v Smith To: religionlaw@lists.ucla.edu Date: Saturday, February 11, 2012, 12:31 AM I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith. Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial. It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause. From what I've read, the regulation in question appears to be both neutral and of general applicability. A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out. What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith? I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote. The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though. I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith. Brad Pardee -Inline Attachment Follows- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Catholic University sued about prayer rooms for Muslims
From the various news reports, it does not appear to have arisen from any complaints of actual Muslim students on campus. I think the reported statements below from the Council on American-Islamic Relations sums it up pretty sucinctly, particularly the highlighted sentence. I would hope that the D.C. Office of Human Rights agrees that this is a non-issue. http://www.catholicnewsagency.com/news/charge-that-catholic-university-discriminates-against-muslims-rejected/ Ibrahim Hooper, communications director for the Council on American-Islamic Relations, called the crucifix complaint “a non-issue.” “Muslims pray all the time in various locations,” Hooper told CNA. “A Muslim can pray anywhere, practically, from a bus station to a classroom to a cubicle at work.” Hooper acknowledged that distracting images are present in many locations, but said that they should not prevent Muslims from focusing on their prayers. “These kinds of things occur every day,” he said. “Particularly at a Catholic institution, you would assume that there would be Catholic symbols in locations throughout the university.” Hooper does believe that Muslim students at Catholic University should be permitted to have an organization on campus if other religious groups are allowed to. But he believes that the issue can be dealt with through dialogue rather than legal action. “American Muslims have very good relations with the Catholic community,” he noted. Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) From: Esenberg, Richard richard.esenb...@marquette.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, November 3, 2011 9:30 AM Subject: RE: Catholic University sued about prayer rooms for Muslims Isn't there a strong tradition of aniconism in Islam. You're not supposed to depict Allah, Muhammed or the lesser prophets? Richard M. Esenberg President General Counsel Wisconsin Institute for Law Liberty 225 E. Mason Street, Suite 300 Milwaukee, Wisconsin 53202 414-727-WILL (9455) 414-727-6367 (direct) 414-213-3957 (mobile) r...@will-law.org Adunct Professor of Law Marquette University Law School 1215 W. Michigan Street Milwaukee, Wisconsin 5202 414-288-6908 richard.esenb...@marquette.edu From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Finkelman, Paul paul.finkel...@albanylaw.edu [paul.finkel...@albanylaw.edu] Sent: Thursday, November 03, 2011 6:30 AM To: Law Religion issues for Law Academics Subject: RE: Catholic University sued about prayer rooms for Muslims Since Jesus is a prophet in the Muslim faith, I wonder how serious the complaint is. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Wednesday, November 02, 2011 11:14 PM To: religionlaw@lists.ucla.edu Subject: Catholic University sued about prayer rooms for Muslims I'm intrigued by this story. Apparently, in Washington DC, it may turn out to be a human rights violation for Catholic University to be pervasively Catholic. http://radio.foxnews.com/toddstarnes/top-stories/muslims-want-catholic-school-to-provide-room-without-crosses.html Is there some perspective from the view of an impartial scholar where this is NOT patently absurd? Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Augusta State University student sues school over requirement that she undergo remediation due to her religious views
It strikes me that Paul's comments tie in well with the recent discussion about
the Fifth Circuit's Arocha decision overturning the school district ban on
wearing long hair. As I recall in those discussions, Doug Laycock raised the
legitimate question about whether a ban on wearing long hair could cause
religious groups to chose not to move to certain regions of the country (i.e.
geographical de-selection of religious groups due to government regulation).
Similarly, in this case, the question strikes me as whether the therapy program
is being set up in such a manner that it de-selects certain religious groups
(i.e. Christians, in this example). Paul talks about the standards of the
profession. While, I have no doubt there is significant disagreement over
what the standards of the profession are, it seems to me that if the
government (through a university) is involved in saying what the standards
are in such a way that Christians are automatically de-selected from the
program (i.e. you cannot be a faithful, believing Christian AND a therapist),
that is a problem.
Taking Paul's example of the medical school a step further, could a public
medical school set up its program such that students were not allowed to
graduate unless they had participated in (or performed) an abortion?
Will
P.S. As a quick aside, Paul, I think Christian ethical convictions of do
unto others requires respect for people as children of God but does not
therefore necessarily require acceptance or respect of people's values.
Christian ethical convictions are based in a belief in objective truth, such
that do unto others requires a desire to know, understand and lead others to
the truth. I would argue that an attitude of I'll respect what you believe,
and you respect what I believe without an emphasis on seeking truth, is very
much divorced from Christian ethical convictions.
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light.
Plato (428-345 B.C.)
--- On Wed, 7/28/10, Paul Finkelman paul.finkel...@yahoo.com wrote:
From: Paul Finkelman paul.finkel...@yahoo.com
Subject: Re: Augusta State University student sues school over requirement that
she undergo remediation due to her religious views
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Wednesday, July 28, 2010, 1:01 AM
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It would seem to me that Christian ethical convictoins would require her to
do unto others as she would want them to do unto her, and thus perhaps
respect their values and act as a responsible therapist.
I wonder, suppose she did not believe in blood transfusion and was in a medical
school? Would it be legitimate not to give her a degree because she was not
willing to apply techniquest of modern medicine to her patients. Suppose she
lectured her patients before surgery on how wrong they were for demaning a
transfusion during surgery?
In otherwords, if she is trained to be a professional in the care field, can
she be allowed to take her degree if she refuses to accept the standards of the
profession. This is not about her beliefs -- or even her actions. No one is
asking her to participate in a same sex relationship. This seesm to me to be
about her refusal to implement the standards of her profession because she does
not like the behavior of some people.
There is also of course some equal protection issues here. I would guess she
is against heavy drinking, drug use, and non-marital sex. If she insisting on
implementing her religious values when treating patients who might behave in
those ways? What about people who don't obey the sabbath (or at least her
sabbath)? Or those who don't accept the teachings of Christianity? How far,
in other words, does this go, or is she only dragging out her religious values
when dealing with gay
Re: Augusta State University student sues school over requirementthat she undergo remediation due to her religious views
I think Marci misses the point of my example regarding medical schools and de-selection of certain groups. The point has to do with the way in which the standards are set and whether conscientous objection exemptions are necessary (or required) in order to not have an adverse impact upon religious believers. The Fifth Circuit held that an exemption was necessary for a Native American to wear long hair in school. It seems to me the only difference between that and the Augusta case is the so called standard of the profession. The point I was making (perhaps inartfully) is that I don't believe government entities get a pass on First Amendment accomodation simply by reference to some standard of the profession set by a non-governmental entity. The test for accomodation may not be quite as rigorous in the context of professional degrees as it is for elementary or high schools, but I think accomodation is still relevant and necessary. It's easy to come up with examples on this point. If the American Medical Association says that to graduate from medical school, you must have performed an abortion, does that mean that a public medical school can impose that requirement on all its students without regard for their sincerly held religious beliefs that would not allow them to participate in an abortion, simply because that requirement is now part of the standard of the profession? As another example, if a national culinary society which sets the standard of the profession requires that any culinary student must cook and eat pork in order to receive a cooking degree, does the public school avoid any First Amendment concerns for observant Jews by simply referring to the standard of the profession as ground for an accomodation? It seems to me that the First Amendment requires more than the government passing the buck by referring to some external standard of the profession. Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. Plato (428-345 B.C.) --- On Wed, 7/28/10, hamilto...@aol.com hamilto...@aol.com wrote: From: hamilto...@aol.com hamilto...@aol.com Subject: Re: Augusta State University student sues school over requirementthat she undergo remediation due to her religious views To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Wednesday, July 28, 2010, 9:46 AM I agree with Paul's concerns about watering down professional standards. This is where accommodation hits the wall of the public good. Professionals are valuable in the marketplace because they represent a specified and approved body of knowledge and principles. Those who reject key principles should not be permitted the profession's imprimatur. But I also want to point out that it is a gross exaggeration to characterize the situation as one that affects Christians Her beliefs represent certain denominational beliefs. Many Christians reject her views. It is this rhetorical sleight of hand that permits historical reconstructionists to argue that the United States was founded on one set of religious beliefs. From the beginning of the US and especially now, there is more variety across Christian denominations than similarity on many issues. Finally, I don't think there is a sillier argument than Will Esser's that there is something wrong with a medical program that de-selects certain beliefs. Medical schools de-select believers in faith-healing for say meningitis all of the time. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Will Esser willes...@yahoo.com Sender: religionlaw-boun...@lists.ucla.edu Date: Wed, 28 Jul 2010 06:18:52 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Augusta State University student sues school over requirement that she undergo remediation due to her religious views ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
My understanding is that college administration discovered (after a change in insurance providers) that the new insurance policy covered abortion, sterilization, and contraception. Since all three are contrary to Catholic teaching, the college administration immediately requested its private health insurer to eliminate coverage for these items. I'm told that North Carolina law has a specific state exemption which permits a religious employer to provide health insurance which does not cover these items, so as a matter of NC state law, the college was on firm ground. In fact, but for the change in health insurance providers, I do not believe these items would have ever been covered to begin with. (And of course, there is no prohibition on private individuals paying for excluded services on their own; it's just a question of whether a religious employer should be required to pay for services or items which it believes are morally objectionable). At the end of the day, it really creates an interesting dynamic because there is no federal or state law which requires Belmont Abbey to offer priavte health insurance coverage. If there is a holding that Belmont Abbey cannot offer health insurance coverage without covering abortion, sterilization and contraception, then Belmont Abbey will simply be forced to stop offering health insurance coverage for its employees (a result which would more adversely affect staff members, than the faculty who brought the challenge in the first place). Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. Plato (428-345 B.C.) --- On Sat, 8/15/09, Michael R. Masinter masin...@nova.edu wrote: From: Michael R. Masinter masin...@nova.edu Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance To: religionlaw@lists.ucla.edu Date: Saturday, August 15, 2009, 5:51 PM The PDA makes denial of health insurance benefits relating to pregnancy sex discrimination without regard to whether an employer denies men coverage for some other condition that affects only men. Denying coverage for a prescription drug that prevents pregnancy, a risk to which only women are exposed, may therefore be sex discrimination under the PDA even if men are not denied coverage for vasectomies. Whether the cost of prevention of pregnancy, as distinct from the health related cost of pregnancy, counts as one of the risks and burdens associated with pregnancy the PDA was intended to relieve women from bearing under employer provided health insurance and other employee benefit programs might better frame the question a court ultimately will have to answer. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) Quoting Vance R. Koven vrko...@gmail.com: Whatever else may be right or wrong with Gilbert or the statute, Griswold was a constitutional claim based on the flat prohibiting by legislation of a form of birth control for women, whereas the EEOC finding in Belmont Abbey is a matter of what the college will fund as part of its private health insurance. Presumably women are still free to obtain contraception on their own nickel. Have we ascertained that the Belmont Abbey insurance policy, and the college's internal policy, permitted men to obtain condoms and/or more medically-oriented forms of birth control (e.g. vasectomies, spermicides)? If so, then there's a live sex-discrimination issue. If not, then the EEOC decision may be subject to question. Vance On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar stevenja...@gmail.com wrote: I'm not sure how paul arrives at his characterization of my response to an inquiry of another in which I sketch a possible way a court could go wrong. Nonetheless, it seems to me that even though Gilbert was overturned by legislation, the legislation did not in fact reach the illogic of the court's reasoning, but rather the outcome of that reasoning. While I think that a court that would reason as I hypothesized one might would be wrong in doing so in light of the dialogue between the Court and Congress(see boumediene), I fear I have seen such toturing of laws often enough to not consider such error to beyond the realm of possibility. I guess I don't quite see how a statute based claim with EP overtones would impact a constitutional liberty-based privacy claim, though at times we do cross those sorts of boundaries. Stev Sent from Steve Jamar's iPhone On Aug 15, 2009, at 1:57 PM, Paul Finkelman paul.finkel...@yahoo.com wrote
Christian Skating Time
An unusual blurb on FoxNews that will be of interest to the list. I'd be curious if anyone knows the legal basis under which the NY Div of Human Rights sent the cease and desist letter, given the privately owned status of the skating rink.Spiritual Skating, Dictionary Debating Sunday, July 02, 2006By Scott Norvell The New York Division of Human Rights is clamping down on a privately owned roller-skating rink that has advertised a "Christian skate time" on Sunday afternoons, according to the Times-Herald Record, claiming that the marketing ploy is discriminatory. Skate Time 209 in Accord, N.Y., advertised the Sunday skate just as it has "tot skates," "tween skates," family nights and adult disco parties. But when the Christian advertisement appeared in the local weekly paper, officials in Albany sent the rink's owners a cease-and-desist note.A "Christian skate denies or at a minimum, discourages non-Christian patronage," the letter said.The skating rink changed its ad to refer to "spiritual skate times" on Sundays, but insisted that "Christian" referred only to the type of music played during the sessions. No one was discriminated against, its owners said. http://www.foxnews.com/story/0,2933,201874,00.html Will Esser --- Ad Majorem Dei GloriamCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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: Christian Skating Time
That looks like the case. A further internet search revealed the following story. The TVC letter to Governor Pataki is interesting:Skate Rink Warned Against Christian Skate TimeJune 22, 2006 A skating rink in Accord, New York has been warned by the State of New Yorks Division of Human Rights against having a Christian skate time on Sunday afternoons.The owners of Skate Time 209, Len and Terry Bernardo recently received a stern letter from the human rights office warning that having a Christian skate time violates Human Rights Law 296.2. The law says that no business can discriminate against a person because of race, creed, color, national origin, sexual orientation, military status, etc. Human Rights official Gina Lopez Summa told the Bernardos that their Christian skate time apparently denies or at a minimum, discourages non-Christian patronage and constitutes prima facie violation of the Human Rights Law. Summa has given them ten days to respond to the charges. Summa has also sent the same letter to the Ulster Country Press because they advertised Skate Time 209s Christian skate time. The newspaper is also under threat of legal action by the state because they published the ad. In addition, the Bernardos received an anonymous email from someone warning them Get a lawyer. TVC has issued a press release on this case and has sent a letter of concern to New York Governor George Pataki over this outrageous violation of religious freedom and free speech. In the release, Rev. Sheldon notes: This is crazy. These people are exercising basic Constitutional rights on private property to the exclusion of no one and the state government is treating them like dangerous criminals. I have asked Governor Pataki to take authority over this illegal attempt to manipulate the law to accomplish a violation of basic civil rights. I will be watching closely to see that the Bernardos rights are protected. http://www.traditionalvalues.org/modules.php?sid=2764 Douglas Laycock [EMAIL PROTECTED] wrote:Does New York maybe prohibit religious discrimination in places of public accommodation? Douglas Laycock Alice McKean Young Regents Chair in Law The University of Texas at AustinMailing Address: Prof. Douglas Laycock University ofMichigan Law School 625 S. StateSt. Ann Arbor, MI 48109 From: [EMAIL PROTECTED] on behalf of Will EsserSent: Mon 7/3/2006 7:13 AMTo: Religion LawSubject: "Christian" Skating Time An unusual blurb on FoxNews that will be of interest to the list. I'd be curious if anyone knows the legal basis under which the NY Div of Human Rights sent the cease and desist letter, given the privately owned status of the skating rink.Spiritual Skating, Dictionary Debating Sunday, July 02, 2006By Scott Norvell The New York Division of Human Rights is clamping down on a privately owned roller-skating rink that has advertised a "Christian skate time" on Sunday afternoons, according to the Times-Herald Record, claiming that the marketing ploy is discriminatory. Skate Time 209 in Accord, N.Y., advertised the Sunday skate just as it has "tot skates," "tween skates," family nights and adult disco parties. But when the Christian advertisement appeared in the local weekly paper, officials in Albany sent the rink's owners a cease-and-desist note.A "Christian skate denies or at a minimum, discourages non-Christian patronage," the letter said.The skating rink changed its ad to refer to "spiritual skate times" on Sundays, but insisted that "Christian" referred only to the type of music played during the sessions. No one was discriminated against, its owners said.http://www.foxnews.com/story/0,2933,201874,00.html Will Esser --- Ad Majorem Dei GloriamCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Will Esser --- Ad Majorem Dei GloriamCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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 mess
RE: Christian Skating Time
The language of the actual statute is below. And it looks like the ACLJ has taken thiscase on (http://www.aclj.org/trialnotebook/read.aspx?id=375). Maybe they can provide us with a copy of the letter.http://www.nysdhr.com/hrlaw.html#2962. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited. (b) Nothing in this subdivision shall be construed to prevent the barring of any person, because of the sex of such person, from places of public accommodation, resort or amusement if the division grants an exemption based on bona fide considerations of public policy; nor shall this subdivision apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex. "Volokh, Eugene" [EMAIL PROTECTED] wrote: By the way, is there a copy of the letter from the New Yorkagency somewhere around? I'd like to see exactly what they're allegingis the violation. Thanks,Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Monday, July 03, 2006 10:45 AM To: Law Religion issues for Law Academics Subject: RE: "Christian" Skating Time The music is a substantial part of the skating experience. No one would doubt that a Christian music concert could be held (and advertised). Does the combination of a physical activity (skating) with the playing of music deprive the business owner of the free speech rights that a concert promoter would have? Suppose the owner of the rink decided to have a "global warming" evening featuring the audio from Vice President Gore's movie. Would that be permitted, even though a lot of people would choose not to come to the rink in order to avoid what they would perceive as propaganda? If it would be permitted, then doesn't the NY law discriminate against religious speech? And if, as I think someone suggested, a "spiritual" evening would be permitted, so long as it was inclusive by not focusing on any particular religious tradition, then isn't this a matter of viewpoint discrimination? Mark S. Scarberry Pepperdine University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Will Esser --- Ad Majorem Dei GloriamCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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: And Now For Something Completely Different
Paul,The problem that I have with your use of the term "complicity" is that it is so large as to have no meaningful boundaries. You contend that by allowing priests to hear the confessions of inmates who are on death row, the Church is complicit with (and somehow shares moral responsibility for) capital punishment. Your reasoning seems to apply equally todoctors who serve the medical needs of those on death row, as well as theRed Cross providing assistance to those affected by war. I think everyone on this list would agree that there is no complicity in such situations.Providing priests to serve the spiritual needs of those on death row is not inconsistent with the position which Catholic Charities is now taking. And Massachusetts should realize that an exemption from the law is proper step to take to resolve this issue.Will ! sp; [EMAIL PROTECTED] wrote: As I suggested with the church complicity with executions (and maybe unjust wars, and many other things in society), the church chooses its causes based on politics. I real test of the church would come when bishops condemn politicians who order executions or start unjust wars as vigorously has they work to keep kids in our foster care system rather than helping them find loving homes with loving adults.The Human Rights campaign is right on target with this statement. Thanks Rick for sharing this. Quoting Rick Duncan <[EMAIL PROTECTED]>: Human Rights Campaign says:"Boston Catholic Charities puts ugly political agenda before child welfare." Link. Excerpt: Denying children a loving and stable home serves absolutely no higher purpose! , said Solmonese. These bishops are putting an ugly political agenda before the needs of very vulnerable children. Every one of the nations leading childrens welfare groups agrees that a parents sexual orientation is irrelevant to his or her ability to raise a child. What these bishops are doing is shameful, wrong and has nothing to do whatsoever with faith. Rick DuncanRick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com Paul FinkelmanChapman Distinguished Professor of LawUniv. of Tulsa College of Law2120 East 4th PlaceTulsa OK 74104-3189Phone: 918-631-3706Fax: 918-631-2194___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Will Esser --- Ad Majorem Dei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily! forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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 Charities Issue
Can anyone supply the text of the Massachusetts law which Catholic Charities was reacting against? There have been several stories about Governor Romney trying to craft an exemption to the law for Catholic Charities, but I have not located the actual text of the law in question.Thanks.WillWill Esser --- Ad Majorem Dei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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 Charities Issue
Paul,Yourcomparison doesn't fit and doesn't reveal any inconsistency on the part of the Church. Catholic Charities withdrew from the adoption arena, because the state mandate would require it to actively participate in the actual act with which it disagreed (i.e. placing children for adoption with gay couples). In your example, there is no conflict for the Church in ministering to the souls of those in the prison system. Such action is not in any sense active participation in capital punishment. I'm entirely with Rick in saluting Catholic Charities for its decision. People may disagree with the rationale for the decision, but the decision is ultimately an act of a religious organization placing its religious values first.WillPaul Finkelman [EMAIL PROTECTED] wrote: I wonder if the Catholic Church should withdraw all support for the prison system because the Church opposes Capital punishment? It would be a shame for those on death row not to get last rites, or those in prison not to be able to talk to a priest, but at least the Church would be consistent. Paul FinkelmanRick Duncan wrote:The Boston Globe has two good articles today on the decision by the Archdiocese to end its adoption services rather than submit to the government's antidiscrimination rules requiring the Church to place children with homosexual couples despite its sincerely held religious belief that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be ! used to place them in an environment that is not conducive to their full human development."Here and here.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! MailUse Photomail to share photos without annoying attachme! nts. ___ 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/religionlawPlease 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.-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189918-631-3706 (office) 918-631-2194 (fax)[EMAIL PROTECTED]___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Will Esser --- Ad Majorem Dei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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.
Denmark Cartoons and Blasphemy
I read with interest a CNNarticle on the continuing controversy over the Denmark Cartoons depicting the Prophet Mohammed. Of particular interest was the following:"The Danish government says it does not control what is in the country's newspapers and that courts will determine whether the newspaper that originally published the cartoons is guilty of blasphemy."http://www.cnn.com/2006/WORLD/asiapcf/02/07/cartoon.protests/index.htmlSometimes I think we takeit so for granted that "blasphemy" is notforbidden in the U.S. that to hear of a European countrywhichregulates _expression_ in this manner comes as a shock. Does anybodyknow the details of Danish "blasphemy" law?WillWill Esser --- Ad Majorem D! ei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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: Pink Triangles and Religious Liberty
note that messages sent to this large list cannot be viewed as private. Anyone can s! ubscribe 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. Will Esser --- Ad Majorem Dei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.)___ 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
Eugene, As a practicing Catholic and someone who has watched the posts on this list for several years, I believe that Prof. Newsom's comments regarding the collaboration between the Catholic Church and members of Protestant faiths is in the distinct minority. One need only look at the numerous dialogues which are on-going between the United States Conference of Catholic Bishops and the leadership of various other Protestant demoninations (http://www.usccb.org/seia/dialogues.htm) to see that the Catholic Church is actively engaged in reaching out and working with other religions, rather than simply "desiring to be left alone." While it has been the case that the Catholic Church has lost members to Protestant denominations (and vice versa), the Catholic Church has never viewed this as a cause or basis for cutting alliances or discussions with other faiths. Rather, if anything, such losses are a call to more properly chatechize the Church's members so that they can truly know and understand their faith. Catholics who are devouted to the Mass and their faith can most certainly join with members of other religions in supporting a cause (i.e. protecting unborn life). I personally have been involved in several such organizations and my personal experience is that such involvement often tends to deeper faith. It is the challenged faith which is oftentimes most deeply held. All the best from Charlotte, Will Esser "Volokh, Eugene" [EMAIL PROTECTED] wrote: I surely don't wish to trivialize the Mass, which is mostcertainly very important for Catholics. Saying that preventing massmurder is worth running the risk of X hardly means that X is trivial. Ialso don't understand where I've suggested that I lack sympathy for theReligion Clauses or for "the Catholic faith community." I certainlylack sympathy for Prof. Newsom's interpretation of the Religion Clauses,but that strikes me as a rather different matter. As to my "audacious claim that the Catholic Church might bewilling to lose members in order to save unborn children," let me offertwo thoughts:(1) It is simply not the case that "[this] claim supposes thatthe only way to save them is to run the risk." My original paragraphread "Might the Church think that an alliance might actually win moreconverts from Catholicism to Protestantism (perhaps because the Churchthinks that Catholicism is true and more persuasive than Protestantism)than vice versa? Might it think that winning more converts toChristianity of any stripe (both from the non-Christian and from thosewho are Christian in name only) is so important that it's worth riskinga small amount of conversion away from Catholicism? Might it think thatpreventing the deaths of millions of unborn children is likewise worthrunning this small risk?" The first sentence in that paragraphspecifically suggested that an alliance with Protestants might helpCatholics *gain* members (as well as perhaps helping rescue the unborn).The other two questions merely suggested that *even if* there's somerisk that an alliance would lose the Church a few members, such a riskmight be worth running to save unborn lives -- not that "the only way"to help decrease the number of abortions is to lose members.(2) ! But much more importantly, perhaps some other list membersmight speak to whether my claim is accurate or even that "audacious."As I understand Catholic teaching, a person doesn't forfeit salvation byconverting from Catholicism to Protestantism; it surely isn't good forhim to do so, but it's not horrifically bad in the way that a loss ofsalvation might be. And as I understand Catholic teaching, the killingof the unborn is very bad indeed.Say a Catholic was convinced, as a factual matter, that -- asProf. Newsom earlier suggested -- an alliance with Protestants mightlose a few Catholics to Protestantism, but was also convinced, as afactual matter, that such an alliance might save many unborn children.Would it really be that shocking, or "trivializing," for the Catholic tothink "that preventing the deaths of millions of unborn children is . .. worth running this small risk [of losing some Catholics toProtestantism]"? Can one ta! ke this view and yet still be sympathetic tothe Mass and to the Catholic faith community? Speaking for myself, it is my sympathy for Catholics -- my viewof them as being genuinely interested in good works and in savinginnocent life -- that leads me to assume that they'd take such a view.But I'd love to hear what other list members, especially those who areintimately familiar with Catholic thought, have to say about this.EugeneMichael Newsom writes: Your response to point 1 begs the question. You insist on trivializing liturgy. You are welcome to do so, but please don't impute your point of view to others. I think that you also trivialize the Religion Clauses, but there is no need to rehearse that argu
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Tom Berg's prior post is correct. Alleged fraud claims against a Chapter 11 bankruptcy estateare dischargeable in bankruptcy under 11 U.S.C. 1141(d), provided the diocese is reorganizing and not liquidating. The exceptions to dischargein 11 U.S.C. 523(a) apply only to "an individual debtor", and the diocese is most likely organized as a corporate sole or unincorporated entity. However, even if the fraud claims were not dischargeable, what are the fraudulent representations which are being made? The common law elements of a fraud claim as I understand them are (1) arepresentation (2) which is false (3) made with the intent to deceive (4) which in fact does deceive (5) which is justifiably relied upon and (6) which causes damage.Does the common law "imply"a representation on the part of the diocese that a priest has never engaged incertain past activities, such as pedophilia? And in the case of fraudulent concealment (which requires a duty to reveal information),is there a state law duty to inform parishioners about either alleged or actual wrongdoing by a priest in the past, when the diocese firmly believes that the priest is repentant and will not do such acts again? I'm with Jim on this one . . . having a hard time seeing how a fraud claim applies in this situation. All the best from Charlotte, NC, Will [EMAIL PROTECTED] wrote: And the standard of goodmoral character is supplied by cannon law? State law? Common law fiduciaryresponsibilities?Marc Stern Actually, in these cases, the standard is more concrete than moral character. The question in every one of these cases is whether the archdiocese knew of the criminal character of the perpetrator priest. We are dealing with rape, statutory rape, and childhood sexual abuse. Typically, thebishop transferring a priest within the archdiocese knew about his criminal activity (whether or not they ever contacted the civil authorities). When one sees transfers between archdioceses, one can assumethat not only is the fellow a criminal, but hemay well have beencaught by civil authorities in the formerdiocese The fraud in these cases is far more serious than financial fraud--it's fraud that leads parents and other priests who never would have done it had they knownto give pedophiles easy access to children. Marci___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? Yahoo! Mail is new and improved - Check it out!___ 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: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Steve, I don't disagree with your analysis of the law on fraud and fraudulent concealment. (My practice is in commercial litigation and bankruptcy, so I'm dealing with fraud claimsand Chapter 11 debtorson aregular basis - one of the reasons I find this thread of interest). The problem I'm having is the application of fraud and fraudulent concealment to the diocese (a religious organization), particularly with provingthe elements of representation and concealment. I assume that virtually none of these fraud claims are based on an alleged "explicit" representation by the Diocese (i.e. "As the bishop, I certify that this priest has never been involved in pedophilic activity"). That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). Would such an "implied" representation be supportable under the First Amendment (i.e. is it permissible for the law to imply representations by a religious organization about the qualities or qualifications of its religious ministers)? I guess it would be possible to construct a facially neutral secular law on this point (i.e. any organization which knows that its representatives / employees will work with children, impliedly represents that said employee is not a pedophile), but it strikes me as a question which would fall within the ministerial exception. With regard to fraudulent concealment claims, I also have concerns about how the imposition of a legal "duty" on the diocese with respect to itspriests avoids the ministerial exception. If you get past that concern, then I agree with you that this is solely a fact-based inquiry which usually will not be resolved on the summary judgment stage (unless the court determines as a matter of law that there is no duty). Regards, Will Steven Jamar [EMAIL PROTECTED] wrote: Will Jim,Is the problem that you think it will be hard to prove fraud? (It usually is.) Or that you don't even see a possible fraud cause of action? Are you saying that making a fraud claim would violate Rule 11? Or that it would not survive a 12(b)(6) (is that still the right number?) motion to dismiss for failure to state a claim?States vary on what is required to prove fraud, especially with respect to the level of knowledge of the falseness required. Some states even recognize innocent misrepresentation as a claim. Some states will use a knew-or-should-have-known standard.Fraudulent concealment is generally a fact issue -- including deciding whether under the facts as presented the duty arose. In some cases as a matter of law there is no duty. In others as a matter of law there is a duty.A defen! se based on the repentant priest theory would be a fact-based defense and for the finder of fact to decide, it seems to me. The church can't simply say "I thought he was repentant" and require the court to accept that without challenge. The court may choose to believe it and decide (a) that it is a defense or (b) that it is not a defense (i.e., there is still a duty to disclose even if the church believed the genuineness of the repentance).Failure to speak when one has a duty to allows an inference of representation of the facts being other than they are.None of this is easy to prove in court, of course. Indeed, fraud must even be plead with particularity.But proof problems are quite different from the possibility of such a claim being asserted lawfully.Steve-- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."Martin Luther King, Jr., (1963)___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? Yahoo! Mail - 50x more storage than other providers!___ 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: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Steve, But what then is the implied representation that the diocese is making? That the priest will not perform pedophilic acts in the future? Such an alleged representation wouldfail as a matter of lawsince representations which are promises, or deal with future events, are not misrepresented "facts" which can serve as the basis for a fraud claim. Or is the implied representation that the priest, at the time of assignment to a parish, is not an active pedophile? __ "While in the ordinary case I would agree that the court would not be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child." Iwasn't arguing that some form of liability is not appropriate under certain circumstances. My problem is mostly with trying to fitthe square peg of fraud (and resulting punitive damages)intoa round hole whichis better fit bya claim for respondeat superior / agency / vicarious liability. I think there are some distinctions between your comparison of a priestto a day care counselor or person in charge of a kids' soccer club. The latter's job is, by definition, to work with children. A priest may not work with children at all, depending upon the parish he is assigned to, or his position (e.g. a priest assigned to administration for the diocese). It seems inappropriate to imply a duty to the diocese simply because the individual committing the offense is a priest. Will Steven Jamar [EMAIL PROTECTED] wrote: On Friday, July 9, 2004, at 12:03 PM, Will Esser wrote: I assume that virtually none of these fraud claims are based on an alleged "explicit" representation by the Diocese (i.e. "As the bishop, I certify that this priest has never been involved in pedophilic activity"). That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). Would such an "implied" representation be supportable under the First Amendment (i.e. is it permissible for the law to imply representations by a religious organization about the qualities or qualifications of its religious ministers)?While in the ordinary case I would agree that the court would not ! be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child. The ordination must mean something -- and even if it does not, any organization that would put the active pedophile together with kids (soccer clubs, schools, dance studios, etc.) would be liable. In this case why would the church get treated differently? Isn't this one instance where the equal treatment aspect of establishment would cut against the church? (I do not mean by this to endorse the stronger forms of equal treatment or neutrality sometimes urged by some on this list -- just that it is one factor that in particular cases may in fact determine the result.) ! Isn't this just the Smith case? No special exemption for the church?I don't see dismissing the claim as a matter of law -- I think the implied theory works as it should here. Indeed, can one ever imagine a church advertising a negative like this -- "Join us! Our ministers are not pedophiles!" -- Not overly likely or certainly not likely to become common. This is exactly the sort of thing that the implied misrep theory is aimed at redressing.Steve-- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar"I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere."Martin Luther King, Jr., (1963)___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? New and Improved Yahoo! Mail - 100MB free storage!___ 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: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Marci, To the contrary. In the context of an alleged fraud claim, one of the elements which the plaintiff must prove is the intent to deceive. If the diocese firmly believes that the priest is repentant and will not do such acts again (as I understand was the case with many dioceses who believed that after psychological counseling, the pedophile priests would not repeat their conduct), then such a belief should insulate the diocese from claims of fraud (based upon a lack of intent to deceive). Whether such abeliefwould beplausible today, givenall that has happened, is a different storyentirely. That is not to say that the diocese would be immune from other tort actions (i.e. see Chip's recent paper, which I look forward to reading with interest). Will[EMAIL PROTECTED] wrote: In a message dated 7/9/2004 12:04:44 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I assume that virtually none of these fraud claims are based on an alleged "explicit" representation by the Diocese (i.e. "As the bishop, I certify that this priest has never been involved in pedophilic activity"). That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). One does not need such an unclear implication. The typical modus operandi is for the Diocese to certify the "good character" of the priest coming in and to give a "health" reason for the need for the transfer. Surely, that is fraud, when they know full well the man is a pedophile. On the point Will made earlier that there is some kind of immunity for the church if the "priest is repentant and will not do such acts again", I'm going to assume that was tongue in cheek, right? Do you know what the average number of victims are for an active pedophile? There is never just one. Marci___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? New and Improved Yahoo! Mail - Send 10MB messages!___ 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
North Carolina Supreme Court Orders Judge Not to Remove God from Courtroom
I thought this would be of interest to list members. I have been unable to find a copy of the State court's order, but will post it if it becomes available. Will CLA Helps Put God Back in North Carolina CourtroomThe North Carolina Supreme Court ruled this week that a state trial judge may not remove references to God in his courtroom. On June 23rd, attorneys for Christian Law Association helped three elected officials file a judicial misconduct complaint with the North Carolina Judicial Standards Commission for Judge James Honeycutt's actions of removing "so help me God" from the statutory oaths given to witnesses and dropping the statutory requirement that witnesses swear or affirm on the Bible. The judge had also warned the courtroom bailiffs that they could no longer invoke the traditional proclamation "God save the state and this honorable court" before the beginning of each court session. Last week, he threatened to hold the bailiffs in contempt if they did not follow his orders by Tuesday, June 29. Because of the judge's looming deadline, the bailiffs could not wait for the Commission's investigation. Therefore, CLA attorneys quickly prepared another petition, which was filed directly with the Chief Justice of the North Carolina Supreme Court two days later, asking the Court to order Judge Honeycutt to comply with state law and tradition. On Monday, June 28, 2004, only one business day after the petition had been filed, the state supreme court ordered Judge Honeycutt to follow the state's oath procedures and to allow the bailiffs to invoke God's protection on the state and the court. Attorney David Gibbs of the Christian Law Association said: "This is a victory over activist judges who are trying to make their own laws, enforce the laws they make up, and then judge the validity of the law in violation of the constitutional separation of powers doctrine. The North Carolina Supreme Court should be applauded for its quick action and for upholding North Carolina's two-hundred-year-old laws and traditions."Will Esser --- Ad Majorem Dei GloriamParker Poe Adams BernsteinCharlotte, North CarolinaWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? New and Improved Yahoo! Mail - Send 10MB messages!___ 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
Oklahoma School Settlement Allows Muslim Girl to Wear Head Scarf
WASHINGTONA sixth-grade Muslim girl in Oklahoma can wear ahead scarf (search)to school under a settlement between the school district and theJustice Department (search), officials announced Wednesday. The six-year agreement, filed inU.S. District Court in Oklahoma (search), also requires theMuskogee Public School District (search)to change its dress code to allow exceptions for religious reasons. "This settlement reaffirms the principle that public schools cannot require students to check their faith at the schoolhouse door," said R. Alexander Acosta, assistant attorney general for civil rights. The government filed suit in March on behalf of 11-year-old Nashala Hearn. She had been suspended twice by the district for wearing a head scarf, or hijab, to class. School officials said her clothing violated a dress code banning hats and other head coverings. The full story is available at http://www.foxnews.com/story/0,2933,120371,00.htmlWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the reall tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!?SBC Yahoo! - Internet access at a great low price.___ 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
