Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group might, for sincere religious reasons, refuse to place children with unmarried couples and might prefer to place children with married couples rather than single adults. (Put aside any Free Exercise claim.) A court would violate the statute if it recognized a common law cause of action under which unmarried couples and single people could sue the religious group for damages or for an injunction. Similarly, a county ordinance providing for such a private cause of action would be inconsistent with the state statute (a superior source of law), and the religious organization would have a good defense against such ! a suit. And a general state antidiscrimination statute providing a private right of action for marital status discrimination ought to be unavailable as against the religious group, because the state RFRA would create an exception to the general statute. Along the same lines, a state RFRA that would prevent a state human rights commission from fining a religiously dissenting wedding photographer, one who refuses to create celebratory art for a same sex wedding, should be read to limit a general antidiscrimination law that might otherwise provide the same sex couple a private right of action. Of course there have to be limits to this analysis under state RFRAs. I should not have to show that I have a compelling interest in keeping my neighbor off of my property, just because the neighbor sincerely believes he has a religious duty to worship an oak tree that is in my back yard (and to do so every morning at dawn while kneeling in front of the tree). That is, I should be able to sue the neighbor and seek an injunction, if necessary, or damages if there are any, without the neighbor being able to raise a RFRA defense (though it would be possible to treat the state's interest in letting me sue to protect my property rights as a compelling interest). So what is the difference? Is it a traditional private right/liberty/property baseline difference? Perhaps a state RFRA shouldn't be interpreted to apply to private suits brought to vindicate traditional background rights. (Cf. the treatment of takings in Lucas v. So. Car. Coastal Council, in which the court relied on background property/nuisance principles.) Legislators wouldn't have expected such an application. They don't think of the right to keep someone off your property as a government-granted right, whatever political philosophers and law professors might believe. But a RFRA could have been
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group might, for sincere religious reasons, refuse to place children with unmarried couples and might prefer to place children with married couples rather than single adults. (Put aside any Free Exercise claim.) A court would violate the statute if it recognized a common law cause of action under which unmarried couples and single people could sue the religious group for damages or for an injunction. Similarly, a county ordinance providing for such a private cause of action would be inconsistent with the state statute (a superior source of law), and the religious organization would have a good defense against such ! a suit. And a general state antidiscrimination statute providing a private right of action for marital status discrimination ought to be unavailable as against the religious group, because the state RFRA would create an exception to the general statute. Along the same lines, a state RFRA that would prevent a state human rights commission from fining a religiously dissenting wedding photographer, one who refuses to create celebratory art for a same sex wedding, should
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are against the government Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to fix this aspect of the state RFRAs. There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman could sue the church for sex discrimination for refusing to hire her as a minister. The state can't do indirectly, by way of creating a private right of action, something the Constitution prohibits it from doing directly. That would also seem to be the case to some degree with statutory protection of rights, such as those provided by a state RFRA that is designed to modify all other state law (and thus is a bit like a constitution). Suppose that, under a state RFRA, a religious group cannot be denied the necessary licenses for running an adoption agency simply because the religious group
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Marci, is this the language of federal RFRA on which you rely? A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. First of all, a dismissal of a private lawsuit can be seen as relief against the government, which has coerced the private defendant into court, with her property at risk. Second, a private suit is a judicial proceeding, in which RFRA might be a defense. Third (and maybe this should be first), federal RFRA's primary provision is this: Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section. If a private cause of action produces such a burden, then I think RFRA is triggered. Marci, you know I am no fan of RFRA. I testified against it as a matter of constitutional law and policy back in 1992. But I can separate my judgment about the unwisdom and constitutional problems of RFRA (inviting judges to decide religious questions) from the interpretive question you raise. I do think the better reading is that RFRA applies to private causes of action. So would the free exercise clause, if a private cause of action led to a state imposed remedy that unconstitutionally burdened religion -- e.g., a nuisance suit by a neighbor, complaining that a certain form of worship in her neighborhood was a nuisance that should be permanently enjoined. If that is right, and RFRA was (supposedly) designed to restore free exercise norms, then RFRA should operate in the same way as the free exercise clause in such a suit. On Thu, Feb 27, 2014 at 9:29 AM, hamilto...@aol.com wrote: Chip-- do you think a RFRA applies when the defendant is not the government? RFRA's language is explicit that cases are against the government Not between private parties. Language controls, and one of the reasons that the AZ variety amendments are appearing now is to fix this aspect of the state RFRAs. There are free speech cases where state action is found between private parties, e.g., the mall free speech cases (Pruneyard) and defamation, but they are few and far between. What First Amendment free exercise case (they involve conduct, not speech) involves a dispute between private parties? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 9:20 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
With respect to my former teacher I don't think the background right distinction is quite as untenable as that. Many of the rights enforced in tort are rights against the world that the court vindicates, my right to exclude you from my property is self-enforceable by private means, such as by erecting a barrier. The right is a sword borne in me against the world with prophylactic intercession by the state to avoid the costs of self-enforcement such as screaming, shoving, Hatfields and McCoys, cats and dogs living together. This is a dangerous place to go of course, since contract is a private agreement that only has meaning when backstopped by the state. Even disregarding the possibility of certain private rights originating from outside the state, rights held against the government can still be sensibly read into RFRA like protections. How different is a private cause of action in an anti-discrimination suit from the private prosecution that used to be in vogue? The states intend those causes of action to pursue state policies. Just as my rights as a criminal defendant against the state would be vindicated against a private prosecutor, RFRA could be interpreted in such a way as to shield me against private actions furthering state policy. The courts are at least as competent in reading the intent of the legislature as they are judging the sincerity, credibility and substance of religious beliefs. That all having been said, it doesn't make sense to read RFRA as a carve-out read into various laws of otherwise general applicability. It is a shield held by religious believers against the state. On Thu, Feb 27, 2014 at 9:17 AM, Ira Lupu icl...@law.gwu.edu wrote: For purposes of a state RFRA or a state constitution, I do not understand why defenses to a private right of action for discrimination (e.g., a merchant refused to serve me because of my race, religion, etc.; merchant defends on religious freedom grounds) are any different from defenses to a private right of action for trespass (my neighbor entered my yard to pray under a tree on my property, and refused to leave; neighbor defends on religious freedom grounds). I have never seen a constitutional provision of RFRA that even hints at any such distinction. In both cases, the religious person/defendant asserts that the cause of action substantially burdens her religious freedom, and the plaintiff must argue that application of the state law to this defendant is the least restrictive means to a compelling interest. Why would you make this distinction, Mark? Smuggling in some libertarian assumptions about where rights come from (property rights are natural, and non-discrimination rights are something different)? RFRA's never say any such thing; they apply across the board to all law in the jurisdiction, unless they say otherwise. When you start smuggling in these kinds of moves, you taint the entire RFRA enterprise, don't you? (I.e., RFRA does not apply to the rights and laws that I value more). On Thu, Feb 27, 2014 at 3:02 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Some of you on the list have made me think a bit more about application of religious freedom provisions (federal or state RFRAs, for our purposes) as defenses to suits brought by private parties. This is a key question raised by the Arizona bill that Gov. Brewer vetoed. At the risk of reinventing the wheel, and of missing lots of obvious points: We know that government-created private rights of action sometimes are limited for the same reasons we limit direct government action. The government can't fine me for criticizing a govt official or other public figure, nor (analogously) may such a person maintain a private suit against me for defamation or for causing emotional distress unless a high bar is met, such as proof of NY Times malice. The govt can't require me to fly a US flag or (assuming it allows any flags to be flown) prohibit me from flying another nation's flag on my own property. Similarly, the law can't provide my neighbor a private right of action that would allow the neighbor to get an injunction requiring me to fly a US flag or (if the law allows any flags to be flown) not to fly another nation's flag; a damage award would similarly be off the table. A land use regulation that would prohibit religious use of a home (e.g., for a weekly bible study) but permit similar nonreligious uses (a weekly bridge club meeting) with a similar number of people and similar noise level would violate the Constitution. The state can't get around that result by creating a private right of action under which a neighbor can sue me for holding the bible study but not for holding a bridge club meeting. A state statute that would allow a fair employment commission to fine a church for hiring only men as ministers would violate the Constitution. The state obviously can't create a private right of action under which a woman
RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
You can plead anything you want. And argue anything you want. That doesn’t mean it will be plausible under Twombley, or that it won’t draw Rule 11 sanctions. It would help if you would stay somewhere in the neighborhood of the arguments actually being made. If you sue your local synagogue, it may have a RFRA or free exercise defense, depending on what you are suing about. If a rule of law substantially burdens the synagogue’s exercise of religion, it is not just you who imposes the burden; it is the rule of law. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, February 27, 2014 11:00 AM To: religionlaw@lists.ucla.edu Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Wait a minute-- so every dispute involving a believer that involves any law is a potential constitutional case? So I can add a free exercise claim to my trespass and nuisance action against my neighbor? Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 10:57 am Subject: RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edumailto:l...@wayne.edu wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties. See id. (“It is established doctrine that ‘[i]t is not of moment that the State has here acted solely through its judicial branch, for, whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.’”) (quoting NAACP v. Alabama and Shelley v. Kraemer). This has been settled law for over fifty years. The arguments that RFRA and RLUIPA are only good against the government lie in the particularities (and, I think, unintended particularities) of their texts. The general principles of state action are well settled. Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edumailto:l...@wayne.edu (313) 577-4046
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that my ignorance is just as good as your knowledge. Isaac Asimov in a column in Newsweek (21 January 1980) On Feb 27, 2014, at 10:28 AM, Christopher Lund l...@wayne.edu wrote: “Can you point to specific free exercise cases where the First Amendment's free exercise clause was applied by the Supreme Court to a dispute between private parties? There must be state action. Note Hosanna-Tabor was against the EEOC.” Marci’s contention is an interesting one. The strength of it can be tested pretty easily. How many people think that Hosanna-Tabor would have been decided differently if the EEOC had not intervened and the case was captioned Hosanna-Tabor v. Perich? But here’s another one: Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190 (1960). Four years before NYT v. Sullivan (!), the Court says that the Religion Clauses of the First Amendment apply to disputes between private parties
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.commailto:hamilto...@aol.com hamilto...@aol.commailto:hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty protections are another matter, with their scope mostly determined by textual analysis, determination of legislative intent, etc. We need to find a principled approach to interpretation of RFRAs that makes them inapplicable to trespass suits but applicable some other kinds of suits. It's possible to take situations case-by-case and ask whether legislators would have thought a RFRA would apply, but it would be better to have a guiding principle, right? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 7:57 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
I share Chip’s concerns about Mark’s attempt to exempt trespass suits categorically from the scope of RFRAs, but Doug’s comments below made me think that perhaps Mark’s approach might try to draw some support from Flagg Brothers v. Brooks, 436 U.S. 149 (1978). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? It is not judicial enforcement as such. In contract cases, the challenged rule comes from the contract. Shelley v. Kramer aside, enforcing the contract does not make the provisions of the contract state action. But when the challenged rule is written by the state, whether in a statute or a common law rule, the burden is imposed by the rule of law. That rule of law is the relevant state action. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, February 27, 2014 10:49 AM To: Law Religion Law List Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? I don’t think state action is as settled as Chris’s post implies. States enforce contracts, for example, and other private rights without the court action becoming state action limited by the 14th Amendment. Surely many court actions are state action for constitutional rights purposes, but perhaps not quite as categorically or broadly as Chris’s post states. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the Commerce Clause powers of Congress. I had understood them to be under the 14th Amendment, in which case Congress can ONLY reach states and they cannot apply to private conduct. And, as we know, RFRA (federal), cannot apply to states either because of the narrowing of the grant of power to Congress adopted by the Court in Boerne. As to state RFRA, it would seem that a strong case can be made that they, being modeled after and inspired by the federal law, were intended to have essentially the same reach — prohibit states from intruding too far into religious exercise, not to prohibit private individuals from intruding on free exercise of another private person. Pardon my Fox News inspired hyperbole here, but all of this strikes me as a version of the shibboleth of the war on Christmas. Are laws are rife with exceptions and other accommodations for religious groups and individuals. Just take a look at the Civil Rights Act of 1964 prohibiting discrimination by private parties on the basis of religion and allowing various exceptions that in fact allow exactly that sort of discrimination on the basis of religion to take place for certain religious organizations. But now, the claim is being pushed that those willingly engaging in commerce as regular business are to be exempt from laws entirely based on a claim of burdening not exercise, but belief; on a claim not of a substantial burden on exercise, but solely on a questionable legal theory of “complicity”; and not on the basis of actual exclusion or persecution or discrimination against the religious adherent, but rather on the basis of excluding others based purely on a basis that is irrelevant to the business (photography, cake baking, lunch counter service, taxi riders, renting a hotel room, etc.). Some Arizona legislators are expressing “buyer’s remorse” because once they realized what they had done, they wished they hadn’t. I don’t expect any negative fallout for the governor on this. These sorts of laws are like the issue in Romer — just beyond the pail of normal legislation and actions by the government - by a lot. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr On Feb 27, 2014, at 11:57 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.com hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far dowe go under the Const and under RFRAs? Doug's common law rule point is one reason I raised the trespass issue and suggested a background law distinction. If the state creates private property rights, even by way of ancient common law or customary law, then a judicial action for an injunction or damages for trespass could be subject to a state RFRA, under some of the approaches that have been suggested here. Of course a suit is state action for constitutional due process purposes, and for some other purposes as in Kreshik and Perich. But no one thinks a property owner's right to exclude is directly subject to constitutional equal protection analysis (again, as Doug notes, setting Shelley v. Kramer aside, and setting aside symbiotic relationship, public function, and other state action analyses)n. Statutory anti-discrimination or religious liberty
Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?
I'm stumped by Mark's response. The courts have held that RFRA and RLUIPA are only good against the government. Due to its language and the state action doctrine generally. Are you saying that those cases don't exist, or are all uniformly wrongly decided? The state language indicates acknowledgement of those cases, no? I'm not trying to be provocative here. I'm sincerely asking. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Steven Jamar stevenja...@gmail.com To: Law Religion Law List religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 12:21 pm Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Are RFRA (federal) and RLUIPA enacted under the 14th Amendment or under the Commerce Clause powers of Congress. I had understood them to be under the 14th Amendment, in which case Congress can ONLY reach states and they cannot apply to private conduct. And, as we know, RFRA (federal), cannot apply to states either because of the narrowing of the grant of power to Congress adopted by the Court in Boerne. As to state RFRA, it would seem that a strong case can be made that they, being modeled after and inspired by the federal law, were intended to have essentially the same reach — prohibit states from intruding too far into religious exercise, not to prohibit private individuals from intruding on free exercise of another private person. Pardon my Fox News inspired hyperbole here, but all of this strikes me as a version of the shibboleth of the war on Christmas. Are laws are rife with exceptions and other accommodations for religious groups and individuals. Just take a look at the Civil Rights Act of 1964 prohibiting discrimination by private parties on the basis of religion and allowing various exceptions that in fact allow exactly that sort of discrimination on the basis of religion to take place for certain religious organizations. But now, the claim is being pushed that those willingly engaging in commerce as regular business are to be exempt from laws entirely based on a claim of burdening not exercise, but belief; on a claim not of a substantial burden on exercise, but solely on a questionable legal theory of “complicity”; and not on the basis of actual exclusion or persecution or discrimination against the religious adherent, but rather on the basis of excluding others based purely on a basis that is irrelevant to the business (photography, cake baking, lunch counter service, taxi riders, renting a hotel room, etc.). Some Arizona legislators are expressing “buyer’s remorse” because once they realized what they had done, they wished they hadn’t. I don’t expect any negative fallout for the governor on this. These sorts of laws are like the issue in Romer — just beyond the pail of normal legislation and actions by the government - by a lot. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ The only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr On Feb 27, 2014, at 11:57 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course not, Marci. New language can be used to clear up ambiguities or to make sure that hostile or indifferent bureaucrats or courts actually apply the statute as originally intended (and as it would be interpreted but for hostility or indifference to legislative purpose). That's not to say that every dispute is covered by the previously standard RFRA language, as I've tried to suggest with the trespass hypothetical. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 27, 2014, at 8:48 AM, hamilto...@aol.com hamilto...@aol.com wrote: The new RFRAs, like the one in Missouri, includes a line that states that it applies even if the government is not a party. So I guess, at the least, we have an admission that the previous language of the RFRAs did not include every dispute? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Feb 27, 2014 11:42 am Subject: Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs? Doug's
