subject:"Re\: Catholic Charities Issue"

RE: Catholic Charities Issue

2006-03-23 Thread Newsom Michael









Ed, we are largely together here. We
need to understand, however, what within the confines of those
organizations means. But that, in turn, invites an inquiry more
generally into the reach or ambit of religious associational autonomy and privacy.
The difficulty largely concerns activities conducted by religious organizations
that, to use Noonan and Gaffneys felicitous term, do double duty, that
is, serve both religious and secular purposes. The Court has indicated
some unwillingness, at least in Title VII cases, to probe too deeply into the boundary,
if any, that might exist between the religious and the secular. See
Amos. But it would be difficult to argue that the courts should never
consider the boundary question, regardless of circumstances.



It would be fair to consider, given the
history of oppression, whether a claim that an activity is religious
might merely in reality be a sham, a cover for continued oppression.
Oppression should never qualify as religious.



We wont get neat and tidy results,
using such and approach, but we stand a good chance of getting fair and
defensible results if we do. 











From: Ed Brayton [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, March 22, 2006
6:41 PM
To: Law
  Religion issues for Law Academics
Subject: Re: Catholic Charities
Issue





Newsom Michael wrote: 

I
am not sure that we have a mirror here. Gay people are trying to get out
from under an oppressive regime the likes of which conservative believers have
not had to endure  nor are likely to.

While I agree with this, I don't think it really cuts
against Doug's argument. And I say this as a very vocal proponent of gay
rights. I absolutely agree that gay people have lived under an oppressive
system for far too long and I strongly support gay marriage, gay adoptions and
a myriad of other correctives. But I don't think that gay liberation requires
forcing churches and religious organizations to change either their personal
beliefs or their actions *within the confines of those organizations*. In fact,
I think it is dangerous for gay rights proponents to push for policies that
would place such a requirement because it undermines our own arguments in favor
of self-determination and freedom of association. It's not just a bad idea as a
practical matter, it's unprincipled as well. We certainly want to prevent such
people from imposing their beliefs on the private behavior of gays (and the
rest of us, in a wide range of other ways as well); but we undermine our
principled position if we then seek to have government impose restrictions on
their private behavior (as opposed to the laws they advocate).

Ed Brayton






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Re: Catholic Charities Issue

2006-03-23 Thread RLCyr




Ed wrote:

But I don't think that gay liberation requires forcing churches and 
religious organizations to change either their personal beliefs or their 
actions *within the confines of those organizations* We certainly 
want to prevent such people from imposing their 
beliefs on the private behavior of gays (and the rest of us, in a wide 
range of other ways as well); but we undermine our principled position if we 
then seek to have government impose restrictions on their private behavior 
(as opposed to the laws they advocate).

Ed's post has helped put some thoughts in order for me.

It's my impression that conservative religionists are concerned that 
secular recognition of gay marriage and other rights would force them to 
acknowledge and condone relationships that they believe are morally wrong. 
Perhaps this is true -- but it's not the first time that's happened. It's 
taken me several days to come up with a similar situation, but I finally 
have. People have been using interracial marriage as a comparison -- I've 
come up with one that's much more straightforward: equal treatment of 
women.

There were, and I believe still are, some very conservative sects (the ones 
I'm the most familiar with are Jewish, having spent many years living and 
working in NYC) that believe that women should not act or be treated in ways 
that are equal to men. Even more mainstream sectsbelieve that 
interactions between men and women should be very strictly restricted.

I have no doubt that Title VII led to some very heated discussions among 
those adherents. If they wanted to runa business of any substantial 
size (and therefore profitability), they would be forced not only to hire women, 
but to hire women who most likely did not conform to their standards of proper 
dress for women. They would be forced to interact with women at other 
companies. They would undoubtedly face situations where female strangers 
would expect to shake hands with them. Allin all, it was undoubtedly 
a great change from what they were used to.

Over the years, though, they've adapted. Yes, some of their 
adaptation has been to form more insular communities and neighborhoods, so they 
can limit their interactions with "the outside world" to some extent. But 
others have simply gotten used to the new way of things. Yes, I'm sure 
(albeit without proof) that some discrimination is happening -- or at least 
discouagement of people who don't "fit" from continuing in the hiring process -- 
but it's on a very small scale.

The religious sects survived, the people practicing them adapted, and women 
play a greater role in the marketplace than they did 40 years ago. And 
today, I don't hear anyone screaming (in the US at least) that forcing employers 
to treat women equally trod on the rights of religious groups and prevented them 
from living according to their convictions.

-Renee
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RE: Catholic Charities Issue

2006-03-22 Thread Nathan Oman

I am not sure that we have a mirror here.  Gay people are trying to get out 
from under an oppressive regime the likes of which conservative believers have 
not had to endure - nor are likely to.

This just seems to muddy the issue to me.  Doug's claim is not that gays and 
conservative Christians have suffered comperable levels of oppression, but that 
both should be accord a space in which to work out their visions of the good 
free of collective coercion.  Furthermore, I think that it is a mistake for 
gays -- or any other oppressed minority -- to use the fact of their oppression 
to suggest that they get some sort of free pass on the basic commitments of 
philosophical liberalism, given that they are much more likely to persuade 
those who disagree with them by appeals to liberalism than by attacks upon it.

NBO


--
**
Nathan Oman

It is a misleading cult that teaches that the remedy of our ills is to have 
the law give over, once and for all, the strivings of the centuries for a 
rational coherence, and sink back in utter weariness to a justice that is the 
flickering reflection of the impulse of the moment.  
  -- Benjamin Cardozo
--
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RE: Catholic Charities Issue

2006-03-22 Thread Newsom Michael

I don't understand your point about free passes.

-Original Message-
From: Nathan Oman [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, March 22, 2006 6:28 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

I am not sure that we have a mirror here.  Gay people are trying to get
out from under an oppressive regime the likes of which conservative
believers have not had to endure - nor are likely to.

This just seems to muddy the issue to me.  Doug's claim is not that gays
and conservative Christians have suffered comperable levels of
oppression, but that both should be accord a space in which to work out
their visions of the good free of collective coercion.  Furthermore, I
think that it is a mistake for gays -- or any other oppressed minority
-- to use the fact of their oppression to suggest that they get some
sort of free pass on the basic commitments of philosophical liberalism,
given that they are much more likely to persuade those who disagree with
them by appeals to liberalism than by attacks upon it.

NBO

--
**
Nathan Oman

It is a misleading cult that teaches that the remedy of our ills is to
have the law give over, once and for all, the strivings of the centuries
for a rational coherence, and sink back in utter weariness to a justice
that is the flickering reflection of the impulse of the moment.  
  -- Benjamin Cardozo
--
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Re: Catholic Charities Issue

2006-03-22 Thread Ed Brayton





Newsom Michael wrote:

  
  

  
  
  
  

  
  
  I am not
sure that we have a mirror here.
Gay people are trying to get out from under an oppressive regime the
likes of
which conservative believers have not had to endure  nor are likely to.
  

While I agree with this, I don't think it really cuts against Doug's
argument. And I say this as a very vocal proponent of gay rights. I
absolutely agree that gay people have lived under an oppressive system
for far too long and I strongly support gay marriage, gay adoptions and
a myriad of other correctives. But I don't think that gay liberation
requires forcing churches and religious organizations to change either
their personal beliefs or their actions *within the confines of those
organizations*. In fact, I think it is dangerous for gay rights
proponents to push for policies that would place such a requirement
because it undermines our own arguments in favor of self-determination
and freedom of association. It's not just a bad idea as a practical
matter, it's unprincipled as well. We certainly want to prevent such
people from imposing their beliefs on the private behavior of gays (and
the rest of us, in a wide range of other ways as well); but we
undermine our principled position if we then seek to have government
impose restrictions on their private behavior (as opposed to the laws
they advocate).

Ed Brayton


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RE: Catholic Charities Issue

2006-03-21 Thread Marc Stern









You could add the op[position to enhance d
protection for religions workers in the workplace because such legislation might
empower claims impinging on gay rights, gay groups that sued Yeshiva University
over it refusal to allow gay couples access to a married only dorm in its
medical school, the opposition to an exemption for Catholic Charities in Boston,
the suit over doctors refusing to assist lesbian couple have a child by artificial
insemination and on and on.What ever the merits of particular suits,
there has been as pattern of opposition to religious claims in the gay rights context.


.

Marc Stern

f











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25
PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue















From:
[EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue





Could you give some examples of gay rights
proponents who ignore religious liberty interests?



Doug Laycock's Answer: The gay
rights groups organized and led the charge that killed the Religious Liberty
Protection Act. They did itby insisting on a categorical exception for
all civil rights cases, refusing to rely on the case law that most civil rights
claimspresentcompelling interests or their own view that all civil
rights claims present compelling interests.



All civil rights claims would
include challenges to the male-only priesthood. It would include claims
of religious discrimination in awarding membership or leadership positions in
churches and other religions organizations. In Colorado and several other states, civil
rights laws prohibit employers from penalizing any lawful off-the-job
activity. So civil rights claims include any immoral, disreputable,
but not illegal act you can think of: using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful casinos,
and similar things that religious organizations might tell their employees not
to do. The gay rights groups and the coalition of civil rights
organizations they put together refused to listen to any such argument.
They wanted a global and absolute civil rights exception; take it or leave
it. They produced party-line gridlock over that demand.



At the state and local level, gay rights
groups insist on no religious exemption to gay rights laws or, if they can't
prevail on that, the narrowest possible definition of religious organizations
entitled to exemption.



I assume it was these recurring political
conflicts, in which gay rights groups simply refuse to recognize any competing
interest on the other side of the table, that Alan Brownstein was referring to,
and not the occasional acts of disruptive protest.



Of course many of the conservative
religious groups are equally intractable with respect to gay rights
organizations. In the particular case of RLPA, most of themwere at
all time willing to concede the compelling-interest exception, fully
understanding that courts were likely to find a compelling interest in most
civil rights claims.























Douglas Laycock





University of Texas Law School





727 E. Dean Keeton St.





Austin, TX 78705





512-232-1341





512-471-6988 (fax)












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RE: Catholic Charities Issue

2006-03-21 Thread Douglas Laycock




I do not mean to include any right to harass and 
intimidate. I do mean to include the right to live their own lives in 
their faith, and to run their own institutions, which necessarily includes the 
right to exclude from those institutions persons who do not accept their faith 
or the obligations that faith imposes.

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



From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Newsom 
MichaelSent: Tuesday, March 21, 2006 12:23 PMTo: Law  
Religion issues for Law AcademicsSubject: RE: Catholic Charities 
Issue


If by religious 
liberty interests you mean the right to exclude, and perhaps even to harass and 
intimidate, then I suppose that you have responded fairly to my query. If 
one were to define religious liberty interests differently, then your example 
does not respond to my query. 





From: Douglas 
Laycock [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Monday, March 20, 2006 8:25 
PMTo: Law  Religion issues for Law 
AcademicsSubject: RE: Catholic Charities 
Issue






From: 
[EMAIL PROTECTED] on behalf of Newsom MichaelSent: Mon 3/20/2006 3:36 PMTo: Law  Religion issues for Law 
AcademicsSubject: RE: Catholic Charities 
Issue

Could you give some 
examples of gay rights proponents who ignore religious liberty 
interests?

Doug Laycock's 
Answer: The gay rights groups organized and led the charge that killed the 
Religious Liberty Protection Act. They did itby insisting on a 
categorical exception for all civil rights cases, refusing to rely on the case 
law that most civil rights claimspresentcompelling interests or 
their own view that all civil rights claims present compelling 
interests.

"All civil rights 
claims" would include challenges to the male-only priesthood. It would 
include claims of religious discrimination in awarding membership or leadership 
positions in churches and other religions organizations. In Colorado and several 
other states, civil rights laws prohibit employers from penalizing "any lawful 
off-the-job activity." So civil rights claims include any immoral, 
disreputable, but not illegal act you can think of: using pornography, 
appearing in pornography, moonlighting at a strip club, gambling heavily in 
lawful casinos, and similar things that religious organizations might tell their 
employees not to do. The gay rights groups and the coalition of civil 
rights organizations they put together refused to listen to any such 
argument. They wanted a global and absolute civil rights exception; take 
it or leave it. They produced party-line gridlock over that 
demand.

At the state and local 
level, gay rights groups insist on no religious exemption to gay rights laws or, 
if they can't prevail on that, the narrowest possible definition of religious 
organizations entitled to exemption.

I assume it was these 
recurring political conflicts, in which gay rights groups simply refuse to 
recognize any competing interest on the other side of the table, that Alan 
Brownstein was referring to, and not the occasional acts of disruptive 
protest.

Of course many of the 
conservative religious groups are equally intractable with respect to gay rights 
organizations. In the particular case of RLPA, most of themwere at 
all time willing to concede the compelling-interest exception, fully 
understanding that courts were likely to find a compelling interest in most 
civil rights claims.








Douglas 
Laycock

University of 
Texas 
Law School

727 E. Dean Keeton 
St.

Austin, TX 78705

512-232-1341

512-471-6988 
(fax)
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RE: Catholic Charities Issue

2006-03-21 Thread Newsom Michael









Virtually all of the religious claims that
you refer to involve efforts to exclude, marginalize or, perhaps, even worse. Of
course those who are excluded or marginalized, or worse, would resist, as well
they should. 











From: Marc Stern
[mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 21, 2006 8:48
AM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue





You could add the op[position to enhance d
protection for religions workers in the workplace because such legislation
might empower claims impinging on gay rights, gay groups that sued Yeshiva
University over it refusal to allow gay couples access to a married only
dorm in its medical school, the opposition to an exemption for Catholic
Charities in Boston, the suit over doctors refusing to assist lesbian
couple have a child by artificial insemination and on and on.What ever
the merits of particular suits, there has been as pattern of opposition to
religious claims in the gay rights context. 

.

Marc Stern

f











From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue















From:
[EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue





Could you give some examples of gay rights
proponents who ignore religious liberty interests?



Doug Laycock's Answer: The gay
rights groups organized and led the charge that killed the Religious Liberty
Protection Act. They did itby insisting on a categorical exception
for all civil rights cases, refusing to rely on the case law that most civil
rights claimspresentcompelling interests or their own view that all
civil rights claims present compelling interests.



All civil rights claims would
include challenges to the male-only priesthood. It would include claims
of religious discrimination in awarding membership or leadership positions in
churches and other religions organizations. In Colorado and several other states, civil
rights laws prohibit employers from penalizing any lawful off-the-job
activity. So civil rights claims include any immoral, disreputable,
but not illegal act you can think of: using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful casinos,
and similar things that religious organizations might tell their employees not
to do. The gay rights groups and the coalition of civil rights
organizations they put together refused to listen to any such argument.
They wanted a global and absolute civil rights exception; take it or leave
it. They produced party-line gridlock over that demand.



At the state and local level, gay rights
groups insist on no religious exemption to gay rights laws or, if they can't
prevail on that, the narrowest possible definition of religious organizations
entitled to exemption.



I assume it was these recurring political
conflicts, in which gay rights groups simply refuse to recognize any competing
interest on the other side of the table, that Alan Brownstein was referring to,
and not the occasional acts of disruptive protest.



Of course many of the conservative
religious groups are equally intractable with respect to gay rights
organizations. In the particular case of RLPA, most of themwere at
all time willing to concede the compelling-interest exception, fully
understanding that courts were likely to find a compelling interest in most
civil rights claims.























Douglas Laycock





University of Texas Law School





727 E. Dean Keeton St.





Austin, TX 78705





512-232-1341





512-471-6988 (fax)












___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Catholic Charities Issue

2006-03-21 Thread Newsom Michael









Take a look at David M. Smolin, Regulating
Religious and Cultural Conflict in a Postmodern America: A Response to Professor
Perry, 76 Iowa
L. Rev. 1067 (1991). Smolin, a member of the Religious Right, essentially says,
among other things, that he wants to imprison gays because of their sexual
conduct. I am not aware of any movement on the part of gays and lesbians to
imprison Professor Smolin.











From: Douglas Laycock
[mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 21, 2006 1:31
PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue





I do not mean to include any right to
harass and intimidate. I do mean to include the right to live their own
lives in their faith, and to run their own institutions, which necessarily
includes the right to exclude from those institutions persons who do not accept
their faith or the obligations that faith imposes.







Douglas Laycock

University of Texas
 Law School

727 E. Dean
  Keeton St.

Austin, TX 78705

 512-232-1341 (phone)

 512-471-6988 (fax)















From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Tuesday, March 21, 2006
12:23 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue

If by religious liberty
interests you mean the right to exclude, and perhaps even to harass and
intimidate, then I suppose that you have responded fairly to my query. If
one were to define religious liberty interests differently, then
your example does not respond to my query. 











From: Douglas Laycock
[mailto:[EMAIL PROTECTED] On
Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25
PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue















From:
[EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue





Could you give some examples of gay rights
proponents who ignore religious liberty interests?



Doug Laycock's Answer: The gay
rights groups organized and led the charge that killed the Religious Liberty
Protection Act. They did itby insisting on a categorical exception
for all civil rights cases, refusing to rely on the case law that most civil
rights claimspresentcompelling interests or their own view that all
civil rights claims present compelling interests.



All civil rights claims would
include challenges to the male-only priesthood. It would include claims
of religious discrimination in awarding membership or leadership positions in churches
and other religions organizations. In Colorado and several other states, civil
rights laws prohibit employers from penalizing any lawful off-the-job
activity. So civil rights claims include any immoral, disreputable,
but not illegal act you can think of: using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful casinos,
and similar things that religious organizations might tell their employees not
to do. The gay rights groups and the coalition of civil rights
organizations they put together refused to listen to any such argument.
They wanted a global and absolute civil rights exception; take it or leave
it. They produced party-line gridlock over that demand.



At the state and local level, gay rights
groups insist on no religious exemption to gay rights laws or, if they can't
prevail on that, the narrowest possible definition of religious organizations
entitled to exemption.



I assume it was these recurring political
conflicts, in which gay rights groups simply refuse to recognize any competing
interest on the other side of the table, that Alan Brownstein was referring to,
and not the occasional acts of disruptive protest.



Of course many of the conservative
religious groups are equally intractable with respect to gay rights
organizations. In the particular case of RLPA, most of themwere at
all time willing to concede the compelling-interest exception, fully
understanding that courts were likely to find a compelling interest in most
civil rights claims.























Douglas Laycock





University of Texas Law School





727 E. Dean Keeton St.





Austin, TX 78705





512-232-1341





512-471-6988 (fax)












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RE: Catholic Charities Issue

2006-03-21 Thread Mark Graber

I'm getting confused by this thread.  Last time I looked, Doug Laycock
was not regarded as one of the central legal thinkers for the religious
right.  No doubt he has some positions that are similar.  I also agree
with the Pope that the death penalty is inconsistent with human dignity.
 Does not make me a Catholic.

But I would like to hear Doug elaborate a little more on the
public/private distinction.  Consider the following hypothetical, which
may or may not be incredibly unrealistic.  The CYO runs a basketball
league, open to all children 5-18, but all coaches must be Catholic. 
There is no law preventing anyone else from running a basketball league,
but because a very high percentage of the community is Catholic, doing
so is practically impossible.  If, however, the CYO were to fold, a more
inclusive basketball league would develop.  On these set of facts, may
the town require the CYO to use otherwise qualified non-Catholic
coaches?

MAG

 [EMAIL PROTECTED] 3/21/2006 1:46:08 PM 
But the Religious Right wants far more than the right to live their
own
lives in their faith, and to run their own institutions.  They want
to
manage the lives of others whom, for religious reasons, they believe
are sinners.  

 

I agree with Alan and Marty on this one.

  _  


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RE: Catholic Charities Issue

2006-03-21 Thread Scarberry, Mark

I assume then that Michael would have no problem with the law requiring the
Catholic Church to ordain women.

Mark Scarberry
Pepperdine 

-Original Message-
From: [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics
Sent: 3/21/2006 10:31 AM
Subject: RE: Catholic Charities Issue

Virtually all of the religious claims that you refer to involve efforts
to exclude, marginalize or, perhaps, even worse.  Of course those who
are excluded or marginalized, or worse, would resist, as well they
should. 

  _  

From: Marc Stern [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 21, 2006 8:48 AM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

You could add the op[position to enhance d protection for religions
workers in the workplace because such legislation might empower claims
impinging on gay rights, gay groups that sued Yeshiva University over it
refusal to allow gay couples access to  a married only dorm in its
medical school, the opposition to an exemption for Catholic Charities in
Boston, the suit over doctors refusing to assist  lesbian couple have a
child by artificial insemination and on and onWhat ever the merits of
particular suits, there has been as pattern of opposition to religious
claims in the gay rights context. 

.

Marc Stern

f

  _  

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

  _  

From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Could you give some examples of gay rights proponents who ignore
religious liberty interests?  

Doug Laycock's Answer:  The gay rights groups organized and led the
charge that killed the Religious Liberty Protection Act.  They did it by
insisting on a categorical exception for all civil rights cases,
refusing to rely on the case law that most civil rights claims present
compelling interests or their own view that all civil rights claims
present compelling interests.

All civil rights claims would include challenges to the male-only
priesthood.  It would include claims of religious discrimination in
awarding membership or leadership positions in churches and other
religions organizations.  In Colorado and several other states, civil
rights laws prohibit employers from penalizing any lawful off-the-job
activity.  So civil rights claims include any immoral, disreputable,
but not illegal act you can think of:  using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful
casinos, and similar things that religious organizations might tell
their employees not to do.  The gay rights groups and the coalition of
civil rights organizations they put together refused to listen to any
such argument.  They wanted a global and absolute civil rights
exception; take it or leave it.  They produced party-line gridlock over
that demand.

At the state and local level, gay rights groups insist on no religious
exemption to gay rights laws or, if they can't prevail on that, the
narrowest possible definition of religious organizations entitled to
exemption.

I assume it was these recurring political conflicts, in which gay rights
groups simply refuse to recognize any competing interest on the other
side of the table, that Alan Brownstein was referring to, and not the
occasional acts of disruptive protest.

Of course many of the conservative religious groups are equally
intractable with respect to gay rights organizations.  In the particular
case of RLPA, most of them were at all time willing to concede the
compelling-interest exception, fully understanding that courts were
likely to find a compelling interest in most civil rights claims.

Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX  78705

512-232-1341

512-471-6988 (fax)

 ATT5573046.txt 
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RE: Catholic Charities Issue

2006-03-21 Thread Newsom Michael

I would.  I agree with you that when it comes to selection of clergy,
special considerations come into play that are not present in the other
cases.

-Original Message-
From: Scarberry, Mark [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 21, 2006 1:54 PM
To: 'Law  Religion issues for Law Academics '
Subject: RE: Catholic Charities Issue

I assume then that Michael would have no problem with the law requiring
the
Catholic Church to ordain women.

Mark Scarberry
Pepperdine 

-Original Message-
From: [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics
Sent: 3/21/2006 10:31 AM
Subject: RE: Catholic Charities Issue

Virtually all of the religious claims that you refer to involve efforts
to exclude, marginalize or, perhaps, even worse.  Of course those who
are excluded or marginalized, or worse, would resist, as well they
should. 

  _  

From: Marc Stern [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 21, 2006 8:48 AM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

You could add the op[position to enhance d protection for religions
workers in the workplace because such legislation might empower claims
impinging on gay rights, gay groups that sued Yeshiva University over it
refusal to allow gay couples access to  a married only dorm in its
medical school, the opposition to an exemption for Catholic Charities in
Boston, the suit over doctors refusing to assist  lesbian couple have a
child by artificial insemination and on and onWhat ever the merits
of
particular suits, there has been as pattern of opposition to religious
claims in the gay rights context. 

.

Marc Stern

f

  _  

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, March 20, 2006 8:25 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

  _  

From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Could you give some examples of gay rights proponents who ignore
religious liberty interests?  

Doug Laycock's Answer:  The gay rights groups organized and led the
charge that killed the Religious Liberty Protection Act.  They did it by
insisting on a categorical exception for all civil rights cases,
refusing to rely on the case law that most civil rights claims present
compelling interests or their own view that all civil rights claims
present compelling interests.

All civil rights claims would include challenges to the male-only
priesthood.  It would include claims of religious discrimination in
awarding membership or leadership positions in churches and other
religions organizations.  In Colorado and several other states, civil
rights laws prohibit employers from penalizing any lawful off-the-job
activity.  So civil rights claims include any immoral, disreputable,
but not illegal act you can think of:  using pornography, appearing in
pornography, moonlighting at a strip club, gambling heavily in lawful
casinos, and similar things that religious organizations might tell
their employees not to do.  The gay rights groups and the coalition of
civil rights organizations they put together refused to listen to any
such argument.  They wanted a global and absolute civil rights
exception; take it or leave it.  They produced party-line gridlock over
that demand.

At the state and local level, gay rights groups insist on no religious
exemption to gay rights laws or, if they can't prevail on that, the
narrowest possible definition of religious organizations entitled to
exemption.

I assume it was these recurring political conflicts, in which gay rights
groups simply refuse to recognize any competing interest on the other
side of the table, that Alan Brownstein was referring to, and not the
occasional acts of disruptive protest.

Of course many of the conservative religious groups are equally
intractable with respect to gay rights organizations.  In the particular
case of RLPA, most of them were at all time willing to concede the
compelling-interest exception, fully understanding that courts were
likely to find a compelling interest in most civil rights claims.

Douglas Laycock

University of Texas Law School

727 E. Dean Keeton St.

Austin, TX  78705

512-232-1341

512-471-6988 (fax)

 ATT5573046.txt 
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RE: Catholic Charities Issue

2006-03-21 Thread Douglas Laycock

I said years ago, in a piece on Bob Jones, that when the religious
sector takes over too large a percentage of a public function (a rare
event but not impossible) it should lose its right to exemption and
become subject to nondiscrimination rules.


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

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
Sent: Tuesday, March 21, 2006 12:54 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Catholic Charities Issue

I'm getting confused by this thread.  Last time I looked, Doug Laycock
was not regarded as one of the central legal thinkers for the religious
right.  No doubt he has some positions that are similar.  I also agree
with the Pope that the death penalty is inconsistent with human dignity.
 Does not make me a Catholic.

But I would like to hear Doug elaborate a little more on the
public/private distinction.  Consider the following hypothetical, which
may or may not be incredibly unrealistic.  The CYO runs a basketball
league, open to all children 5-18, but all coaches must be Catholic. 
There is no law preventing anyone else from running a basketball league,
but because a very high percentage of the community is Catholic, doing
so is practically impossible.  If, however, the CYO were to fold, a more
inclusive basketball league would develop.  On these set of facts, may
the town require the CYO to use otherwise qualified non-Catholic
coaches?

MAG

 [EMAIL PROTECTED] 3/21/2006 1:46:08 PM 
But the Religious Right wants far more than the right to live their own
lives in their faith, and to run their own institutions.  They want to
manage the lives of others whom, for religious reasons, they believe
are sinners.  

 

I agree with Alan and Marty on this one.

  _  


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RE: Catholic Charities Issue

2006-03-20 Thread Newsom Michael









No, it really isnt nonsense. Anti-gay
violence exists on a far larger scale than you are prepared to admit. Sorry.











From: Brad M Pardee
[mailto:[EMAIL PROTECTED] 
Sent: Monday, March 13, 2006 11:55
AM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue






Nonsense. The number of people who believe they
have the responsibility to bash in gay heads is a minute percentage
of those whose faith teaches that sexual intimacy is reserved for heterosexual
monogamous marriage, just as those who blow up abortion clinics are a minute
percentage of those faith teaches that legalized abortion is wrong. Assault
is never a matter of religious liberty and I can't begin to fathom why you would
see the two as intertwined in any way whatsoever. That fact that a
handful of fools who should be locked up think so doesn't mean that the vast
majority of those who fight for religious liberty are on their side. I've
seen enough of your postings to know that you know better than that.


Brad


Michael
wrote on 03/13/2006 10:22:58 AM:

 The fact that there are laws in place is,
often times, scant comfort.
 The religious liberty issue may, in the final
analysis for some people,
 merely mean the liberty to bash in gay heads,
all in name of God.






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RE: Catholic Charities Issue

2006-03-20 Thread Mark Graber

I am not sure there is a real conflict here.  Let us suppose for
arguments sake that 50 million Americans believe that sexual intimacy
ought to be reserved for heterosexual marriage.  Let us further suppose
that only 50 thousand of these citizens believe this precept should be
enforced by violence.  It would be the case both that they represent a
minute percentage and there is a lot of violence.

MAG (who is making figures up just to make a point)

 [EMAIL PROTECTED] 3/20/2006 12:46:34 PM 
No, it really isn't nonsense.  Anti-gay violence exists on a far
larger
scale than you are prepared to admit.  Sorry.

 

  _  

From: Brad M Pardee [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 13, 2006 11:55 AM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

 


Nonsense.  The number of people who believe they have the
responsibility
to bash in gay heads is a minute percentage of those whose faith
teaches that sexual intimacy is reserved for heterosexual monogamous
marriage, just as those who blow up abortion clinics are a minute
percentage of those faith teaches that legalized abortion is wrong.
Assault is never a matter of religious liberty and I can't begin to
fathom why you would see the two as intertwined in any way whatsoever.
That fact that a handful of fools who should be locked up think so
doesn't mean that the vast majority of those who fight for religious
liberty are on their side.  I've seen enough of your postings to know
that you know better than that. 

Brad 

Michael wrote on 03/13/2006 10:22:58 AM:

 The fact that there are laws in place is, often times, scant
comfort.
 The religious liberty issue may, in the final analysis for some
people,
 merely mean the liberty to bash in gay heads, all in name of God.

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RE: Catholic Charities Issue

2006-03-20 Thread Newsom Michael

-Original Message-
From: Volokh, Eugene [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 20, 2006 1:20 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Hmm; is there any data that would support this assertion?  (I
take it that the assertion is limited to political violence.)  I realize
that we're straying a bit from the law of government and religion, but
since this factual claim was made in the context of a discussion of a
Religion Clauses issue, it seems to me worthwhile to inquire into how
accurate this claim is.

Eugene

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Monday, March 20, 2006 10:16 AM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Actually Glendon's point is debatable.  In the United States, the
predominant pattern of violence is of violence visited by
traditionalists on progressives, not the other way around.

From: Rick Duncan [mailto:[EMAIL PROTECTED] 
Sent: Thursday, March 16, 2006 12:16 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Jeff Jacoby has an excellent column in today's Boston Globe here. And
here is a money quote:

Note well: Catholic Charities made no effort to block same-sex couples
from adopting. It asked no one to endorse its belief that homosexual
adoption is wrong. It wanted only to go on finding loving parents for
troubled children, without having to place any of those children in
homes it deemed unsuitable. Gay or lesbian couples seeking to adopt
would have remained free to do so through any other agency. In at least
one Massachusetts diocese, in fact, the standing Catholic Charities
policy had been to refer same-sex couples to other adoption agencies.

The church's request for a conscience clause should have been
unobjectionable, at least to anyone whose pri! ority is rescuing kids
from foster care. Those who spurned that request out of hand must
believe that adoption is designed primarily for the benefit of adults,
not children. The end of Catholic Charities' involvement in adoption may
suit the Human Rights Campaign. But it can only hurt the interests of
the damaged and vulnerable children for whom Catholic Charities has long
been a source of hope.
Is this a sign of things to come? In the name of nondiscrimination, will
more states force religious organizations to swallow their principles or
go out of business? Same-sex adoption is becoming increasingly common,
but it is still highly controversial. Millions of Americans would
readily agree that gay and lesbian couples can make loving parents, yet
insist nevertheless that kids are better off with loving parents of both
sexes. That is neither a radical view nor an intolerant one, but if the
kneecapping of Catholic Charities is any indication, it may soon be
forbidden.

''As much as one may wish to live and let live, Harvard Law professor
Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in
Massachusetts, ''the experience in other countries reveals that once
these arrangements become law, there will be no live-and-let-live policy
for those who differ. Gay-marriage proponents use the language of
openness, tolerance, and diversity, yet one foreseeable effect of their
success will be to usher in an era of intolerance and discrimination . .
. Every person and every religion that disagrees will be labeled as
bigoted and openly discriminated against. The ax will fall most heavily
on religious persons and groups that don't go along. Religious
institutions will be hit with lawsuits if they refuse to compromise
their principles.

The ax fell on Catholic Charities just two years after those words were
written. Where will it! have fallen two years hence?

Mary Ann's point is well-taken. If A, then B.

I wish I had thought of that!

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! Mail
Bring photos to life! New PhotoMail makes sharing a breeze. 
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RE: Catholic Charities Issue

2006-03-20 Thread Douglas Laycock

From: [EMAIL PROTECTED] on behalf of Newsom Michael
Sent: Mon 3/20/2006 3:36 PM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue

Could you give some examples of gay rights proponents who ignore religious 
liberty interests?  

Doug Laycock's Answer:  The gay rights groups organized and led the charge that 
killed the Religious Liberty Protection Act.  They did it by insisting on a 
categorical exception for all civil rights cases, refusing to rely on the case 
law that most civil rights claims present compelling interests or their own 
view that all civil rights claims present compelling interests.

All civil rights claims would include challenges to the male-only priesthood. 
 It would include claims of religious discrimination in awarding membership or 
leadership positions in churches and other religions organizations.  In 
Colorado and several other states, civil rights laws prohibit employers from 
penalizing any lawful off-the-job activity.  So civil rights claims include 
any immoral, disreputable, but not illegal act you can think of:  using 
pornography, appearing in pornography, moonlighting at a strip club, gambling 
heavily in lawful casinos, and similar things that religious organizations 
might tell their employees not to do.  The gay rights groups and the coalition 
of civil rights organizations they put together refused to listen to any such 
argument.  They wanted a global and absolute civil rights exception; take it or 
leave it.  They produced party-line gridlock over that demand.

At the state and local level, gay rights groups insist on no religious 
exemption to gay rights laws or, if they can't prevail on that, the narrowest 
possible definition of religious organizations entitled to exemption.

I assume it was these recurring political conflicts, in which gay rights groups 
simply refuse to recognize any competing interest on the other side of the 
table, that Alan Brownstein was referring to, and not the occasional acts of 
disruptive protest.

Of course many of the conservative religious groups are equally intractable 
with respect to gay rights organizations.  In the particular case of RLPA, most 
of them were at all time willing to concede the compelling-interest exception, 
fully understanding that courts were likely to find a compelling interest in 
most civil rights claims.

Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)
winmail.dat___
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RE: Catholic Charities Issue

2006-03-17 Thread Marc Stern









For a case passing on similar issues in
the context of an agency that would only place children for adoption with Christians
see Scott v. Family Ministries, 65 Cal
app.3d 492,135 Cal Rptr 430(1976)

Marc Stern









From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Thursday, March 16, 2006
7:49 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue







By a remarkable coincidence, I have been reading J. Budziszewski's
wonderful book, The Revenge of
Conscience: Politics and the Fall of Man, as the story
about Catholic Charities has been breaking. It is a timely book to say the
least.But itis alsonot a book for everyone; some of you will no
doubt think it is ugly and shameful and even the
H word.











But some of you may find it full of wisdom and understanding. It is one
of those books which--about every two pages--I feel compelled to read a passage
aloud to my wife. It is a book I want my children to read. It is a book that
would make a greatone for CLS chapters to study together on those law
school campuses that still allow the CLS to meet. It is a book that would be
great to teach (as at least one reasonable point of view) in a seminar on
religious liberty and the sexual revolution.











I heartily recommend it to those of y! ou who care about traditional
faith, and sin and its personal and social consequences. 











Here is what First Things
said about it: A book to read alone and with others, and to give to those
who have forgotten what they know. Michael Novak says J. Bud writes
on conscience--its masks, its evasions, and its willful self-deceptions--better
than anyone in our time. A book to read and reread.











I know and likeJ. Bud, and I can't believe I didn't read this
book years ago. Here is a link
to Amazon.com. Heartily recommended for those who know that there are truths
thatwe can't not know no matter how hard we try to suppress
them.











Rick









Rick Duncan 
Welpton Professor of Law 
University of Nebraska
College of Law 
Lincoln, NE
 68583-0902












It's a funny thing about us human beings: not many of us doubt God's
existence and then start sinning. Most of us sin and then start doubting His
existence. --J. Budziszewski (The Revenge of Conscience)











Once again the ancient maxim is vindicated, that the perversion
of the best is the worst.-- Id.











Yahoo! Mail
Use
Photomail to share photos without annoying attachments.






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Jeff Jacoby has an excellent column in today's Boston Globe here. And here is a money quote: Note well: Catholic Charities made no effort to block same-sex couples from adopting. It asked no one to endorse its belief that homosexual adoption is wrong. It wanted only to go on finding loving parents for troubled children, without having to place any of those children in homes it deemed unsuitable. Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies.The church's request for a conscience clause should have been unobjectionable, at least to anyone whose pri!
ority is
rescuing kids from foster care. Those who spurned that request out of hand must believe that adoption is designed primarily for the benefit of adults, not children. The end of Catholic Charities' involvement in adoption may suit the Human Rights Campaign. But it can only hurt the interests of the damaged and vulnerable children for whom Catholic Charities has long been a source of hope. Is this a sign of things to come? In the name of nondiscrimination, will more states force religious organizations to swallow their principles or go out of business? Same-sex adoption is becoming increasingly common, but it is still highly controversial. Millions of Americans would readily agree that gay and lesbian couples can make loving parents, yet insist nevertheless that kids are better off with loving parents of both sexes. That is neither a radical view nor an intolerant one, but if the kneecapping of Catholic Charities is any indication, it may soon be
forbidden.''As much as one may wish to live and let live," Harvard Law professor Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in Massachusetts, ''the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles."The ax fell on Catholic Charities just two years after those words were written. Where will it!
have
fallen two years hence? Mary Ann's point is well-taken. If A, then B.I wish I had thought of that!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! Mail
Bring photos to life! New PhotoMail makes sharing a breeze.
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Re: Catholic Charities Issue

2006-03-16 Thread Ed Brayton

Rick Duncan wrote:

Jeff Jacoby has an excellent column in today's Boston Globe here.
And here is a money quote:

I think that Glendon's quote at the end is a bit over the top and she
doesn't make a distinction between discrimination and withdrawal of
government funding. However, I tend to agree with Jacoby's argument and
think that a religious exemption from this law is a reasonable middle
ground. Having multiple groups with different rules all helping
facilitate adoptions means that the CC's position is not actually going
to diminish the state's goal of allowing gays to adopt, so it seems to
me that such a compromise is the least restrictive means of achieving
the state's purpose in passing the rule (with which I wholeheartedly
agree). If CAtholic Charities was the only provider and their religious
stance prevented gays from adopting and frustrated the intent of the
law, the situation would be quite different. But it seems to me that
the state of Massachusetts can achieve both goals here, opening
opportunities for gays to adopt children and allowing Catholic
Charities to continue to facilitate adoptions without violating their
faith.

Ed Brayton

Note well: Catholic Charities made no effort to block
same-sex couples from adopting. It asked no one to endorse its belief
that homosexual adoption is wrong. It wanted only to go on finding
loving parents for troubled children, without having to place any of
those children in homes it deemed unsuitable. Gay or lesbian couples
seeking to adopt would have remained free to do so through any other
agency. In at least one Massachusetts diocese, in fact, the standing
Catholic Charities policy had been to refer same-sex couples to other
adoption agencies.

The church's request for a conscience clause should have
been unobjectionable, at least to anyone whose pri! ority is rescuing
kids from foster care. Those who spurned that request out of hand must
believe that adoption is designed primarily for the benefit of adults,
not children. The end of Catholic Charities' involvement in adoption
may suit the Human Rights Campaign. But it can only hurt the interests
of the damaged and vulnerable children for whom Catholic Charities has
long been a source of hope.
Is this a sign of things to come? In the name of
nondiscrimination, will more states force religious organizations to
swallow their principles or go out of business? Same-sex adoption is
becoming increasingly common, but it is still highly controversial.
Millions of Americans would readily agree that gay and lesbian couples
can make loving parents, yet insist nevertheless that kids are better
off with loving parents of both sexes. That is neither a radical view
nor an intolerant one, but if the kneecapping of Catholic Charities is
any indication, it may soon be forbidden.

''As much as one may wish to live and let live," Harvard Law
professor Mary Ann Glendon wrote in 2004, during the same-sex marriage
debate in Massachusetts, ''the experience in other countries reveals
that once these arrangements become law, there will be no
live-and-let-live policy for those who differ. Gay-marriage proponents
use the language of openness, tolerance, and diversity, yet one
foreseeable effect of their success will be to usher in an era of
intolerance and discrimination . . . Every person and every religion
that disagrees will be labeled as bigoted and openly discriminated
against. The ax will fall most heavily on religious persons and groups
that don't go along. Religious institutions will be hit with lawsuits
if they refuse to compromise their principles."

The ax fell on Catholic Charities just two years after those
words were written. Where will it! have fallen two years hence?

Mary Ann's point is well-taken. If A, then B.

I wish I had thought of that!

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

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Re: Catholic Charities Issue

2006-03-16 Thread Lupu

Perhaps there is a fearful symmetry between 1) the Catholic 
Church's  position on same-sex marriage (i.e., we don't want the 
state to give its imprimatur to such arrangements, even though the 
arrangements will not be imposed coercively on the church -- the 
church can still refuse to perform or recognize same-sex marriage, 
on religious grounds, whether or not the law recognizes it) , and 2) 
the state' s position on Catholic Charities participation in the 
adoption process (i.e, we don't want the Church to give its 
imprimatur to discrimination against gay and lesbian couples in the 
adoption process, even though the Church's policy will not be 
imposed coercively on other adoption agencies, public or private).   
In both cases, one side is convinced that the other side is morally 
obtuse, and hopes to influence or change that moral obtuseness 
whether or not it can satisfy its own goals despite the moral 
obtuseness of others. (If the conflict were about inter-racial 
marriage -- a church that opposed state recognition, versus a state 
that opposed a church's hostility to such marriage, as manifested in 
its adoption protocols -- this kind of oppositional symmetry would be 
obvious.  And we all would react differently, because the ground in 
that fight is no longer contested, as this one is now, but may not be 
20 years from now.)  Does the fact that the state has formal power 
over the Church (it can de-license its adoption agency status) 
destroy this symmetry?  The Church has (informal) power over the 
state -- it can strongly influence its adherents to resist and oppose 
state policy.

On 16 Mar 2006 at 15:30, Ed Brayton wrote:

 
 Rick Duncan wrote: 
 Jeff Jacoby has an excellent column in today's Boston Globe here.
 And here is a money quote:
 
 I think that Glendon's quote at the end is a bit over the top and she
 doesn't make a distinction between discrimination and withdrawal of
 government funding. However, I tend to agree with Jacoby's argument
 and think that a religious exemption from this law is a reasonable
 middle ground. Having multiple groups with different rules all helping
 facilitate adoptions means that the CC's position is not actually
 going to diminish the state's goal of allowing gays to adopt, so it
 seems to me that such a compromise is the least restrictive means of
 achieving the state's purpose in passing the rule (with which I
 wholeheartedly agree). If CAtholic Charities was the only provider and
 their religious stance prevented gays from adopting and frustrated the
 intent of the law, the situation would be quite different. But it
 seems to me that the state of Massachusetts can achieve both goals
 here, opening opportunities for gays to adopt children and allowing
 Catholic Charities to continue to facilitate adoptions without
 violating their faith. 
 
 Ed Brayton
 
 
 Note well: Catholic Charities made no effort to block same-sex couples
 from adopting. It asked no one to endorse its belief that homosexual
 adoption is wrong. It wanted only to go on finding loving parents for
 troubled children, without having to place any of those children in
 homes it deemed unsuitable. Gay or lesbian couples seeking to adopt
 would have remained free to do so through any other agency. In at
 least one Massachusetts diocese, in fact, the standing Catholic
 Charities policy had been to refer same-sex couples to other adoption
 agencies.
 
 The church's request for a conscience clause should have been
 unobjectionable, at least to anyone whose pri! ority is rescuing kids
 from foster care. Those who spurned that request out of hand must
 believe that adoption is designed primarily for the benefit of adults,
 not children. The end of Catholic Charities' involvement in adoption
 may suit the Human Rights Campaign. But it can only hurt the interests
 of the damaged and vulnerable children for whom Catholic Charities has
 long been a source of hope. Is this a sign of things to come? In the
 name of nondiscrimination, will more states force religious
 organizations to swallow their principles or go out of business?
 Same-sex adoption is becoming increasingly common, but it is still
 highly controversial. Millions of Americans would readily agree that
 gay and lesbian couples can make loving parents, yet insist
 nevertheless that kids are better off with loving parents of both
 sexes. That is neither a radical view nor an intolerant one, but if
 the kneecapping of Catholic Charities is any indication, it may soon
 be forbidden.
 
 ''As much as one may wish to live and let live, Harvard Law professor
 Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in
 Massachusetts, ''the experience in other countries reveals that once
 these arrangements become law, there will be no live-and-let-live
 policy for those who differ. Gay-marriage proponents use the language
 of openness, tolerance, and diversity, yet one foreseeable effect of
 their success will be to usher in

RE: Catholic Charities Issue

2006-03-16 Thread Scarberry, Mark

Suppose the law prohibited an adoption agency from discriminating on the
basis of religion or political views, even if the parent(s) giving up the
children want the children to be raised by adoptive parents who share their
religious or political values. Would a religious adoption agency have the
constitutional right to discriminate? For example, if the parent(s) giving
up the child for adoption (or who had died without close relatives) were
religious Jews who had stated that they wanted the children to be adopted by
religious Jews, would the adoption agency have a constitutional right
(perhaps a hybrid right under Employment Div. of Oregon v. Smith and
Wisconsin v. Yoder) to place the child with adoptive parents who were
religious Jews, and thus to discriminate against neo-Nazi pagans? (You may
detect an oblique connection to a very recent and I think detestable Law
and Order SVU episode, in which, improbably, white parents adopted a black
child and then arranged for a neo-Nazi group to murder the child so that
they could collect on life insurance.)

If so, then could Catholic Charities serve those children whose birth
parents wanted the children to be placed with traditional families
(including both a mother and a father), and in doing so have a
constitutional right not to consider same-sex couples? Or whose birth
parents want the child to be placed either with a traditional family or with
a single adoptive parent who at least is open to eventually forming a
traditional marriage that could then provide another parent of the opposite
sex for the child? Can the state prohibit Catholic Charities from asking
birth parentsabout their wishes? From suggesting that a traditional family
is preferable? From referring birth parents to other adoption agencies if
they do not express a preference in line with CC's views?

Previous posts have suggested that adoption agencies serve the adoptive
parent(s) as well as the child; perhaps they serve the birth parent(s), as
well.

Mark Scarberry
Pepperdine

-Original Message-
From: [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics; Law  Religion issues for Law
Academics
Sent: 3/16/2006 2:04 PM
Subject: Re: Catholic Charities Issue

Sorry if I missed it, but has anyone yet posted any reliable information
about what it is, exactly, that Massachusetts will deny Catholic
Charities if CC does not agree to facilitate adoptions to gays and
lesbians?  Without a license, what freedom does CC stand to lose, and
how will it affect CC's religious exercise?  (I assume, for instance,
that the Church will still be permitted to inform prospective parents
about the availability of particular children in need of a home.)  I did
a quick search of Massachusetts statutory law but didn't find anything.
I'm finding it increasingly difficult to understand this case and to
evaluate both the legal claims and the arguments for and against a
permissive accommodation without knowing these basic facts about the
operation of the law and the effect on CC's religious liberty.

Thanks in advance for any inforrmation.  


 -- Original message --
From: Lupu [EMAIL PROTECTED]
 Perhaps there is a fearful symmetry between 1) the Catholic 
 Church's  position on same-sex marriage (i.e., we don't want the 
 state to give its imprimatur to such arrangements, even though the 
 arrangements will not be imposed coercively on the church -- the 
 church can still refuse to perform or recognize same-sex marriage, 
 on religious grounds, whether or not the law recognizes it) , and 2) 
 the state' s position on Catholic Charities participation in the 
 adoption process (i.e, we don't want the Church to give its 
 imprimatur to discrimination against gay and lesbian couples in the 
 adoption process, even though the Church's policy will not be 
 imposed coercively on other adoption agencies, public or private).   
 In both cases, one side is convinced that the other side is morally 
 obtuse, and hopes to influence or change that moral obtuseness 
 whether or not it can satisfy its own goals despite the moral 
 obtuseness of others. (If the conflict were about inter-racial 
 marriage -- a church that opposed state recognition, versus a state 
 that opposed a church's hostility to such marriage, as manifested in 
 its adoption protocols -- this kind of oppositional symmetry would be 
 obvious.  And we all would react differently, because the ground in 
 that fight is no longer contested, as this one is now, but may not be 
 20 years from now.)  Does the fact that the state has formal power 
 over the Church (it can de-license its adoption agency status) 
 destroy this symmetry?  The Church has (informal) power over the 
 state -- it can strongly influence its adherents to resist and oppose 
 state policy.
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RE: Catholic Charities Issue

2006-03-16 Thread Rick Duncan

By a remarkable coincidence, I have been reading J. Budziszewski's wonderful book, The Revenge of Conscience: Politics and the Fall of Man, as the story about Catholic Charities has been breaking. It is a timely book to say the least.But itis alsonot a book for everyone; some of you will no doubt think it is "ugly" and "shameful" and even the "H" word.But some of you may find it full of wisdom and understanding. It is one of those books which--about every two pages--I feel compelled to read a passage aloud to my wife. It is a book I want my children to read. It is a book that would make a greatone for CLS chapters to study together on those law school campuses that still allow the CLS to meet. It is a book that would be great to teach (as at least one reasonable point of view) in a seminar on religious liberty and the sexual revolution.I heartily recommend it to those of y!
ou who
care about traditional faith, and sin and its personal and social consequences. Here is what First Things said about it: "A book to read alone and with others, and to give to those who have forgotten what they know." Michael Novak says J. Bud "writes on conscience--its masks, its evasions, and its willful self-deceptions--better than anyone in our time. A book to read and reread."I know and likeJ. Bud, and I can't believe I didn't read this book years ago. Here is a link to Amazon.com. Heartily recommended for those who know that there are truths that"we can't not know" no matter how hard we try to suppress them.Rick Rick Duncan Welpton Professor of Law
University of Nebraska College of Law Lincoln, NE 68583-0902"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience)"Once again the ancient maxim is vindicated, that the perversion of the best is the worst."-- Id.
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RE: Catholic Charities Issue

2006-03-14 Thread Rick Duncan

The editorial in today's Boston Globe was written by Dean John Garvey and the following excerpt relates to the discussion we have been having about the conflict between typical gay rights laws and religious liberty:It seems surprising that the state would want to put the Catholic Church out of the adoption business. Corporal works of mercy are no less important to the life of the Church than its sacramental ministry. Forbidding the Church to perform them is a serious blow to its religious liberty. Why would the government do that?One reason is that the Church refused to go along with the effort, enshrined in these regulations and blessed in Goodridge v. Department of Public Health, to give gay families the same legal rights as straight families.
But Catholic Charities did not obstruct that effort; it only declined to assist it. Is our commitment to equality so strong that we are willing to put Catholic Charities out of business because it won't promote an agenda that it views as morally wrong?The issue is not whether the Church or the state has the better of the debate over gay families. When freedom is at stake, the issue is never whether the claimant is right. Freedom of the press protects publication of pornography, blasphemy, and personal attacks. Freedom of religion is above all else a protection for ways of life that society views with skepticism or distasteRespect for religious liberty is a good thing. We should not lose sight of it in an effort to achieve other social go!
als. To
paraphrase Barry Goldwater, extremism in the defense of equality can be a vice. I can't find anything to disagree with inthat eloquent statement of the problem.Rick Duncan Anthony Picarello [EMAIL PROTECTED] wrote: Although I share Marci's general concern about the risks associated with religious organizations taking government funds, I'm pretty sure that's not the driving force in this case. Even before the government would get to the point of pulling its funding to Catholic Charities (assuming there is some, which I do), the government would pull CC's license to provide adoption services for anyone. Assuming its factual accuracy, this op-ed in today's Globe confirms the existence of the additional lic!
ensing
prohibition (and its an interesting read in any event):http://www.boston.com/news/globe/editorial_opinion/oped/articles/2006/03/14/state_putting_church_out_of_adoption_business?mode=PFSo there isn't just a financial incentive at stake here, but a flat prohibition on the service, and so a more severe burden by any measure (as Marty's original question suggests). I would add that the withdrawal of government benefits (specifically, unemployment benefits) is precisely what was found to impose a "substantial burden" in Sherbert, Hobbie, Thomas, etc., and precisely because government forced a choice between following religious belief and receiving that government benefit. The SCt has reaffirmed these very cases for this very principle in Locke. So to suggest that it's beyond the pale to claim that this kind of government burden is a "substantial burden" is to overstate the matter just a bit.-Original Message- From:
[EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Sat 3/11/2006 7:02 PM To: religionlaw@lists.ucla.edu Cc: Subject: Re: Catholic Charities IssueWhat this dispute re: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs. Government funding always comes with strings. In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way. A tiny portion is paid by Catholics. I would assume that on its own dime, CC can facilitate adoptions, but feel free to correct that assumption. The question is whether it is going to accept the condition placed on it by the government's money. CC is not required to take the government's money, right? This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that !
it is
entitled to that largesse and that the government should have no power to place strings on the money. There is no First Amendment problem and certainly no "substantial burden" under RFRA. If "substantial burden" means that religious entities can force the government to give them money on their own terms, we are quite literally on the other side of Alice's looking glass.Marci___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.

Re: Catholic Charities Issue

2006-03-13 Thread Brad Pardee

Michael Newsom wrote, Being 'marginalized' and called a 'homophobe' is not 
quite the same thing as having your brains beat in because you are gay.  To 
suppose that the two are morally equivalent is to make, with respect, a 
categorical error.


It's true that these two are not morally equivalent.  However, if a person 
is assaulted on the basis of their sexual orientation (or on the basis of 
anything else, for that matter), there are laws in place to punish those 
guilty of the attack (such as the murderers of Matthew Shepard, who are both 
serving life sentences without possibility of parole).  In contrast, the 
marginilization being described is being done BY the law, not in violation 
of the law.  That is where the issue of religious liberty comes in.


Brad 


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RE: Catholic Charities Issue

2006-03-13 Thread Rick Duncan

I think Christopher Lund captures a valuable insight
about competing notions of identity. My friend from
UT, J Bud, makes a point that strike me as similar
when he talks about our various zones of tolerance:

The bottom line is that Neutrality is no more
coherent in the matter of religious tolerance than it
is in tolerance of any other sort. What you can
tolerate pivots on your ultimate concern. Because
different ultimate concerns ordain different zones of
tolerance, social consensus is possible only at the
points where these zones overlap. Note well: The
greater the resemblance of contending concerns, the
greater the overlap of their zones of tolerance. The
less the resemblance of contending concerns, the less
the overlap of their zones of tolerance. Should
contending concerns become sufficiently unlike, their
zones of tolerance no longer intersect at all.
Consensus vanishes.

This, I believe, is our current trajectory. The
embattled term 'culture war' is not inflammatory; it
is merely inexact. And we can expect the war to grow
worse. The reason for this is that our various gods
ordain not only different zones of tolerance, but
different norms to regulate the dispute among
themselves. True tolerance is not well tolerated. For
although the God of some of the disputants ordains
that they love and persuade their opponents, the idols
of some of the others ordain no such thing.

J. Budziszewski, The Revenge of Conscience (1999).

--- Christopher C. Lund [EMAIL PROTECTED] wrote:

 Perhaps there is also a linkage between gay rights
 and religious liberty in 
 the sense that both are largely about identity. 
 Precisely because religious 
 and sexual identity are not entirely immutable
 (although neither seems to be 
 wholly a matter of unconstrained choice), the
 government can leverage people 
 away from being who they, in a deep sense, really
 are.
 
 I heard one gay-rights speaker once conclude by
 saying something like: This 
 is who I am; I can be no other.  I don't honestly
 think she meant to sound 
 like Martin Luther before Emperor Charles at the
 Diet of Worms (I cannot, 
 and I will not recant.  Here I stand; I can do no
 other.  God help me.  
 Amen.)  Perhaps she didn't even recognize the
 resemblance.  But, there it 
 is.
 
 


  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



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RE: Catholic Charities Issue

2006-03-13 Thread Mark Graber

I guess I get more confused by this debate as it goes on.

1. Part of my confusion is on the debate over the status of gay
abortions in the Catholic Church.  I'm not sure why we are debating the
issue.  Presumably if the Catholic Bishops of Boston claim to have
religious reasons for not engaging in that practice, that ought to be
good enough for the rest of us.  Maybe a debate on that ought to go on
within the Catholic Church, but most of us have no say in that debate.

2. I'm also confused why it is anti-religious to insist that all
institutions that arrange for adoptions not discriminate against gay and
lesbian couples.  It may be wrong as a matter of public policy, but it
is not anti-religious per se.  Some religions believe that homosexuality
is immoral (or something to that effect).  My temple takes the position
that discrimination against homosexuals is immoral and inconsistent with
basic precepts of Judaism (other tempes disagree).  We might imagine
that the state might require particular parenting standards that differ
from those imposed by some religions.  Again, whether those parenting
standards are desirable is independent of whether they are consistent
with any religion.

3.  In short, Massachusetts seems to believe that discrimination
against same sex couples in the adoption process is (almost) as
inconsistent with state values as discrimination against different race
couples.  I think that is correct.  Rick Duncan thinks that is wrong. 
But our fight is on the merits of that proposition, because if I am
right on the moral proposition, the religious argument seems to fall.

Mark A. Graber
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RE: Catholic Charities Issue

2006-03-13 Thread Will Esser

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.)___
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RE: Catholic Charities Issue

2006-03-13 Thread Rick Duncan

Mark: I think Rust controls here, and, thus, the state
has the power to define the rules any way it wishes to
govern its own program. So CC had to walk if it wished
to obey God.

But the rule, although probably within the power of
the state to enact, has the effect of excluding--as
immoral--CC because of CC's religious convictions
about the nature of marriage and family. Thus, *your*
temple *could* be an adoption grantee under the
Massachusetts program, but the other temples you
mentioned--those with a different understanding of
the basic precepts of Judaism--would be(along with
CC)excluded from the program.

If your ultimate concern affirms homosexuality, you
end up being intolerant toward the other temples and
institutions like CC. Your tolerance toward homosexual
families looks like religious intolerance from the
perspective of the other temples and CC.

I suppose if Massachusetts wanted to be tolerant to
everyone, it would have many grantees (e.g. both your
temple and the other temples)and allow each grantee to
find good homes for children based upon its reasonable
(but different) understanding of marriage and family.
Your temple would include homosexual couples in its
search for parents and the other temple would not.
That is a way of ensuring inclusion of homosexual
couples without forcing CC (and the other temples) out
of the program. 

Cheers, Rick 

--- Mark Graber [EMAIL PROTECTED] wrote:

 I guess I get more confused by this debate as it
 goes on.
 
 1. Part of my confusion is on the debate over the
 status of gay
 abortions in the Catholic Church.  I'm not sure why
 we are debating the
 issue.  Presumably if the Catholic Bishops of Boston
 claim to have
 religious reasons for not engaging in that practice,
 that ought to be
 good enough for the rest of us.  Maybe a debate on
 that ought to go on
 within the Catholic Church, but most of us have no
 say in that debate.
 
 2. I'm also confused why it is anti-religious to
 insist that all
 institutions that arrange for adoptions not
 discriminate against gay and
 lesbian couples.  It may be wrong as a matter of
 public policy, but it
 is not anti-religious per se.  Some religions
 believe that homosexuality
 is immoral (or something to that effect).  My temple
 takes the position
 that discrimination against homosexuals is immoral
 and inconsistent with
 basic precepts of Judaism (other tempes disagree). 
 We might imagine
 that the state might require particular parenting
 standards that differ
 from those imposed by some religions.  Again,
 whether those parenting
 standards are desirable is independent of whether
 they are consistent
 with any religion.
 
 3.  In short, Massachusetts seems to believe that
 discrimination
 against same sex couples in the adoption process is
 (almost) as
 inconsistent with state values as discrimination
 against different race
 couples.  I think that is correct.  Rick Duncan
 thinks that is wrong. 
 But our fight is on the merits of that proposition,
 because if I am
 right on the moral proposition, the religious
 argument seems to fall.
 
 Mark A. Graber
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 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.
 


  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



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RE: Catholic Charities Issue

2006-03-13 Thread Mark Graber

As this post demonstrates, Rick and I simply disagree over good state
policy.  He would allow Catholic Charities to exclude.  I would not,
which practically excludes Catholic Charities from the program.  Both
both of us are being inclusive and exclusive, so discussion of tolerance
in the abstract does no work.  The crucial issue here is not tolerance,
but who ought to be allowed to exclude.

MAG


 [EMAIL PROTECTED] 3/13/2006 11:09:59 AM 
Mark: I think Rust controls here, and, thus, the state
has the power to define the rules any way it wishes to
govern its own program. So CC had to walk if it wished
to obey God.

But the rule, although probably within the power of
the state to enact, has the effect of excluding--as
immoral--CC because of CC's religious convictions
about the nature of marriage and family. Thus, *your*
temple *could* be an adoption grantee under the
Massachusetts program, but the other temples you
mentioned--those with a different understanding of
the basic precepts of Judaism--would be(along with
CC)excluded from the program.

If your ultimate concern affirms homosexuality, you
end up being intolerant toward the other temples and
institutions like CC. Your tolerance toward homosexual
families looks like religious intolerance from the
perspective of the other temples and CC.

I suppose if Massachusetts wanted to be tolerant to
everyone, it would have many grantees (e.g. both your
temple and the other temples)and allow each grantee to
find good homes for children based upon its reasonable
(but different) understanding of marriage and family.
Your temple would include homosexual couples in its
search for parents and the other temple would not.
That is a way of ensuring inclusion of homosexual
couples without forcing CC (and the other temples) out
of the program. 

Cheers, Rick 

--- Mark Graber [EMAIL PROTECTED] wrote:

 I guess I get more confused by this debate as it
 goes on.
 
 1. Part of my confusion is on the debate over the
 status of gay
 abortions in the Catholic Church.  I'm not sure why
 we are debating the
 issue.  Presumably if the Catholic Bishops of Boston
 claim to have
 religious reasons for not engaging in that practice,
 that ought to be
 good enough for the rest of us.  Maybe a debate on
 that ought to go on
 within the Catholic Church, but most of us have no
 say in that debate.
 
 2. I'm also confused why it is anti-religious to
 insist that all
 institutions that arrange for adoptions not
 discriminate against gay and
 lesbian couples.  It may be wrong as a matter of
 public policy, but it
 is not anti-religious per se.  Some religions
 believe that homosexuality
 is immoral (or something to that effect).  My temple
 takes the position
 that discrimination against homosexuals is immoral
 and inconsistent with
 basic precepts of Judaism (other tempes disagree). 
 We might imagine
 that the state might require particular parenting
 standards that differ
 from those imposed by some religions.  Again,
 whether those parenting
 standards are desirable is independent of whether
 they are consistent
 with any religion.
 
 3.  In short, Massachusetts seems to believe that
 discrimination
 against same sex couples in the adoption process is
 (almost) as
 inconsistent with state values as discrimination
 against different race
 couples.  I think that is correct.  Rick Duncan
 thinks that is wrong. 
 But our fight is on the merits of that proposition,
 because if I am
 right on the moral proposition, the religious
 argument seems to fall.
 
 Mark A. Graber
 ___
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 To subscribe, unsubscribe, change options, or get
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 cannot be viewed as private.  Anyone can subscribe
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 people can read the Web archives; and list members
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 others.
 


  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



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or wrongly) forward the

RE: Catholic Charities Issue

2006-03-13 Thread Scarberry, Mark

Mark Graber and Steve Jamar both seem to be arguing that certain activities,
including provision of adoption services, are secular activities that the
state should be free to regulate in any reasonable manner, even if the
regulation prevents a religious organization from providing the services.
Steve adds that provision of medical services is also a secular activity.

One problem I have with this approach is that the state has expanded its
activities into areas that traditionally were performed mostly by religious
groups, and now some of us (including it seems Mark and Steve) claim it has
a broad right to preempt those religious groups from providing the services
unless they do it under the state's rules. Religious groups were providing
social services long before the state got into the act, and they were doing
so as a part of their religious calling. Consider, for example, that James
(in the New Testament) says that the religion that is acceptable to God
involves look[ing] after widows and orphans in their distress. James 1:27.

Separation of church and state (a term I don't mind using, even though I'm
not a strict separationist) was supposed to provide independence each from
the other. When the state begins to say that churches cannot perform
traditional religious functions -- and even, perhaps, to tie this in with an
earlier thread, cannot even choose its clergy free of state regulation --
then separation of church and state has become subordination of church to
state. As Michael McConnell has pointed out, nonestablishment carried the
day in large part because it was thought that religion could only flourish
if it stood on its own; he points out that David Hume (not a friend of
organized religion) wanted the state to pay ministers because that would
make them less zealous. Separation was not meant to cause subordination.

I don't think Massachusetts yet is saying that the Catholic Church can't
assist with adoptions unless it does so in ways that violate its beliefs.
But Mark and Steve seem to think that would be fine. It's certainly one
thing to say that if the church wants the government's money then it must
follow the govt.'s rules (which seems to be all that has happened in
Massachusetts), but one of the reasons for nonestablishment (as Judge
McConnell again has pointed out) was to free the churches from having to do
things the government's way; as Michael has pointed out, people understood
in the late 1700s and early 1800s that he who pays the piper gets to call
the tune. So if the church is willing to pay its own way, state regulation
of its traditionally religious activities should be kept to a minimum.

There must be some limits even on the he who pays the piper principle, in
a nation in which the government has taken more and more of our resources,
thus requiring us to come to the govt. to beg to get back some of what has
been taken from us so that we can have the resources to act privately. (Thus
the controversy over vouchers and charitable choice.) I think this is a key
justification for deductibility of contributions to religious organizations,
and for being slow to condition such deductibility on the religious
organization doing things the state's way.

Mark Scarberry
Pepperdine



-Original Message-
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Sent: 3/13/2006 7:02 AM
Subject: RE: Catholic Charities Issue

I guess I get more confused by this debate as it goes on.

1. Part of my confusion is on the debate over the status of gay
abortions in the Catholic Church.  I'm not sure why we are debating the
issue.  Presumably if the Catholic Bishops of Boston claim to have
religious reasons for not engaging in that practice, that ought to be
good enough for the rest of us.  Maybe a debate on that ought to go on
within the Catholic Church, but most of us have no say in that debate.

2. I'm also confused why it is anti-religious to insist that all
institutions that arrange for adoptions not discriminate against gay and
lesbian couples.  It may be wrong as a matter of public policy, but it
is not anti-religious per se.  Some religions believe that homosexuality
is immoral (or something to that effect).  My temple takes the position
that discrimination against homosexuals is immoral and inconsistent with
basic precepts of Judaism (other tempes disagree).  We might imagine
that the state might require particular parenting standards that differ
from those imposed by some religions.  Again, whether those parenting
standards are desirable is independent of whether they are consistent
with any religion.

3.  In short, Massachusetts seems to believe that discrimination
against same sex couples in the adoption process is (almost) as
inconsistent with state values as discrimination against different race
couples.  I think that is correct.  Rick Duncan thinks that is wrong. 
But our fight is on the merits of that proposition, because if I am
right on the moral proposition, the religious argument

RE: Catholic Charities Issue

2006-03-13 Thread Newsom Michael

The fact that there are laws in place is, often times, scant comfort.
The religious liberty issue may, in the final analysis for some people,
merely mean the liberty to bash in gay heads, all in name of God.

-Original Message-
From: Brad Pardee [mailto:[EMAIL PROTECTED] 
Sent: Monday, March 13, 2006 5:44 AM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue

Michael Newsom wrote, Being 'marginalized' and called a 'homophobe' is
not 
quite the same thing as having your brains beat in because you are gay.
To 
suppose that the two are morally equivalent is to make, with respect, a 
categorical error.

It's true that these two are not morally equivalent.  However, if a
person 
is assaulted on the basis of their sexual orientation (or on the basis
of 
anything else, for that matter), there are laws in place to punish those

guilty of the attack (such as the murderers of Matthew Shepard, who are
both 
serving life sentences without possibility of parole).  In contrast, the

marginilization being described is being done BY the law, not in
violation 
of the law.  That is where the issue of religious liberty comes in.

Brad 

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RE: Catholic Charities Issue

2006-03-13 Thread Mark Graber

Maybe government should get out of the adoption business.  Maybe it
should get out of the marriage business (would solve a lot of problems),
but at the end of the day, government in the United States has always
played a role in the health, safety, and morals of the citizenry (police
powers any one).  And it has always regulated.  Sometimes the
regulations grossly violated our sense of the religion clause (an
amazing amount of explicit favoring some religions over others), but
such regulations hardly justify similar practice today.  If we start
regarding welfare as a traditional religious function (rather than as
something many religious people felt a religious obligation to do), we
are going to dramatically curtail not simply the New Deal state, but a
good deal of the Guilded Age state.

MAG

 [EMAIL PROTECTED] 3/13/2006 11:20:21 AM 
Mark Graber and Steve Jamar both seem to be arguing that certain
activities,
including provision of adoption services, are secular activities that
the
state should be free to regulate in any reasonable manner, even if the
regulation prevents a religious organization from providing the
services.
Steve adds that provision of medical services is also a secular
activity.

One problem I have with this approach is that the state has expanded
its
activities into areas that traditionally were performed mostly by
religious
groups, and now some of us (including it seems Mark and Steve) claim it
has
a broad right to preempt those religious groups from providing the
services
unless they do it under the state's rules. Religious groups were
providing
social services long before the state got into the act, and they were
doing
so as a part of their religious calling. Consider, for example, that
James
(in the New Testament) says that the religion that is acceptable to
God
involves look[ing] after widows and orphans in their distress. James
1:27.

Separation of church and state (a term I don't mind using, even though
I'm
not a strict separationist) was supposed to provide independence each
from
the other. When the state begins to say that churches cannot perform
traditional religious functions -- and even, perhaps, to tie this in
with an
earlier thread, cannot even choose its clergy free of state regulation
--
then separation of church and state has become subordination of church
to
state. As Michael McConnell has pointed out, nonestablishment carried
the
day in large part because it was thought that religion could only
flourish
if it stood on its own; he points out that David Hume (not a friend of
organized religion) wanted the state to pay ministers because that
would
make them less zealous. Separation was not meant to cause
subordination.

I don't think Massachusetts yet is saying that the Catholic Church
can't
assist with adoptions unless it does so in ways that violate its
beliefs.
But Mark and Steve seem to think that would be fine. It's certainly
one
thing to say that if the church wants the government's money then it
must
follow the govt.'s rules (which seems to be all that has happened in
Massachusetts), but one of the reasons for nonestablishment (as Judge
McConnell again has pointed out) was to free the churches from having
to do
things the government's way; as Michael has pointed out, people
understood
in the late 1700s and early 1800s that he who pays the piper gets to
call
the tune. So if the church is willing to pay its own way, state
regulation
of its traditionally religious activities should be kept to a minimum.

There must be some limits even on the he who pays the piper
principle, in
a nation in which the government has taken more and more of our
resources,
thus requiring us to come to the govt. to beg to get back some of what
has
been taken from us so that we can have the resources to act privately.
(Thus
the controversy over vouchers and charitable choice.) I think this is a
key
justification for deductibility of contributions to religious
organizations,
and for being slow to condition such deductibility on the religious
organization doing things the state's way.

Mark Scarberry
Pepperdine



-Original Message-
From: [EMAIL PROTECTED] 
To: religionlaw@lists.ucla.edu 
Sent: 3/13/2006 7:02 AM
Subject: RE: Catholic Charities Issue

I guess I get more confused by this debate as it goes on.

1. Part of my confusion is on the debate over the status of gay
abortions in the Catholic Church.  I'm not sure why we are debating
the
issue.  Presumably if the Catholic Bishops of Boston claim to have
religious reasons for not engaging in that practice, that ought to be
good enough for the rest of us.  Maybe a debate on that ought to go on
within the Catholic Church, but most of us have no say in that debate.

2. I'm also confused why it is anti-religious to insist that all
institutions that arrange for adoptions not discriminate against gay
and
lesbian couples.  It may be wrong as a matter of public policy, but it
is not anti-religious per se.  Some religions believe

RE: Catholic Charities Issue

2006-03-13 Thread Brad M Pardee


Nonsense. The number of people
who believe they have the responsibility to bash in gay heads
is a minute percentage of those whose faith teaches that sexual intimacy
is reserved for heterosexual monogamous marriage, just as those who blow
up abortion clinics are a minute percentage of those faith teaches that
legalized abortion is wrong. Assault is never a matter of religious
liberty and I can't begin to fathom why you would see the two as intertwined
in any way whatsoever. That fact that a handful of fools who should
be locked up think so doesn't mean that the vast majority of those who
fight for religious liberty are on their side. I've seen enough of
your postings to know that you know better than that.

Brad

Michael wrote on 03/13/2006 10:22:58 AM:

 The fact that there are laws in place is, often times, scant comfort.
 The religious liberty issue may, in the final analysis for some people,
 merely mean the liberty to bash in gay heads, all in name of God.___
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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

2006-03-13 Thread Andrew Wyatt

Someone is always going to be dissatisfied when the state attempts to
resolve conflicting priorities.  Any state policy is a de facto value
judgment, although the First Amendment rightly heightens the legal
scrutiny when religious matters are implicated.  Massachusetts lawmakers
evidently believe that discrimination on the basis of sexual orientation
is so reprehensible that it warrants the loss of those adoption or
placement entities--religious or not--that discriminate.  I suspect that
in a Catholic state like Massachusetts, lawmakers were well aware of the
ramifications of this policy.  Massachusetts voters are free to remove
their lawmakers if they don't agree with that judgment.  (Not
coincidentally, Catholic Charities had to make the similar judgment
call.  Evidently, the charity believes that discrimination on the basis
of sexual orientation is so important that it is warrants a loss of
government subsidy.)

What I don't understand is how policies such as these can be seen as
infringing on religious liberty.  This seems like a clear case of
Discriminate all you want, just don't expect us to subsidize it.  A
liberal state necessarily has a set of secular values that will conflict
with any number of religious values.  It's just the nature of the beast.
Someone, somewhere, will take issue with each and every value that
undergirds each and every policy decision.  Provided that the state
pursues those values through policies that are neutral, the conflicts
that arise may be unfortunate for affected religious groups--less money,
diminished legitimacy, reduction in comfortable access to government
officials--but how is a trampling of liberty?  I'm not sure I'm
comfortable with a definition of liberty that encompasses the liberty
of religious groups to spend government money in contravention of
government policies when secular groups have no such liberty.

Andrew Wyatt

 -Original Message-
 From: [EMAIL PROTECTED] [mailto:religionlaw-
 [EMAIL PROTECTED] On Behalf Of Rick Duncan
 Sent: Monday, March 13, 2006 10:10 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Catholic Charities Issue
 
 Mark: I think Rust controls here, and, thus, the state
 has the power to define the rules any way it wishes to
 govern its own program. So CC had to walk if it wished
 to obey God.
 
 But the rule, although probably within the power of
 the state to enact, has the effect of excluding--as
 immoral--CC because of CC's religious convictions
 about the nature of marriage and family. Thus, *your*
 temple *could* be an adoption grantee under the
 Massachusetts program, but the other temples you
 mentioned--those with a different understanding of
 the basic precepts of Judaism--would be(along with
 CC)excluded from the program.
 
 If your ultimate concern affirms homosexuality, you
 end up being intolerant toward the other temples and
 institutions like CC. Your tolerance toward homosexual
 families looks like religious intolerance from the
 perspective of the other temples and CC.
 
 I suppose if Massachusetts wanted to be tolerant to
 everyone, it would have many grantees (e.g. both your
 temple and the other temples)and allow each grantee to
 find good homes for children based upon its reasonable
 (but different) understanding of marriage and family.
 Your temple would include homosexual couples in its
 search for parents and the other temple would not.
 That is a way of ensuring inclusion of homosexual
 couples without forcing CC (and the other temples) out
 of the program.
 
 Cheers, Rick
 
 --- Mark Graber [EMAIL PROTECTED] wrote:
 
  I guess I get more confused by this debate as it
  goes on.
 
  1. Part of my confusion is on the debate over the
  status of gay
  abortions in the Catholic Church.  I'm not sure why
  we are debating the
  issue.  Presumably if the Catholic Bishops of Boston
  claim to have
  religious reasons for not engaging in that practice,
  that ought to be
  good enough for the rest of us.  Maybe a debate on
  that ought to go on
  within the Catholic Church, but most of us have no
  say in that debate.
 
  2. I'm also confused why it is anti-religious to
  insist that all
  institutions that arrange for adoptions not
  discriminate against gay and
  lesbian couples.  It may be wrong as a matter of
  public policy, but it
  is not anti-religious per se.  Some religions
  believe that homosexuality
  is immoral (or something to that effect).  My temple
  takes the position
  that discrimination against homosexuals is immoral
  and inconsistent with
  basic precepts of Judaism (other tempes disagree).
  We might imagine
  that the state might require particular parenting
  standards that differ
  from those imposed by some religions.  Again,
  whether those parenting
  standards are desirable is independent of whether
  they are consistent
  with any religion.
 
  3.  In short, Massachusetts seems to believe that
  discrimination
  against same sex couples in the adoption process

Re: Catholic Charities Issue

2006-03-13 Thread Steven Jamar

On Mar 13, 2006, at 11:20 AM, Scarberry, Mark wrote:Mark Graber and Steve Jamar both seem to be arguing that certain activities,including provision of adoption services, are secular activities that thestate should be free to regulate in any reasonable manner, even if theregulation prevents a religious organization from providing the services.Steve adds that provision of medical services is also a secular activity.One problem I have with this approach is that the state has expanded itsactivities into areas that traditionally were performed mostly by religiousgroups, and now some of us (including it seems Mark and Steve) claim it hasa broad right to preempt those religious groups from providing the servicesunless they do it under the state's rules.I don't think that Catholic Charities is banned from handling abortions, is it?  It just can't do so using state funds.  And any church can run any  hospital as it sees fit -- within certain limits of hygiene and practice, but if it takes federal or state money to do so, then it needs to abide by the rules attached to that money.So, unless I'm much mistaken, and I could be -- I've only followed the version on this thread -- CC can still do adoptions, but will not get  governmental funding to do so.  And would not be accredited (if such a term applies in adoptions) if it does not follow state rules.  Mark concedes this point below, I think.I don't think Massachusetts yet is saying that the Catholic Church can'tassist with adoptions unless it does so in ways that violate its beliefs.But Mark and Steve seem to think that would be fine. It's certainly onething to say that if the church wants the government's money then it mustfollow the govt.'s rules (which seems to be all that has happened inMassachusetts), but one of the reasons for nonestablishment (as JudgeMcConnell again has pointed out) was to free the churches from having to dothings the government's way; as Michael has pointed out, people understoodin the late 1700s and early 1800s that he who pays the piper gets to callthe tune. So if the church is willing to pay its own way, state regulationof its traditionally religious activities should be kept to a minimum.Nonetheless, I suspect that Mark and I would draw the line at a different level of regulation, so we have differences, though not quite as sharp as his post would make them. -- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"The modern trouble is in a low capacity to believe in precepts which restrict and restrain private interests and desires."Walter Lippmann ___
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Re: Catholic Charities Issue

2006-03-13 Thread RJLipkin






In a message dated 3/13/2006 11:24:00 AM Eastern Standard Time, 
[EMAIL PROTECTED] writes:
Separation was not meant to cause 
subordination.
But, if due to 
changed circumstances, "separation" causes subordination, why wouldn't Judge 
McConnell,an originalist, seek the remedy in Article Five, not through 
judicial reinterpretation?

Bobby

Robert Justin 
LipkinProfessor of LawWidener University School of 
LawDelaware
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RE: Catholic Charities Issue

2006-03-13 Thread Scarberry, Mark

Steve had me going along until he slipped in accreditation. He suggests that
the state can deny accreditation to a religious group with respect to
adoption services if it is not willing to follow the state's rules. If that
means that the state can deny a license that is necessary for the group to
provide the services, then the gulf between Steve's position and mine is
large enough to swallow religious liberty and to result in subordination of
church to state. 

Of course I agree that state regulation is permissible to the extent it
addresses compelling interests -- such as physical safety of the children
and perhaps elimination of racial discrimination. (But, if I recall
correctly, it is state adoption agencies and secular social workers who have
pushed for racial discrimination in adoption services, though that leaves
children in long-term foster care where no suitable adoptive parents of the
same race can be found; there is little reason to think that religious
adoption service providers are less devoted to the welfare of children than
are secular and governmental providers.)

Mark Scarberry
Pepperdine

-Original Message-
From: [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics
Sent: 3/13/2006 9:00 AM
Subject: Re: Catholic Charities Issue


On Mar 13, 2006, at 11:20 AM, Scarberry, Mark wrote:


Mark Graber and Steve Jamar both seem to be arguing that certain
activities,
including provision of adoption services, are secular activities that
the
state should be free to regulate in any reasonable manner, even if the
regulation prevents a religious organization from providing the
services.
Steve adds that provision of medical services is also a secular
activity.

One problem I have with this approach is that the state has expanded its
activities into areas that traditionally were performed mostly by
religious
groups, and now some of us (including it seems Mark and Steve) claim it
has
a broad right to preempt those religious groups from providing the
services
unless they do it under the state's rules.



I don't think that Catholic Charities is banned from handling abortions,
is it?  It just can't do so using state funds.  And any church can run
any  hospital as it sees fit -- within certain limits of hygiene and
practice, but if it takes federal or state money to do so, then it needs
to abide by the rules attached to that money.

So, unless I'm much mistaken, and I could be -- I've only followed the
version on this thread -- CC can still do adoptions, but will not get
governmental funding to do so.  And would not be accredited (if such a
term applies in adoptions) if it does not follow state rules.  Mark
concedes this point below, I think.


I don't think Massachusetts yet is saying that the Catholic Church can't
assist with adoptions unless it does so in ways that violate its
beliefs.
But Mark and Steve seem to think that would be fine. It's certainly one
thing to say that if the church wants the government's money then it
must
follow the govt.'s rules (which seems to be all that has happened in
Massachusetts), but one of the reasons for nonestablishment (as Judge
McConnell again has pointed out) was to free the churches from having to
do
things the government's way; as Michael has pointed out, people
understood
in the late 1700s and early 1800s that he who pays the piper gets to
call
the tune. So if the church is willing to pay its own way, state
regulation
of its traditionally religious activities should be kept to a minimum.


Nonetheless, I suspect that Mark and I would draw the line at a
different level of regulation, so we have differences, though not quite
as sharp as his post would make them.

-- 

Prof. Steven D. Jamar   vox:  202-806-8017

Howard University School of Law fax:  202-806-8567

2900 Van Ness Street NWmailto:[EMAIL PROTECTED]
mailto:[EMAIL PROTECTED] 

Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
http://www.law.howard.edu/faculty/pages/jamar/ 




The modern trouble is in a low capacity to believe in precepts which
restrict and restrain private interests and desires.




Walter Lippmann



 ATT4776927.txt 
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RE: Catholic Charities Issue

2006-03-13 Thread Alan Brownstein

Good to have you contributing to the list again MAG, but I think you
read Mark Scarberry's post as being more one sided than it is.

The issue of traditional religious functions doesn't have to be an
either/or proposition. Both government and religion have important roles
to play in many social service areas. These are concurrent powers.
Recognizing the state's role doesn't preclude recognizing the role of
religion or vice versa.

Mark recognizes that in most cases when a religious organization
receives government funding as a conduit for the provision of public
services, it surrenders some of its autonomy. It has to because it is a
conduit. The purpose of the grant is not to benefit the religious
provider -- it is to help the ultimate beneficiaries of the program the
government supports. There may be some constitutional principle that
limits government's ability to impose conditions on how its money is
used in funding cases, but it is a very narrow one.

But that does not mean that government SHOULD use the full extent of its
constitutional authority when it is subsidizing religious NGO's and
entirely ignore the impact of its rules on the autonomy of religious
providers. Religious liberty is an important value that should be
considered in developing state policy -- even when the state is not
constitutionally required to do so.

Moreover, there are political and strategic reasons for exempting
religious organizations from some requirements that reflect the state's
moral judgments but are offensive to some religious organization's
religious beliefs. For some moral disagreements, the best way to achieve
cultural peace is to recognize that the state does not necessarily
endorse what it allows. Some religious people oppose same-sex marriage
because they believe it means that the state is endorsing immorality.
Some proponents of gay rights oppose Catholic Charities discriminating
against gay couples adopting children because they consider such
discrimination immoral.

But the real question should be whether we can structure a funding
program that allows Catholic Charities to be faithful to the dictates of
its faith without interfering with the ability of gay couples to adopt
children or delaying any child's opportunity to be adopted. If we can do
that, we ought to be willing to allow Catholic Charities to participate
in the state's adoption program notwithstanding our disagreement with
its moral position. 

And religious groups should stop opposing same sex marriage solely
because it allegedly sends a message of state approval of a relationship
they consider immoral.

Alan Brownstein

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
Sent: Monday, March 13, 2006 8:30 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Catholic Charities Issue

Maybe government should get out of the adoption business.  Maybe it
should get out of the marriage business (would solve a lot of problems),
but at the end of the day, government in the United States has always
played a role in the health, safety, and morals of the citizenry (police
powers any one).  And it has always regulated.  Sometimes the
regulations grossly violated our sense of the religion clause (an
amazing amount of explicit favoring some religions over others), but
such regulations hardly justify similar practice today.  If we start
regarding welfare as a traditional religious function (rather than as
something many religious people felt a religious obligation to do), we
are going to dramatically curtail not simply the New Deal state, but a
good deal of the Guilded Age state.

MAG

 [EMAIL PROTECTED] 3/13/2006 11:20:21 AM 
Mark Graber and Steve Jamar both seem to be arguing that certain
activities,
including provision of adoption services, are secular activities that
the
state should be free to regulate in any reasonable manner, even if the
regulation prevents a religious organization from providing the
services.
Steve adds that provision of medical services is also a secular
activity.

One problem I have with this approach is that the state has expanded
its
activities into areas that traditionally were performed mostly by
religious
groups, and now some of us (including it seems Mark and Steve) claim it
has
a broad right to preempt those religious groups from providing the
services
unless they do it under the state's rules. Religious groups were
providing
social services long before the state got into the act, and they were
doing
so as a part of their religious calling. Consider, for example, that
James
(in the New Testament) says that the religion that is acceptable to
God
involves look[ing] after widows and orphans in their distress. James
1:27.

Separation of church and state (a term I don't mind using, even though
I'm
not a strict separationist) was supposed to provide independence each
from
the other. When the state begins to say that churches cannot perform
traditional religious functions -- and even

Re: Catholic Charities Issue

2006-03-12 Thread Steven Jamar

It is not a zero-sum game.  The Us or Them mentality is the true intolerance.Requiring religious institutions doing secular activities to comply with secular rules is not persecution.  Medical treatment and adoption services and education are secular activities.Sure, one can complain about the difficulty and at certain points of contact the artificiality of the religious/profane distinction, but that sort of difficult line-drawing exists in every area of the law.  So long as we have more than one religious group with different religious values from the currently politically ascendant version, we will have this problem.This problem is not persecution.  And it is not a threat to religious liberty.  It is, however, a threat to religious license to do whatever whenever without restraint.Denying rights to gays and denying rights to women and requiring instruction to be in accordance with one particular sect, under Rick's analysis, persecutes all those whose religious beliefs differ from his.  While it would not be good policy and would be a denial of what I consider to be properly though of as rights, I would not call it persecution.Rick Duncan's postings on this are almost making me into a pro-Smith person -- if his position represents the alternative to it.  But fortunately, it does not.  And there is lots of room as others have pointed out.  Unlike his quote in his sig, the middle things are not gone and we do not need to be forced to choose absolutely one or the other so starkly, though there will always be cases at the edges where the state and religions meet.SteveOn Mar 12, 2006, at 12:53 AM, Rick Duncan wrote:The strong religious freedom protections Doug mentions simply don't exist under constitutional law or under presently-enacted antidiscrimination laws.      If gay rights laws are enacted, religious persecution follows inexorably. Moreover, religious dissenters in states like Massachusetts are marginalized and stigmatized as "homophobes" and as outlaws (even law school casebooks are beginning to jump on this bandwagon). Public school curricula soon reflect the change in the law, and our children are made a captive audience for learning the new social understanding of marriage and family and of unlawful discrimination. In Europe, even religious speech about homosexuality can be gagged under "hate speech" laws. Even in the states, the free speech/equal access rights of groups like the CLS  are taken away on college and law school campuses unless they are willing to sign a nondiscrimination loyalty oath.     We see the same thing in the area of abortion and contraceptives. Turn these once unlawful behaviors into "fundamental rights" and soon Catholic hospitals are expected to provide these services, religious employers are expected to include them in health care benefits, pharmacists must dispense them notwithstanding religious objections, and private professional schools must teach them or risk losing accreditation. And the beat goes on.     In contemprary America, the greatest threat to religious liberty is the gay rights/gay marriage movement (or, more broadly, the enactment of the sexual revolution as a protected right that others must accommodate). Who else has a political agenda that targets the ordinary activities (such as adoption ministries and health benefits) of mainstream religious institutions and turns these ministries into unlawful acts.     Rick Duncan-- Prof. Steven D. Jamar                               vox:  202-806-8017Howard University School of Law                     fax:  202-806-85672900 Van Ness Street NW                   mailto:[EMAIL PROTECTED]Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/"I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality."Winston Churchill, speech to the House of Commons, 1941 ___
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RE: Catholic Charities Issue

2006-03-12 Thread Douglas Laycock





Rick asks:


"Who else has a political agenda that targets the ordinary activities (such 
as adoption ministries and health benefits)of mainstream religious 
institutions and turns these ministries into unlawful acts."




Answer: Land useplanners.

On the conflict between sexual liberty and religious liberty, I didn't say 
we were getting it right under current law. I said there's no reason 
except overreaching by both sides why we couldn't get it right under the law 
going forward.


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RE: Catholic Charities Issue

2006-03-12 Thread Rick Duncan

Doug is right--land use planners also target the
ordinary activities of mainstream religious ministries
that are merely trying to worship or do good works. 

But one difference is that zoning laws don't
stigmatize ministries as outlaws whose activities and
programs are contrary to the law and deserving of
condemnation and punishment. Zoning laws just say not
in this neighborhood. 

Nevertheless, thank God for RLUIPA.

Rick


--- Douglas Laycock [EMAIL PROTECTED] wrote:

 Rick asks:
  
 Who else has a political agenda that targets the
 ordinary activities (such as adoption ministries and
 health benefits) of mainstream religious
 institutions and turns these ministries into
 unlawful acts.
  
  
 Answer:  Land use planners.
  
 On the conflict between sexual liberty and religious
 liberty, I didn't say we were getting it right under
 current law.  I said there's no reason except
 overreaching by both sides why we couldn't get it
 right under the law going forward.
  
  ___
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 password, see

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 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.


  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



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RE: Catholic Charities Issue

2006-03-12 Thread Christopher C. Lund

Perhaps there is also a linkage between gay rights and religious liberty in 
the sense that both are largely about identity.  Precisely because religious 
and sexual identity are not entirely immutable (although neither seems to be 
wholly a matter of unconstrained choice), the government can leverage people 
away from being who they, in a deep sense, really are.


I heard one gay-rights speaker once conclude by saying something like: This 
is who I am; I can be no other.  I don't honestly think she meant to sound 
like Martin Luther before Emperor Charles at the Diet of Worms (I cannot, 
and I will not recant.  Here I stand; I can do no other.  God help me.  
Amen.)  Perhaps she didn't even recognize the resemblance.  But, there it 
is.



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

To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Catholic Charities Issue
Date: Sat, 11 Mar 2006 20:45:50 -0800

Not only isn't it impossible to have both gay rights and religious liberty, 
the core of both sets of claims have  common foundations. It makes no more 
sense for a gay activist to insist that a religious person should ignore the 
duties he or she owes to G-d (a duty that, I believe, arises out of love and 
principle) -- because the religious person can not reasonably be asked to do 
that -- than it does for a religious person to insist that a gay person 
should deny the love he (or she) shares with another person who he wants to 
spend his life with  -- because the gay person can not reasonably be asked 
to do that.


Alan Brownstein



From: [EMAIL PROTECTED] on behalf of Douglas Laycock
Sent: Sat 3/11/2006 7:42 PM
To: Law  Religion issues for Law Academics; Law  Religion issues for Law 
Academics

Subject: RE: Catholic Charities Issue


It is not at all impossible to have both gay rights and religious liberty.  
It is just that the gay rights activists mostly refuse to recognize 
religious liberty (at least if any gay rights issue is in anyway 
implicated), and the more conservative religious liberty activists mostly 
refuse to recognize gay rights.  Both sides want the symbolic victory of 
having the state declare the other side wrong, and both sides want to be 
assured they will never have to litigate a case at the boundary between the 
two freedoms.


Alan Brownstein sketched a perfectly sensible way to resolve the 
Massachusetts dispute in a way that protects both sides -- gay parents would 
be free to adopt through other state-funded agencies, and Catholic Charities 
would be free not to place children with gay parents.  More generally, 
strong gay rights legislation with strong religious liberty exceptions would 
protect both sides.


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



From: [EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sat 3/11/2006 8:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


I think Marci and Doug are spot on. The state, as in Rust,  says this is 
our program, take it or leave it. CC says, okay, we'll leave it.  CC 
loses a part of its ministry, the state loses one of its best 
adoption-service providers, and the kids stay in state custody longer (and, 
for some, perhaps permanently, since CC was extra good at placing 
hard-to-place children).


This is why some of us fight so hard against gay rights and gay 
marriage--gay rights/marriage are incompatible (at least in certain 
situations) with religious liberty. As in Massachusetts, the state has to 
choose between religious liberty and gay rights.


Some states choose gay rights. I choose religious liberty. I was born and 
raised in Massachusetts, but I couldn't live there now (and I don't think I 
even care to visit--not even if I had Monster seats at fenway).


Cheers, Rick Duncan



[EMAIL PROTECTED] wrote:


	What this dispute re: Catholic Charities illustrates is the danger of any 
religious institution in relying upon government funding for its programs.  
Government funding always comes with strings.  In general, Catholic 
Charities gets 86% of its funding from government sources, 14% from private, 
with the vast majority of that coming from charities like United Way.  A 
tiny portion is paid by Catholics.  I would assume that on its own dime, CC 
can facilitate adoptions, but feel free to correct that assumption.


	The question is whether it is going to accept the condition placed on it by 
the government's money. ! nbsp;CC is not required to take the government's 
money, right?  This is the Solomon Amendment -- private institution that has 
become dependent on government largesse insists that it is entitled to that 
largesse and that the government should have no power to place strings on 
the money.  There is no First Amendment problem

Re: Catholic Charities Issue

2006-03-12 Thread Hamilton02





It has absolutely nothing to do with religious activities, but rather the 
intensity of the use of land. I haven't met someone opposed to a religious 
project yet that could have cared less whether it was a religious project or an 
automotive repair shop. First, those opposedare invariably religious 
themselves (often the same religion as the applicant). Second, 
theychose to live where they do because of the character of thearea, 
whether it is low traffic because they have children or low rooflines because 
they live near the ocean or the desert. None of them had any idea 
thatPres. Clinton would sign legislation that would radically transform 
their neighborhoods in ways that undermine their reasonable 
expectations.

Marci


In a message dated 3/12/2006 3:26:54 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  The widespread NIMBY 
  attitude towards religious activities in land use law raises a substantial 
  cumulative barrier to religious activity, especially for new and small 
  religious organizations.


___
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Re: Catholic Charities Issue

2006-03-12 Thread Hamilton02





Rick- I would have thought you would not fall into this sort of either/or 
reasoning given that it implicates the free market. There is a free market 
in the provision of services, including charitable services,and if a 
religious organization drops out, others will step in. To think that the 
children will inevitably be hurt because CC follows its beliefs is to assume CC 
is the only route. It may have been a good route (I don't know), but it is 
a huge mistake to think it is the only one.

Marci


In a message dated 3/11/2006 9:23:20 P.M. Eastern Standard Time, 
[EMAIL PROTECTED] writes:

  I think Marci and Doug are spot on. The state, as in Rust, 
  says "this is our program, take it or leave it." CC says, "okay, we'll 
  leave it." CC loses a part of its ministry, the state loses one of its 
  best adoption-service providers, and the kids stay in state custody longer 
  (and, for some, perhaps permanently, since CC was extra good at placing 
  hard-to-place children).


___
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RE: Catholic Charities Issue

2006-03-12 Thread Newsom Michael









But the Religious Right Catholic, Protestant
and otherwise  insists that gay people CAN be reasonably asked to live
celibate lives, if they cannot live heterosexual lives.



I merely wish to point out that some deny
the equivalence that you posit. I am not saying that I agree or disagree with
that denial.



One wonders  hopes, perhaps, prays,
perhaps  that science can break the tie on the question of what is
reasonable. While some may hate to admit it, it would appear that science has
influenced religious thought from time to time. (I have especially in mind scientific
examination of the lives, values, prospects, hopes and the like of children
raised by openly gay parents, either single gay parents, or gay parents in
monogamous relationships that are marriage like. There is some
science on the point, but I suspect that the two sides on the question would
debate just what that science establishes or suggests.)











From: Alan Brownstein
[mailto:[EMAIL PROTECTED] On
Behalf Of Alan Brownstein
Sent: Saturday, March 11, 2006
11:46 PM
To: Law
  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue









Not only isn't it impossible to have both
gay rights and religious liberty, the core of both sets of claims have
common foundations. It makes no more sense for a gay activist to insist that a
religious person should ignore the duties he or she owes to G-d (a duty
that,I believe, arises out of love and principle) -- because the
religious person can not reasonably be asked to do that --than it does
for a religious person to insist that a gay person should deny the love he (or
she) shares with another person whohe wants tospend his life
with -- because the gay person can not reasonably be asked to do that.











Alan Brownstein















From:
[EMAIL PROTECTED] on behalf of Douglas Laycock
Sent: Sat 3/11/2006 7:42 PM
To: Law
  Religion issues for Law Academics; Law  Religion issues for Law Academics
Subject: RE: Catholic Charities
Issue









It is not at all impossible to have both
gay rights and religious liberty. It is just that the gay rights
activists mostly refuse to recognize religious liberty (at least if any gay
rights issue is in anyway implicated), and the more conservative religious
liberty activists mostly refuse to recognize gay rights. Both sides want
the symbolic victory of having the state declare the other side wrong, and both
sides want to be assured they will never have to litigate a case at the
boundary between the two freedoms.











Alan Brownstein sketched a perfectly
sensible way to resolve the Massachusetts
dispute in a way that protects both sides -- gay parents would be free to adopt
through other state-funded agencies, and Catholic Charities would be free not
to place children with gay parents. More generally, strong gay rights
legislation with strong religious liberty exceptions would protect both
sides. 















Douglas Laycock





University of Texas
 Law School





727 E. Dean
  Keeton St.





Austin, TX 78705





512-232-1341





512-471-6988 (fax)















From:
[EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sat 3/11/2006 8:22 PM
To: Law
  Religion issues for Law Academics
Subject: Re: Catholic Charities
Issue







I think Marci and Doug are spot on. The state, as in Rust, says this is our
program, take it or leave it. CC says, okay, we'll leave
it. CC loses a part of its ministry, the state loses one of its
best adoption-service providers, and the kids stay in state custody longer
(and, for some, perhaps permanently, since CC was extra good at placing
hard-to-place children).











This is why some of us fight so hard against gay rights and gay
marriage--gay rights/marriage are incompatible (at least in certain situations)with
religious liberty. As in Massachusetts,
the state has to choose between religious liberty and gay rights. 











Some states choose gay rights. I choose religious liberty. I was born
and raised in Massachusetts,
but I couldn't live there now (and I don't think I even care to visit--not even
if I had Monster seats at fenway).











Cheers, Rick Duncan 











[EMAIL PROTECTED]
wrote:







What this
disputere: Catholic Charities illustrates is the danger of any religious
institution in relying upon government funding for its programs.
Government funding always comes with strings. In general, Catholic
Charities gets 86% of its funding from government sources, 14% from private,
with the vast majority of that coming from charities like United Way. A tiny portion is paid
by Catholics.I would assume that onits own dime, CC can
facilitate adoptions, but feel free to correct that assumption. 











The question is whether it is going to
accept the condition placed on it by the government's money.!
nbsp;CC is not required to take the government's money, right?This
is the Solomon Amendment -- private institution that has become dependent on
government largesse

Re: Catholic Charities Issue

2006-03-12 Thread David E. Guinn




One should, of course, never say never. The conflict in the Chicago 
suburbs of a few years ago was over the takeover of a community center by a 
mosque. No one could have possibly argued that the "use" by the mosque was 
in any way more disruptive than its use as a community center -- except that it 
would be used by Muslims. Yet the challenge, as I recall, was justified on 
grounds of land use. David

  - Original Message - 
  From: 
  [EMAIL PROTECTED] 
  To: religionlaw@lists.ucla.edu 
  Sent: Sunday, March 12, 2006 3:00 
PM
  Subject: Re: Catholic Charities 
  Issue
  
  
  It has absolutely nothing to do with religious activities, but rather the 
  intensity of the use of land. I haven't met someone opposed to a 
  religious project yet that could have cared less whether it was a religious 
  project or an automotive repair shop. First, those opposedare 
  invariably religious themselves (often the same religion as the 
  applicant). Second, theychose to live where they do because of the 
  character of thearea, whether it is low traffic because they have 
  children or low rooflines because they live near the ocean or the 
  desert. None of them had any idea thatPres. Clinton would sign 
  legislation that would radically transform their neighborhoods in ways that 
  undermine their reasonable expectations.
  
  Marci
  
  
  In a message dated 3/12/2006 3:26:54 P.M. Eastern Standard Time, 
  [EMAIL PROTECTED] writes:
  
The widespread NIMBY 
attitude towards religious activities in land use law raises a substantial 
cumulative barrier to religious activity, especially for new and small 
religious organizations.
  
  
  
  

  ___To post, send 
  message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change 
  options, or get password, see 
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  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.
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Re: Catholic Charities Issue

2006-03-11 Thread Paul Finkelman





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 Finkelman

Rick 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! Mail
  Use
Photomail to share photos without annoying attachments. 
  

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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]



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Re: Catholic Charities Issue

2006-03-11 Thread Rick Duncan

Paul: If Catholic priests were required to perform or directly facilitate executions as acondition of visiting prisoners, my guess isthe Churchwould indeed withdraw from prison ministry. This is what the state of Massachusetts is doing to CC in the adoption area--it is requiring CC to arrange for adoptions by homosexuals as a condition of having an adoption ministry in the state.All you opponents of the Solomon Amendment ought to be able to understand how an organization could be strongly opposed to facilitating a moral evil. Your position concerning faciliting "immoral" military recruiters is the same as the Church's position concerning facilitating "immoral" adoptions.Cheers, Rick  Paul 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 attachments.   ___  !
 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.  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." --T!
 he
 Prisoner
	
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Re: Catholic Charities Issue

2006-03-11 Thread Paul Finkelman

Catholics are not being asked to be gay by helping with adoptions, and they
do "facilitate executions" by helping prepare the person for death. The
church helps arrange executions by offering confession etc. to people who
are about to be executed. Why does the church focus on one line in Lev.
repeated in Deut. and then also apply to to women as well as men.

Rick Duncan wrote:

Paul: If Catholic priests were required to perform or directly facilitate
executions as acondition of visiting prisoners, my guess isthe Churchwould
indeed withdraw from prison ministry. This is what the state of Massachusetts
is doing to CC in the adoption area--it is requiring CC to arrange for adoptions
by homosexuals as a condition of having an adoption ministry in the state.

All you opponents of the Solomon Amendment ought to be able to understand
how an organization could be strongly opposed to facilitating a moral evil.
Your position concerning faciliting "immoral" military recruiters is the
same as the Church's position concerning facilitating "immoral" adoptions.

Cheers, Rick

Paul 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 Finkelman

Rick 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! Mail
Use
Photomail to share photos without annoying attachments.
___ !
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]

___
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can read the Web archives; and list members can (rightly or wrongly) forward
the messages to others.

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."
--T! he Prisoner

Yahoo! Mail
Use
Photomail to share photos without annoying attachments.

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

--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

Re: Catholic Charities Issue

2006-03-11 Thread Will Esser

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.)___
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RE: Catholic Charities Issue

2006-03-11 Thread Douglas Laycock

Application of this law to Catholic Charities should have raised a quite 
plausible claim under the Massachusetts Free Exercise Clause.  See the Society 
of Jesus case about 1990, and a mid-90s case on marital status discrimination 
by landlords, the name of which I am forgetting.  
 
So why did Catholic Charities surrender rather than litigate?  Maybe they 
figured they would just make bad law with that claim in the court that found a 
constitutional right to gay marriage.  If that's the reason, that sort of 
restraint in the choice of what claims to file should be practiced a lot more 
widely.  If that just didn't think about the state law, that's much less 
admirable.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of Will Esser
Sent: Sat 3/11/2006 12:35 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Paul,
 
Your comparison 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.
 
Will

Paul 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 Finkelman

Rick 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 
http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
  and here 
http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/
 .




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! Mail
Use Photomail 
http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com
  to share photos without annoying attachme! nts. 



  ___  To post, 
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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   74104-3189
918-631-3706 (office)  918-631-2194 (fax)[EMAIL PROTECTED]

___
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Re: Catholic Charities Issue

2006-03-11 Thread Marty Lederman




Doug, under Massachusetts law would CC's inability 
to engage in "adoption services" (which I assume means being in the 
business of arranging adoptions) result in a substantial burden on its 
religious exercise?


- Original Message - 
From: "Douglas Laycock" [EMAIL PROTECTED]
To: "Law  Religion issues for Law Academics" 
religionlaw@lists.ucla.edu
Sent: Saturday, March 11, 2006 2:09 PM
Subject: RE: Catholic Charities 
Issue
Application of this law to Catholic Charities should have raised a quite 
plausible claim under the Massachusetts Free Exercise Clause. See the 
Society of Jesus case about 1990, and a mid-90s case on marital status 
discrimination by landlords, the name of which I am forgetting. 
So why did Catholic Charities surrender rather than 
litigate? Maybe they figured they would just make bad law with that claim 
in the court that found a constitutional right to gay marriage. If that's 
the reason, that sort of restraint in the choice of what claims to file should 
be practiced a lot more widely. If that just didn't think about the state 
law, that's much less admirable.Douglas 
LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, 
TX 78705512-232-1341512-471-6988 
(fax)From: [EMAIL PROTECTED] on 
behalf of Will EsserSent: Sat 3/11/2006 12:35 PMTo: Law  Religion 
issues for Law AcademicsSubject: Re: Catholic Charities 
IssuePaul,Your comparison 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 http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/ and here http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/ .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 
PrisonerYahoo! MailUse Photomail 
http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com 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/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.-- Paul Finkelman Chapman Distinguished 
Professor of Law University of Tulsa College of Law 3120 East 4th 
Place Tulsa, OK 74104-3189 918-631-3706 
(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 archi

Re: Catholic Charities Issue

2006-03-11 Thread Paul Finkelman

to the extent the Church helps the prison system keep order in the prison;
helps prepare priosners for death the church is complicitous in executions.
The problem is the church is willing to take a stand on issues that politically
appeal to the church adn not others; it is like the Catholic Bishop who campaigned
against John Kerry for his position on abortion, but is not ready to take
a stand on politicians who support the death penalty. The hypocrisy is pretty
clear.

Will Esser wrote:

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.

Will

Paul 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 Finkelman

Rick 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! Mail
Use
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]

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

Will Esser --- Ad Majorem Dei Gloriam
Parker Poe Adams Bernstein
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.)

___
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--
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK 74104-3189

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

___
To

RE: Catholic Charities Issue

2006-03-11 Thread Douglas Laycock

It may be a business to the state, although even the state recognizes that it's 
not for profit.  I assume it's a corporal work of mercy to the church.  
Recharacterizing religious activities as businesses, because it costs money to 
sustain them or because other groups engage in similar activities for secular 
reasons, is not in my view a legitimate means of escaping religious liberty 
guarantees.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Sat 3/11/2006 1:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Doug, under Massachusetts law would CC's inability to engage in adoption 
services (which I assume means being in the business of arranging adoptions) 
result in a substantial burden on its religious exercise?
 
 
- Original Message - 
From: Douglas Laycock [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Saturday, March 11, 2006 2:09 PM
Subject: RE: Catholic Charities Issue


Application of this law to Catholic Charities should have raised a quite 
plausible claim under the Massachusetts Free Exercise Clause.  See the Society 
of Jesus case about 1990, and a mid-90s case on marital status discrimination 
by landlords, the name of which I am forgetting.  
 
So why did Catholic Charities surrender rather than litigate?  Maybe they 
figured they would just make bad law with that claim in the court that found a 
constitutional right to gay marriage.  If that's the reason, that sort of 
restraint in the choice of what claims to file should be practiced a lot more 
widely.  If that just didn't think about the state law, that's much less 
admirable.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED]  on behalf of Will Esser
Sent: Sat 3/11/2006 12:35 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Paul,
 
Your comparison 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.
 
Will

Paul Finkelman [EMAIL PROTECTED] mailto:[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 Finkelman

Rick 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 
http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
 
http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
   and here 
http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/
 
http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/
  .




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! Mail
Use Photomail 
http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com
 
http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com
   to share photos without annoying

Re: Catholic Charities Issue

2006-03-11 Thread Rick Duncan

Doug Marty: I think CC had two reasons to withdraw rather than litigate. One is they were indeed concerned about their chances of winningthis free exercise issuein the Mass courts. Second, they were facing discrimination themselves from the United Way and other funding agencies that are selectively tolerant (i.e. "you better be tolerant to gays or we will be intolerant toward your funding requests").Another good reason not to give to the United Way. Of course, the best reason not to give to the United Way isto protest theiruse coercion (through employers) to gain "contributions" from employees.RickMarty Lederman [EMAIL PROTECTED] wrote: Doug, under Massachusetts law would CC's inability to engage in "adoption services" (which I assume means being in the business of arranging adoptions) result in a substantial burden on its religious exercise? - Original Message - From: "Douglas Laycock" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Saturday, March 11, 2006 2:09 PM Subject: RE: Catholic Charities Issue Application of this law to Catholic Charities should have raised a quite plausible claim under the Massachusetts Free Exercise Clause. See the Society of Jesus case about 1990, and a mid-90s case on marital status discrimination by landlords, the name of which I am forgetting. So why did Catholic Charities surrender rather than litigate? Maybe they figured they would just make bad law with that claim in the court that found a constitutional right to gay marriage. If that's the reason, that sort of restraint in the choice of what claims to file should be practiced a lot more widely. If that just didn't think about the state law, that's much less admirable.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX
78705512-232-1341512-471-6988 (fax)From: [EMAIL PROTECTED] on behalf of Will EsserSent: Sat 3/11/2006 12:35 PMTo: Law Religion issues for Law AcademicsSubject: Re: Catholic Charities IssuePaul,Your comparison 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 http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/ and here http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/ .Rick Duncan Welpton Professor of Law University of Nebraska Co!
llege 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 PrisonerYahoo! MailUse Photomail http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=38867/*http://photomail.mail.yahoo.com to share photos without annoying attachme! nts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get !
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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 member

RE: Catholic Charities Issue

2006-03-11 Thread Alan Brownstein

I suppose I should know the answer to this question, but I don't. Is it 
permissible for mothers or parents who give a baby up for adoption to have the 
baby placed with adoptive parents of the biological parents' faith -- or to not 
have the baby placed with adoptive parents who are gay? If those choices are 
possible -- would it be permissible for a NGO to facilitate the biological 
parents' decision?
 
Alan Brownstein



From: [EMAIL PROTECTED] on behalf of Douglas Laycock
Sent: Sat 3/11/2006 11:57 AM
To: Law  Religion issues for Law Academics
Subject: RE: Catholic Charities Issue


It may be a business to the state, although even the state recognizes that it's 
not for profit.  I assume it's a corporal work of mercy to the church.  
Recharacterizing religious activities as businesses, because it costs money to 
sustain them or because other groups engage in similar activities for secular 
reasons, is not in my view a legitimate means of escaping religious liberty 
guarantees.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Sat 3/11/2006 1:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Doug, under Massachusetts law would CC's inability to engage in adoption 
services (which I assume means being in the business of arranging adoptions) 
result in a substantial burden on its religious exercise?
 
 
- Original Message - 
From: Douglas Laycock [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Saturday, March 11, 2006 2:09 PM
Subject: RE: Catholic Charities Issue


Application of this law to Catholic Charities should have raised a quite 
plausible claim under the Massachusetts Free Exercise Clause.  See the Society 
of Jesus case about 1990, and a mid-90s case on marital status discrimination 
by landlords, the name of which I am forgetting.  
 
So why did Catholic Charities surrender rather than litigate?  Maybe they 
figured they would just make bad law with that claim in the court that found a 
constitutional right to gay marriage.  If that's the reason, that sort of 
restraint in the choice of what claims to file should be practiced a lot more 
widely.  If that just didn't think about the state law, that's much less 
admirable.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED]  on behalf of Will Esser
Sent: Sat 3/11/2006 12:35 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Paul,
 
Your comparison 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.
 
Will

Paul Finkelman [EMAIL PROTECTED] mailto:[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 Finkelman

Rick 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 
http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
 
http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/
   and here 
http://www.boston.com/news/local/articles/2006/03/11/churchs_rift_with_beacon_hill_grows/
 
http://www.boston.com/news/local/articles/2006/03/11

Re: Catholic Charities Issue

2006-03-11 Thread Marty Lederman




I didn't mean to question the sincere religious 
motivation of Catholic Charities (or the Bishops whose decree it is 
following). I was simply curious what it is, exactly, that Massachusetts 
prevents CC from doing, and whether andhowthat 
particularlegal restriction imposes a substantial burden on 
the religious exercise of the Church or of those involved in CC. 
Presumably, as Alan suggests, the Church remains free to faciliate adoptions 
among Church adherents, right? 

I'm asking this not to make a point, but because 
I'm genuining curious about what state law prohibits and how that restriction 
impinges on religious liberty.

- Original Message - 
From: "Douglas Laycock" [EMAIL PROTECTED]
To: "Law  Religion issues for Law Academics" 
religionlaw@lists.ucla.edu
Sent: Saturday, March 11, 2006 2:57 PM
Subject: RE: Catholic Charities 
Issue
It may be a business to the state, although even the state recognizes 
that it's not for profit. I assume it's a corporal work of mercy to the 
church. Recharacterizing religious activities as businesses, because it 
costs money to sustain them or because other groups engage in similar activities 
for secular reasons, is not in my view a legitimate means of escaping religious 
liberty guarantees.Douglas 
LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, 
TX 78705512-232-1341512-471-6988 
(fax)From: [EMAIL PROTECTED] on 
behalf of Marty LedermanSent: Sat 3/11/2006 1:22 PMTo: Law  
Religion issues for Law AcademicsSubject: Re: Catholic Charities 
IssueDoug, under Massachusetts law would CC's inability to engage in 
"adoption services" (which I assume means being in the business of arranging 
adoptions) result in a substantial burden on its religious 
exercise?- Original Message - From: "Douglas 
Laycock" [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 
To: "Law  Religion issues for Law Academics" religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Saturday, March 11, 2006 2:09 PMSubject: RE: Catholic 
Charities IssueApplication of this law to Catholic Charities should 
have raised a quite plausible claim under the Massachusetts Free Exercise 
Clause. See the Society of Jesus case about 1990, and a mid-90s case on 
marital status discrimination by landlords, the name of which I am 
forgetting. So why did Catholic Charities surrender rather 
than litigate? Maybe they figured they would just make bad law with that 
claim in the court that found a constitutional right to gay marriage. If 
that's the reason, that sort of restraint in the choice of what claims to file 
should be practiced a lot more widely. If that just didn't think about the 
state law, that's much less admirable.Douglas 
LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, 
TX 78705512-232-1341512-471-6988 
(fax)From: [EMAIL PROTECTED] 
mailto:[EMAIL PROTECTED] on behalf of Will EsserSent: Sat 3/11/2006 12:35 PMTo: 
Law  Religion issues for Law AcademicsSubject: Re: Catholic Charities 
IssuePaul,Your comparison 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] 
mailto:[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 http://www.boston.com/news/local/articles/2006/03/11/catholic_charities_stuns_state_ends_adoptions/ http://www.boston.com/news/local/articles/2006/03/11/cathol

Re: Catholic Charities Issue

2006-03-11 Thread Marty Lederman




Uh, that would be "genuinely curious." 
Sorry

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law  Religion issues for Law 
  Academics 
  Sent: Saturday, March 11, 2006 5:33 
  PM
  Subject: Re: Catholic Charities 
  Issue
  
  I didn't mean to question the sincere religious 
  motivation of Catholic Charities (or the Bishops whose decree it is 
  following). I was simply curious what it is, exactly, that Massachusetts 
  prevents CC from doing, and whether andhowthat 
  particularlegal restriction imposes a substantial burden 
  on the religious exercise of the Church or of those involved in CC. 
  Presumably, as Alan suggests, the Church remains free to faciliate adoptions 
  among Church adherents, right? 
  
  I'm asking this not to make a point, but because 
  I'm genuining curious about what state law prohibits and how that restriction 
  impinges on religious liberty.
  
  - Original Message - 
  From: "Douglas Laycock" [EMAIL PROTECTED]
  To: "Law  Religion issues for Law Academics" 
  religionlaw@lists.ucla.edu
  Sent: Saturday, March 11, 2006 2:57 
  PM
  Subject: RE: Catholic Charities 
  Issue
  It may be a business to the state, although even the state recognizes 
  that it's not for profit. I assume it's a corporal work of mercy to the 
  church. Recharacterizing religious activities as businesses, because it 
  costs money to sustain them or because other groups engage in similar 
  activities for secular reasons, is not in my view a legitimate means of 
  escaping religious liberty 
  guarantees.Douglas LaycockUniversity of 
  Texas Law School727 E. Dean Keeton St.Austin, TX 
  78705512-232-1341512-471-6988 
  (fax)From: [EMAIL PROTECTED] 
  on behalf of Marty LedermanSent: Sat 3/11/2006 1:22 PMTo: Law  
  Religion issues for Law AcademicsSubject: Re: Catholic Charities 
  IssueDoug, under Massachusetts law would CC's inability to engage 
  in "adoption services" (which I assume means being in the business of 
  arranging adoptions) result in a substantial burden on its religious 
  exercise?- Original Message - From: 
  "Douglas Laycock" [EMAIL PROTECTED] 
  mailto:[EMAIL PROTECTED] 
  To: "Law  Religion issues for Law Academics" religionlaw@lists.ucla.edu 
  mailto:religionlaw@lists.ucla.edu Sent: Saturday, March 11, 2006 2:09 PMSubject: RE: 
  Catholic Charities IssueApplication of this law to Catholic 
  Charities should have raised a quite plausible claim under the Massachusetts 
  Free Exercise Clause. See the Society of Jesus case about 1990, and a 
  mid-90s case on marital status discrimination by landlords, the name of which 
  I am forgetting. So why did Catholic Charities surrender 
  rather than litigate? Maybe they figured they would just make bad law 
  with that claim in the court that found a constitutional right to gay 
  marriage. If that's the reason, that sort of restraint in the choice of 
  what claims to file should be practiced a lot more widely. If that just 
  didn't think about the state law, that's much less 
  admirable.Douglas LaycockUniversity of 
  Texas Law School727 E. Dean Keeton St.Austin, TX 
  78705512-232-1341512-471-6988 
  (fax)From: [EMAIL PROTECTED] 
  mailto:[EMAIL PROTECTED] on behalf of Will EsserSent: Sat 3/11/2006 
  12:35 PMTo: Law  Religion issues for Law AcademicsSubject: Re: 
  Catholic Charities IssuePaul,Your comparison 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] 
  mailto:[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

Re: Catholic Charities Issue

2006-03-11 Thread Richard Dougherty

While I don't have an immediate answer to Marty's qusetion, I want to commend 
him and others who have focused on the legal question involved.  As for the 
posters who want to use the issue as a vehicle for criticizing the Church for 
its postition, and lecture it on how to reform its theology while at the same 
time revealing palpable ignorance of its theology, I can only say that I am 
embarrassed.
Richard Dougherty

-- Original Message --
From: Marty Lederman [EMAIL PROTECTED]
Reply-To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Date:  Sat, 11 Mar 2006 17:33:36 -0500

I didn't mean to question the sincere religious motivation of Catholic 
Charities (or the Bishops whose decree it is following).  I was simply curious 
what it is, exactly, that Massachusetts prevents CC from doing, and whether 
and how that particular legal restriction imposes a substantial burden on the 
religious exercise of the Church or of those involved in CC.  Presumably, as 
Alan suggests, the Church remains free to faciliate adoptions among Church 
adherents, right?  

I'm asking this not to make a point, but because I'm genuining curious about 
what state law prohibits and how that restriction impinges on religious 
liberty.
 
- Original Message - 
From: Douglas Laycock [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Saturday, March 11, 2006 2:57 PM
Subject: RE: Catholic Charities Issue


It may be a business to the state, although even the state recognizes that 
it's not for profit.  I assume it's a corporal work of mercy to the church.  
Recharacterizing religious activities as businesses, because it costs money to 
sustain them or because other groups engage in similar activities for secular 
reasons, is not in my view a legitimate means of escaping religious liberty 
guarantees.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of Marty Lederman
Sent: Sat 3/11/2006 1:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Doug, under Massachusetts law would CC's inability to engage in adoption 
services (which I assume means being in the business of arranging adoptions) 
result in a substantial burden on its religious exercise?
 
 
- Original Message - 
From: Douglas Laycock [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu 
Sent: Saturday, March 11, 2006 2:09 PM
Subject: RE: Catholic Charities Issue


Application of this law to Catholic Charities should have raised a quite 
plausible claim under the Massachusetts Free Exercise Clause.  See the Society 
of Jesus case about 1990, and a mid-90s case on marital status discrimination 
by landlords, the name of which I am forgetting.  
 
So why did Catholic Charities surrender rather than litigate?  Maybe they 
figured they would just make bad law with that claim in the court that found a 
constitutional right to gay marriage.  If that's the reason, that sort of 
restraint in the choice of what claims to file should be practiced a lot more 
widely.  If that just didn't think about the state law, that's much less 
admirable.
 
 
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED]  on behalf of Will Esser
Sent: Sat 3/11/2006 12:35 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Paul,
 
Your comparison 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.
 
Will

Paul Finkelman [EMAIL PROTECTED] mailto:[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 Finkelman

Rick Duncan wrote:


The Boston Globe has two good articles today on the decision

Re: Catholic Charities Issue

2006-03-11 Thread Rick Duncan

Marty, I could be wrong about this because I am relying on my recollection of news reports, but I think the problem is that CC's entire adoption program concerns finding homes forhard-to-adopt children in state custody. The state pays CC a grant to find homes for children in state custody, subject to the non-discrimination requirement. Thus, the state controls the kids and the money. Please correct me if I'm wrong.RickMarty Lederman [EMAIL PROTECTED] wrote:  Uh, that would be "genuinely curious." Sorry- Original Message -   From: Marty Lederman   To: Law  Religion issues for Law Academics   Sent: Saturday, March 11, 2006 5:33 PM  Subject: Re: Catholic Charities IssueI didn't mean to question the sincere religious motivation of Catholic Charities (or the Bishops whose decree it is following). I was simply curious what it is, exactly, that Massachusetts prevents CC from doing, and whether andhowthat particularlegal restriction imposes a substantial burden on the religious ex!
 ercise of
 the Church or of those involved in CC. Presumably, as Alan suggests, the Church remains free to faciliate adoptions among Church adherents, right? I'm asking this not to make a point, but because I'm genuining curious about what state law prohibits and how that restriction impinges on religious liberty.- Original Message -   From: "Douglas Laycock" [EMAIL PROTECTED]  To: "Law  Religion issues for Law Academics" religionlaw@lists.ucla.edu  Sent:
 Saturday, March 11, 2006 2:57 PM  Subject: RE: Catholic Charities Issue  It may be a business to the state, although even the state recognizes that it's not for profit. I assume it's a corporal work of mercy to the church. Recharacterizing religious activities as businesses, because it costs money to sustain them or because other groups engage in similar activities for secular reasons, is not in my view a legitimate means of escaping religious liberty guarantees.Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341512-471-6988 (fax)From: [EMAIL PROTECTED] on behalf of Marty LedermanSent: Sat 3/11/2006 1:22 PMTo: Law  Religion issues for Law AcademicsSubject: Re: Catholic Charities IssueDoug, under Massachusetts law would CC's inability to engage in "adoption services" (which I assume means being in the business of arranging adoptions) result in a substantial burden on its religious exercise?- Original Message - From: "Douglas Laycock" [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] To: "Law  Religion issues for Law Academics" religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Saturday, March 11, 2006 2:09 PMSubject: RE: Catholic Charities IssueApplication of this law to Catholic Charities should have raised a quite plausible claim under the Massachusetts Free Exercise Clause. See the Society of Jesus case about 1990, and a mid-90s case on marital status discrimination by landlords, the name of which I am forgetting. So why did Catholic Charities surrender rather than litigate? Maybe they figured they would just make bad law with that claim in the court that found a constitutional right to gay marriage. If that's the reason, that sort of restraint in the choice of what claims to file should be practiced a lot more widely. If that just didn't think about the state law, that's much less admirable.Douglas
 LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341512-471-6988 (fax)From: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] on behalf of Will EsserSent: Sat 3/11/2006 12:35 PMTo: Law  Religion issues for Law AcademicsSubject: Re: Catholic Charities IssuePaul,Your comparison 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 wi!
 th 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] mailto:[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

Re: Catholic Charities Issue

2006-03-11 Thread Hamilton02




What this disputere: Catholic Charities illustrates is the danger of 
any religious institution in relying upon government funding for its 
programs. Government funding always comes with strings. In general, 
Catholic Charities gets 86% of its funding from government sources, 14% from 
private, with the vast majority of that coming from charities like United 
Way. A tiny portion is paid by Catholics.I would assume that 
onits own dime, CC can facilitate adoptions, but feel free to correct that 
assumption. 

The question is whether it is going to accept the condition placed on it by 
the government's money.CC is not required to take the government's 
money, right?This is the Solomon Amendment -- private institution 
that has become dependent on government largesse insists that it is entitled to 
that largesse and that the government should have no power to place strings on 
the money. There is no First Amendment problem and certainly no 
"substantial burden" under RFRA. If "substantial burden" means that 
religious entities can force the government to give them money on their own 
terms, we are quite literally on the other side of Alice's looking glass.

Marci


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RE: Catholic Charities Issue

2006-03-11 Thread Douglas Laycock




If this is a government funded program,the broad 
reading of Locke v. Davey implies that the government is free to give 
the money, withhold the money, give the money with strings, or discriminate 
against religion in the allocation of funds. The narrow reading is that 
this unlimited power applies only funding the training of clergy. But even 
before Davey, Rust v. Sullivan and similar cases from which 
Davey is derived give government broad power to define the service it 
wants funded. 

Massachusettslaw might turn out to be different, but 
if Catholic Charities was looking at these federal precedents and quite possibly 
an absence of state precedents on the conditional funding questions, it is easy 
to see why they didn't sue. 

The government's power to define the programs it wants 
to fund need not lead to the untrammeled government power arguably approved in 
Davey. But even without Davey, and on a highly 
protective view of free exercise, there is probably government power to prohibit 
discrimination amongbeneficiaries of government spending programs. 
If that is right, the only question would be whether the adoptive parents are 
beneficiaries, or only the children. My intuiton is that both are 
beneficiaries.

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



From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Rick 
DuncanSent: Saturday, March 11, 2006 5:32 PMTo: Law  
Religion issues for Law AcademicsSubject: Re: Catholic Charities 
Issue

Marty, I could be wrong about this because I am relying on my recollection 
of news reports, but I think the problem is that CC's entire adoption program 
concerns finding homes forhard-to-adopt children in state custody. The 
state pays CC a grant to find homes for children in state custody, subject to 
the non-discrimination requirement. Thus, the state controls the kids and the 
money. 

Please correct me if I'm wrong.

RickMarty Lederman [EMAIL PROTECTED] 
wrote:

  
  

  Uh, that would be "genuinely curious." 
  Sorry
  
- Original Message - 
From: 
Marty Lederman 
To: Law  Religion issues for Law 
Academics 
Sent: Saturday, March 11, 2006 5:33 
PM
    Subject: Re: Catholic Charities 
Issue

I didn't mean to question the sincere religious 
motivation of Catholic Charities (or the Bishops whose decree it is 
following). I was simply curious what it is, exactly, that 
Massachusetts prevents CC from doing, and whether andhowthat 
particularlegal restriction imposes a substantial burden 
on the religious ex! ercise of the Church or of those involved in CC. 
Presumably, as Alan suggests, the Church remains free to faciliate adoptions 
among Church adherents, right? 

I'm asking this not to make a point, but 
because I'm genuining curious about what state law prohibits and how that 
restriction impinges on religious liberty.

- Original Message - 
From: "Douglas Laycock" [EMAIL PROTECTED]
To: "Law  Religion issues for Law 
Academics" religionlaw@lists.ucla.edu
Sent: Saturday, March 11, 2006 2:57 
    PM
Subject: RE: Catholic Charities 
Issue
It may be a business to the state, although even the state recognizes 
that it's not for profit. I assume it's a corporal work of mercy to 
the church. Recharacterizing religious activities as businesses, 
because it costs money to sustain them or because other groups engage in 
similar activities for secular reasons, is not in my view a legitimate means 
of escaping religious liberty 
guarantees.Douglas LaycockUniversity 
of Texas Law School727 E. Dean Keeton St.Austin, TX 
78705512-232-1341512-471-6988 
(fax)From: [EMAIL PROTECTED] on behalf of Marty LedermanSent: Sat 3/11/2006 1:22 
PMTo: Law  Religion issues for Law AcademicsSubject: Re: 
Catholic Charities IssueDoug, under Massachusetts law would CC's 
inability to engage in "adoption services" (which I assume means being in 
the business of arranging adoptions) result in a substantial burden on its 
religious exercise?- Original Message - 
From: "Douglas Laycock" [EMAIL PROTECTED] 
mailto:[EMAIL PROTECTED] 
To: "Law  Religion issues for Law Academics" religionlaw@lists.ucla.edu 
mailto:religionlaw@lists.ucla.edu Sent: Saturday, March 11, 2006 2:09 PMSubject: RE: 
Catholic Charities IssueApplication of this law to Catholic 
Charities should have raised a quite plausible claim under the Massachusetts 
Free Exercise Clause. See the Society of Jesus case about 1990, and a 
mid-90s case on marital status discrimination by landlords, the name of 
which I am forgetting. So why did Catholic Charities 
surrender rather than litigate? Maybe th

RE: Catholic Charities Issue

2006-03-11 Thread Alan Brownstein

If the program works in the way that Rick describes, the next question I would 
ask is this. Is it the case that as a result of Catholic Charities position, 
some kids would stay in state custody for a longer period of time -- or may 
never get adopted -- because Catholic Charities will not consider gay parents 
as possible parents for these children. Or is it the case that there are 
several NGOs working in this area, and that one NGO, like Catholic Charities, 
could focus on finding homes for these kids among certain sections of the 
state's population, while other NGOs could focus their attention on other 
constituencies -- so that Catholic Charities' refusal to place children with 
gay couples would not restrict the opportunity of children to be adopted -- nor 
would it interfere with the opportunity of gay couples to adopt children.
 
I don't suggest that the answer to this question resolves the problem -- but it 
clarifies some of the interests that are at stake. In my judgement, 
facilitating the adoption of these children is a compelling state interest as 
is allowing parents the state deems qualified to adopt children the opportunity 
to do so. 
 
Notwithstanding that legal conclusion, a religious organization that disagrees 
with the state's policy judgments may conclude that the dictates of its faith 
preclude it from participating in such a program. In that circumstance, one 
should hardly be surprised that it refuses to continue to participate in the 
program. 
 
Alan Brownstein



From: [EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sat 3/11/2006 3:31 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


Marty, I could be wrong about this because I am relying on my recollection of 
news reports, but I think the problem is that CC's entire adoption program 
concerns finding homes for hard-to-adopt children in state custody. The state 
pays CC a grant to find homes for children in state custody, subject to the 
non-discrimination requirement. Thus, the state controls the kids and the 
money. 
 
Please correct me if I'm wrong.
 
Rick
 
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Re: Catholic Charities Issue

2006-03-11 Thread Rick Duncan

I think Marci and Doug are spot on. The state, as in Rust, says "this is our program, take it or leave it." CC says, "okay, we'll leave it." CC loses a part of its ministry, the state loses one of its best adoption-service providers, and the kids stay in state custody longer (and, for some, perhaps permanently, since CC was extra good at placing hard-to-place children).This is why some of us fight so hard against gay rights and gay marriage--gay rights/marriage are incompatible (at least in certain situations)with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights. Some states choose gay rights. I choose religious liberty. I was born and raised in Massachusetts, but I couldn't live there now (and I don't think I even care to visit--not even if I had Monster seats at fenway).Cheers, Rick Duncan
[EMAIL PROTECTED] wrote: What this disputere: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs. Government funding always comes with strings. In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way. A tiny portion is paid by Catholics.I would assume that onits own dime, CC can facilitate adoptions, but feel free to correct that assumption. The question is whether it is going to accept the condition placed on it by the government's money.&!
nbsp;CC
is not required to take the government's money, right?This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that it is entitled to that largesse and that the government should have no power to place strings on the money. There is no First Amendment problem and certainly no "substantial burden" under RFRA. If "substantial burden" means that religious entities can force the government to give them money on their own terms, we are quite literally on the other side of Alice's looking glass.Marci 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
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RE: Catholic Charities Issue

2006-03-11 Thread Douglas Laycock





It is not at all impossible 
to have both gay rights and religious liberty. It is just that the gay 
rights activists mostly refuse to recognize religious liberty (at least if any 
gay rights issue is in anyway implicated), and the more conservative religious 
liberty activists mostly refuse to recognize gay rights. Both sides want 
the symbolic victory of having the state declare the other side wrong, and both 
sides want to be assured they will never have to litigate a case at the boundary 
between the two freedoms.

Alan Brownstein sketched a 
perfectly sensible way to resolve the Massachusetts dispute in a way that 
protects both sides -- gay parents would be free to adopt through other 
state-funded agencies, and Catholic Charities would be free not to place 
children with gay parents. More generally, strong gay rights legislation 
with strong religious liberty exceptions would protect both sides. 



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


From: [EMAIL PROTECTED] on 
behalf of Rick DuncanSent: Sat 3/11/2006 8:22 PMTo: Law 
 Religion issues for Law AcademicsSubject: Re: Catholic 
Charities Issue

I think Marci and Doug are spot on. The state, as in Rust, 
says "this is our program, take it or leave it." CC says, "okay, we'll 
leave it." CC loses a part of its ministry, the state loses one of its 
best adoption-service providers, and the kids stay in state custody longer (and, 
for some, perhaps permanently, since CC was extra good at placing hard-to-place 
children).

This is why some of us fight so hard against gay rights and gay 
marriage--gay rights/marriage are incompatible (at least in certain 
situations)with religious liberty. As in Massachusetts, the state has to 
choose between religious liberty and gay rights. 

Some states choose gay rights. I choose religious liberty. I was born and 
raised in Massachusetts, but I couldn't live there now (and I don't think I even 
care to visit--not even if I had Monster seats at fenway).

Cheers, Rick Duncan 

[EMAIL PROTECTED] wrote:

  What this disputere: Catholic Charities illustrates is the danger 
  of any religious institution in relying upon government funding for its 
  programs. Government funding always comes with strings. In 
  general, Catholic Charities gets 86% of its funding from government sources, 
  14% from private, with the vast majority of that coming from charities like 
  United Way. A tiny portion is paid by Catholics.I would 
  assume that onits own dime, CC can facilitate adoptions, but feel free 
  to correct that assumption. 
  
  The question is whether it is going to accept the condition placed on it 
  by the government's money.! nbsp;CC is not required to take the 
  government's money, right?This is the Solomon Amendment -- private 
  institution that has become dependent on government largesse insists that it 
  is entitled to that largesse and that the government should have no power to 
  place strings on the money. There is no First Amendment problem and 
  certainly no "substantial burden" under RFRA. If "substantial burden" 
  means that religious entities can force the government to give them money on 
  their own terms, we are quite literally on the other side of Alice's looking 
  glass.
  
  Marci
  
  

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


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messages to others.

RE: Catholic Charities Issue

2006-03-11 Thread Alan Brownstein

Not only isn't it impossible to have both gay rights and religious liberty, the 
core of both sets of claims have  common foundations. It makes no more sense 
for a gay activist to insist that a religious person should ignore the duties 
he or she owes to G-d (a duty that, I believe, arises out of love and 
principle) -- because the religious person can not reasonably be asked to do 
that -- than it does for a religious person to insist that a gay person should 
deny the love he (or she) shares with another person who he wants to spend his 
life with  -- because the gay person can not reasonably be asked to do that.
 
Alan Brownstein  



From: [EMAIL PROTECTED] on behalf of Douglas Laycock
Sent: Sat 3/11/2006 7:42 PM
To: Law  Religion issues for Law Academics; Law  Religion issues for Law 
Academics
Subject: RE: Catholic Charities Issue


It is not at all impossible to have both gay rights and religious liberty.  It 
is just that the gay rights activists mostly refuse to recognize religious 
liberty (at least if any gay rights issue is in anyway implicated), and the 
more conservative religious liberty activists mostly refuse to recognize gay 
rights.  Both sides want the symbolic victory of having the state declare the 
other side wrong, and both sides want to be assured they will never have to 
litigate a case at the boundary between the two freedoms.
 
Alan Brownstein sketched a perfectly sensible way to resolve the Massachusetts 
dispute in a way that protects both sides -- gay parents would be free to adopt 
through other state-funded agencies, and Catholic Charities would be free not 
to place children with gay parents.  More generally, strong gay rights 
legislation with strong religious liberty exceptions would protect both sides.  
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)



From: [EMAIL PROTECTED] on behalf of Rick Duncan
Sent: Sat 3/11/2006 8:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: Catholic Charities Issue


I think Marci and Doug are spot on. The state, as in Rust,  says this is our 
program, take it or leave it. CC says, okay, we'll leave it.  CC loses a 
part of its ministry, the state loses one of its best adoption-service 
providers, and the kids stay in state custody longer (and, for some, perhaps 
permanently, since CC was extra good at placing hard-to-place children).
 
This is why some of us fight so hard against gay rights and gay marriage--gay 
rights/marriage are incompatible (at least in certain situations) with 
religious liberty. As in Massachusetts, the state has to choose between 
religious liberty and gay rights. 
 
Some states choose gay rights. I choose religious liberty. I was born and 
raised in Massachusetts, but I couldn't live there now (and I don't think I 
even care to visit--not even if I had Monster seats at fenway).
 
Cheers, Rick Duncan 
 


[EMAIL PROTECTED] wrote:


What this dispute re: Catholic Charities illustrates is the danger of 
any religious institution in relying upon government funding for its programs.  
Government funding always comes with strings.  In general, Catholic Charities 
gets 86% of its funding from government sources, 14% from private, with the 
vast majority of that coming from charities like United Way.  A tiny portion is 
paid by Catholics.  I would assume that on its own dime, CC can facilitate 
adoptions, but feel free to correct that assumption.  
 
The question is whether it is going to accept the condition placed on 
it by the government's money. ! nbsp;CC is not required to take the 
government's money, right?  This is the Solomon Amendment -- private 
institution that has become dependent on government largesse insists that it is 
entitled to that largesse and that the government should have no power to place 
strings on the money.  There is no First Amendment problem and certainly no 
substantial burden under RFRA.  If substantial burden means that religious 
entities can force the government to give them money on their own terms, we are 
quite literally on the other side of Alice's looking glass.
 
Marci
 
 



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! Mail
Bring photos to life! New PhotoMail 
http://pa.yahoo.com/*http://us.rd.yahoo.com/evt=39174/*http://photomail.mail.yahoo.com
 makes sharing a breeze. 
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RE: Catholic Charities Issue

2006-03-11 Thread Rick Duncan

The strong religious freedom protections Doug mentions simply don't exist under constitutional law or under presently-enacted antidiscrimination laws. If gay rights laws are enacted, religious persecution follows inexorably. Moreover, religious dissenters in states like Massachusettsare marginalized and stigmatized as "homophobes" and as outlaws (even law school casebooks are beginning to jump on this bandwagon). Public school curricula soon reflect the change in the law, and our children are made a captive audience for learning the new social understanding of marriage and family and of unlawful discrimination.In Europe, even religious speech about homosexuality can be gagged under "hate speech" laws. Even in the states, the free speech/equal accessrights of groups like the CLSare taken awayon college andlaw school campuses unless they are willing to signa nondiscrimination loyalty oath.
We see the same thing in the area of abortion and contraceptives. Turn these once unlawful behaviors into "fundamental rights" and soon Catholic hospitals are expected to provide these services, religious employers are expected to include them in health care benefits, pharmacists must dispense them notwithstanding religious objections, and private professional schools must teach them or risk losing accreditation. And the beat goes on.In contemprary America, the greatest threat to religious liberty is the gay rights/gay marriagemovement (or, more broadly, the enactment of the sexual revolution as a protected right that others must accommodate). Who else has a political agenda that targets the ordinary activities (such as adoption ministries and health benefits)of mainstream religious institutions and turns these ministries into unlawful acts.Rick Duncan
Douglas Laycock [EMAIL PROTECTED] wrote:It is not at all impossible to have both gay rights and religious liberty. It is just that the gay rights activists mostly refuse to recognize religious liberty (at least if any gay rights issue is in anyway implicated), and the more conservative religious liberty activists mostly refuse to recognize gay rights. Both sides want the symbolic victory of having the state declare the other side wrong, and both sides want to be assured they will never have to litigate a case at the boundary between the two freedoms.!
Alan Brownstein sketched a perfectly sensible way to resolve the Massachusetts dispute in a way that protects both sides -- gay parents would be free to adopt through other state-funded agencies, and Catholic Charities would be free not to place children with gay parents. More generally, strong gay rights legislation with strong religious liberty exceptions would protect both sides. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) !
From: [EMAIL PROTECTED] on behalf of Rick DuncanSent: Sat 3/11/2006 8:22 PMTo: Law Religion issues for Law AcademicsSubject: Re: Catholic Charities IssueI think Marci and Doug are spot on. The state, as in Rust, says "this is our program, take it or leave it." CC says, "okay, we'll leave it." CC loses a part of its ministry, the state loses one of its best adoption-service providers, and the kids stay in state custody longer (and, for some, perhaps permanently, since CC was extra good at placing hard-to-place children).This is why some of us fight so hard against gay rights and gay marriage--gay rights/marriage are incompatible (at least in certain situations)with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights.
Some states choose gay rights. I choose religious liberty. I was born and raised in Massachusetts, but I couldn't live there now (and I don't think I even care to visit--not even if I had Monster seats at fenway).Cheers, Rick Duncan [EMAIL PROTECTED] wrote:What this disputere: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs. Government funding always comes with strings. In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way. A tiny portion is paid by Catholics.I would assume that
onits own dime, CC can facilitate adoptions, but feel free to correct that assumption. The question is whether it is going to accept the condition placed on it by the government's money.! nbsp;CC is not required to take the government's money, right?This is the Solomon Amendment -- private institution that has become dependent on government largesse insists that it is entitled to that largesse and that the government should have no power to place strings on the money. There is no First Amendment problem and certainly no "substantial burden" under RFRA. If

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