RE: Contraceptives and gender discrimination
Isn't there a difference here between (1) accepting specific subsidies (federal funds) that the government insists be used for behavior that furthers specific government goals, and (2) operat[ing] in the public sphere by running hospitals and universities? By way of analogy, consider the Free Speech Clause. Rust v. Sullivan says that the government may insist that certain funds be used to promote prenatal care and not abortion; and though the holding is controversial as to that particular fact pattern, I assume it would be uncontroversial as to most other funding programs. But it hardly follows, I take it, that anyone running a hospital could be ordered not to speak out in favor of abortion, or even some medical procedure that is not constitutionally protected. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, February 13, 2012 12:51 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraceptives and gender discrimination What if a hospital is run by a religious group that believes doctrinally and sincerely in not using advanced technology or extraordinary interventions to prolong human life. In response, the government says, no, if you want to receive federal funds, you'll employ conventional medical standards and treatments. This burdens the institution's religious liberty by requiring it to use resources in a way that violates its religious principles, doesn't it? Yet in this case, it's highly doubtful that there would be any hew and cry about the sect's religious liberty. Obama's opponents and the Catholic hierarchy have done an effective job painting this as an assult on religious liberty. But let's be honest, this is really about controversial (i.e., those that remain part of the culture wars) v. non-controversial government mandates. If a religious group chooses to operate in the public sphere by running hospitals and universities, it gives up some of its claim to be free of generally applicable government policies and regulation. I had thought that principle was reasonably well settled. Some might say, well yes, if the religious group is running a McDonald's franchise, that's different. But why should profit or tax status be the relevant consideration? Steve Sanders From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 10:27 AM To: Law Religion issues for Law Academics Subject: RE: Contraceptives and gender discrimination I have to admit that as long as we are talking about private resources, I have a hard time understanding the argument that there is no burden on religious institutions here. The private resources of religious institutions are dedicated to conduct obligated by or at least consistent with religious beliefs and doctrine. How can it not be a burden on the institution's religious liberty for the state to require those resources to be used in a way that violates the religious principles to which the institution is committed. As for the analogy to taxes, I have always though there was a burden here -although it is attenuated, difficult to mitigate, and probably overridden by important state interests. But wouldn't a tax imposed on a class including religious institutions that was earmarked for a specific purpose -such as providing contraceptive services-raise a more difficult question? Alan Brownstein From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, February 13, 2012 5:50 AM To: Marc DeGirolami Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law Religion issues for Law Academics; Con Law Prof list Subject: Re: Contraceptives and gender discrimination On the burden question -- Religious entities may limit hiring to co-religionists, and then make their best efforts to enforce religious norms against employees. Doesn't that option make the burden of the HHS policy far less substantial? I think a common reaction to the religious liberty claim being advanced here is its leveraging effect on employees who are not of the faith. So even if some faiths have a religious mission to serve others, do they similarly have a religious mission to employ others? Or is it their religious mission to impede access to contraception by all, whether or not of the faith? If it's the latter, I don't know why their position is any different from or stronger than taxpayers who don't want to to support what they see as immoral activity by their government. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Contraceptives and gender discrimination
Marty: I had always thought that substantial burden meant, in relevant part, a requirement that I/we do something that I/we believe to be religiously wrong. If this is so, then isn't the only substantial burden question whether this particular taxpayer or organization holds such a view, and what religions traditionally have done isn't that helpful except insofar as it tells us whether this taxpayer or organization has such a view. Again, as Alan pointed out, and as United States v. Lee held, tax-paying requirements will almost always pass strict scrutiny; but they might well impose a substantial burden. Now perhaps what's doing the work in the analysis below is serious moral injunction; maybe the theory is that if a religious group has made its peace with living in America, where tax money goes to all sorts of purposes, then the group can't think that paying taxes that go to war, abortion, etc. violates a serious moral injunction. After all, they aren't emigrating or going to prison in order to avoid paying the taxes. But has the substantial burden requirement ever been that strong? I would think that if a group thinks that some compelled behavior - whether paying taxes or something else - is sinful, it can still somehow makes its peace with going along with the compulsion if forced to, and yet still ask for exemptions when possible, no? Or am I misunderstanding what the rule is? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 4:30 AM To: Law Religion issues for Law Academics Subject: Re: Contraceptives and gender discrimination Well, if Alan is right that there is a substantial burden every time tax dollars are used by the state on something proscribed by someone's religion, then the substantial burden component of RFRA is simply an empty vessel -- or, in any event, it will be satisfied regularly in countless ordinary instances of all states' (and the federal government's) spending programs. I don't think that can be right. The question, instead, is whether the compelled taxation itself substantially burdens the exercise of one's religion. I assume the answer to that is generally no, because religions traditionally have not treated such civil obligations of payment as implicating serious moral injunctions imposed upon the religious taxpayers, seeing as how the decision to apply the money to the activity in question is always mediated, often several times over, by the choices of others (e.g., legislators, government bureaucrats, private parties who are given the option of using the funds for various forms of health care, etc.). OK, but then Alan asks: What about if the tax itself is earmarked specifically for expenditure on the proscribed purpose? Good question -- I wonder how many religions would see that as raising a materially different problem of complicity by the feepayer or taxpayer than in the case of the general tax. Not many, I suspect, but perhaps I'm wrong. (I'd greatly welcome Catholic and other religious perspectives on this question -- it's relevant to something I'm working on.) But thankfully, we don't have to resolve that question here, since the cost to the employer of sponsoring a health insurance plan is not earmarked for contraception -- anything but. The total collective expenditure by the insurance company on employees' contraceptives will be a drop in the proverbial ocean, since contraceptives are but one, woefully insignificant and relatively inexpensive, covered service among countless others, many of which are very, very expensive. Indeed, I'd be surprised if the inclusion of contraceptive coverage affects the cost of sponsoring the insurance plan (the employer's share of the premium, which I don't believe would be compelled by federal law, in any event) at all -- not worth the dime, so to speak. On Mon, Feb 13, 2012 at 1:26 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: I have to admit that as long as we are talking about private resources, I have a hard time understanding the argument that there is no burden on religious institutions here. The private resources of religious institutions are dedicated to conduct obligated by or at least consistent with religious beliefs and doctrine. How can it not be a burden on the institution's religious liberty for the state to require those resources to be used in a way that violates the religious principles to which the institution is committed. ___ 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
Post length
Folks: The list software is configured to block posts that are longer than 40 Kbytes, and I prefer to keep that block, since it helps avoid overflowing users' mailboxes. Almost always, the long posts are ones that just automatically quote lots of earlier posts in the thread. If you get a message saying that your post is too long, just please edit the post to get rid of most of the quoted posts, and resubmit it; that should fix the problem. Thanks, Eugene ___ 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.
Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness?
I'm with Jim in what I see as his skepticism as to the suggestion that exceptions from a law make it not of general applicability for Free Exercise Clause purposes. (I realize that some post-Smith cases take this view, but I think they are mistaken.) A vast range of laws, probably most laws, have some exceptions. Killing people is murder, except in self-defense or defense of others or in executing a lawful order or in fighting lawfully in war or (in some jurisdictions) under duress or if you're adequately provoked (in the latter case it's still a crime but not murder). Title VII's ban on sex discrimination has exemptions for small employers and for BFOQs. The duty to testify has exceptions galore. So does copyright law. So does contract law. Statutory rape law in many states has exceptions for a minor's spouse, or people close in age to the minor. Trespass law has exceptions for necessity, for easements by prescription, for permissible government action, and more. Are all these laws therefore not covered by Smith? (What really is left then for Smith?) What's more, if the exceptions make the law not of general applicability, and thus trigger strict scrutiny, wouldn't they also make the law underinclusive, and thus make it fail strict scrutiny - so that religious objectors would get exemptions from murder law, trespass law, copyright law, contract law, statutory rape law, trespass law, the duty to testify, and so on? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule Sent: Monday, February 13, 2012 10:55 AM To: Law Religion issues for Law Academics Subject: RE: The contraception mandate under Empoyment Division v Smith I have a question about laws of general applicability. More than a few posts ago, someone - I apologize for not remembering who - gave the speed limit law as an example of a law of general applicability. I recall the point was that even if a person or religious organization had a religious reason for violating the speed limit, the claim would fail. Thus, I wonder about the argument being made by the Becket Fund. The speed limit set by the speed limit law (a) does not apply to everyone (e.g., emergency vehicles), (b) [can't think of an analogy], and (c) provides for a system of individualized exemptions in the form of permits issued to allow violation of the minimum speed requirement for transporting certain large objects (and I think there are some instances where permits can be obtained to exceed the stated maximum). Thus, I wonder, are these the tests for finding a law not to be of general applicability? Jim Maule From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser Sent: Monday, February 13, 2012 1:36 PM To: Law Religion issues for Law Academics Subject: Re: The contraception mandate under Empoyment Division v Smith Brad, In the complaint filed by Belmont Abbey College challenging the contraception mandate, the Becket Fund argues that the contraception mandate is not a law of general applicability because among other things (a) it does not apply to all employers (for instance it does not apply to employers with fewer than 50 employees); (b) it does not apply to certain grandfathered insurance plans; and (c) it provides for a system of individualized exemptions by allowing HHS the ability to grant waivers in response to individualized requests. You can access the complaint here: http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf) Maybe the question to be asked is which law must be of general applicability? In Smith, it strikes me that the peyote statute was a stand alone criminal law. In this instance, I understood that the contraception mandate was just one component of the overall federal healthcare reform act. So it seems to me that in interpreting whether the law is one of general applicability, a court would be required to look at the entire healthcare reform act and determine what waivers and exemptions were included in it, rather than just narrowly focusing on the contraception mandate itself. Thoughts? Will Will Esser --- Ad Majorem Dei Gloriam Charlotte, North Carolina We can easily forgive a child who is afraid of the dark; the real tragedy is when men are afraid of the light. (Attributed to Plato, 428-345 B.C.) --- On Sat, 2/11/12, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: From: Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net Subject: The contraception mandate under Empoyment Division v Smith To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Saturday, February 11, 2012, 12:31 AM I've been following the coverage of the mandate that religious
RE: FW: RFRA substantial burden analysis
Whoops, sorry for the jarring shift from the second person to the third person in the third paragraph From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, February 14, 2012 9:36 PM To: Law Religion issues for Law Academics Subject: RE: FW: RFRA substantial burden analysis Marty: Doesn't this all depend on what you mean by facially plausible in whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 9:12 PM To: Law Religion issues for Law Academics Subject: Re: FW: RFRA substantial burden analysis I don't think anyone on this list would advocate a full-fledged trial on Catholic moral theology. I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in proximate material cooperation with evil. The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a substantial burden based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening genuine and independent private choice (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my
RE: FW: RFRA substantial burden analysis
Marty: Doesn't this all depend on what you mean by facially plausible in whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in 'proximate material cooperation with evil'? I would think that it's obviously facially plausible to say that, once an employee has gotten a paycheck, the church is no longer responsible for what the employee does with it, but when a church is buying an insurance policy, it is responsible for the items that the insurance policy covers. Indeed, this seems to be much like the line drawn by four Justices in Zelman: Once the government gives someone money (a salary, welfare payments, unemployment compensation, etc.), the government is not responsible for the recipient's use of the money for religious purposes, but when the government is handing out education vouchers, it is responsible. And if you object that the program in Zelman mostly involved religious beneficiaries (of course, a highly contested question that turns on what denominator you use), consider the Washington Supreme Court's decision in Witters - or for that matter, the Washington state rule in Locke v. Davey - that applied the same distinction to a program whose beneficiaries were indubitably overwhelmingly secular. Naturally, one involves felt complicity in sin and the other felt subsidization of religious doctrine, but the underlying point for purposes of the proximate material cooperation line is the same. But it sounds like Marty requires more than just this level of facially plausible. And if we get past that level (or even to this level), then we're getting into the very sort of inquiry into the reasonableness of religious beliefs that the Court has rightly rejected. Say that an orthodox Jew insists that he needs a diet that doesn't mix chicken and milk. Will we start demanding a facially plausible explanation - in the sense of one that persuades us of its reasonableness - for why the bar on seething a kid in its other milk should extend to chicken but not to fish? Or how about an orthodox Jew who does some things on the Sabbath but not others. Will we start demanding a facially plausible explanation of why he can enter this kind of elevator but not that kind of elevator? Religious rules are often based on distinctions that are facially implausible to outsiders. It seems to me that the Court's view has consistently been that requiring someone to do something that he sincerely feels is religiously forbidden is a substantial burden, with no requirement of proof of plausibility - see, e.g., Thomas. And this strikes me as quite right both in general, and in this case in particular. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 9:12 PM To: Law Religion issues for Law Academics Subject: Re: FW: RFRA substantial burden analysis I don't think anyone on this list would advocate a full-fledged trial on Catholic moral theology. I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in proximate material cooperation with evil. The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a substantial burden based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening genuine and independent private choice (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts. Quite honestly, my principal objective here is not to resolve the RFRA question, but instead to ask, at an earlier point in the process, why the state should grant the requested permissive accommodation in the first instance and, perhaps more importantly, to prompt thoughtful people within the Catholic tradition to give further consideration to whether this would, in fact, be a case
Apropos Sherbert v. Verner
A question: Say that an employee believes that God wants him to move across country to be near his family, which needs his help. He quits his job, moves, but can't find a job where his family lives. Should he be seen as constitutionally entitled to unemployment compensation? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: contraceptives and RFRA
I agree with Chip that some burdens aren't treated as substantial, see Lyng and Bowen (both of which I think were correctly decided). But Lyng and Bowen involved situations where the restriction did not require a claimant to do something that the claimant believed to be religiously wrong. My understanding of the caselaw is that any requirement that one do something one believes to be religiously wrong is a substantial burden - and I don't really see a plausible alternative. I agree that this means that similar claims could be raised not just by religiously affiliated institutions, but also by institutions whose owners have those beliefs. But why should that go to the substantial burden question, rather than to the application of strict scrutiny? That, as I understand it, is exactly how the Court decided Lee and Bob Jones; why shouldn't it use a similar approach here (whatever the result might be)? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, February 15, 2012 12:28 PM To: conlawp...@lists.ucla.edu; Law Religion issues for Law Academics Subject: contraceptives and RFRA Having processed this rich conversation, I find myself convinced that a) the objecting religious institutions see themselves as burdened by these rules, and that government should not second-guess that determination, but b) the question of substantiality has to be for the government under some sort of objective standards (character of conflict? degree of conflict? cost of defiance? ease of avoidability?). If any and every objector gets to self-determine both substantiality and burden, then every case of enforcement of federal law can become a RFRA case, with the government always having to satisfy strict scrutiny or allowing opt-out. That CAN'T be right. (And it wasn't the law under Free Exercise, pre-Smith. See Lyng v. Northwest Indian Cemetery Protective Ass'n; Bowen v. Roy.) But let's assume that the complainants in the filed RFRA cases (a college, a university, a religious media network) can satisfy the substantial burden test. If they can, so can every entity, non-profit or profit, controlled by those with similar religious beliefs. Moreover, this can't possibly be limited to objections to contraception and arguably abortifacient drugs. Other employers may assert religious objection to the provision of highly intrusive (and very expensive) end-of-life treatments, on the grounds that they are sinful and immoral attempts to defy divine will about when someone's time has come. Others may object on religious grounds to any use of conventional medical care. Are we not thus in a place quite like U.S. v. Lee, where the Supreme Court rejects an opt-out claim by the Amish from the obligation of employers to pay contributions, and withhold employee contributions, under the Federal Insurance Contribution Act (FICA), because the Court perceives that a scheme of social insurance (in that case, Social Security) depends on universal participation? Allowing some to opt out of an expensive obligation on religious grounds will invite fraudulent claims, be administratively very difficult, and will eventually gut the system. Isn't the ACA system similarly one of universal social/medical insurance, albeit one with more of a role for private providers? And if so, wouldn't the result be the same in the filed ACA cases as in Lee? (Of course, HHS (or Congress) could create a more limited exemption, as HHS has already done. But the scope of that permissive accommodation would be for political decision, not judicial decision under RFRA. And that political decision (for better and worse) does not depend on principled, consistent standards of which burdens are substantial. It depends on clout. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness?
Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because antidiscrimination law is underinclusive. (4) Someone feels a religious obligation to spread the word of God for free; that word happens to be in a book whose copyright is owned by others. His claim isn't just to a right to do this in church, but to a right to do this everywhere. He points to the many exceptions from copyright law, from 17 USC 107 to 17 USC 122 (each of the sixteen sections contains at least one exemption). He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because copyright law is underinclusive. Is it really the case that all these laws should be subject to strict scrutiny - especially given that the underinclusiveness prong of strict scrutiny might well make the laws invalid under such a test? My thinking is that the answer is no. Most laws involve the reconciliation of competing interests, including competing private interests that the government is trying to protect; and I don't think that the fact that someone has a religious motivation to do something constitutionally entitles him to the best treatment available to others. That my rights as a copyright owner are limited in some ways to serve rival concerns doesn't mean that there's a constitutional obligation on the government's part to limit them further in order to serve some people's view of what God demands - a view that is not my view, and to which my rights should not, I think, bend. But whatever one might think of this as a matter of first principles, it seems to me that this most favored nations approach likely yields results, in cases such as the ones I described above, that are rightly seen as improper. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, February 15, 2012 9:16 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Paul rightly asks us to consider more than just formalism. History is important, and I think the concern about freedom of the church goes back at least to Pope Gregory (?) in the 11th (?) Century. Cf. Antigone. I've suggested elsewhere that a historical approach to what constitutes free exercise might help us understand it. But here is some more somewhat formalistic analysis: I have always understood the general applicability test to involve a kind of most favored nations concern. Are other exceptions allowed to undercut the basis purpose of a law to roughly the same degree that a religious exception would undercut it? If so, the law is not of general applicability. For example, if a prohibition law permitted sale and consumption of beer it would need to permit sale and consumption of wine for communion or for Shabbat or Passover dinners. If there is a copyright law exception for fair use of music in schools, then an exception must be made for church services.
RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness?
No, I think it's mistaken, and likewise with the more recent steel wheels case, Mitchell County v. Zimmerman (Iowa Feb. 3, 2012), http://scholar.google.com/scholar_case?case=9939422895334605795 . The conclusion that a public employer's provision of medical exemptions should likewise require the employer to recognize religious exemptions strikes me as quite unsound. Consider some examples: Many public employers would often give months-long leaves to people who are, for instance, battling cancer; does it follow that they are constitutionally obligated to give similar leaves to people who feel a religious obligation to go on a months-long religious pilgrimage? A public employer whose employee has a peanut allergy (or perhaps even a less deadly allergy) might order its cafeteria not to cook with peanuts or peanut oil; does it follow that it is constitutionally obligated to order its cafeteria to cook only with kosher meats, and eschew pork or shrimp or mixed meat and milk, in order to make the cafeteria usable by a kosher-keeping employee? A public university might excuse people with post-traumatic stress disorder from certain assignments that might trigger a bad reaction - e.g., a rape victim might be excused from an assignment that involves a rape case. Does it follow that the university must excuse religious objectors from all assignments that they feel to be religiously objectionable, e.g., because they involve what the objector perceives as blasphemy? The list could go on; but the basic point, it seems to me, remains - that we sometimes cut slack for those who are sick, and sacrifice the interests of taxpayers and of other employees in order to help the sick, doesn't mean that we have to sacrifice such interests in order to help those who feel a religious command that the taxpayers and other employees do not share. (Of course, some people might support the result in Fraternal Order of Police v. Newark on the grounds that the government interests in that case were negligible; I'm not sure that's right, and I'm not sure that courts should make such decisions in such cases - but, even if they do, that would be reason for adopting some sort of weak intermediate scrutiny in such cases, not for adopting strict scrutiny.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, February 15, 2012 11:32 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Eugene, I will try to respond to your hypos later today, but here is a non-hypothetical question: Do you think Fraternal Order of Police v. Newark was correctly decided? Best, Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, February 15, 2012 9:44 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption, and that indeed
RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness?
Setting aside Smith's exception for Sherbert, and setting aside the argument that South Carolina law's protection of Sunday observers discriminated against Saturday observers, I would agree with the dissent in Sherbert. That unemployment compensation law has a good cause exemption, under which some secular causes are treated as sufficient but many as insufficient, doesn't mean that religious causes should be treated as well as the favored secular causes. By analogy, as I mentioned, murder law has an exception for adequate provocation (which reduces the charge to manslaughter). Copyright law has an exception for fair use. The duty to testify has an exemption for those privileges that courts create in light of experience and reason, as well as the Rule 403 free-form admissibility balancing. Title VII has an exception for bona fide occupational qualifications. In many states, many criminal laws have a free-form lesser evil defense. Trespass law has a private necessity defense. Nuisance law in many jurisdictions involves pretty free-form balancing, as does negligence law. It doesn't follow, I think, that claims for religious exemptions - entitlement to a manslaughter defense when the provocation is blasphemy, entitlement to use others' copyrighted works for any religious reasons, the right to refuse to testify when one thinks testimony would be religiously wrong, the right not to hire women when one's religion so calls, the right to escape criminal liability or trespass tort liability because of religious necessity, the right to interfere with others' enjoyment of their property when one has religious justification, or the right to have one's actions that injure another's property be declared reasonable because of one's religious motivations - should be treated as favorably as the most favorably treated secular motivations. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, February 15, 2012 11:55 AM To: 'Law Religion issues for Law Academics' Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Similar question: Eugene, how would you today decide Sherbert v. Verner, with its good cause requirement? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Wednesday, February 15, 2012 2:32 PM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Eugene, I will try to respond to your hypos later today, but here is a non-hypothetical question: Do you think Fraternal Order of Police v. Newark was correctly decided? Best, Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, February 15, 2012 9:44 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption
FW: Answering Eugene's hypos
(or for not practicing someone else's). In addition, the traditional mitigating factors are retail in nature: if I sleep with someone's wife, he may become enraged and kill me on the spot, but I won't be in danger from thousands of people who want to kill me for doing that (unless I'm Don Juan or Benjamin Franklin). Ditto if I beat someone up; he or she might become enraged and kill me, but it would only be one person who would be out for my blood. Or if I kill someone then one family or perhaps one family member might seek revenge. (My name is Inigo Montoya. You killed my father. Prepare to die. But in our world, Inigo would not be able to claim that his killing of Count Rugen was manslaughter, would he?) By contrast, there could be thousands of people who would want to kill me for committing blasphemy; it's more of a wholesale matter. That's certainly true historically, and, unfortunately it is once again becoming true. Consider Salman Rushdie and the cartoonists and publishers of the Mohammed cartoons. Consider all the people who died in riots over those cartoons. Consider the members of religious minorities who are killed by mobs because of rumors of blasphemy. There are other distinctions that could be drawn, but I think this analysis makes my point. The purposes of our laws would be very seriously undercut if a religious blasphemy motivation were sufficient to turn murder into manslaughter. The damage to the law's purposes would substantially exceed the damage caused by the traditional mitigating factors that differentiate manslaughter from murder. Under Justice (then Judge) Alito's analysis in Fraternal Order of Police, I think this is not even close. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Scarberry, Mark Sent: Wednesday, February 15, 2012 11:32 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Eugene, I will try to respond to your hypos later today, but here is a non-hypothetical question: Do you think Fraternal Order of Police v. Newark was correctly decided? Best, Mark From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, February 15, 2012 9:44 AM To: Law Religion issues for Law Academics Subject: RE: Laws with exceptions as triggering strict scrutiny -- and as failing strict scrutiny because of their underinclusiveness? Mark: A few hypotheticals: (1) Say that a state provides that adequate provocation makes killing manslaughter rather than murder, and that a particular set of behaviors - having sex with the defendant's spouse, having just beaten a defendant (but in a situation where the peril is over and no self-defense is allowed), and some other things - qualify as adequate provocation. And say that this defense is indeed used in dozens of cases a year. Someone kills someone for what he perceives is blasphemy, and argues that his religious sense of provocation should be treated the same as the provocation in the adultery, assault, etc. examples, so that he would be guilty only of manslaughter rather than murder. He argues that this presumptively entitles him to an exemption, and that it indeed the presumption can't be rebutted under strict scrutiny because murder law is underinclusive. (2) Someone feels a religious obligation not to testify against his children or parents, or against coreligionists, or in other contexts. He points to all the privileges recognized as defenses to the duty to testify, and argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because the duty to testify is underinclusive. (3) Someone feels a religious obligation not to hire women to work together with men, or not to hire women with small children at home. He points to the BFOQ exemption and to the exemption for small employers, both of which would exclude many more employees from Title VII's protection than would his proposed exemption. He argues that these exceptions presumptively entitle him to an exemption, and that indeed the presumption can't be rebutted under strict scrutiny because antidiscrimination law is underinclusive. (4) Someone feels a religious obligation to spread the word of God for free; that word happens to be in a book whose copyright is owned by others. His claim isn't just to a right to do this in church, but to a right to do this everywhere. He points to the many exceptions from copyright law, from 17 USC 107 to 17 USC 122 (each of the sixteen sections contains at least one exemption). He argues that these exceptions presumptively
RE: Basketball tournaments on the Sabbath
The trouble with “common sense” is that it often points in different directions. Common sense tells us there is real value to following rules with no exceptions, so that one doesn’t have to later deal with questions of “you accommodated them, why don’t you accommodate” us (even when the future request for accommodation might be different from the current one), and also to having a schedule that is predictable, especially given that team members and others related to the team may often plan their schedules around the preannounced playing schedule. Common sense also tells us that there is real value to being flexible, especially for what could be a once-in-a-lifetime event for the kids in whose interest the league is supposed to be operating. Likewise, respect for others sometimes includes changing your plans for others – and sometimes not insisting that others change their plans for you. On balance, I’m pleased with TAPPS’ ultimate decision to accommodate the Jewish team, but I’m not sure that “common sense” and “respect” by themselves resolve this question. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Saturday, March 03, 2012 12:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Basketball tournaments on the Sabbath The common sense is what is often lacking and with a sense of fairness and toleration. Apparently for the leaders of the TAPP common sense means everyone is a Christian and all people have a Sunday sabbath. The lawyers serve as educator to teach common sense and respect for other religions. Connected by DROID on Verizon Wireless -Original message- From: Alan Armstrong alanarmstrong@verizon.net To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00 Subject: Re: Basketball tournaments on the Sabbath My understanding is that Jewish and 7th day adventists consider sabbath as going from sundown on Friday to sundown on Saturday. I do not know of any christian denominations that use sundown Saturday to sundown on Sunday as the Lord's day.Therefore a Saturday night game should be acceptable to all. A little thought and common sense and we would need fewer lawyers. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto:a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote: Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint’s state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side’s state action theory is very weak. But they had to file the lawsuit before common sense could prevail. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road = div= ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Basketball tournaments on the Sabbath
How would travel concerns affect this? Since Orthodox Jews can't drive on the Sabbath, I assume they would often have to drive out during the day Friday and stay over the Sabbath. Would that be an acceptable burden on the students? Or would this itself be seen as a sufficient burden that it should justify rescheduling the game for some other day, when the team won't need to have the 24 hours of down time? These aren't rhetorical questions - I don't know the answer to them - but they seem relevant in figuring out how easy or difficult such accommodations will tend to be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Armstrong Sent: Saturday, March 03, 2012 11:55 AM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath My understanding is that Jewish and 7th day adventists consider sabbath as going from sundown on Friday to sundown on Saturday. I do not know of any christian denominations that use sundown Saturday to sundown on Sunday as the Lord's day.Therefore a Saturday night game should be acceptable to all. A little thought and common sense and we would need fewer lawyers. Alan Law Office of Alan Leigh Armstrong Office 18652 Florida St., Suite 225 Huntington Beach CA 92648-6006 Mail 16835 Algonquin St., Suite 454 Huntington Beach CA 92649-3810 714 375 1147 fax 714 782 6007 a...@alanarmstrong.commailto:a...@alanarmstrong.com Serving the family and small business since 1984 NOTICE: Any tax advice in this e-mail, including attachments, can not be used to avoid penalties or for the promotion of a tax related matter. On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote: Some of you may have seen the story in the Times the other day about the Beren Hebrew Academy in Houston, whose basketball team has reached the state semi-finals of the Texas Association of Private and Parochial Schools tournament. The semifinal game was scheduled for tonight; the Academy is Orthodox and observant, and could not play. The other school was willing to reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members are church affiliated, and as a matter of policy, it never schedules games on Sunday. Beren parents and students filed a lawsuit this morning in the Northern District of Texas, alleging unconstitutional religious discrimination, Texas RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The complaint's state action theory was that the game was scheduled to be played in a public school gym, which is surely not enough. The contract claim looked stronger, judging only by the complaint. Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint was filed, and that the game will begin imminently and will be completed before sunset. If your position is utterly untenable as a matter of public relations, it may not matter that the other side's state action theory is very weak. But they had to file the lawsuit before common sense could prevail. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Basketball tournaments on the Sabbath
I wonder whether religious liberty is exactly the right term here, where we're talking about access to a privately provided program, and one that is hardly essential for life or livelihood. The question isn't just whether Orthodox Jews are free to live as good Orthodox Jews, or even are free to get broadly available benefits of the welfare state that are important to survival (such as unemployment compensation). Rather, the question is whether other private parties should adapt their behavior -- their exercise of their own liberty -- to accommodate Orthodox Jews' felt religious obligations. That's an interesting question, and the answer might well be that they should so adapt their behavior, if it's a low-cost adaptation, out of hospitality or kindness or application of the Golden Rule or some such. But I think that talk of liberty here is not very helpful. Eugene From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Sunday, March 04, 2012 12:33 PM To: Law Religion issues for Law Academics Subject: RE: Basketball tournaments on the Sabbath I don't view these issues as absolute Yes or No questions. I think tournament organizers should take the religious beliefs of participants into account, but there will be situations where the cost to others of particular accommodations will be too high for the requested accommodation to be granted. Some accommodations are relatively low cost. If two semi-final games are going to be played Saturday afternoon and evening, why shouldn't the organizers accommodate the needs of a religious school's team that observes Saturday as the Sabbath and schedule their game for the evening rather the afternoon? Some rejections of accommodations create unnecessary burdens for religious schools. In the Oregon litigation I referenced earlier, the tournament organizers refused to allow the Adventist School's team to play in any tournament games unless they would commit to playing every game scheduled even if it fell on the Sabbath. Other harder cases may involve higher costs. Even here, however, sometimes there may be creative solutions that mitigate burdens or spread costs. If we value religious liberty and are concerned about the exclusion and isolation of religious minorities, we should take accommodation problems seriously -- although that does not mean that the accommodation will always be granted. Alan Brownstein ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Basketball tournaments on the Sabbath
I agree with Paul's point, and realize that I should make my statement more precise. Common sense tells us there is real value to following rules with a minimum number of exceptions, and especially exceptions that are limited to truly extraordinary situations. Indeed, if a tornado knocks out the arena where a game is to be played, you can't very well play the game that day. Likewise, if one of the tournament teams' buses crashes the day before, and most of the team is killed, it makes sense that all the other teams might postpone their games out of grief and respect for the dead. But common sense tells us that there is still value for reserving exceptions for such extraordinary cases. Now, as I said, there is also value for allowing exceptions even outside extraordinary cases; it may well be that an exception ought to be made. My point -- on which Paul and I agree -- is simply that common sense doesn't generally resolve this sort of tension. Eugene From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz [phorw...@hotmail.com] Sent: Saturday, March 03, 2012 7:42 PM To: Law Religion issues for Law Academics Subject: Re: Basketball tournaments on the Sabbath I agree generally with Eugene's point--which I would generalize to just about every situation--that common sense, like many other such phrases (certainly including respect, or the rule of law) is too capacious a term to resolve most disputes. In this case, one would have to both understand and expand the context sufficiently to help one reach a reasonable resolution of the dispute, and even then there would be more than one such resolution. In this case, it seems to me that the road to a reasonable resolution of the problem lies in the fact that TAPPS opened itself to a situation in which it welcomed the possibility of sporting events involving others whose religious needs might require accommodation. If the league had remained solely devoted to Christian schools and, in effect, had valued Christian community over sports or all-state intramural play itself, then refusing to change its schedule would a) be reasonable and b) not be much of a problem, since the issue would be unlikely ever to arise. Once it took the step of opening play to non-Christians, however, including those with an equally thick set of religious commitments, then common sense, if not simply being a good host, would suggest that the league ought to anticipate and accommodate the religious needs of its guests. But certainly the work here is not done by invoking common sense alone. I do, though, think it's worth taking slight issue with the view that common sense tells us that there is real value to following rules with no exceptions. I appreciate that this phrase leaves open room for ambiguity and charitable interpretation; not least, Eugene says real value, not absolute value. But I still think its worth emphasizing that I can think of few if any conditions in which a regime intended for application to human affairs would common-sensically lead to a belief in following rules with no exceptions -- except perhaps, in situations where the rules themselves are already drawn up in such a way that the exceptions are either implicit or explicit. Of course, it is indeed true of rules generally that they contain explicit or implicit exceptions. Even Smith, read common-sensically, is not a rule meant to be followed with no exceptions: it contains both implicit and explicit exceptions. Even the military, a realm in which more people would be likely to agree that rules should be followed with not exceptions, either tailors its rules carefully so that they already contain exceptions or, in some quite crucial cases, insists that there are situations where one must disobey a command. I appreciate that it was just a minor point along the way to a broader conclusion that I generally share. Still, at least in an audience of lawyers, I think it is always worth emphasizing that no sound system of rules could possibly insist on complete obedience, and that any understanding of the rule of law that does not make allowance, either implicitly or explicitly, for ignoring, avoiding, disobeying, or violating rules resembles madness more closely than it does common sense. Best to all, Paul Horwitz University of Alabama School of Law On Mar 3, 2012, at 5:41 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: The trouble with “common sense” is that it often points in different directions. Common sense tells us there is real value to following rules with no exceptions, so that one doesn’t have to later deal with questions of “you accommodated them, why don’t you accommodate” us (even when the future request for accommodation might be different from the current one), and also to having a schedule that is predictable
RE: Exemptions and accommodations
I wonder whether this further shows the value of distinguishing not just exemptions and accommodations, but discriminatory action and nondiscriminatory action. For instance, I expect that few people would view a bookstore owner's decision to close the store as censorship, or a private organization's decision not to host a debate as burdening freedom of speech. So it seems that it's worth distinguishing - for analytical purposes even if not always for legal purposes - at least three categories of action: 1. Deliberate action that singles out speakers, religious practitioners, and others who exercise particular constitutional rights for exclusion. 2. A generally applicable rule that applies to people who have religious objections to it (or perhaps have free-speech-based objections, as with nondiscrimination rules or membership-disclosure rules applied to private associations, or as in cases such as O'Brien), and from which objectors seek an exemption. 3. A generally applicable rule that applies to people who have religious objections to it, and as to which objectors seek an accommodation that would require action by others. Eugene Alan writes: From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, March 05, 2012 1:32 PM To: Law Religion issues for Law Academics Subject: RE: Exemptions and accommodations Doug's distinction between exemptions and accommodations is helpful, but the cause of the problem isn't limited to free exercise cases. If we are talking about freedom of speech, for example, many people would describe the decision of a bookstore to reject a request to carry particular books in its inventory as censorship, not a failure to accommodate the author and her readers. The exclusion of less popular candidates from privately organized debates is similarly decried as burdening freedom of speech, not the failure to accommodate the excluded speaker.. When government provides police to maintain order at political events involving unpopular speakers we typically describe this conduct as protecting freedom of speech, not the accommodation of unpopular speakers. When government sets up restrictive rules limiting access to non-public forums, we describe its decision as burdening freedom of speech, not failing to accommodate speakers seeking access to public property. Perhaps we should be much more careful about distinguishing between requests to be left alone and requests for affirmative action to facilitate the exercise of different freedoms and rights. The failure to do so, however, is fairly widespread. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Israeli Postal Workers Object to Delivering New Testaments
From: Volokh, Eugene Sent: Monday, March 05, 2012 11:32 AM To: Law Religion issues for Law Academics Subject: RE: Israeli Postal Workers Object to Delivering New Testaments There are, it seems to me, two significant differences between the postal worker refusal and the taxi driver refusal: (1) A postal worker is a government employee who is refusing to do what he is being paid to do. The taxi driver is a private individual, and while he may have a government-provided partial monopoly (as do lawyers, doctors, and others), he is still deciding what to do on his own private time and within his own private car. (2) It shouldn’t be hard to set up a system by which cab drivers who want an exemption from the carry-everyone rule on this point must make their preferences clear, for instance with a prominently visible logo, or a statement from the dispatcher when they’re ordered by phone. Such a system should minimize any surprising delays for passengers, while letting taxi drivers engage in their profession without violating their religious principles. It may be harder to have any such system with postal workers, if they have fixed routes; even if some postal workers don’t object to delivering the Bibles, setting up extra visits from those non-objecting postal workers to fill the delivery gaps created by the objecting workers might be much more burdensome. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, March 05, 2012 8:43 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Israeli Postal Workers Object to Delivering New Testaments This is also related to Islamic taxi drivers that refuse to transport passengers who have bottles of alcohol, eg, cases of wine from their travels On Mar 5, 2012, at 11:26 AM, Rick Duncan nebraskalawp...@yahoo.commailto:nebraskalawp...@yahoo.com wrote: ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Religious liberty in demands that others change their behavior to follow one's religious beliefs
Alan: You give examples of deliberate discrimination, but I thought we were generally speaking about decisions not to change one's own affirmative practices -- not just one's prohibitions (e.g., no-headgear rules) but also one's choices to, for instance, play on a particular day -- in order to accommodate others' religious demands. Here, it's not clear to me that a private actor's decision not to accommodate is properly seen as a violation of religious liberty. Let's consider an example: Say that either a patron or an employee feels a religious objection to sexually suggestive materials -- or religiously blasphemous materials -- posted as part of a bar's décor, and demands that the bar remove the material in order to make the bar a place where they would feel comfortable eating or visiting. (That's Lambert v. Condor Manufacturing, though in the context of a bar rather than a shop floor.) I don't think that the bar owner can properly be faulted for denying the patron's or employee's religious liberty here; religious liberty is not the label, I think, for an entitlement to demand that others change their behavior to fit one's religious preferences. Even if a Title VII duty of reasonable accommodation would be triggered on such facts -- I think it shouldn't be, for Free Speech Clause reasons, but others might disagree with me on the constitutional question and also conclude that on the facts changing the doctor won't impose much of a financial burden on the bar owner -- I don't think the reason is the employee's religious liberty. And the same is true, I think, when someone demands that a private association change its schedule to accommodate one's beliefs, or change the food served at its functions, or remove supposedly blasphemous iconography. Eugene Alan Brownstein writes: Eugene is correct that the more private the program, the less obligation there is to accommodate others. But I wasn't focusing on the TAPPS program. I was trying to respond to Marci's more general question. The tournament organizers in the Oregon case I referenced were state actors. In other cases, state institutions may provide much of the funding for tournament events, provide access to public venues where games are played and generally facilitate and support the tournament. The greater the state involvement in the tournament, the more appropriate the basis for a religious liberty argument. Even in a private situation, say a commercial context, I think it is fair to talk about religious liberty being burdened if employers refuse to hire members of a particular faith or motels will not rent them rooms etc. If the employer's decision is grounded on his or her own religious beliefs, religious liberty may be on both sides. If religious practice and belief are not justifications for a refusal to accommodate, but economic or administrative convenience concerns are the basis for denying an accommodation, I have no trouble talking about religious liberty (or religious equality) being weighed against economic liberty or other private interests. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Requirement that cabbies transport alcohol = tiny burden?
Can this possibly be the right analysis? (1) It seems to me that the law routinely distinguishes between X discriminating against Y based on Y’s race or Y’s religion, and X discriminating against Y based on X’s own religious beliefs that are independent of Y’s race or religion. In many states, for instance, a lawyer can’t reject a client based on the client’s race, but I take it that a lawyer could refuse to represent banks on the grounds that the lawyer believes that charging interest is evil – or for that matter could refuse to represent liquor stores on the grounds that the lawyer believes that liquor is evil. Likewise, under Title VII an employer can’t fire an employee based on the employee’s race, but it can fire an employee based on the employee’s adultery (assuming it applies this rule equally to men and women), even when the employer’s hostility to adultery stems from the employer’s religious beliefs. There is the separate question, of course, of whether taxicab drivers should be required to take all comers, without regard to race, baggage, or anything else. But this has nothing to do with the race discrimination analogy. Rather, the issue is whether there ought to be a religious exemption to the take-all-comers rule, a very different question than whether there ought to be a religious exemption to various race discrimination bans. (2) How it could possibly be relevant, for purposes of religious accommodation law, that “a number of imams announced the cabbies were misreading the Koran”? The question, given Thomas, is what the cabbies sincerely thought, not what “a number of” religious leaders think. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ 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.
Cabbies vs. lawyers
In a sense this may be obvious, but it might be worth restating: One thing that is facing the cabbies is that for complex reasons cabbies are stripped of liberties that the rest of us take for granted. If we disapprove of alcohol – whether because we’re Muslim or Methodist, or because a close family member is an alcoholic or was injured by a drunk driver – we are free to refuse to fix the plumbing in a bar, to give legal advice to Coors, or to refuse to let people carrying beer bottles onto our business property. To be sure, our right to freedom of choice may have been limited in some ways by bans on race discrimination, sex discrimination, religious discrimination, and the like. But whether right or wrong those bans still leave us mostly free to choose whom to do business with. The cab drivers thus want only the same kind of liberty that the rest of us generally have. Their argument isn’t a pure freedom of choice argument (which the law has rightly or wrongly denied to cabbies generally) but a freedom of choice argument coupled with a religious freedom argument; but that simply shows that this freedom of choice is even more important to them than it generally is to the rest of us. This doesn’t mean that they should win. Maybe there’s a really good reason for denying cabbies, including religious objectors, this freedom of choice when it comes to transporting alcohol. But it does cast a different light on objections to people “choosing [clients] according to [the choosers’] religious belief,” or “demand[ing] a ‘right’ to exist in a culture that mirrors their views.” No-one makes such objections when we as lawyers pick and choose our clients; no-one faults us for choosing them according to our religious beliefs (unless those beliefs require race or sex discrimination or such); no-one says that lawyers who refuse to work for alcohol distributors demand a right to exist in a culture that mirrors our views. Likewise, I don’t think it’s fair to condemn cabbies for seeking, in this one area that is unusually important to them, the same freedom that lawyers have. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Tuesday, March 06, 2012 2:59 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Why is anger at a publicly licensed cab picking and choosing passengers according to religious belief anything like anti-Muslim animus? Cabbies can't reject passengers on race. Why should they be able to reject those with religious beliefs different from their own? If they don't want to be in the company of nonbelievers, they should find another line of work. Also-- a number of imams announced the cabbies were misreading the Koran. There was no requirement they not transport others' cases of wine. No one was asking them to drink the wine We have crossed the line from legitimate claims to accommodation into the territory where religious believers demand a right to exist in a culture that mirrors their views.That is called Balkanization Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious liberty in demands that others change their behavior to follow one's religious beliefs
It may well be that intentionally discriminatory actions by private athletic organizations are better labeled as threats to religious equality and not religious liberty; on the other hand, sometimes liberty rules themselves embody equality norms (see, e.g., the shape of free speech doctrine, which treats content-based restrictions as more violative of liberty than content-neutral ones). In either case, such intentionally discriminatory actions rightly arouse condemnation (at least when they involve exclusion of some religious groups from mostly secular events or programs). In any event, when this factor of intentional discrimination is absent, and so is any governmental restrictions on what people can do or even private action that dramatically interferes with people's lives and livelihood, I don't think that religious liberty is the right label for an organization's not wanting to change its behavior to make life easier for other religious groups. Suppose the only restaurants in a town where very few Jews live don't serve kosher meat. (I expect that this is a very reasonably supposition.) Is this really properly label an interference - even if a justified interference, given the burden on restaurants to change their practices - with religious liberty? I don't think so. Perhaps a restaurant's enforcing its no-outside-food rule in a situation where a Jewish member of a mostly non-Jewish party wants to bring in kosher food, paper plates, and plastic utensils so that he can eat with his friends, who'll be ordering plenty of the restaurant's food, might qualify as a limit on liberty: The Jewish member is simply asking to do what he is doing, not asking the restaurant to change its cooking plans. I don't think there should be laws mandating restaurants to carve out exceptions from their generally applicable rules here, but I do think one can discuss this as a question of liberty. But when it comes to the patron's demanding that the restaurant actually change its ingredients, or its food preparation practices, I think that is much more than a demand that the restaurant respect the patron's liberty - rather, it's the patron's attempt to restrict the restaurant's liberty in the name of his religion. I think the same is true of Alan's soccer league example. The league isn't violating anyone's liberty through its rules. It might not be accommodating Jewish players, and we can debate whether it should accommodate them further (though, as Doug points out, such an accommodation might impose excessive burdens on other players). But I don't think a refusal to change its plans, not motivated by hostility to Jews, is rightly treated as interfering with Jewish players' liberty (though a creation of a schedule that deliberately burdens Jews might reasonably be treated as a morally wrongful, and perhaps legally wrongful, violation of religious equality). Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, March 04, 2012 5:20 PM To: Law Religion issues for Law Academics Subject: RE: Religious liberty in demands that others change their behavior to follow one's religious beliefs Eugene, I'm not sure I understand why the motive or purpose of the actor controls whether the result of the actor's conduct should be viewed as a burden on religious liberty or not. I might assign much less weight to the discriminating actor's interest and consider his conduct more morally reprehensible. But if I focus on the impact of the decision, there would be an equivalent material burden on the ability of the religious actor to practice his faith in both cases. Suppose the only Soccer League for children is in a town where very few Jews live. The League is private. Games and practices are scheduled for Tuesday, Thursday and Saturday afternoon. The League insists that players must agree to show up for all scheduled games or practices or they cannot participate in the League's activities. Observant Jews ask for an accommodation. Without it, their children will not be able to participate and they are too few in number to create their own league. In hypo 1, the League refuses the accommodation. It explains that it just doesn't care enough about the needs and interests of the Jewish families to change the way they have traditionally done things in town. The Jewish families religious liberty is burdened by the League's decision because it requires them to give up an opportunity they value in order to obey the dictates of their faith. It's not a burden that deprives anyone of the necessities of life. But it's a burden. In hypo 2, the League refuses the accommodation and explains that in fact its members are delighted that their decision will have the result of preventing
Requirement that cabbies transport alcohol = tiny burden?
My sense is that the system would work better than Steve thinks, since I suspect that it would be rare that six cabbies in a row will have this objection. It's true that, at least according to http://www.startribune.com/462/story/709262.html, most cabbies in Minneapolis are Somalis, and many of them are Muslims (by which the story likely means observant Muslims). But my guess is that no more than a third or so will likely have this objection, and that most will take whatever fares they want. This might be why the Minneapolis Metropolitan Airports Commission was indeed planning to institute a color-coded light scheme (see the story linked to above); it would be interesting to see if this was tried and what the results were. I realize that it's speculation both ways, but, especially given that Minnesota courts take a Sherbert/Yoder view of the state religious freedom provision, I would think that the burden would be on the government to try something and show it fails. On the other hand, I'm not sure how one can get to the conclusion that this is a tiny burden on the cabbies. Apparently the cabbies believe their religion bars them from transporting alcohol; that may seem unreasonable to us, but our judgment about reasonableness shouldn't matter for substantial burden purposes. And if the claim is that the burden is tiny because they can just get a different job, I just don't see how this can be so, especially given cases such as Sherbert: For many unskilled immigrants, there are very well-paying jobs out there, especially in this economy. Perhaps the burden might be justified, but how can we really say that it's tiny? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 06, 2012 10:14 AM To: Law Religion issues for Law Academics Subject: Re: Israeli Postal Workers Object to Delivering New Testaments It is hard to set up such a system for cab drivers -- think of cabbies waiting at an airport where 6 in a row refuse passengers based on their possession of a bottle of wine. It may be a longish wait or even a very long wait for the non-discriminating cabbie. Or just hailing one on the street -- where would the sign be displayed? When would the discussion take place? How? Tiny burden on those cabbies, it seems to me. And if they can't abide by the rules, get a different job. Public accommodations and public services just should not allow that sort of accommodation when the service is being denied to others -- it is burdening others based on difference of religion -- for the provision of a public service. Many accommodations that might seem easy from the outside turn out not to be so easy. Of course some accommodations are in fact quite easy and not as burdensome as some people (often employers) think they will be. In practical areas one should not be quite confident in the ease of applying a seemingly principled disctinction. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Religious objections vs. medical objections
It may well be that there were specifically anti-Muslim statements made in the Target controversy that Greg describes. But it seems to me that, in general, the analogy between religious objections and medical objections tends to be somewhat overstated. (I thought the same of the Third Circuit Judge Alito opinion in Fraternal Order of Police v. City of Newark.) For instance, I imagine that many an employer will gladly give employees extended leave for serious illness, perhaps even weeks’ worth of paid leave and months’ worth of unpaid leave. Does it follow that it must give the same leave to people who want to go on a months-long religious pilgrimage? Likewise, an employee might make many accommodations for employees whose medical conditions make it impossible for them to do a certain job, even when that involves a far greater than de minimis cost. The employee might be required to do so by disability law, but might sometimes simply choose to do that in order to help someone who is sick or injured. Does it follow that it must make similarly high-cost accommodations for religious employees? I don’t think so. It seems to me that an employer can reasonably conclude that, as a general matter, health-based objections are less likely to be broadly shared (there will be fewer cashiers with peanut allergies than Muslim cashiers, at least in areas with a high density of Muslim immigrants), and less likely to be perceived as slights even by unbiased customers. No customer who notices that a cashier refuses to handle peanut products will take that as a personal slight; but even customers who aren’t hostile to Islam as such might perceive religious objection to the handling of pork or alcohol as a statement that the customer’s religious beliefs are (in the cashier’s view) wrong, or that the customer’s eating habits are “unclean” and drinking habits are unwholesome. And beyond this, it seems to me quite permissible (though not the only permissible view) for an employer to conclude that undoubted, scientifically provable medical risk deserves more accommodation than subjective, individually felt religious belief. Moreover, when it comes to legal compulsion, I would think (see TWA v. Hardison) that imposing the costs of one person’s religious practice on others raises objections that are more serious than just imposing the costs of one person’s disability on others would. Or am I mistaken on these things, and employers who generously provide substantial accommodations for those who are sick, allergic, or disabled must provide equally substantial accommodations for those who have religious objections? Eugene Greg Sisk writes: And given that this episode occurred at the same time that Muslim cashiers at Target asked not to be required to handle pork, it was fell into a context in which simple accommodations offered to others – such as allowing a cashier allergic to peanuts not to handle peanuts or peanut butter – became the subject of vehement public objection when Muslims were asking for the same kind of thing. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone 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.
Once it took the step of opening play to non-Christians
I think I understand Paul's point, and the arguments in favor it, but I wonder whether it might get things backward. TAPPS could likely have focused itself on Christian private schools with little difficulty for it. (It might have benefited from including secular schools, but it likely could have survived just as well limited to Christian schools.) On the other hand, my sense is that in such situations it's a great benefit to minority schools - both secular schools and especially Jewish schools - to be able to join such an association, since otherwise there might be very few schools for them to play against. In many places, an all-Orthodox-Jewish league would have very few teams, and very long travel times to games. So TAPPS generally did Jewish schools a good turn by letting them participate. And if it hadn't let them participate, I suspect many would have faulted them for being unfairly exclusionary, with the argument being What's it to you that the school is Jewish? But now TAPPS is being told that by being somewhat more open, it now incurs this extra obligation. That strikes me as both creating perverse incentives, and being a poor reward for TAPPS' moderate ecumenicalism, because it demands that this moderate ecumenicalism lead to considerably more demanding ecumenicalism. As to the guest/host analogy, I would think that this too cuts the opposite direction at least as much as in the direction suggested below (and perhaps more). If I invite someone to my home, or into my private association, I surely would feel some impulse to accommodate him; if someone comes for dinner but says that he can't eat pork (and doesn't otherwise demand a kosher kitchen), I'll probably try to give him a non-pork option even if the main course is ham. But I would hope that he would feel an even stronger impulse not to reward my hospitality with excessive demands, or with repeating his demands after I say no (even if I'm being not as hospitable as I might be in saying so) - and I would certainly hope that he wouldn't reward my hospitality with a lawsuit. Eugene Paul Horwitz writes: In this case, it seems to me that the road to a reasonable resolution of the problem lies in the fact that TAPPS opened itself to a situation in which it welcomed the possibility of sporting events involving others whose religious needs might require accommodation. If the league had remained solely devoted to Christian schools and, in effect, had valued Christian community over sports or all-state intramural play itself, then refusing to change its schedule would a) be reasonable and b) not be much of a problem, since the issue would be unlikely ever to arise. Once it took the step of opening play to non-Christians, however, including those with an equally thick set of religious commitments, then common sense, if not simply being a good host, would suggest that the league ought to anticipate and accommodate the religious needs of its guests. But certainly the work here is not done by invoking common sense alone. ___ 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.
Discrimination against people with religious motivations for their actions
I think the analysis below is mistaken: Whether or not cabbies' refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn't be treated as religious discrimination. What's more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies' actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the irreligious, and anyone else who didn't carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn't be affected (just as, I suppose, Mormons or Methodists wouldn't be affected), because they generally wouldn't carry alcohol. But that analysis strikes me as unsound, and here's why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn't want to provide any help, even indirect, to such evil. And say the restaurant owner's is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn't perform abortions. But that doesn't mean the restaurant owner is discriminating based on the would-be customers' religions - he's discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is a badge of a religion different from yours. And thus he would be presumptively required to deliver to the doctor's office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:10 AM To: Law Religion issues for Law Academics Subject: Re: Cabbies vs. lawyers Of course it is a proxy -- just like a collar or burka or yarmulke -- a badge of a religion different from yours -- only in this case it is alcohol possession -- a badge of a religion different from yours. The dodge of oh, I'm not against their religion, just against their conduct can't be allowed can it? The person transporting the alcohol is the passenger, not the cab driver. The fact of hidden vs. open possession of the bottle of wine gives it away, doesn't it -- it is not about the action, it is about the religious nature of the action -- the violation of the religious beliefs of the driver by the religious beliefs (ok to have and transport alcohol) by the passenger. It is action based on a difference of religious belief. That is discrimination no matter how one twists it. Maybe we should allow this discrimination, just like maybe we should allow discrimination in allowing landlords to discriminate against gays based on the landlord's religious beliefs, but that is still religious-based discrimination. You can't suddenly say that motivation doesn't matter just because the motivation is their own religious beliefs. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Requirement that cabbies transport alcohol = tiny burden?
But the Minnesota Constitution has been interpreted as following Sherbert and Yoder, so isn't the question indeed why the cab drivers aren't constitutionally entitled to an exemption? As it happens, I oppose constitutional exemption regimes, at the state and federal levels, and support jurisdiction-by-jurisdiction RFRAs, which means the question becomes statutory, and trumpable by the state legislature. But the Minnesota rule is one of constitutionally mandated exemptions, unless strict scrutiny is satisfied, no? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:22 AM To: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? For the record, I was in favor of the accommodation attempted for the Somali Muslim cab drivers in Minneapolis and am in favor of most accommodations of religion done by employers and public agencies and the government in general -- even quite odd ones like this particular interpretation of the Quran by this group of Somalis. But that is quite different from positing that there is a right in the Somalis to engage in this sort of discrimination let alone a constitutional right to do so. Doug is right -- sometimes hostility to religious accommodation is motivated by a universalist thrust that we should in fact all be treated equally -- the same sort of hostility one sees against affirmative action for Blacks. And Doug is also right that sometimes the hostility is directed against a religion and members of that religion -- as JWs, Muslims, Jews, and in some settings and some times, Catholics and others have experienced (19th Century Baptist prayer -- God save us from the Unitarians who at the time had circuit riders and were quite evangelical, unlike today). No doubt both of these played into this event -- especially hostility to Islam. But the subtextual motivation of hostility to the religion cannot make what is otherwise lawful discrimination unlawful, or does it? Is there a constitutionally meaningful distinction between -- I don't like your religion and therefor will not accommodate you and I don't think you are entitled to an accommodation as a matter of constitutional right -- where there is in fact no constitutional right to accommodation, as here. Steve ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination against people with religious motivations for their actions
So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely the same way, but his opposition to abortion is based on his religious views. As I understand the argument below, he would be seen as discriminating based on religion, because the performing of abortion is “a badge of a religion different from yours.” And thus he would be presumptively required to deliver to the doctor’s office, if state public accommodations law covers discrimination based on religion in restaurant delivery. But this would mean that the law itself has become religiously discriminatory: The secular anti-abortion restaurant owner is free to do something (here, refusing to deliver to an abortion provider), but the religious anti-abortion restaurant owner is barred from doing precisely the same thing. 3. I think the same applies to the alcohol example. A secular cab driver who opposes alcohol on secular grounds would presumably not be treated as discriminating based on religion. But to treat the religious cab driver who opposes alcohol on religious grounds would be treated as discriminating based on religion, and would thus be potentially violating relevant public accommodations bans. Yet such an approach would itself impermissibly discriminate (in violation of Lukumi Babalu) against the religious cab driver based on the religiosity of his motivation for his conduct. Or am I missing something here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
RE: Discrimination against people with religious motivations for their actions
So I’m not sure that I understand. As I understand Steve’s post, his claim is that when X discriminates against Y based on X’s religious opposition to Y’s actions, even when they are secular actions such as transporting alcohol, that is religious discrimination and potentially actionable as such. Marci, is that the analysis that you endorse as sound? Whether the cabbies should get a religious exemption, under Hershberger, not from a religious discrimination ban but from a common-carrier must-serve requirement strikes me as an entirely different question from the one I was debating with Steve. Eugene Marci Hamilton writes: Eugene--I'm going to focus on the third, relevant issue. The restaurant examples are not analogous because one can do the act and the other cannot do it. In the cabbie situation neither can The cabbie who refuses to carry alcohol for secular reasons loses his job because he is refusing to do his job. The cabbie who refuses for religious reasons is subject to the same rule. The only question is whether there should be an exemption. Under Smith and Hershberger even, I think the religious cabbie loses. So then it is just a matter of public policy.I will leave that to the lawmakers On Mar 7, 2012, at 6:55 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: So let me make sure I understand your view correctly: 1. A secular restaurant owner who refuses to deliver to an abortion provider for secular reasons is not guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) 2. A religious restaurant owner who refuses to deliver to an abortion provider for religious reasons is indeed guilty of religious discrimination in violation of public accommodations laws. (Assume such laws generally apply to discrimination based on religion in restaurant deliveries.) Is that so? And, if so, doesn’t that make the law itself into an unconstitutional religious discrimination, given that it treats precisely the same conduct differently based on the religious motivation of the actor, in violation of the Lukumi Babalu principle? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 3:39 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions I have to say that I find Steve's analysis more sound and based on common sense. Marci On Mar 7, 2012, at 3:07 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I think the analysis below is mistaken: Whether or not cabbies’ refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn’t be treated as religious discrimination. What’s more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies’ actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn’t affect Christian, Jews, Muslims, the irreligious, and anyone else who didn’t carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn’t be affected (just as, I suppose, Mormons or Methodists wouldn’t be affected), because they generally wouldn’t carry alcohol. But that analysis strikes me as unsound, and here’s why. Imagine a case closely modeled on Rasmussen v. Glass (Minn. Ct. App. 1993) (review granted but appeal later dismissed), http://scholar.google.com/scholar_case?case=648897692635049631. A restaurant owner refuses to deliver food to a doctor who performs abortions, because the owner believes abortions are evil, and doesn’t want to provide any help, even indirect, to such evil. And say the restaurant owner’s is irreligious, and his opposition to abortion is based on his own personal moral views (e.g., he follows Nat Hentoff, http://groups.csail.mit.edu/mac/users/rauch/nvp/consistent/indivisible.html). I take it that we would all agree that the restaurant owner is not discriminating based on religion. To be sure, devout Catholics, and devout members of other anti-abortion religious groups, wouldn’t perform abortions. But that doesn’t mean the restaurant owner is discriminating based on the would-be customers’ religions – he’s discriminating based on their secular actions. Now say that another restaurant owner acts precisely
RE: Requirement that cabbies transport alcohol = tiny burden?
Yes, State v. Hershberger, 462 N.W.2d 393 (Minn. 1990). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, March 07, 2012 12:18 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? Eugene-- just a point of information--is there a lead MN Sup Court case that applying strict scrutiny in cases involving neutral generally applicable laws and worship conduct that is illegal? Thanks! On Mar 7, 2012, at 3:11 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: But the Minnesota Constitution has been interpreted as following Sherbert and Yoder, so isn’t the question indeed why the cab drivers aren’t constitutionally entitled to an exemption? As it happens, I oppose constitutional exemption regimes, at the state and federal levels, and support jurisdiction-by-jurisdiction RFRAs, which means the question becomes statutory, and trumpable by the state legislature. But the Minnesota rule is one of constitutionally mandated exemptions, unless strict scrutiny is satisfied, no? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 7:22 AM To: Law Religion issues for Law Academics Subject: Re: Requirement that cabbies transport alcohol = tiny burden? For the record, I was in favor of the accommodation attempted for the Somali Muslim cab drivers in Minneapolis and am in favor of most accommodations of religion done by employers and public agencies and the government in general -- even quite odd ones like this particular interpretation of the Quran by this group of Somalis. But that is quite different from positing that there is a right in the Somalis to engage in this sort of discrimination let alone a constitutional right to do so. Doug is right -- sometimes hostility to religious accommodation is motivated by a universalist thrust that we should in fact all be treated equally -- the same sort of hostility one sees against affirmative action for Blacks. And Doug is also right that sometimes the hostility is directed against a religion and members of that religion -- as JWs, Muslims, Jews, and in some settings and some times, Catholics and others have experienced (19th Century Baptist prayer -- God save us from the Unitarians who at the time had circuit riders and were quite evangelical, unlike today). No doubt both of these played into this event -- especially hostility to Islam. But the subtextual motivation of hostility to the religion cannot make what is otherwise lawful discrimination unlawful, or does it? Is there a constitutionally meaningful distinction between -- I don't like your religion and therefor will not accommodate you and I don't think you are entitled to an accommodation as a matter of constitutional right -- where there is in fact no constitutional right to accommodation, as here. Steve ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Requirement that cabbies transport alcohol = tiny burden?
(1) Can you say a bit more about the circumstances of the hour-long delays, given that it seems that many cab drivers were happy to transport anyone who is willing to pay? Were they at the airport, with dispatches cabs, or with cabs hailed on the street? (2) Can you also please say a bit more about the cabbies’ reactions to the imams’ statements – is it just that they all said “OK, no problem then”? Or did some continue to insist on their own interpretation of the religious doctrine? If a few did persist in their “it’s sinful for us to transport alcohol” view, then I would think their position would be constitutionally protected – and the fact that there were so few would cut in favor of an exemption, because it would reduce the likelihood of the hour-long delays that are being discussed, no? Marci Hamilton writes: Thanks Eugene for taking us back to the facts. I received many emails and calls regarding the situation and there were people who had to wait an hour for a cab because of the objection. None of them were anti-Muslim. They did have the sense that the cabbies were discriminating against them because they did not share their religious affiliation. I raised earlier the fact that the imams had intervened saying there was no rule about transporting alcohol because that is why the issue died away and did not resurface. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination against people with religious motivations for their actions
I agree with the statement in the first paragraph that, if a cab driver is treated as a common carrier, then he might have to transport people who are carrying alcohol (unless he is entitled to a religious exemption under a Sherbert/Yoder-model state constitutional regime, or a state RFRA regime). And this is so regardless of whether he's discriminating based on a characteristic such as religion. But the second paragraph goes on and says that a business owner who discriminates against a customer who is doing something that the owner thinks is religiously improper is engaging in discrimination based on religion. The logic of that paragraph goes far beyond the common carrier situation (and indeed in the common carrier situation is irrelevant whether the common carrier is discriminating based on religion). If the claim is that this discrimination based on the actor's religious beliefs is the sort of religious discrimination prohibited by public accommodation discrimination laws, that strikes me as mistaken. As I mentioned in my earlier post, a secular restaurant owner who refuses to deliver to an abortion provider because of the owner's secular opposition to abortion should be precisely on the same footing as a religious restaurant owner who refuses to deliver to an abortion provider because of the owner's religious opposition to abortion - neither is guilty of actionable religious discrimination. Likewise, a secular cab driver who refuses to transport people carrying alcohol because of the driver's secular opposition to alcohol should be precisely on the same footing as a religious cab driver who refuses to transport people carrying alcohol because of the driver's religious opposition to alcohol. Again, neither is guilty of actionable religious discrimination. Perhaps both are guilty of violating some common carrier obligation; but that's another story. In either case, the suggestion that there's something illegally religiously discriminatory about a business owner's acting based on his own religious beliefs and conduct strikes me as mistaken - indeed, unconstitutional given Lukumi Babalu. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 07, 2012 3:40 PM To: Law Religion issues for Law Academics Subject: Re: Discrimination against people with religious motivations for their actions Yes, Eugene, I think you are missing the essential point that common carriers are not the same as other employers and when it comes to choice as to serve or not serve, they are more limited in what they can and cannot do. They are bound by more than non-discrimination laws. Or that is how I always understood the law in this field, but I could be mistaken - I've not worked in it for over 2 decades now. So the baseline is different. It is not the same as for ordinary businesses. I get the distinction you are trying so to make. And I agree that it is not the same as excluding someone because of a particular affiliation with a sect. But it still is discrimination based on religion whether it is based on the customer not conforming to the religious expectations and demands of the business or the business excluding because of a status of the customer -- in both instances it is because of the religious beliefs and conduct of the business, not the customer. I am troubled by the blame-the-customer attitude evinced in the solicitude for the person engaged in provision of a public service such as common carriers and public transportation. As I have written some time ago now, I think we should indeed recognize the religious needs or constraints or beliefs of the employer -- but one should also recognize and support the interests of the others. If a system can be worked out with minimal harm to all involved, that is best. But I would favor the weaker party to the stronger -- in this situation the one needing the cab is decidedly in the weaker position. Steve On Mar 7, 2012, at 3:07 PM, Volokh, Eugene wrote: I think the analysis below is mistaken: Whether or not cabbies' refusal to carry alcohol should be barred by some general common-carriage requirement, it shouldn't be treated as religious discrimination. What's more, I think the argument that such a refusal is religious discrimination itself calls for discrimination against those with religious motivations for their actions. 1. To begin with, as others have pointed out, the cabbies' actions affected Christians, Jews, Muslims, the irreligious, and anyone else who carried alcohol. Moreover, they didn't affect Christian, Jews, Muslims, the irreligious, and anyone else who didn't carry alcohol. 2. Now I take it that the response is that the really devout Muslims of the same religious views as the cabbies generally wouldn't be affected
RE: Discrimination against people with religious motivations for their actions
I would think that narrow tailoring requires a good deal more justification than that. Can it really be that a ban on discrimination against passengers who carry alcohol – discrimination that, outside the context of taxicabs and a few similar common carriers, would be legal in nearly all contexts (employment, public accommodation, contracting, etc.) in nearly all jurisdictions – passes strict scrutiny simply because carving out an exemption might lead to some hypothetical slippery slope to allowing race discrimination? If the interest in banning race discrimination is so compelling in various contexts, then that should justify applying race discrimination law uniformly in those contexts. But I don’t see how that interest would justify applying laws banning other forms of discrimination, such as discrimination based on carrying alcohol. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern Sent: Wednesday, March 07, 2012 7:01 PM To: 'religionlaw@lists.ucla.edu' Subject: Re: Discrimination against people with religious motivations for their actions Might I suggest another way of looking at this debate: race. Not the race of the drivers and that of their passengers. instead i take it as common ground that no one would tolerate taxi drivers turning down passengers on the basis of race. Does it follow that we should treat all prohibited grounds of discrimination with the same rigor, both as a matter of primary law-all forbidden categories are treated equal-or because once the prohibition on discrimination is weakened, even in good cause, the pressure for other exemptions will grow and will weaken the non discrimination norm in regard to race. The latter argument was raised after Boerne when the question was whether to include civil rights claims in a statute protecting religious liberty.. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination against people with religious motivations for their actions
Steve writes that religious motivation matters, for purposes of making an action taken with religious motivation illegal when the same action taken with secular motivation is legal. I see no basis for that in antidiscrimination law, which generally bans discrimination against an individual because of such individual's ... religion, not because of the defendant's religion (and discrimination based on a person's transporting alcohol is not based on that person's consistency). And I see a basis in forbidding any such statutory discrimination against the religiously motivated, in Smith and LukumiI. [T]he 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think ..., that a State would be 'prohibiting the free exercise [of religion]' if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. But Steve and I have gone over this territory before, so I'm not sure it's productive for us just to speak to each other. I'm curious, though: Do others share Steve's view on this? (It sounded like Marci might, but then it sounded like she didn't, so I'm not sure.) What am I missing? Is there really a basis for allowing this sort of discrimination against religious believers? Eugene Steve Jamar writes: I hope it comes as no surprise to anyone on this list that there are irreconcilable doctrinal problems with religious liberty no matter how one looks at it. Religious motivation matters. Particular facts matter. Details matter. Eugene's hypothetical restaurant is not analogous to the cabbies in Minneapolis or in general. I am not at all sure that Lukumi extends to private conduct and general anti-discrimination laws. In that case the state singled out a particular religion by ordinance -- not the application of an anti-discrimination law. There is also a world of difference between actions by private parties that discriminate on the basis of religion and ordinances by states (or cities) that ban particular religious practices. If the past decades of religious jurisprudence have taught us anything it should be to by chary of expanding any decision by the court much beyond its peculiar facts. Witness the recent distinguishing of Smith. Who knew? I do not contend that these cases are easy or that they are or can be decided with great consistency -- indeed, I contend exactly the opposite. Motivation matters and I cannot transmute a religious motivated action against someone into a neutral action without any religious motivation. The response to the accommodation in Minneapolis shows a societal anti-Islam animus. Who is surprised? But the claim of a person who has been denied a ride on a common carrier for no reason other than doing something he has an absolutely legal right to do and is denied the ride because of a religious belief by the driver is sure going to feel like religious discrimination whatever niceties one might want to draw. And in fact IS religiously-motivated action excluding someone. It is. Should it be permitted? Should it be accommodated? Probably, in the absence of showing hardship to riders. But if it s the last cab of the night? No way. I generally think we should accommodate religious exercise rights of employers and service providers and everyone to the extent practicable. But that is a long way from finding a constitutional or statutory right to engage in such conduct when engaged in the provision of such public services. There is no constitutional principle or statutory provision that would or should require that. The situations are too nuanced for hard-edged application of generally applicable rules in this area. Minneapolis Airport Authority approached it sensibly and if the solution had been implemented and if it had worked as planned (I have doubts, but maybe it would have), then that is what should be done. We are not a secular universalist society -- not by a long shot. Nor should we be -- it is not within our traditions and experience and our polyglot amalgam of people -- but nor should it be heavy-handed rights-based regime with what becomes a unit veto. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax:
FW: Call for Papers: Religion and the Public Schools
From: mailman-boun...@lists.ucla.edu [mailto:mailman-boun...@lists.ucla.edu] On Behalf Of McKnite, Jacob Sent: Tuesday, April 03, 2012 9:11 PM To: religionlaw-ow...@lists.ucla.edu Subject: Call for Papers: Religion and the Public Schools Dear Professor Volokh, I am devoting Volume 39, Issue 3, of the William Mitchell Law Review to the topic of religion and the public schools. To solicit authors for this topic, I would like to post a Call for Papers on your law and religion listserv, if possible. The text of this posting would read as follows: Call for Papers - Religion and the Public Schools William Mitchell Law Review, Vol. 39, Issue 3 (Spring 2013) I am the Executive Editor for Volume 39, Issue 3, of the William Mitchell Law Review (Spring 2013). I am proud to dedicate Issue 3 to the topic of religion and the public schools, and I invite you to submit an article. Submissions may take the form of either shorter commentaries or longer law review articles. Final submissions will be due October 1, 2012. My goal is to assemble manuscripts pertaining to such constitutional law issues as religion in the curriculum, school prayer, religious displays, and other religious speech in the public schools. However, if you are interested in writing on another topic within this theme, please let me know, and I would be happy to work with you. The William Mitchell Law Review is highly regarded both regionally and nationally. The Law Review recently ranked twenty-second in citations by judges and fifty-seventh in citations by other law journals. Over the years, the Law Review has featured the work of local scholars and practitioners such as former Vice President Walter Mondale and U.S. Senator Amy Klobuchar. The Law Review has also been privileged to publish work by Supreme Court Justices Blackmun, O'Connor, and White. If you are interested in writing an article, please let me know at jacob.mckn...@wmitchell.edu. Additionally, if you know of others who may be interested in contributing, please send me their information, and I will contact them. Thank you! Sincerely, Jacob E. McKnite Executive Editor William Mitchell Law Review, Vol. 39, Issue 3 J.D. Candidate, May 2014 jacob.mckn...@wmitchell.edu Thank you very much. Sincerely, Jacob E. McKnite ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Court upholds prison no-pork policy against Establishment Clause challenge
I agree entirely; I mention this partly because I occasionally hear pork bans as examples of quintessential violations of the Establishment Clause, though I don't think they would be. To be sure, a general pork ban might have a different motivation than a prison decision not to serve pork. But at the same time even a general pork ban could certainly be an attempt to accommodate a religious group by minimizing the risk that its members will accidentally ingest pork (or that its members might be put in a position where their employment would require the handling or even sampling of pork). And just as the state of California is free to ban the sale of horsemeat for human consumption (as it did in 1998), so it should be free to ban the sale of pork - not that I'd ever endorse that as a policy matter! Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 4:32 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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.
Court upholds prison no-pork policy against Establishment Clause challenge
River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene ___ 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.
Bans on sale of pork vs. bans on sale of horsemeat
religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp- content/uploads/2012/04/RiversvMohr.pdf . Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Accommodation
, but if the government willingly accommodates all of these folks in all of these circumstances, but refuses to accommodate some folks when the only reason for their particular difference/exception is religious, isn't that discrimination on the basis of religion banned by the Free Exercise Clause? Now, you might argue that religious accommodations are different because individuals choose to be in those situations where they need an exception, but surely most religious people don't choose their situation any more than you chose to speed in order to get to the hospital faster. Finally, don't you think it is a very good thing, ethically, if we have a government that is willing in lots of circumstances to say, you as a person matter to us more than our rule, and we are willing to see you as a person? There will, of course, be a point where the law becomes incoherent if the government looks at every individual case to see what the result should be, but where it is not disruptive to the system, why shouldn't we want the government to see us as persons and not as objects to which the law needs to be applied. Marie A. Failinger Professor of Law Editor, Journal of Law and Religion Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651-523-2124 (work phone) 651-523-2236 (work fax) mfailin...@hamline.edumailto:mfailin...@hamline.edu (email) West, Ellis ew...@richmond.edumailto:ew...@richmond.edu 4/12/2012 2:34 PM Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: River v. Mohr (N.D. Ohio Apr. 5, 2012), http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf . Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Accommodation
My apology for bringing this up again, but I'd like to hear what people think about it, and I thought it might be a relevant analogy. In 1998, California banned the sale of horsemeat for human consumption, based on nonrational aesthetic / moral judgments about the impropriety of eating horses. Say that a state bans the sale of pork for human consumption, based on the desire to minimize the risk that people would accidentally eat it (and thus violate their nonrational religious objections to eating pork), or that people would be economically pressured by restaurants, food processing plants, and so on into serving it or even tasting it (as a chef often must when he's cooking a dish). If the horsemeat ban is constitutional, why wouldn't the pork ban is constitutional? Alternatively, say some other religion bans the eating of pigs not because they are seen as unclean, but because they are seen as especially good and close to humans -- much the same reason, I think, why some people oppose the eating of horses. (I've heard it said that pigs are quite intelligent, for instance.) And say that a jurisdiction bans the sale of pork for food purposes, because of the influence of that religion. Again, if the hosemeat ban is constitutional, why wouldn't the pork ban be constitutional, too? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, April 13, 2012 10:12 AM To: 'Law Religion issues for Law Academics' Subject: RE: Accommodation Ellis West and I have discussed our posts off list, and I may have been attacking a bit of a straw man. He says he did not mean to suggest that religious exemptions are generally suspect under the Establishment Clause; he was still writing in the context of the no-pork policy for the prison menu, which he and I agree is not really an exemption. I misread, or overread, his later post. I am inclined to think that the no-pork policy has a secular purpose for the same reasons that exemptions have a secular purpose. What troubles me about the no- pork policy, especially if it were imposed outside the prison context, is that it seems to force everyone to observe a religious practice. It would be like the Sunday closing laws, with the same sorts of arguments about whether it imposes a religious observance or can somehow be understood as simply a secular rule. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Court upholds prison no-pork policy against Establishment Clause challenge
Maybe it would and maybe it wouldn't, but I don't think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever primary effect might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being secular in purpose and effect, the Supreme Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn't impress any of the Justices, even Stevens. But even if RLUIPA didn't exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 5:21 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue. Suppose these two laws did not exist. Then would the prison policy in question be secular in nature? The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons. For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 12, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me. On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis ew...@richmond.edumailto:ew...@richmond.edu wrote: Although the District Court may be correct in saying that the primary purpose of the policy is not to establish the religion of Islam or to promote the practice of Islam, it does concede that the policy makes accommodating a multitude of religious practices and beliefs easier and more economical. Would someone explain to me how that purpose and/or effect is secular in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536tel:804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, April 11, 2012 7:32 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Is this outcome surprising in any way? Does anyone on the list believe that the court got this wrong? (I certainly don't). If Congress overrode HHS and eliminated pregnancy prevention services from mandatory coverage by employers under the Affordable Care Act, wouldn't the analysis be just the same (imposition of a uniform policy to avoid religious conflict, avoid any need to create controversial exceptions for religious entities, avoid piece-meal litigation, and ease administration of the overall scheme), even though the impetus for change derived from a demand by some for religious accommodation? On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene
RE: Court upholds prison no-pork policy against Establishment Clause challenge
Well, Ellis was arguing that “the issue” was whether “RFRA and RLUIPA ... are secular in purpose and effect.” I read Cutter as concluding that they are, though indeed particular accommodations implemented out of a desire to avoid RLUIPA litigation might not be. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, April 16, 2012 1:33 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Cutter only addressed the facial Establishment Clause attack on the prison provisions of RLUIPA. It did not protect any particular program or exemption from attack Marci On Apr 12, 2012, at 7:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Maybe it would and maybe it wouldn’t, but I don’t think that makes the purpose religious, or makes the effect primarily the advancement of religion (whatever “primary effect” might mean); it just suggests that the policy might prove counterproductive relative to the secular government purpose. As to RLUIPA being “secular in purpose and effect,” the Supreme Court unanimously said in Cutter that RLUIPA is constitutional. Maybe one can imagine contrary arguments, but they didn’t impress any of the Justices, even Stevens. But even if RLUIPA didn’t exist, the no-pork policy would be permissible for the reasons Doug mentions. Likewise, a uniform vegetarian diet policy would also be constitutionally permissible. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge I should have added to the post below that the policy might create as much conflict as it eliminates, just as would a vegetarian diet. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis Sent: Thursday, April 12, 2012 5:21 PM To: Law Religion issues for Law Academics Subject: RE: Court upholds prison no-pork policy against Establishment Clause challenge Sure avoiding litigation is a secular purpose, but only if one assumes that RFRA and RLUIPA, the basis of the litigation, are secular in purpose and effect, but that is precisely the issue. Suppose these two laws did not exist. Then would the prison policy in question be secular in nature? The avoidance of conflict might also be a secular purpose, but it would justify all kinds of exemptions, not just religion-based exemptions, because persons object to all kinds of laws for all kinds of reasons. For example, as Prof Levinson suggested in an earlier post, it would justify a uniform vegetarian diet for all prisoners. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edumailto:ew...@richmond.edu From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 12, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Court upholds prison no-pork policy against Establishment Clause challenge Avoiding litigation (and there are many, many RLUIPA and free exercise cases about prison diets) and other forms of conflict, and having the efficiencies of a uniform diet for all prisoners, sound like secular purposes to me. On Thu, Apr 12, 2012 at 3:34 PM, West, Ellis ew...@richmond.edumailto:ew...@richmond.edu wrote: Although the District Court may be correct in saying that the primary purpose of the policy is not “to establish the religion of Islam” or to “promote the practice of Islam,” it does concede that the policy “makes accommodating a multitude of religious practices and beliefs easier and more economical.” Would someone explain to me how that purpose and/or effect is “secular” in nature? Even though Prof. Lupu may be correct in saying that this particular policy is good way of accommodating religious beliefs/practices, his comment simply assumes that a policy of accommodating religious beliefs/practices is secular in nature. How so? Ellis M. West ___ 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
RE: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
religions depending on the facts of the case. The focus must be the child. This sort of assumption that religious status quo is a social good is an unconstitutional preference for religion. This is a good example of when the application of a neutral generally applicable principle can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University New York, NY 10003 On Apr 20, 2012, at 9:09 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html that faults the child custody law preference for stability of religious upbringing: When women leave arranged marriages in the ultra-Orthodox Jewish community -- and leave ultra-Orthodoxy more general -- they may sometimes lose custody of their children on the grounds that the person who remains within the community is more able to provide stability of religious upbringing. I'm inclined to say that this rule (which of course could equally apply to fathers who leave a religious community as well, though I don't know how relatively frequent such departures are) is a sound one, for children who are old enough to have some experience with the religion and thus some stake in stability of religious upbringing. To be sure, the rule does create some pressure against departing the faith, since often someone who leaves the group can no longer raise the children in the same religious environment even if she's willing to, because the group might no longer accept her; but this seems in this situation to be an acceptable and denominationally neutral rule (especially if it is equally applied to a parent who moves into a ultra-religious community which disrupts the stability of the children's nonreligious, or only mildly religious, upbringing). But I still thought I'd mention the op-ed, in case people think it's a difficult and interesting question. Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes
There's an interesting op-ed at http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html that faults the child custody law preference for stability of religious upbringing: When women leave arranged marriages in the ultra-Orthodox Jewish community -- and leave ultra-Orthodoxy more general -- they may sometimes lose custody of their children on the grounds that the person who remains within the community is more able to provide stability of religious upbringing. I'm inclined to say that this rule (which of course could equally apply to fathers who leave a religious community as well, though I don't know how relatively frequent such departures are) is a sound one, for children who are old enough to have some experience with the religion and thus some stake in stability of religious upbringing. To be sure, the rule does create some pressure against departing the faith, since often someone who leaves the group can no longer raise the children in the same religious environment even if she's willing to, because the group might no longer accept her; but this seems in this situation to be an acceptable and denominationally neutral rule (especially if it is equally applied to a parent who moves into a ultra-religious community which disrupts the stability of the children's nonreligious, or only mildly religious, upbringing). But I still thought I'd mention the op-ed, in case people think it's a difficult and interesting question. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Minister convicted for teaching parishioners to punishchildren by hitting them on the bare buttocks with wooden dowels
I'm not sure why it should matter whether a minister is speaking in a church with a building, or to a small group of people; nor is it clear to me to what extent the law can take into account how much people fear their leaders on spiritual grounds, whether they be the leader of a small group or the Pope. The Court's First Amendment jurisprudence has, quite rightly I think, never tried to draw a line between small charismatic religious groups and bigger, more established religious organizations. As to teaching church members how to do something, I agree that if he were teaching little-known techniques for more effectively committing crimes, we might have a crime-facilitating speech question, which raises a different (and unresolved) set of issues. But it sounds like teaching here is just another word for urging people to act in a particular way, in the same sense as we can talk about any church's teachings. So that's why this strikes me as quite likely a Brandenburg case, though as I noted at the outset more specific counseling might make it a Williams solicitation case. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Sunday, May 13, 2012 11:12 PM To: 'Law Religion issues for Law Academics' Subject: RE: Minister convicted for teaching parishioners to punishchildren by hitting them on the bare buttocks with wooden dowels Here is yet another story that sheds some more light and provides more facts that may affect the legal analysis. http://host.madison.com/wsj/news/local/crime_and_courts/trial-set-to-begin-for-pastor-who-allegedly-instructed-followers/article_31306240-6cac-11e1-b1cf-0019bb2963f4.html. This sounds less like a church (they had no building) than a small fundamentalist fringe group under the sway of a feared leader. The story also says he was accused not just of advocating but of teaching church members how to discipline their young children by striking them with wood spoons or dowels on their bare bottoms. The more you learn about the case, the less it seems like Brandenburg, don't you think? From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, May 13, 2012 8:40 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punishchildren by hitting them on the bare buttocks with wooden dowels I think where you and I disagree, Eugene, is on the question of what it means to advocate illegal action at some indefinite future time. I think if the pre-condition on which the illegal action is to be based is known to the speaker and the audience to be certain and to occur in the near future, then Brandenburg and Hess are satisfied. If a minister urges his congregants to smoke marijuana, without more, I view that as general advocacy. If the minister urges his congregants to give marijuana to any child they see when they take their own kids to school -- when it is clear to everyone that the congregants take their kids to school everyday and, necessarily, will see other children when they do so -- I view that as urging imminent unlawful conduct. It's not just that the illegal conduct would occur on many occasions. It is that the condition which will trigger the illegal action is certain and that the first of those many occasions when the illegal conduct is to occur is going to be in the very near future. Do you think a minister could be prosecuted consistent with the First Amendment under my hypothetical, Eugene? Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 7:56 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels Alan: So if a minister preaches the propriety of the frequent use of marijuana (as I'm told the Rastafarians do), he could be prosecuted as well, on the theory that people are likely to act on it some time soon? I would think that Hess v. Indiana's distinction between advocacy of imminent conduct and advocacy of illegal action at some indefinite future time would be helpful to both the pro-marijuana minister and the pro-beating-children minister. Or is it really the case that advocating the general propriety of illegal conduct can be criminalized, so long as the illegal conduct would take place relatively often? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan
RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels
Alan: You raise an interesting question, and it might be well be that intentionally urging someone illegal to do something tomorrow morning, when such urging is likely to lead to the illegality, is indeed incitement. But I saw nothing in the stories that suggested that the beatings were a daily affair. To be sure, the minister's teachings contemplated that the beatings would take place at some point, and likely within months rather than years. But I assume that when a Rastafarian minister says that the use of marijuana is a sacrament, his teachings likewise contemplate that the criminal conduct would take place at some point, and likely soon - perhaps sooner than, because more often than, the beatings in this case. So I suppose that the key question is whether imminence does extend beyond conduct that's likely to happen today or tomorrow, to conduct that's likely to happen at some unspecified time within the next several months. I had thought that it doesn't so extend, and that this is part of why the Brandenburg exception has been seen as so narrow. Am I mistaken on that? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, May 13, 2012 8:40 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels I think where you and I disagree, Eugene, is on the question of what it means to advocate illegal action at some indefinite future time. I think if the pre-condition on which the illegal action is to be based is known to the speaker and the audience to be certain and to occur in the near future, then Brandenburg and Hess are satisfied. If a minister urges his congregants to smoke marijuana, without more, I view that as general advocacy. If the minister urges his congregants to give marijuana to any child they see when they take their own kids to school -- when it is clear to everyone that the congregants take their kids to school everyday and, necessarily, will see other children when they do so -- I view that as urging imminent unlawful conduct. It's not just that the illegal conduct would occur on many occasions. It is that the condition which will trigger the illegal action is certain and that the first of those many occasions when the illegal conduct is to occur is going to be in the very near future. Do you think a minister could be prosecuted consistent with the First Amendment under my hypothetical, Eugene? Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, May 13, 2012 7:56 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels Alan: So if a minister preaches the propriety of the frequent use of marijuana (as I'm told the Rastafarians do), he could be prosecuted as well, on the theory that people are likely to act on it some time soon? I would think that Hess v. Indiana's distinction between advocacy of imminent conduct and advocacy of illegal action at some indefinite future time would be helpful to both the pro-marijuana minister and the pro-beating-children minister. Or is it really the case that advocating the general propriety of illegal conduct can be criminalized, so long as the illegal conduct would take place relatively often? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, May 13, 2012 4:53 PM To: Law Religion issues for Law Academics Subject: RE: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels The news story doesn't give us a lot of detail as to exactly what the pastor said in this case nor does it tell us much about his parishioners. But if the pastor's instructions to his parishioners are to do something unlawful if a certain pre-condition is satisfied and the pre-condition is sufficiently common that it will almost certainly occur in the very near future, I'm not sure I see the Brandenburg problem. Infants will cry and will fail to sit still. If a speaker instructs a group of parents with very young children to stick their children's hand in boiling water if they cry or fail to sit still, that seems pretty imminent to me. If the parishioners follow his instructions and he ratifies their conduct and tells them to continue to do so, I think that's more than abstract advocacy. From: religionlaw-boun
Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels
I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct - even illegal conduct - doesn't fit within the Brandenburg exception, because it isn't intended to yield imminent lawless conduct; and I don't think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it's possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana is a sacrament be prosecuted for conspiracy to engage in criminal possession or receipt of marijuana? Could imams who preach the propriety of jihad be prosecuted for conspiracy to engage in jihad, just based on the teaching alone? Eugene http://host.madison.com/wsj/news/local/crime_and_courts/motion-to-dismiss-charges-against-black-earth-pastor-denied/article_3c17db6a-9b01-11e1-967a-001a4bcf887a.html A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old. Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church's literal interpretation of the Bible. The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom. Circuit Judge Maryann Sumi found that Caminiti had a sincerely held religious belief as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state's child abuse statute places a burden on his sincerely held religious belief. Scripture doesn't specify how and when the rod should be used, Sumi said, adding that Caminiti also was willing to modify the church's practices to comply with the law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Solicitation, Conspiracy and Caminiti (was: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels)
I think solicitation is indeed relevant; as my initial post noted, pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. But I would think that general preaching of the propriety of disciplining children by hitting them in a particular way would be more on the Brandenburg / Hess v. Indiana general advocacy side of the line than on the Williams solicitation side of the line. This having been said, I realize that the solicitation/advocacy line is not clearly defined. Do you have any sense of how such a line could properly be drawn, including in light of Hess? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Thursday, May 17, 2012 8:03 AM To: Law Religion issues for Law Academics Subject: Re: Solicitation, Conspiracy and Caminiti (was: Minister convicted for teaching parishioners to punish children by hitting them on the bare buttocks with wooden dowels) Eugene: While reading the government's brief in al-Bahlul, www.lawfareblog.com/wp-content/uploads/2012/05/2012-05-16-Bahlul-Brief-Respondent.pdfhttp://www.lawfareblog.com/wp-content/uploads/2012/05/2012-05-16-Bahlul-Brief-Respondent.pdf, I noticed that the argument in the alternative at pp. 78-79 repeats the government's argument from the Lynne Stewart case that if the government simply denominates public advocacy of criminal conduct as solicitation, it apparently avoids the need to satisfy Brandenburg analysis. (In the Stewart case, the CTA2 also appeared to rely in part on the fact that the intended audience was especially susceptible to the speaker's admonitions, analogizing to a crime boss's call to arms, 590 F3d at 115-16 -- certainly relevant to the minster and congregants case.). I've previously raised concerns about this solicitation argument here: http://balkin.blogspot.com/2011/07/begolly-indictment-and-first-amendment.html But even if one thinks this move is inconsistent with Brandenburg, at a minimum one needs to deal with the recent case law supporting the solicitation theory in discussing the Caminiti case. (I'd also note that the public accounts of the Caminiti case state that he was convicted of conspiracy, not solicitation. Wholly apart from the First Amendment, is it really the case that he can be said to have agreed with the parents to engage in child abuse under Wisconsin law?) On Mon, May 14, 2012 at 12:24 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I'm not sure why it should matter whether a minister is speaking in a church with a building, or to a small group of people; nor is it clear to me to what extent the law can take into account how much people fear their leaders on spiritual grounds, whether they be the leader of a small group or the Pope. The Court's First Amendment jurisprudence has, quite rightly I think, never tried to draw a line between small charismatic religious groups and bigger, more established religious organizations. As to teaching church members how to do something, I agree that if he were teaching little-known techniques for more effectively committing crimes, we might have a crime-facilitating speech question, which raises a different (and unresolved) set of issues. But it sounds like teaching here is just another word for urging people to act in a particular way, in the same sense as we can talk about any church's teachings. So that's why this strikes me as quite likely a Brandenburg case, though as I noted at the outset more specific counseling might make it a Williams solicitation case. Eugene ... On May 13, 2012, at 7:10 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I would think that such a conviction would likely be unconstitutional under the Free Speech Clause, given Brandenburg v. Ohio, even without regard to any special religious freedom claim (note that Wisconsin courts read the Wisconsin Constitution following Sherbert/Yoder). It seems to me that teaching parishioners the propriety of such conduct - even illegal conduct - doesn't fit within the Brandenburg exception, because it isn't intended to yield imminent lawless conduct; and I don't think the general teachings would fit within the United States v. Williams solicitation exception, since no specific act is being discussed. On the other hand, it's possible that pastoral counseling of a specific parent, telling the parent to engage in illegal child abuse (assuming the discipline is indeed illegal) might qualify as solicitation of crime and not just abstract advocacy. Or is this analysis mistaken? Relatedly, could ministers of churches that teach that marijuana
RE: Religious exemptions and child sexual abuse
Actually, my criticism of Marci was not because she was a woman (surprise!), but because it seemed to me that for whatever reason her argument was framed in a way that was as unsubstantive and as lacking in concreteness as possible. As I noted in the e-mail to which Marci responded, there is a plausible but contestable explanation for how enacting a RFRA might indeed indirectly increase the rate of child sexual abuse. But that’s an argument that, it seems to me, is most helpfully offered by explaining its specifics, and in the process noting its limitations. Instead, Marci’s first post on the subject framed the matter as “Most Americans when they understand that a RFRA opens the door to discrimination or child sex abuse or medical neglect quickly cool on the extremism of a RFRA.” “[A] RFRA opens the door to ... child sex abuse”? That’s rhetoric, or hyperbole, or perhaps just careless wording. “Opens the door” suggests that something that before wasn’t happening now would be happening, or at least (as in the “discrimination” and “medical neglect” items) something that before wasn’t legal now would be legal. Of course, child sex abuse is a very serious crime with or without a RFRA; at most, what RFRA might do is diminish the incentives that one set of institutions has to maximally combat child sex abuse. In another post, Marci writes, “RFRA, as we all know, does not mirror the First Amendment, and the North Dakota RFRA would have triggered strict scrutiny even without a showing that the burden was ‘substantial’ -- so we can be certain that it could be more problematic in child sex abuse and medical neglect cases.” Can we really be so “certain,” given the rather modest difference in wording, the fact that court decisions providing protection to churches are generally entanglement cases, not RFRA cases, and the fact that most courts don’t accept either entanglement or free exercise/RFRA challenges? (Or is the sentence saved by the fact that it only says “we can be certain that it could be more problematic,” in which case the claim is made accurate by being made basically empty?) Most recently, Marci’s latest response offers one case citation: Gibson v Brewer. But it might be worth noting that Gibson accepts a First Amendment defense to employer negligence claims on entanglement and endorsement grounds, with a dollop of Kedroff. It didn’t rely on the Sherbert/Yoder/RFRA strict scrutiny model. Again, instead of concrete analysis, what I’m seeing is one-liners and broad assertions. I would not normally publicly criticize another list member’s work this way, but Marci’s implicit accusation of sexism requires me to explain just why her argument struck me as more “rhetoric” than substance, and would have regardless of her sex. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, June 14, 2012 4:28 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions and child sexual abuse I'm not sure why stating the facts in these cases is rhetoric I sincerely hope it is not because a woman is pointing out the facts rather than a man. This last statement also is not rhetoric but an honest observation. Eugene's analysis is correct to a point. Even though slightly more than half of the states have rejected religious liberty as an absolute defense, the churches still raise religious liberty defenses in a myriad of situations in these cases i those states Examples: They balk at discovery on a routine basis and use the defense to try to get around SOLs. Shifting from the constitutional standard to the RFRA formulation increases delay and cost in these cases. That means it increases the suffering of the victims now and creates more dangers in the future. These are the facts The same is true for medical neglect. Having said that -- the North Dakota RFRA also was more extreme than most because it did not require a substantial burden. Just a burden. RFRA is a misguided approach. If legislators are foolish enough to adopt this formulation which disables laws they worked hard to pass, at the least they should exempt all cases involving child abuse and neglect. Existing rfras should be amended accordingly and religious lobbyists should include the child safety exemption in every bill they push. Still, the gay rights lobbies and women 's rights lobbies passionately oppose the RFRA formulation. The tide has turned because they came to understand that the rfras are one means of oppressing them. Again just a fact -- not rhetoric. Marci On Jun 14, 2012, at 12:13 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following
RE: Religious exemptions and child sexual abuse
Anecdotal evidence and surmise is all we have for most laws – it’s all we have for the proposition that, for instance, having RFRAs actually increases religious freedom; it’s not like we have social science or criminal statistics to support that. And social science and criminal statistics are especially unlikely to be available for child sexual abuse by the clergy, which is for obvious reasons hard to measure accurately, and which is numerically rare enough that random variation can easily swamp any slight effects of a RFRA or employer tort liability. To be sure, I think that social science evidence, when it’s available and when it’s properly gathered and analyzed, can be very helpful in making policy decisions. But we often find ourselves having to make such decisions even without such evidence. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Thursday, June 14, 2012 6:21 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions and child sexual abuse Do we know of any social science or criminal statistics that supports a notion that jurisdictions with RFRA or upheld constitutional defenses to employer liability have a higher incidence of child sexual abuse (or, for that matter, that incidents of child sexual abuse are higher in religious settings than settings, such as public schools, where these legal arguments regarding employer liability are inapplicable)...or are we left with anecdotal evidence, if not surmise? --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: Folks: I think that, if we soften the rhetoric and get more concrete, we could arrive at the following: 1. There’s been a debate about whether religious freedom protections insulate churches from lawsuits for negligent hiring, negligent supervision, and negligent retention in child sex abuse cases (I’ll call this “employer negligence” for short, though some courts have treated the different theories differently). 2. Many church lawyers, faced with a lawsuit trying to hold a church liable for crimes by some of its clergy, have indeed asserted such defenses. 3. In some cases, those defenses have been successful, not because religious freedom is seen a defense to a sex abuse charge as such, but because it’s seen as a defense to an employer negligence claim. 4. These defenses have generally been based on constitutional non-entanglement arguments, on the theory that secular courts shouldn’t be in the business of deciding whether a decision to hire or not hire a minister is “reasonable,” but they might in principle also be strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or similar constitutional amendments. This having been said, lots of courts in states with such Sherbert/Yoder regimes have indeed accepted liability for employer negligence notwithstanding those regimes, so it seems quite likely that implementing a RFRA would not thwart such negligence – but only quite likely, not certain. 5. Liability for employer negligence may help encourage churches to more closely police their clergy, based on standard tort-law-as-deterrence theory. 6. Conversely, disallowing such liability may, by comparison, diminish the incentive for churches to closely police their clergy, and may thus yield somewhat more sex abuse by clergy. 7. Therefore, depending on the magnitude of the effects described in item 4 (RFRA strengthening the no-employer-negligence-liability position) and item 6 (absence of liability diminishing the incentive to police clergy, and absence of policing increasing abuse), enacting a RFRA might in some measure yield somewhat more sex abuse by clergy. This of course doesn’t meaning that enacting a RFRA (even one without an exception for employer negligence) is necessarily bad. I favor state RFRA statutes, though I also favor Smith as a constitutional model. But it does suggest one possible cost of a RFRA. Eugene = ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe,
Religious exemptions in ND
Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that people could break certain laws on non-discrimination, though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer's religious beliefs.2 A man could claim domestic violence laws don't apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Eugene, Just to follow up on your point that some discrimination in the name of religion would possibly be tolerated under Measure 3 such as . . . 1. A pharmacist refusing to dispense Plan B. 2. A taxi cab driver refusing to transport a person with the smell of alcohol on his breath. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. Seems to me this is precisely why Measure 3 was defeated and RFRAs should be repealed -- because equality is a core American value. Bob Ritter On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Thanks for the pointer. Out of this list at the ndagainst3.com site, the only item that seems at all plausible is that “people could break” certain “laws on non-discrimination,” though almost certainly not employment discrimination laws. The other claims would either be almost certainly rejected under strict scrutiny, or (in some circumstances) would prevail even without a RFRA, for instance if a church employer is firing an unmarried pregnant minister or teacher of religion. A man could be allowed to marry girls, as young as 12, in the name of religion.1 An employer could fire an unmarried pregnant woman simply because of the employer’s religious beliefs.2 A man could claim domestic violence laws don’t apply to him because his religion teaches that a husband has the right to discipline his family, including his wife and children as he sees fit.3 A parent who believes in faith healing could to deny critical medical treatment to a seriously ill child.4 Simply put, people could break our laws in the name of religious freedom, including laws on non-discrimination, domestic violence and child abuse.5 Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, June 14, 2012 1:42 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND These appear to be some of the main arguments against passing the RFRA: http://ndagainst3.com/get-the-facts/ As an example, this TV ad said that the RFRA would allow men to marry girls aged 12 and to beat their spouses: http://www.youtube.com/watch?v=14ngnqGR6e8 There was also quite a bit of blog chatter about sharia law being enforced in North Dakota as a result of passing the RFRA. I did not see anything about Native Americans. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views into law. Eugene ___ 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
RE: Religious exemptions in ND
OK, sorry, that wasn't meant for the whole list D'oh! From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, June 14, 2012 8:11 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Thanks - I much appreciate the kind words! From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, June 14, 2012 8:07 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Very well stated, Eugene. My compliments. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, June 14, 2012 7:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Folks: Again, perhaps it might be good to avoid the rhetoric and focus on the serious issues involved. American law has long valued both equality and accommodation of religious beliefs. For many decades, it has valued equality in treatment by many nongovernmental actors (and incidentally in requiring certain nongovernmental actors to accommodate religious beliefs, but that isn't involved here). The ACLU has likewise long valued both equality and accommodation of religious beliefs. The difficulty is that the two often conflict. Sometimes the legal system deals with this conflict by categorically prioritizing liberty (from government intrusion) over equality of treatment by nongovernmental actors. For instance, the government may not tell people not to discriminate in marriage, or, I take it, in choice of friends, and no state laws purport to do that. The government may not bar parade organizers from discriminating against gay-themed floats, and (more controversially) may not bar the Boy Scouts from discriminating against gay scoutmasters. The Ninth Circuit recently interpreted California fair housing law as leaving people free to discriminate in choice of roommates, in part because of constitutional concerns. Likewise, statutes often don't regulate even behavior that they constitutionally may regulate. The Civil Rights Act of 1964, for instance, left the vast majority of businesses and professionals free to choose whom to deal with as customers; it defined regulated places of public accommodation quite narrowly. Many state laws, though, have provided far broader coverage for the equality mandate, thus diminishing the business owners' liberty (and, in the process, religious liberty). Other times the legal system deals with this conflict by categorically prioritizing equality of treatment over liberty; for instance, to my knowledge courts have consistently rejected religious exemption claims from employment discrimination laws, outside the context of (1) ministerial positions and (2) statutory exemptions (for instance, exemptions for religious institutions from bans on discrimination based on religion, and in some states based on sexual orientation). Still other times, though rarely, courts have carved out religious exemptions under RFRAs and similar state constitutional exemption regimes; to my knowledge, this has only happened with regard to housing discrimination based on marital status. How to resolve this is not, I think, easily answered either with assertions that equality is a core American value or that religious freedom is a basic American value, or claims that the ACLU doesn't value[] religious liberty for conservative faiths. My sense is that we need to talk more specifically and concretely about the arguments for and against respecting equality and liberty in each instance. (For instance, the argument for letting taxi cab drivers discriminate based on passengers' consumption of alcohol - a right that most other businesses enjoy, since it doesn't involve discrimination based on the passenger's religion, race, etc. - is different from the argument for letting landlords refuse to rent to atheists or from the argument for letting photographers choose which kinds of expressive works to create.) My sense is that it might also be helpful to talk about the level of law at which a religious exemption regime is enacted. A state statutory RFRA leaves the state legislature free to decide that some laws (including antidiscrimination laws) should be exempted from the RFRA, and to effectively overturn the results of court decisions that grant exemptions. A state constitutional RFRA doesn't do that. A federal statutory RFRA that binds state governments, and a federal Sherbert/Yoder regime, make it even harder for legislatures who feel strongly about the need for an exemption-less equality rule to implement those views
RE: Religious exemptions in ND
Marc: It seems to me that state RFRAs are aimed at protecting religious observers and religious institutions more than at least many other social interests. Conversely, as I understand the church liability cases, plaintiffs usually aim to simply apply normal negligent hiring/supervision/retention law to churches, just as it would apply to (say) secular private schools, secular youth organizations, secular day care centers, and so on. To be sure, as Doug pointed out, state and local governments often are treated better than all these private institutions, under sovereign-immunity-ish principles. But whether that better treatment or not is right, it is justified by the sense that taxpayer money needs to be specially protected. Why should religious institutions be given more protection against liability than other private organizations? Eugene Marc Stern writes: Allowing religious liberty defenses(which have so far been mostly unsuccessful) no more endangers children than does placing the burden of proof on the plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal cases,rules against hearsay or requiring actual confrontation with accusers and so on. What is so troubling about Marci's message is not so much the bottom line result as the suggestion that interests of religious institutions-who after all are not themselves molesting children whatever their culpability for not acting more vigorously to protect children-are somehow systematically less worthy of protection than other social interests. While I accept Eugene's rebuke about rhetoric,and his observation about both equality and religious liberty being protected,it seems to me fair to observe that while there often ways to maximize both interests, there is an increasing tendency-readily visible in positions on conscientious objection by pharmacists to eschew such balancing tests in favor of sweeping assertions of the overarching importance of equality. The same trend is evident in the debates over religious exemptions in the context of same sex marriage. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Excellent points, both in the first paragraph and in the third. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Friday, June 15, 2012 6:46 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND May I suggest this is too strong. A great many constitutional rights increase to some degree the possibility that child abuse will occur, not be detected and not be adequately punished. Consider in this respect the Fourth and Fifth Amendments, at least as presently interpreted (and I suspect most of us would not agree with an interpretive rule that said government does not violate the Fourth and Fifth Amendment whenever doing so might increase to any degree the possibility that a crime will not be committed, not be detected, and not be punished. So we might assume that a) protections for religious freedom will have some negative consequences, including some severe negative consequences but b) that this is true for pretty much all constitutional rights. So the issue is how much do we risk because we value religious freedom (remembering that a strategy of risk nothing will have other severe bad consequences. In this vein, may I suggest that the present alternatives are not helpful. SMITH seems to suggest a rational basis test that would allow government to severely burden religious practice whenever doing so has any appreciable tendency to prevent, detect, or punish crime. Many RFRAs suggest a compelling interest test that probably puts too high a burden on government to do a variety of acts (not just in the area of criminal justice-so even if you think, as I do, that preventing child abuse is obviously a compelling government interest, you might still think the compelling interest standard too strong in other cases). Strikes me that one thing we might discuss is what that in-between standard looks like. Mark A. Graber ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity - and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons - it does seem to facilitate religious groups' failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Strict scrutiny, from Sherbert/Yoder to RFRA
From: Volokh, Eugene Sent: Friday, June 15, 2012 10:44 AM To: Law Religion issues for Law Academics Subject: Strict scrutiny, from Sherbert/Yoder to RFRA I disagree on very much with Marci, and I’m not sure that the Sherbert/Yoder test would have been inapplicable to the things that NARAL and CHILD fears. But Marci’s more general point strikes me as quite correct: At least if read literally, RFRA enacts an across-the-board strict scrutiny test, which the Court in the Sherbert/Yoder era never did. For instance, when the government was acting as prison administrator or as commander of military personnel, the religious exemption test--like the Free Speech Clause test--was close to the rational basis framework. Lower courts adopted a similarly deferential test for probation conditions that incidentally interfered with religious practices. When the government was acting as employer, some lower courts likewise adopted fairly (but not entirely) deferential tests borrowed from the Pickering test applied in government employee free speech cases. There was no agreed-on test for the government acting as educator in kindergarten through high school, but courts at least had the option of concluding that the free exercise test--like the free speech test--should be relatively deferential in these cases, too. When the government was acting as sovereign, the test was usually strict scrutiny, but not always. For claimants requesting exemptions from generally applicable speech restrictions, the free exercise test was the same as the free speech test, which might differ from strict scrutiny. Content-neutral restrictions on the time, place, or manner of speech, for instance, are only subject to a form of intermediate scrutiny under the Free Speech Clause, and Heffron v. ISKCON held that this same quasi-intermediate scrutiny was applicable to requests for religious exemptions from such restrictions. Similarly, some lower court cases suggested that zoning restrictions were subject to a lower standard of scrutiny. Now perhaps the same results could be reached by applying strict scrutiny with an eye towards the special circumstances present in those cases – but that, even more than the Court’s “feeble in fact” version of strict scrutiny applied in cases such as Lee, Bob Jones, and the like, would in practice be a way of avoiding strict scrutiny rather than a way of honestly applying it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, June 15, 2012 12:09 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND The Sherbert/Yoder test was never treated by the Supreme Court as a test available across the board. So NARAL's concerns and CHILD 's Issues would not have been controlled by it The concern is not over enforcement but rather enforcement Giving religious groups more power to endanger children is not a good idea. Marci ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
But as I understand it, some states – though a minority – do indeed protect churches from negligent supervision/retention/hiring liability; and since generally speaking respondeat superior is usually unavailable in such cases, the effect is indeed an immunity of churches from liability for this particular sort of abuse. (I agree that this is hard to lay at the door of RFRAs, since the immunity has generally been recognized under the non-entanglement doctrine.) In any case, it seems to me that these concrete discussions of what the law does and does not authorize, and which law does so, are more helpful than snippy one-liners from either side. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com Sent: Friday, June 15, 2012 10:57 AM To: religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND Agreed. But in order for there to be a cost of immunity from tort law there first has to be immunity from tort law and, particular to this discussion, immunity from tort law in child sex abuse cases. This discussion started with the assertion that RFRA's open the door to child sex abuse, lessen deterrence of it, and that RFRA arguments to this end were being made by churches and their lawyers all the time When that was questioned, the limitless assertions devolved to RFRA's adding a layer of argument during the course of litigation --Don Clark Nationwide Special Counsel United Church of Christ In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, vol...@law.ucla.edumailto:vol...@law.ucla.edu writes: No, actually I think the quote was an unnecessarily pugnacious attempt to capture an important point. Some religious groups have apparently failed to reasonably investigate and monitor people whom they put in positions of influence over children, and some of those people have used that influence to molest children. It's at least plausible that holding religious groups liable for negligent hiring, retention, and supervision would provide an extra incentive for such monitoring and investigation in the future. Conversely, it's at least plausible that immunizing those groups from such employer liability would make it easy for them to endanger children -- not through deliberate attempts to harm children, of course, but through failure to protect the children. As I've mentioned, I'm skeptical that RFRAs will provide such immunity. But some states have indeed interpreted the First Amendment as providing such immunity – and even if that is nonetheless the correct result, for non-entanglement reasons or other reasons – it does seem to facilitate religious groups’ failure to take proper care to protect children. As I said, I think both sides of the discussion have at times put things more pugnaciously than is helpful. But the basic point of the cost of immunity from tort law is one that should be taken seriously. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.commailto:lawyer2...@aol.com Sent: Friday, June 15, 2012 3:42 AM To: Law Religion issues for Law Academics Subject: Re: Religious exemptions in ND Giving religious groups more power to endanger children Wow To be charitable, I will chalk that one up to the lateness of the hour in which it was written. -Don Clark Nationwide Special Counsel United Church of Christ Sent from my Verizon Wireless BlackBerry -Original Message- From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com Sender: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu Date: Fri, 15 Jun 2012 03:08:48 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Religious exemptions in ND ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://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
Religious exemptions and discrimination
I think this is combining under the rubric of “discrimination” many different things. First, item 2 doesn’t involve discrimination based on the passenger’s race, religion, sex, and so on which is why businesses generally are free to discriminate against patrons with wine, or employees who drink wine. The relevant law here is a sort of “common carrier” rule that imposes on a few businesses (and only a few) the obligation to do business with pretty much everyone, an obligation that is much broader than that imposed by antidiscrimination law. Relatedly, item 1 doesn’t involve discrimination in the antidiscrimination law sense (except insofar as one can argue that such a refusal is sex discrimination because only women take Plan B, which I doubt will succeed). Indeed, I take it that all of us would agree that a supermarket could choose to refuse to stock condoms (male or female) or over-the-counter contraceptives. Rather, the relevant law is a professional obligation imposed on pharmacies to stock either all in-demand pharmaceuticals, or at least to stock this particular pharmaceutical. Second, even true discrimination rules have historically been applied more narrowly in some areas than in others, and this reflects (in addition to federalism concerns) real differences in the way discrimination affects people. Title II of the Civil Rights Act, for instance, does not constrain pharmacies, cab drivers, or professional photographers; indeed, it applies to only a narrow range of places of public accommodation. It does, however, affect all businesses with more than a threshold number of employees. And this makes sense, because as to many places of public accommodation, the chief harm with discrimination is only dignitary: If Elaine Huguenin refuses to photograph a same-sex commitment ceremony, the couple might be annoyed by the refusal, but they can probably find another photographer at little cost, at least in most places. (Indeed, the couple may prefer to hire a photographer who they feel will see their ceremony as beautiful, and thus be inspired to photograph it that way, rather than a photographer who is being forced by law to photograph something she disapproves of.) On the other hand, employment discrimination can dramatically affect people’s livelihoods, especially since employment is often much less fungible than most commercially available services. Third, different sorts of discrimination rules relate differently to other constitutional rights, and liberty rights more generally. Requiring a photographer to photograph something she doesn’t want to photograph affects her First Amendment right not to create expressive works that she disapproves of. (Even those who think wedding photography isn’t expressive enough to qualify for that purposes might, I think, agree that a commercial press release writer should have the right to refuse to write press releases for Scientology – though that’s discriminating based on religion – or to write a glowing account of a same-sex ceremony.) Likewise, constraining a landlord’s choice about who lives in the other half of a duplex in which she lives may burden her privacy rights, constitutional or otherwise. Not so for a landlord who owns a large apartment building. This doesn’t directly affect the religious exemption claim, of course, but it does highlight why the wedding photographer example may need to be treated differently. Given these differences, it seems to me quite unsurprising that the caselaw rejecting religious exemptions to employment discrimination claims wouldn’t necessarily fully extend to claims of housing discrimination based on marital status (to give an example of a religious exemption claim that some courts have accepted), and wouldn’t be particularly helpful as to claimed exemptions from common carrier obligations or professional regulations. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Friday, June 15, 2012 12:19 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris, While you would be willing to grant a child safety exception to appease Marci, I presume that in your view (and correct me if I'm wrong) that burden type RFRAs (like the North Dakota proposal) would permit the following examples of discrimination? 1. A pharmacist refusing to dispense Plan B. 2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine in a grocery bag. 3. A professional photographer refusing to photograph an LGBT civil ceremony. 4. A landlord refusing to rent to an atheist. If yes, are these acts of discrimination less a compelling governmental interest than anti-discrimination provisions of the Civil Rights Act? Bob Ritter On June 15, 2012 at 10:31 AM
RE: Religious exemptions in ND
But I suspect the Texas Statutes includes many more than 400 statutes! Moreover, my sense is that many states that provide for initiative constitutional amendments also provide for initiative statutes, which are easier to put on the ballot than the amendments; that's certainly true in California. And if a legislature thinks a court decision interpreting a RFRA statute is wrong, it can correct it by just enacting a statute. If it thinks a court decision interpreting a state constitutional amendment is wrong, it needs to put a proposed amendment on the ballot, which (I believe) generally requires a greater majority of the vote in the legislature coupled with (in all states but Delaware) a vote of the people. And while constitutional amendments can be put on the ballot by initiative in many states (about half, if I recall correctly), that usually takes a good deal of money, something that often might not be available. So it seems to me that it is indeed generally a good deal easier to change a court decision handed down under a state statute than one handed down under a state constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder with Measure 3, which would have been a state constitutional amendment and not a state statute? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
FW: 2012 Elon Law Review Symposium
From: mailman-boun...@lists.ucla.edu [mailto:mailman-boun...@lists.ucla.edu] On Behalf Of Ryan Morrison Sent: Monday, June 18, 2012 6:48 PM To: religionlaw-ow...@lists.ucla.edu Subject: 2012 Elon Law Review Symposium Good evening, My name is Ryan Morrison, and I am a Symposium Editor for the Elon Law Review. I was hoping your LISTSERV would include a blurb about our call for articles, essays and requests to present for our 2012 Symposium: Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age. It will be held on October 26, 2012, and proposals are due by July 15, 2012. Website: http://www.elon.edu/e-web/law/law_review/symposium2012.xhtml Call for Authors: http://www.elon.edu/docs/e-web/law/law_review/Elon_Law_Review_2012_Symposium_Call_for_Authors.pdf Please let me know if you need me to provide any additional information in order to be included in your LISTSERV. Thanks in advance! Best, Ryan Morrison ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions in ND
Well, I suppose sometimes it might be so. But I think that on balance ordinary legislation is easier to pass than a constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 3:52 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Would you agree that for political reasons it is sometimes easier to get a ballot initiative (even a constitutional one) passed than to get legislation with the same provisions passed? I think it is likely that the relative ease of passing legislation vs. passing a ballot measure will differ significantly from state to state, in particular between states that allow constitutional amendment by ballot initiative and those that do not, and between states that tend to be dominated by one party or the other and those that are not. And it is probably a lot easier to get 4% of the voters in North Dakota to sign on to a ballot initiative than it is to get 4% of the voters in California. In short, I don't think it makes sense to generalize here, and I understand your proposition below to be a generalization. Also, for what it's worth, I imagine it might take a good deal of money to get a particular law through a state legislature; the money flow is just less obvious. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, June 18, 2012 4:47 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND But I suspect the Texas Statutes includes many more than 400 statutes! Moreover, my sense is that many states that provide for initiative constitutional amendments also provide for initiative statutes, which are easier to put on the ballot than the amendments; that's certainly true in California. And if a legislature thinks a court decision interpreting a RFRA statute is wrong, it can correct it by just enacting a statute. If it thinks a court decision interpreting a state constitutional amendment is wrong, it needs to put a proposed amendment on the ballot, which (I believe) generally requires a greater majority of the vote in the legislature coupled with (in all states but Delaware) a vote of the people. And while constitutional amendments can be put on the ballot by initiative in many states (about half, if I recall correctly), that usually takes a good deal of money, something that often might not be available. So it seems to me that it is indeed generally a good deal easier to change a court decision handed down under a state statute than one handed down under a state constitutional amendment. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, June 18, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Should we really assume that it is harder to get something through a legislature than to get a ballot measure passed? I can't speak to how easy it is to get a ballot measure together in North Dakota, but in several states and on some issues it is arguably easier to change the constitution than to get a bill through the legislature. The Texas Constitution has over 400 amendments, I believe. From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu] Sent: Friday, June 15, 2012 11:03 AM To: 'Law Religion issues for Law Academics' Subject: RE: Religious exemptions in ND That is true. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 15, 2012 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Religious exemptions in ND Chris Lund writes: It's also important to keep in mind that the protection of state RFRAs can always be legislatively narrowed-and that has happened. Concerned with a pending suit by a Muslim to claim a drivers' license without having to take off her headscarf, Florida statutorily (and retroactively) removed such claims from the protection of Florida's RFRA. Judging by Florida's reaction to it, that apparently is the most threatening state RFRA claim that has ever been brought. I leave it to the listserv to evaluate how bad it really is, but it is certainly less scary than what Measure 3 opponents feared. I think the opportunity for legislative narrowing is a critical argument in favor of state RFRAs - but wouldn't that have at least been somewhat harder
RE: Providing public school credits for release-time religious classes
I share some list members’ discomfort with Zorach, and with the South Carolina law that gives favored treatment to religious studies classes, rather than just releasing students to take a class at any other accredited school or at any unaccredited school if the class is certified by an accredited school. I’m sure I’m “hostile to separation” in Marci’s view, and though I’m entirely irreligious myself I am indeed hostile to the separation that Marci advocates. Yet I do think that this sort of discrimination in favor of religion ought to be seen as constitutionally suspect, and I regret that Zorach took a different view. But the argument below seems to me to go too far, because of the transfer student point raised by Rick and by the Fourth Circuit opinion. Say that someone transfers to a public school in the 11th grade, and to be entitled to so transfer he has to show some number of semester-hours of schoolwork at his prior school; and say that the prior school had a pervasively religious curriculum, so that many classes have a religious component. Is it really the case that the public school is constitutionally barred from accepting those semester-hours? I would think not, though I’d be happy to hear Marci’s view on the subject. Now perhaps there is some constitutional distinction between pure theology classes and mixed religious/nonreligious classes – but when it comes to funding programs, the Souter/Stevens/Brennan/Marshall wing has generally insisted that there is no such distinction. So it seems to me that the constitutional objection can’t be to schools accepting credit for religious instruction from other schools; the objection must be to schools doing so under programs that favor religious instruction. Eugene Marci Hamilton writes: On the merits, I don't see why or how the public schools can take frankly ecclesiastical courses from frankly religious schools for credit under existing doctrine. Now, if the argument is that the Court should and may abandon the Establishment Clause, let's be honest about that. It is well known that those hostile to separation are hoping this new Court will cut back on the Est Cl Under existing doctrine, these credits are a violation of the separation of church and state and the Memorial and Remonstrance. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: German circumcision decision
Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ 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.
Male circumcision, female circumcision, and ear-piercing
An analogy between male circumcision and ear-piercing is no more dispositive than an analogy between male circumcision and female circumcision, it seems to me. There’s a spectrum here: Normal ear-piercing has virtually no effects on bodily function, since there seem to be no really significant nerve endings or other really significant tissue removed in the process. Normal male circumcision might well have some effects on sexual sensation, given the removal of an area of skin that does seem to have considerable sexual sensation. Many forms of female circumcision pretty clearly have very substantial effects on sexual sensation (as well as having other harmful effects). What makes this a hard question is precisely that we don’t know much about where to draw the line on this spectrum – a spectrum that of course involves people’s altering other people’s bodies (even if those other people are their children) and not their own. Incidentally, it’s far from clear to me that a ban on tattooing under-18-year-olds in prominent places (which could have marked effects on their children’s future social lives as adults) would be unconstitutional or improper even if parents wanted to tattoo the children, especially in an era when tattoos were hard to remove. Eugene Paul Finkelman writes: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: German circumcision decision
Marty: Everything you say is sensible, and I agree that the case is difficult. This is precisely why a one-line statement about German history is inadequate to advance the ball much on this. As a general matter, it seems to me that a country's 70-year-old crimes tell much about what that country should do today; as a specific matter, I don't think that a country's killing Jews in the past tells us much about whether it's wrong for the country to try to protect children - indeed, often Jewish (or Muslim) children - from what a reasonable person could perceive as irreversible imposition of a harm that the children can't consent to and might indeed eventually regret. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, July 01, 2012 9:21 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Actually, I don't think Paul's comment is a one-liner -- the fact that this decision comes from Germany is surely the most striking and disconcerting -- and important -- thing about it. As far as analysis is concerned, well, how could there be a correct answer? I think we can all agree that such a law imposes a very substantial burden on the religious exercise of most of those affected. Is there a governmental interest sufficient to overcome this burden, as either a legal or a moral matter? Well, that depends, of course, on how the society in question measures the harms to the infant boys -- harms to health, dignity, autonomy, etc. And that in turn depends on ever-shifting evidence and evolving moral sensibilities. If this were a case in which many or most of the boys in question later regretted the decisions of their parents, or where there were an undeniable, severe harm in terms of health or sexual well-being -- as is the case with respect to, e.g., female genital mutilation -- then the balancing would be fairly obvious. But in this case, not only do most men not mind that their parents made that decision (I assume that's also true in Germany -- but perhaps not), but in addition, many or most of those men who prefer to be circumcised are actually grateful that the decision was made at birth, since the procedure is much riskier and more painful (or so I'm told!) when performed on an adult. Surely that unusual set of facts makes this case much different from, e.g., the FGM and denial-of-lifesaving-medical treatment cases. On the other hand, the harm to the men (presumably a minority -- but again, perhaps things are different in Germany) who regret their parents' decision is irreversable. That's what makes the case so difficult. On Sun, Jul 1, 2012 at 11:56 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: German circumcision decision
I don't see why it's religio-cultural[ly] insensitiv[e] to say that a decision made for medical reasons is permissible but a decision made for religious reasons is not; or if it is religio-culturally insensitive, I would be proudly religio-culturally insensitive in many instances. (This instance I do find hard, for many reasons, but not for the reasons described below.) For instance, I don't see why we should treat (a) a parent's refusing necessary medical treatment to a child because there's a plausible argument that the treatment will do more harm than good the same as (b) a parent's refusing such treatment without any such explanation but simply because he concludes we should pray instead of performing the medical procedure, and God will take care of things. Perhaps it's too hard to tease apart such rationales in some situations, but as a general matter I would think that courts might quite rightly reject rationale (b) even if they accept rationale (a). Now of course here the situation is not identical - indeed, as I've argued before, male circumcision is not identical to pretty much any other procedure - and perhaps the situation should be different when we're not talking about refusal of necessary medical treatment but rather the performance of a medical procedure for which the practical effect (with regard to possible loss of sexual sensation) is unknown. But the point is that the mere fact that a decision might permissibly be made for plausible medical reasons doesn't mean that it might permissibly be made for religious reasons (or other nonmedical reasons). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Sunday, July 01, 2012 9:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision Isn't there still a substantial body of medical opinion--perhaps not as prevalent as in decades past--that recommends circumcision as a preventive health measure? If the issue is the lack of consent from the subject of the operation, this certainly affects more than just religious observance, and more than just this particular operation. And if the decision hinges specifically on the fact that the motivation (if that can ever be clear) is primarily religious, that certainly smacks of religio-cultural insensitivity, to put it mildly. Vance On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote: Are they also banning parents from piercing the ears of children? In many cultures it is common to see infant girls with pierced ears. Does the ban extend to pierced ears before age 18? And then there is body piercing before age 18. Is that being banned? Has the Court banned tattoos for people under 18? And has this ban spread to Muslim male children, who are circumcised at age 7, 10 or slightly later depending on the sect. The fact is, given Germany's history of how it has dealt with Jews, is is not illegitimate to wonder what the Court is thinking. Germany has one of the fastest growing Jewish populations in the world -- mostly through immigration. This decision, if enforced all over the country, would slow down or stop that population growth. One might at least ponder why this case has come to the Germany court, and not one involving piercing, tattoos, or Muslim circumcision. Paul Finkelman President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386tel:518-445-3386 (p) 518-445-3363tel:518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sunday, July 1, 2012 11:56 AM Subject: RE: German circumcision decision Any chance we could have some helpful analysis of the decision, rather than one-liners? The question of the degree to which parents should be able to permanently alter their children's bodies - for religious reasons or otherwise - is not, it seems to me, one that has a completely obvious answer one way or the other. There may indeed be one correct answer that can be demonstrated, but such demonstration requires argument rather than assertion. Eugene ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Laws that impose semi-religious, ethical view[s]
It seems to me that a vast range of laws - including laws that Paul and others would very much support - can equally be described as imposing semi-religious, ethical view[s] on others. After all, at the bottom of many laws is an ethical judgment that can't be proven or disproven, and one can label it semi-religious in the sense that it is taken as an article of moral faith. That's true, I imagine, of animal cruelty laws, antidiscrimination laws, child labor laws, endangered species laws, historical preservation laws, and many more. (One can also make supposedly utilitarian arguments for some such laws, but at some point the utility calculus will require one to ascribe a particular weight to one or another value, and that judgment will be the same sort of unprovable ethical semi-religious judgment.) One can even conclude that people who support those laws are unwilling to embrace diversity when it comes to people who have (and implement) diverse views on whether to discriminate in employment or public accommodation, whether to treat animals in particular ways, whether to hunt grizzly bears, whether to raze historical building that they own, and so on. I don't see how laws implementing the principle that one person ought not alter another person's body without permission - even when the alterer is the altered person's parent - unless it's very clear that the alteration is likely to be almost entirely harmless (or unless the motivation is medical necessity, and the alterer can credibly say that he's acting as the altered person would likely prefer in this situation) are any more intolerant or impermissible than those other laws I mentioned. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Sunday, July 01, 2012 11:42 AM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Alan's point raises another analytical issue. If don't harm the body is a semi-religious, ethical view, then aren't the German court and the proponents of the SF measure simply imposing their religious values on those of others who have a different faith. I think it is not unreasonable to see the German decision as an attempt to force out Muslims (and Jews) in a nation that is very uncomfortable with foreigners, immigration, and diversity. I have spent a fair amount of time in Germany over the last 20 years and I am always struck by how determined the Germans are not to allow Turks -- but this time 3rd and 4th generation German-born, German-speaking Turks -- to become German citizens. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Sunday, July 01, 2012 2:31 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision I agree with almost of all of Marty's thoughtful post -- except that I do not see this as a difficult case. When an attempt was made to place this issue on the ballot in San Francisco, some people argued medical and health concerns (although as Marty and Paul point out, the evidence here is indeterminate and disputed.) But most of the people I spoke with who supported the ban did so for almost quasi religious reasons -- a kind of don't alter the natural body philosophy -- or on autonomy grounds. While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. Finally, of course, there are the obvious consequences for such a ban on religious freedom. Laws that require devout religious individuals to violate core obligations of their faith at best are intrinsically exclusionary. Unless one envisions a world where moderately or seriously religious Jews (and Muslims) voluntarily cease to exist, a ban on circumcision prohibits those families from living in a community. Alan ___ To post, send message to Religionlaw@lists.ucla.edu To
What parents may or may not do with regard to their children
Alan: But our legal system also bars parents from physically acting towards their children in various other ways. Parents may not beat their children beyond a certain point. Parents may not excise their girls' genitalia. Parents may not consent to their children's having sex before a certain age (in some states, that age is 18), or participating in making pornography. Parents may not consent to their children's working in various jobs that impose even modest risk to health until a certain age. It's possible that if parents wanted to change their children's appearance in a permanent and material way, they wouldn't be allowed to do that (except in situations where the appearance change is likely to be seen by outside observers as an improvement). If parents wanted to bind their daughter's feet, I expect that would be forbidden. And while the alternative in all these cases if for the state to make the decision, that decision is generally do not allow the physical actions until the child is old enough to decide for himself or herself - a plausible conclusion, I think. So the question, it seems to me, is whether male circumcision should be treated more like, say, ear-piercing or teaching children some philosophy or religion, ore more like all the other things I described above. Eugene Alan Brownstein writes: While I think the autonomy argument isn't entirely frivolous, our legal system allows parents to make so many choices for their children that substantially impact their physical and mental health, personality, and appearance (without being subject to challenge on the grounds that they have interfered with the child's autonomy) that I don't assign a lot of weight to this interest. The alternative, after all, to having parents make these decisions is for the state to do so in their place. ___ 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.
Harm to religious communities vs. the harm of unconsented-to surgical operations on those communities' children
I'm skeptical about Mark's historical argument (though I do agree that if foreskin regeneration were easy and reliable, we'd have much less of an argument for banning circumcision). But as to the reprehensible ethics of the decision, the question is why we should weigh destroying or banishing one or more religious communities as ethically worse than allowing unconsented-to surgical operations that might well substantially harm the children and that often aren't made for any medical reason. Again, I take it that we wouldn't be that upset that a ban on female circumcision might destroy or banish some religio-cultural communities (not all Muslims but presumably some subgroups), because we think that the protection of girls is more important than protection of the religious sensibilities of those who would mutilate the girls' genitals. So it seems to me that while the effect on religious communities might have some weight, the weight should be quite limited. I agree entirely that the case for allowing male circumcision might well be strong, for instance if there is strong evidence that it does indeed provide health benefits (as it well might) or that it doesn't materially affect sexual sensation (again, that might well be true as well, though of course it's hard to tell). But it is these factors, which go to the well-being of children who are being operated on without their consent, that strike me as more important than the religious views of those who would do the unconsented-to operations. Eugene Mark Scarberry writes: With regard to the US and our 1st Amendment: I've been suggesting for some time informally that we should consider a historical (an historical?) approach to free exercise. Those religious practices that have been accepted for a long time in our society settings (and modern analogues) should be seen as part of the religious exercise that is protected. Use of relatively small amounts of mildly intoxicating substances by adults or near-adults in controlled settings (e.g., communion wine) should be protected. That would cover not only communion wine but also the religious uses of hoasca tea and peyote. Use of large amounts of traditionally accepted intoxicants in a historically societally-accepted setting (drinking of substantial amounts wine in Jewish religious celebrations like the Passover Seder) could arguably be protected. Circumcision not only has been a historically-accepted practice but also has historically been seen as necessary for the existence in our society of a minority religious community, the Jews. By analogy, similar practices that have only relatively benign and limited physical effects should be protected, including Muslim circumcision (which I suppose but do not know to be very similar to Jewish circumcision). Branding children's faces or female genital mutilation would not be protected, though the details of how they would be distinguished would have to be worked out. Note that circumcision has been widely practiced in the US by Christians as well as by Jews, and has been seen as a kind of familial choice. For Smith purposes, the combination of historically-rooted parental rights with the free exercise claim should be sufficient even under current law to protect circumcision. All of this is apart from the ethics of this German decision, which is reprehensible in its foreseeable effect of destroying or banishing one or more religious communities. Note also that circumcision is not necessarily irreversible. See http://intactnews.org/node/115/1314118161/pioneering-foreskin-regeneration-reverse-circumcision-interview-founder-foregen. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Laws that impose semi-religious, ethical view[s]
The post below seems to retreat entirely from the argument that somehow circumcision bans are impermissible because 'don't harm the body' is a semi-religious, ethical view - and rightly so, because most important laws, as I argued below, rest on such unproven and unprovable ethical views. (That antidiscrimination laws can't apply to churches stems not from their being based on an ethical view, since antidiscrimination laws applied to ordinary businesses are likewise based on an ethical view, but rather from our judgment about the freedom of religious association.) The question remains whether it's proper to restrict infant male circumcision - a long standing religious practice - based on such an ethical view. I'm inclined to say that the longstanding nature of the practice shouldn't weigh much in the analysis, just as the longstanding nature of the practice of beating one's children (sometimes, based on the Biblical statement, spare the road, spoil the child) as discipline shouldn't. I should say that I'm not sure that all corporal punishment is bad, just that restrictions on such punishment are not improper intrusions on religious freedom. As I said before, I think that whether infant male circumcision bans should be permissible ought to turn on (1) the degree to which there's reason to think that male circumcision diminishes sexual sensation (that would distinguish it from ear-piercing), and (2) the degree to which it in any event has important health benefits (that would analogize it to various other medical procedures that parents can rightly choose). But those questions, it seems to me, are the important ones - and labeling of don't harm the body as a semi-religious, ethical view should be entirely irrelevant. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul paul.finkel...@albanylaw.edu Sent: Sunday, July 01, 2012 5:59 PM To: Law Religion issues for Law Academics Subject: RE: Laws that impose semi-religious, ethical view[s] The answer maybe that a one size fits all theory does not work; we may need some traditional balancing. Some of that is clearly dictated by societal norms -- so we no longer accept binding of feet as acceptable (although that never had a religious basis). Anti-discrimination laws, for example, cannot compel a church to accept non-members or even integrate. The do require people to forsake their religiously based discrimination in the outside world. So, a person may have a religious belief in the inferiority of blacks or Jews, and thus not let them into his home or his church or private club; he may not refuse to serve them in his restaurant. Thus I am not sure where Eugene is tying to go with this. It strikes me that a law banning a long standing religious practice has a heavy burden to overcome, and it might be balanced by the harm it would cause the religious group. * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 01, 2012 5:34 PM To: Law Religion issues for Law Academics Subject: Laws that impose semi-religious, ethical view[s] It seems to me that a vast range of laws - including laws that Paul and others would very much support - can equally be described as imposing semi-religious, ethical view[s] on others. After all, at the bottom of many laws is an ethical judgment that can't be proven or disproven, and one can label it semi-religious in the sense that it is taken as an article of moral faith. That's true, I imagine, of animal cruelty laws, antidiscrimination laws, child labor laws, endangered species laws, historical preservation laws, and many more. (One can also make supposedly utilitarian arguments for some such laws, but at some point the utility calculus will require one to ascribe a particular weight to one or another value, and that judgment will be the same sort of unprovable ethical semi-religious judgment.) One can even conclude that people who support those laws are unwilling to embrace diversity when it comes to people who have (and implement) diverse views on whether to discriminate in employment or public accommodation, whether to treat animals in particular ways, whether to hunt grizzly bears, whether to raze historical building that they own, and so on. I don't see how laws implementing the principle that one
RE: What parents may or may not do with regard to their children
consequence, I am unpersuaded that it harms the child. If the state limits its intervention in parental decision-making to a considerable extent out of respect for parental autonomy, and the question of whether circumcision harms the child is unresolved, I think respect for religious freedom and parental autonomy make this a relatively easy decision for me. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 01, 2012 2:39 PM To: Law Religion issues for Law Academics Subject: What parents may or may not do with regard to their children Alan: But our legal system also bars parents from physically acting towards their children in various other ways. Parents may not beat their children beyond a certain point. Parents may not excise their girls' genitalia. Parents may not consent to their children's having sex before a certain age (in some states, that age is 18), or participating in making pornography. Parents may not consent to their children's working in various jobs that impose even modest risk to health until a certain age. It's possible that if parents wanted to change their children's appearance in a permanent and material way, they wouldn't be allowed to do that (except in situations where the appearance change is likely to be seen by outside observers as an improvement). If parents wanted to bind their daughter's feet, I expect that would be forbidden. And while the alternative in all these cases if for the state to make the decision, that decision is generally do not allow the physical actions until the child is old enough to decide for himself or herself - a plausible conclusion, I think. So the question, it seems to me, is whether male circumcision should be treated more like, say, ear-piercing or teaching children some philosophy or religion, ore more like all the other things I described above. Eugene ___ 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.
Medical reasons for action vs. religious reasons for action
Here's an analogy from another area in which the normal rule - one person may not alter or injure another's body without permission - is relaxed: self-defense. Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don's property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don - a Muslim - to think that Vic will imminently injure Don, or that the fire will spread to Don's property.) Vic attacks Don using nondeadly force and injures him. If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don could have reasonably believed that Vic was about to injure him, but Don did not actually sincerely believe this. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we'd agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason - the perception that Vic poses an imminent danger to Don's person or property. If I'm right on this, then I all think that there's no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another's body: that the actor is the subject's parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child's body for medical reasons doesn't mean he has a right to alter the child's body - even when the objective circumstances seem the same - for nonmedical reasons, including religious ones. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, July 05, 2012 7:09 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision OK, let's turn this around again. I don't follow Eugene's reasoning here. If I do for religious reasons what anyone else could do for secular reasons, why should this be penalized? Seems like a fundamental equal-treatment issue. On the second paragraph, Eugene is correct that my point went to institutional competence and legitimacy. I have little faith in courts to divine a social or moral consensus that isn't heavily biased in favor of whatever the upper middle class (the category into which most judges fall) thinks it knows. In the absence of an affirmative policy decision by elected representatives, therefore, the rule of decision that imposes the least harm to the polity ought to be that tradition carries prima facie probative weight. This is especially true in criminal cases, where the standard of statutory interpretation requires that crimes be clearly specified--none of this do no harm generalizing! On Wed, Jul 4, 2012 at 4:24 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Sorry for the delay responding - I was traveling Monday and Tuesday - but I'm not sure I grasp the argument in the first paragraph. My view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can't make such decisions. (3) Yet some such medical decisions must be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. But this argument hinges on there being medical reasons for the decision - I don't see any reason for parents to have this power when they exercise it for nonmedical reasons. We may defer to a parent's decision, even one we doubt, when it involves a tradeoff of one medical risk for another medical risk. But I don't see why we should defer to such a decision when the parent doesn't even purport to be making a medical judgment, but is just deciding based on the judgment that God wants me to do this or I don't want to give more profits to Big Pharma. That's not weighing religious motivation negatively because it's religious - that's weighing a nonmedical motivation negatively compared to a medical motivation because the only justification for letting me order someone to alter not my body but my son's body is the need for medical judgment. This leaves two different arguments. One is letting people do what they have always done, which strikes me as weak for the reasons I gave in part of my response to Paul Finkelman's post - especially give the longstanding tradition of allowing
Parental rights and physical conduct
This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than for religious reasons): Do Meyer/Pierce rights extend to the right to raise one's child in the sense of selecting an education for the child, setting behavior rules for the child, choosing a place to live with the child, and so on, or do they also have the constitutional right (not just a common-law right) to physically alter the child's body, including for nonmedical reasons? When I last checked the caselaw on the subject, the Supreme Court cases weren't clear on that. Are there cases I'm missing on that? To be sure, I agree that parents are generally allowed to let their children put themselves at risk in various ways, such as by playing tackle football and not wearing enough sunscreen. But that doesn't tell us much about whether that's a constitutional right. And indeed I don't think that laws banning child labor, for instance, have been judged as interfering with parental rights (imagine Prince without the religious motivation), even though many such laws (again, imagine Prince) are pretty clearly overbroad. Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, even when the parents order such actions, would be constitutional, though of course that's part of the dispute between us. Is there dispositive caselaw I'm missing here? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 7:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision We are making this so much more complicated than it has to be. I cannot speak to the particulars of the case in Germany, so I won't try. But in the U.S, we have a longstanding tradition, initially at common law and ultimately in constitutional law (Pierce, Meyer, etc.) of parental control over the upbringing of their children. The state can interfere with that control only for very good reason, and the state bears the burden of persuasion that it has such a reason. Compulsory education, compulsory vaccination, and limiting child labor are the most obvious, specific policies that interfere with those rights of parental control. (Perhaps I'm missing something on that list -- happy to learn of other such specific policies.) Outside of such specific policies, parents (or other lawful guardians) presumptively control decisions about child well-being, unless the parents violate general norms about abuse or neglect. Parents do all sorts of things that put their children's bodies at risk for permanent harm -- letting them play tackle football, go out in the sun all day without enough sunscreen, etc. Whether a particular practice of (more or less permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- is abusive depends on a social and medical judgment on the actuality of present harm, and in some cases the likelihood of future harm. But two propositions control our approach to this -- 1) all parents/guardians have the same rights and face the same limits (religious motivation adds or subtracts nothing to parental rights); 2) the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circumcision -- the state cannot meet its burden of showing the practice is abusive. The presence or absence of religious motivation for the practice may explain parents' behavior, or a faith community's concerns, but -- when the rights of children are at stake - the state should be constitutionally indifferent to that motivation. If the practice is abusive, the state should make its best efforts to put an end to it; if it cannot be shown to be abusive, everyone is free to engage in it. And liberty -- not religious liberty, but liberty generally -- resides in the initial allocation of power to parents/guardians, and the assignment of the burden of proof of abusiveness to the authorities. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Parental rights and physical conduct
I appreciate Howard's point, but the question is: Why should some children who by definition do not share a religious belief drown - or otherwise be injured - for the sake of the beliefs of the adults who do have that belief (and even for the sake of those children who, later in life, will wish that they had been so baptized)? I have great sympathy for people's rights to risk their own lives (in the baptism example) or alter their own bodies (in the circumcision example) for the sake of their religious beliefs, or for that matter for the sake of their secular beliefs. But why does it follow that they should have the right to impose such risks on others, even others to whom they are genetically linked? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Thursday, July 05, 2012 8:52 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct What has been absent from all of the discussion on this issue is the importance to Jewish belief of circumcision while the son is an infant. This ceremony at 8-days of age (except where health precludes it that early) is the son's initiation into Jewish peoplehood. Waiting until adulthood is not the functional equivalent. Because the case in Germany involved a Muslim circumcision at a later age, the issue is muddled. As I understand it, Islam has varying views on the proper age for circumcision, and even on how important it is. While centrality of religious belief has been a factor of declining importance in free exercise cases in recent years, here it perhaps should be revived. I think a better analogy for trying to come up with a rule is this: Suppose there were a handful of cases in which infants drowned (or almost drowned) during full immersion baptism, and a court then ruled that because of the danger parents cannot baptize infants. They must wait until the child is an adult and then let him or her decide. How would everyone come out on that case? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 7/5/2012 10:57 AM To: Law Religion issues for Law Academics Subject: Parental rights and physical conduct This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than for religious reasons): Do Meyer/Pierce rights extend to the right to raise one's child in the sense of selecting an education for the child, setting behavior rules for the child, choosing a place to live with the child, and so on, or do they also have the constitutional right (not just a common-law right) to physically alter the child's body, including for nonmedical reasons? When I last checked the caselaw on the subject, the Supreme Court cases weren't clear on that. Are there cases I'm missing on that? To be sure, I agree that parents are generally allowed to let their children put themselves at risk in various ways, such as by playing tackle football and not wearing enough sunscreen. But that doesn't tell us much about whether that's a constitutional right. And indeed I don't think that laws banning child labor, for instance, have been judged as interfering with parental rights (imagine Prince without the religious motivation), even though many such laws (again, imagine Prince) are pretty clearly overbroad. Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, even when the parents order such actions, would be constitutional, though of course that's part of the dispute between us. Is there dispositive caselaw I'm missing here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 7:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision We are making this so much more complicated than it has to be. I cannot speak to the particulars of the case in Germany, so I won't try. But in the U.S, we have a longstanding tradition, initially at common law and ultimately in constitutional law (Pierce, Meyer, etc.) of parental control over the upbringing of their children. The state can interfere with that control only for very good reason, and the state bears the burden of persuasion that it has such a reason. Compulsory education, compulsory vaccination, and limiting child labor are the most obvious, specific policies that interfere with those rights of parental control. (Perhaps I'm missing something on that list -- happy to learn of other such specific policies.) Outside of such specific policies
RE: Parental rights and physical conduct
The difficulty is that newborn males aren't Jewish in the sense of actually believing in the Jewish religion - they are, after all, newborns. When they are 18, they might be religious enough (or culturally identified enough) to appreciate being circumcised if they had been circumcised, and to resent not having been circumcised if they hadn't been. Or they might be irreligious (or religious but non-Jewish) and appreciate not being circumcised if they hadn't been circumcised, and to resent having been circumcised if they had been. Or of course they might be irreligious but not care much one way or another. One possible answer to this is to try to estimate - how exactly would one do that? - which group is likely to be largest (those who would resent not having been circumcised or those who would resent having been circumcised), adjust the numbers to account for the greater difficulty of undoing a circumcision as an adult (very difficult, I understand, even now) vs. getting one as an adult (painful but less difficult), and adjust further to account for the relative importance of the matter to each group (if such a thing is possible). Another possible answer is to say that parents are entitled to make the choice for their children. A third answer is to say that it's not proper to substantially alter the bodies of some people without their consent (and absent medical need), at least if the alteration is likely to interfere in some measure with some valued function, even in order to advance the religious or cultural interests of other people. My sense is that this latter view is the right view, because I agree that the important right is the right of the child, and the right to be free of surgery that one may later not want is more important than the right to have surgery that one may later want. Eugene Brian Landsberg writes: From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg Sent: Thursday, July 05, 2012 11:35 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct Let me try again. The discussion has focused on the rights of the parents and of the state. The children have come into the discussion only as objects of control or protection by the parents or state; that is the context of the best interests of the child standard. But isn't the state depriving most newborn Jewish males of a right when it bans circumcision of children? Of course, the infant does not have capacity to exercise his right, so the law generally declares the parent rather than the state as a surrogate decision-maker. At least at the policy level isn't that ordinarily the proper allocation of responsibility? ___ 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.
Permissible protection of the religious individual's autonomy and identity
Isn't the key problem precisely that the claimed religious liberty ... of the family here refers to the claimed religious liberty of one individual to alter the body of a different individual? And I don't see why that is a normatively appealing liberty, given that it impinges on the autonomy of the child, and of the adult that the child will become. One day, the infant will become a man, and that man might not accept Judaism (or Islam). He might then ask of the rest of us, Why did you allow these people - my parents, to be sure, but still people other than me - to cut off part of my body, and a part that I think would have been quite valuable to me? Just because they believed that God wanted this? Well, I couldn't believe that then, and I don't believe it now. Where was your concern for my autonomy then? Eugene Alan Brownstein writes: From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, July 05, 2012 11:21 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct I thought we were long past the argument that the only basis for protecting religious liberty was that the state had a favorable perspective on the religious belief and practice at issue -- whether it is saving a child's soul through baptism or fulfilling the obligation to circumcise an 8 day old Jewish boy. There are clear cases where the state can and should intervene to prevent child abuse or the imposition of unacceptable risks of harm on children -- whatever the parents motivation might be. No religious liberty exemption should be granted in such circumstances. Indeed, as Chip suggests, exemptions of this kind might well violate the Establishment Clause. But there are many other cases where the state exercises considerable discretion in deciding whether it should intervene and limit parental authority. The constitutional interest of parents in controlling the education and upbringing of their children is poorly defined and reasonable people would disagree on its scope and application in particular cases. In those cases, if I understand Chip correctly (and I appologize if if I have misunderstood his point), the fact that that a religious obligation or practice is involved should be irrelevent in deciding whether the state should intervene. If the burden of a religion specific accommodation for individuals does not violate the Establishment Clause, and clearly some religion specific accommodations that burden third parties satisfy that standard, we accept some such accommodations as permissible protection of the religious individuals autonomy and identity. Why isn't something like that analysis appropriate when we are discussing the autonomy and identity of religious families? Obviously, we can disagree about whether any specific accommodation of religious parents and families should be provided -- but why should we insist that the religious liberty and identity of the family has no bearing on these issues? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Parental rights and physical conduct
I agree that the danger to infants from full immersion baptism is very low and perhaps zero; the hypothetical was that it happened in a handful of cases, but I think that's just a hypothetical. As to what burdens the government imposes to avoid a handful of deaths of infants, I think that varies from context to context. My sense is that there are quite a few safety regulations -- though generally not total bans -- that are indeed justified by the desire to avoid just a handful of deaths. On the other hand, circumcision involves not a very low risk of death, but a certainty of loss of part of the body, which in turn involves an uncertain possible health benefit and an unknown (and likely very hard to quantify) possibility of loss of some sexual function. That might well be a materially higher aggregate loss of utility, to borrow the economic term, than the loss of utility from playing football, even in Texas. Or it might not; again, much depends on the facts. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Thursday, July 05, 2012 9:43 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct Eugene -- I don't think this makes sense because it posits an impossible universe of zero-risk parenting. It is far riskier to drive your child on the freeway (not to mention take him/her skiing, or letting him/her play soccer, or play football (esp. in Texas)) than it is to baptize him/her. All those risks are well within the set of risks that parents take in the normal course of parenting. Indeed, for the state to interfere with the ability of parents to expose children to those risks would be a gross interference with parental rights. And I imagine that the danger to infants from either circumcision or full immersion baptism is far lower than driving them around town, though I claim no actuarial expertise on the matter. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Thursday, July 05, 2012 12:31 PM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct I appreciate Howard's point, but the question is: Why should some children who by definition do not share a religious belief drown - or otherwise be injured - for the sake of the beliefs of the adults who do have that belief (and even for the sake of those children who, later in life, will wish that they had been so baptized)? I have great sympathy for people's rights to risk their own lives (in the baptism example) or alter their own bodies (in the circumcision example) for the sake of their religious beliefs, or for that matter for the sake of their secular beliefs. But why does it follow that they should have the right to impose such risks on others, even others to whom they are genetically linked? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Thursday, July 05, 2012 8:52 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct What has been absent from all of the discussion on this issue is the importance to Jewish belief of circumcision while the son is an infant. This ceremony at 8-days of age (except where health precludes it that early) is the son's initiation into Jewish peoplehood. Waiting until adulthood is not the functional equivalent. Because the case in Germany involved a Muslim circumcision at a later age, the issue is muddled. As I understand it, Islam has varying views on the proper age for circumcision, and even on how important it is. While centrality of religious belief has been a factor of declining importance in free exercise cases in recent years, here it perhaps should be revived. I think a better analogy for trying to come up with a rule is this: Suppose there were a handful of cases in which infants drowned (or almost drowned) during full immersion baptism, and a court then ruled that because of the danger parents cannot baptize infants. They must wait until the child is an adult and then let him or her decide. How would everyone come out on that case? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw- boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Thu 7/5/2012 10:57 AM To: Law Religion issues for Law Academics Subject: Parental rights and physical conduct This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than
Medical reasons for action vs. religious reasons for action
The question, I think, isn't whether there should be a crime of circumcision as such. Rather, the question is whether the normal crime of mayhem, assault, battery, or child abuse - whatever label a particular jurisdiction would use for cutting off a part of an infant's body - should have as a defense (1) categorical parental prerogative, at least when it comes to circumcision (I'm the parent and I can cut off certain parts of the child's body for any reason I choose), (2) religious parental prerogative (I'm the parent and I can cut off certain parts of the child's body if I think God wants me to), or (3) medical parental decision (I'm the parent and I can make medical decisions for the child, within broad parameters, even if that includes cutting off certain parts of the child's body, based on my good-faith estimate of the costs and benefits of a procedure). I'm inclined to think that defense 2 is improper (for some of the reasons Chip gives), that defense 1 is proper only for actions that are highly unlikely to affect future bodily function (which male circumcision might or might not qualify, and which ear piercing does qualify as), and defense 3 is proper for actions that are fairly likely to affect future bodily function. And the analogy to self-defense helps explain why defense 3 is proper even though it treats medical reasons as better than all other reasons, including religious ones. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven Sent: Thursday, July 05, 2012 11:05 AM To: Law Religion issues for Law Academics Subject: Re: Medical reasons for action vs. religious reasons for action I'm not sure who the we is in Eugene's hypothesis, but nobody is proposing to add anything to defenses, since it's the existence of the offense that is under discussion. Nobody contests that the crime of murder, or attempted murder, exists with a rather precise definition. There is as yet no crime of circumcision. Moreover, in looking at the two situations, it's obvious that the defense of self-defense (which derives from the same unalienable right to life to which the crime of murder speaks) contains a mental state within its definition, as does the crime of murder. If there were a similar mental state in the crime of circumcision (e.g. removing someone else's foreskin with the intent to do grievous bodily harm), then one might say that the normal circumcision would never violate the law, and if the perpetrator did have the requisite intent, claiming religious justification might well not suffice as a defense. Of course, a legislature creating a crime of circumcision could decide to allow medical exemptions but not to allow a religious one (RFRA arguments, anyone? Would Lukumi apply?), but I still think that would be merely a trap for the unwary defendant who fails to allege medical motives. On Thu, Jul 5, 2012 at 10:46 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Here's an analogy from another area in which the normal rule - one person may not alter or injure another's body without permission - is relaxed: self-defense. Say Vic is doing something that Don perceives as blasphemous, but that might also be dangerous to Don or Don's property. (E.g., say Vic is burning a Koran and saying things that might reasonably lead Don - a Muslim - to think that Vic will imminently injure Don, or that the fire will spread to Don's property.) Vic attacks Don using nondeadly force and injures him. If Don reasonably believed that Vic was about to injure Don, and hit Don to prevent that, Don is not guilty of any crime, by reason of self-defense. But say that the objective circumstances are the same, so that Don could have reasonably believed that Vic was about to injure him, but Don did not actually sincerely believe this. Instead, he says that he attacked Vic because he thought God wanted him to attack Vic. Then Don is guilty of assault; no self-defense defense is available (and I take it that we'd agree that no other defense should be available to him). This rule does not treat religious reasons for hitting Vic worse than secular reasons generally. But it does treat all reasons for hitting Vic worse than one favored secular reason - the perception that Vic poses an imminent danger to Don's person or property. If I'm right on this, then I all think that there's no violation of the norm of equal treatment when we add another reason for allowing one person to alter or injure another's body: that the actor is the subject's parent and has a medical reason for ordering a surgery to the underage child. That the parent has a right to alter the child's body for medical reasons doesn't mean he has a right to alter the child's body - even
Circumcision of 12-year-olds
The quote from Boldt rather strikingly focuses on how forcing a 12-year-old to be circumcised is bad for the 12-year-old because it could seriously affect the relationship between [him] and father. Is that really all there is to it? Might it not also be bad because a 12-year-old shouldn't be forced to lose a part of his body that he doesn't want to lose, at least absent some pretty significant medical reason? More broadly, say that the issue arose not in a child custody case, but within an intact family. Should the law allow parents to circumcise their 12-year-old son against his expressed will -- as opposed to circumcising an infant who can't express a will? Or should that be seen as child abuse, with possible criminal or civil liability for the parents or the mohel? Eugene Eric Rassbach writes: I would add to Chip's point that almost all of these cases would arise in state court rather than federal court since they would for the most part deal with domestic relations issues or state law tort claims. See for example, In re Marriage of Boldt, 344 Or. 1, 176 P.3d 388 (Ore. 2008): Although the parties and amici have presented extensive material regarding circumcision, we do not need to *12 decide in this case **394 which side has presented a more persuasive case regarding the medical risks or benefits of male circumcision. We conclude that, although circumcision is an invasive medical procedure that results in permanent physical alteration of a body part and has attendant medical risks, the decision to have a male child circumcised for medical or religious reasons is one that is commonly and historically made by parents in the United States. We also conclude that the decision to circumcise a male child is one that generally falls within a custodial parent's authority, unfettered by a noncustodial parent's concerns or beliefs-medical, religious or otherwise. Were mother's concerns or beliefs regarding circumcision all that were asserted in the affidavits in this case, we would conclude that mother did not carry her initial statutory burden to demonstrate a sufficient change in circumstances demonstrating father's inability to properly care for M. However, in this case, mother has averred in her affidavit that M objects to the circumcision.FN8 In our view, at age 12, M's attitude regarding circumcision, though not conclusive of the custody issue presented here, is a fact necessary to the determination of whether mother has asserted a colorable claim of a change of circumstances sufficient to warrant a hearing concerning whether to change custody. That is so because forcing M at age 12 to undergo the circumcision against his will could seriously affect the relationship between M and father, and could have a pronounced effect on father's capability to properly care for M. See Greisamer, 276 Or. at 400, 555 P.2d 28 (illustrating proposition). Thus, if mother's assertions are verified the trial court would be entitled to reconsider custody. As to that inquiry, however, we think that no decision should be made without some assessment of M's true state of mind. That conclusion dictates the outcome here. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Parental rights and physical conduct
I agree with Chris entirely when it comes to questions having to do with what to teach the child, whom to expose the child to, where to live with the child, and similar child-rearing questions: There, in an intact family, a court may not intrude simply on the grounds that some other form of child-rearing - or some other set of child-rearers - would be more in the child's best interests, but must show parental unfitness. But when it comes to physical injury to the child, or danger of physical injury, many rules restrain parents without a showing of parental unfitness. I don't think that driving a child without a child safety seat is a mark of parental unfitness; the risk to the child is fairly low, and I don't think parents should lose custody of their children for this. Yet the law may require parents to use child safety seats. Likewise, having a child work before a certain age might not be a mark of parental unfitness, but it is forbidden. Likewise, my sense is that many states, including my own California, outlaw the tattooing of minors (see, e.g., Cal. Penal Code sec. 653), which interferes with parents' ability to get their children tattooed. I don't think the rationale is that a parent who authorizes such a tattoo is an unfit parent - just that when it comes to sufficiently substantial alterations of a person's body, and absent a medical reason (there is a medical exemption to the California law, by the way), those alterations should only happen with that person's consent, which can only be meaningfully given if the person is an adult. So I certainly don't think that the law generally mandates a best interests of the child standard, outside the child custody context. But I also don't think that the law generally mandates an unfitness [or] child abuse or neglect standard, when it comes to decisions that involve physical injury or threat of injury (and I mean injury here to include physical alterations, such as tattoos). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Friday, July 06, 2012 9:07 AM To: 'Law Religion issues for Law Academics' Subject: RE: Parental rights and physical conduct Yes, I'm feeling some of the same confusion as Paul. I don't know much at all about family law. But my understanding was that the best interest of the child standard was emphatically not the standard for judicial or legislative interference with parental decisions. It is the standard for what happens to the child when custody is disputed among divorcing or divorced parents. But I thought the standard for interfering with an intact family was much higher-a showing of unfitness, of child abuse or neglect. Before this conversation, I assumed that unless circumcision constitutes abuse or neglect, parents have the right to do it to their children, with talk of best interests being irrelevant. Another way of putting it is that the law presumes parents act in the best interests of the children, a presumption that only gets overridden in exceptional situations, a constitutional presumption under the Troxel line of cases. So have I gotten this completely wrong? Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz Sent: Friday, July 06, 2012 11:23 AM To: Law Religion issues for Law Academics Subject: RE: Parental rights and physical conduct This has been a very interesting discussion. I confess that at this point, I am quite confused about the meaning of best interests of the child. I understand it is a complex, context-driven, and multivalent test. But it would certainly help to understand the foundational values and defaults here and what interests are considered admissible or inadmissible. In some sense, the thinner the exposition of the test becomes, the more I wonder what thick assumptions underlie it. Take, for instance, the claim that [m]any would argue that it is in the best interest of the child to welcome him into a supportive, religious community with shared values and age-old historic traditions, and the response that [t]he question is what is in the interest of this child today. It's my own fault, I'm sure, but I'm having trouble figuring out exactly where this leaves us. Is it that it may be in the interest of the child today to welcome him into a supportive religious community but that it is not dispositive, or that the fact that the community is well-established and has shared values is not dispositive of the child's best interests? Is it that the possibility of a supportive religious community should never be relevant as between two possible custody dispositions? Is it an empirical question to be decided in each case? If it is potentially relevant but we
RE: Relevance of Parham v JR To Circumcision Debate
I think that accurately captures the rule - and likely the right rule - with regard to decisions made for medical reasons, when the decisions are within the range of plausible medical decisions. (As I've said all along, I think circumcision decisions may well fall in this category.) But I don't think it disposes of a parent's decision made for nonmedical reasons, or if the decision (1) has substantial and possibly harmful permanent physical effects and (2) there comes to be a medical consensus that the decision is not medically justified. An analogy: Say that parents want prescription-only psychotropic drugs administered to their child, and they make clear that the reason is not a medical judgment but purely a religious one. (The drug happens to be a sacrament to them, for instance.) It seems to me that Parham doesn't dispose of this situation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Friday, July 06, 2012 9:35 AM To: Law Religion issues for Law Academics Subject: Relevance of Parham v JR To Circumcision Debate I think some guidance on relative rights of parents and children to make a decision that could arguably either harm the child or be in the child's best interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on parental commitment of a minor to a state mental hospital. While there is language in Chief Justice Burger's opinion that may point more than one way in the circumcision example, I call your attention to these excerpts: Simply because the decision of a parent is not agreeable to a child, or because it involves risks, does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. The same characterizations can be made for a tonsillectomy, appendectomy, or other medical procedure. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. Here, there is no finding by the District Court of even a single instance of bad faith by any parent of any member of appellees' class The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents' authority to decide what is best for the child ... [W]e conclude that our precedents permit the parents to retain a substantial, if not the dominant, role in the decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply. We also conclude, however, that the child's rights and the nature of the commitment decision are such that parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized. They, of course, retain plenary authority to seek such care for their children, subject to a physician's independent examination and medical judgment. Howard Friedman ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: German circumcision decision
I don't think that such agnosticism is generally sound, or even possible. Maybe God did command Jews to circumcise their children, or command Sikhs to wear turbans in a way that makes it impossible for them to wear motorcycle helmets, or command Rastafarians to smoke marijuana, or command white supremacist church members not to hire non-whites, or command Muslims to wage jihad; but our legal system, I think, must necessarily evaluate these things based on our judgments about what has impermissible secular effects, and I don't see how we can meaningful take into account the possibility that God has commanded the contrary. But in any event, even if such agnosticism is proper when deciding whether to protect someone against his own decisions - a situation where one can reasonably conclude that we shouldn't impose our paternalistic cost-benefit balancing on that person, given that he might be considering benefits that we don't - I don't see it as proper when it comes to deciding whether to let A cut off a part of B's body rather than of A's own (even when A is B's parent). After all, the child might well not believe in the religious command to circumcise when he grows up; and maybe he's right. Or maybe he'll come to believe that God doesn't want people to alter their bodies without strong reason (perhaps an analogy to the Jewish prohibition on tattooing, see http://www.myjewishlearning.com/practices/Ethics/Our_Bodies/Adorning_the_Body/Tattoos.shtml, though applied to circumcision instead). So if we choose not to decide, we still have made a choice, as some philosopher or other said - we have chosen to let someone, for religious reasons, alter the body of another person who by definition does not believe in that religion, and who might or might not grow up to believe in that religion. However we resolve that question, I don't think this sort of agnosticism has any helpful role to play here. Eugene Eric Rassbach writes: I think the problem with your non-medical reasons paragraph below is that it misstates the proper attitude of the state towards religious freedom and religious reasons given by parents. The state is supposed to be neutral on claims of religious obligation, not merely tolerant of them. And true neutrality (or agnosticism, if you will) means that the state doesn't just say Let the Jews do what they want as long as they aren't hurting anybody. It means saying, Maybe the Jews are right -- that is, maybe God really did command them to do what they are doing. The state and its judges are of course incompetent to *decide* such questions. But the proper response to such incompetence is not to disregard the religious claim entirely but to back off from deciding it as much as possible, precisely because the state cannot exclude the possibility of its truth. Otherwise the state is deciding a religious truth claim by resort to its own incompetence. Thus on a question where the medical interests are in equipoise, the tie has to go to the religious liberty interest, not to inactivity. That to me seems to be the case with respect to circumcision (though in my non-expert opinion the medical interests do not seem to be in equipoise). I understand that this runs counter to a mere tolerance understanding of where religious freedom rights come from, especially one heavily inflected by freedom of speech doctrine (cf. our sincerity discussion on this list a couple of years ago). But I don't think our system has adopted the mere tolerance philosophy, and in fact adopted an entirely different philosophy of rights during the Founding era. For evidence one need look only as far as the Declaration of Independence. Eric From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Wednesday, July 04, 2012 4:24 PM To: Law Religion issues for Law Academics Subject: RE: German circumcision decision Sorry for the delay responding - I was traveling Monday and Tuesday - but I'm not sure I grasp the argument in the first paragraph. My view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can't make such decisions. (3) Yet some such medical decisions must be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. But this argument hinges on there being medical reasons for the decision - I don't see any reason for parents to have this power when they exercise it for nonmedical reasons. We may
RE: RE: Parental rights and physical conduct
And that “non-Jewish standard of ‘Jewishness’” – that newborn males aren’t Jewish – is, I think, precisely the standard that our government must adopt. Our law cannot (with some excepts related to political distinctions, such as membership in an Indian tribe) accept a notion of rights or protections that turns on the ethnicity of a child’s forebears. To be sure, to religious Jews an 8-day-old baby is Jewish, and bound by God’s law. But the government must, I think, accept that child as someone who has no religious beliefs of his own, and who may one day become a Christian, an atheist, a religious Jew, or anything else. Whatever rationale courts or legislatures may use in reaching whatever result they reach on the circumcision question, I think they cannot rely on the notion that somehow circumcising the baby protects the baby’s own religious interests as a Jew. (That is a separate question as to whether they can rely on arguments about what the child is empirically likely to prefer when he becomes an adult.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of wlind...@verizon.net Sent: Friday, July 06, 2012 11:02 AM To: religionlaw@lists.ucla.edu Subject: Re: RE: Parental rights and physical conduct But that is invoking a non-Jewish standard of Jewishness (and I speak as someone intensely exasperated by refusal to acknowledge any distinction between ethnic and religious Jewishness.*) Someone can say I spit on G_d, I spit on Torah, I spit on halakhah.; He can spend Sabbath behind a desk, and never have seen the inside of a synagogue. No one will say You aren't Jewish'. All that matters is who his mother was. And yes, I am acutely aware of the cognitive dissonance in play when as soon as someone says I believe in Jesus, it suddenly ceases to matter who his mother was (and the israeli courts will say so officially in applying the Law of Return.) (* not to mention the frustration of being Jewish enough for any real anti-Semites, but not for the Jews.) On 07/05/12, Volokh, Eugenevol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: The difficulty is that newborn males aren’t Jewish in the sense of actually believing in the Jewish religion – they are, after all, newborns. ___ 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.
Equivocal evidence, and the right to choose
From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Parental rights and physical conduct
As I mentioned, I think that statutory law on this is quite a mix. The best way to characterize it, I think, is that (1) there's a broad consensus that, for overdetermined reasons (practical to some, moral to others), most decisions about children are left to parents, (2) there's a broad consensus that, when a medical decision is to be made, a minor patient's parents generally make it, within the range of what is seen by the medical profession as reasonable, (3) constitutional precedents hold that parents have broad authority over educational decisions and similar childrearing decisions that likely don't have a physical effect on the child, but (4) legislatures step in, in a wide range of cases, to restrict parents when there's a risk of physical injury, whether the issue is corporal punishment, safety belts, tattoos, permission to have sex, or a wide range of other things. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 8:07 AM To: Law Religion issues for Law Academics Subject: Re: Parental rights and physical conduct I don't know why we should be limited to the particulars of Supreme Court decisions when we think about this. I suggest that the approach I outlined is deeply embedded in the statutory and judge-made law of all the states. And, if I'm right about, then the relevant constitutional doctrines of substantive due process liberty would indeed give great weight to that long-standing and wide-spread legal tradition (Troxel v. Granville). On Thu, Jul 5, 2012 at 10:57 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: This raises a fascinating and practically very important question (because there are more than 10 times as many American parents who authorize circumcision for nonreligious reasons than for religious reasons): Do Meyer/Pierce rights extend to the right to raise one's child in the sense of selecting an education for the child, setting behavior rules for the child, choosing a place to live with the child, and so on, or do they also have the constitutional right (not just a common-law right) to physically alter the child's body, including for nonmedical reasons? When I last checked the caselaw on the subject, the Supreme Court cases weren't clear on that. Are there cases I'm missing on that? To be sure, I agree that parents are generally allowed to let their children put themselves at risk in various ways, such as by playing tackle football and not wearing enough sunscreen. But that doesn't tell us much about whether that's a constitutional right. And indeed I don't think that laws banning child labor, for instance, have been judged as interfering with parental rights (imagine Prince without the religious motivation), even though many such laws (again, imagine Prince) are pretty clearly overbroad. Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, even when the parents order such actions, would be constitutional, though of course that's part of the dispute between us. Is there dispositive caselaw I'm missing here? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, July 05, 2012 7:38 AM To: Law Religion issues for Law Academics Subject: Re: German circumcision decision We are making this so much more complicated than it has to be. I cannot speak to the particulars of the case in Germany, so I won't try. But in the U.S, we have a longstanding tradition, initially at common law and ultimately in constitutional law (Pierce, Meyer, etc.) of parental control over the upbringing of their children. The state can interfere with that control only for very good reason, and the state bears the burden of persuasion that it has such a reason. Compulsory education, compulsory vaccination, and limiting child labor are the most obvious, specific policies that interfere with those rights of parental control. (Perhaps I'm missing something on that list -- happy to learn of other such specific policies.) Outside of such specific policies, parents (or other lawful guardians) presumptively control decisions about child well-being, unless the parents violate general norms about abuse or neglect. Parents do all sorts of things that put their children's bodies at risk for permanent harm -- letting them play tackle football, go out in the sun all day without enough sunscreen, etc. Whether a particular practice of (more or less permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- is abusive depends on a social and medical judgment on the actuality of present harm, and in some cases the likelihood of future harm. But two propositions
RE: Equivocal evidence, and the right to choose
I appreciated Marty's arguments in favor of considering how most circumcised adults view their parents' decision to circumcise them as babies, and perhaps there is something to them. I have two reservations, though, about this (albeit ones that I might be persuaded out of). First, while adult circumcision is much more painful than child circumcision (or at least the pain is more likely to be remembered), my sense is that it's still much easier to circumcise than to undo a circumcision (if undoing a circumcision, in the sense of replacing the tissue with comparably sensitive tissue, is possible). If that's so, then the sizes of the groups - those who wish they hadn't been circumcised, those who are happy they were circumcised, those who wish they had been circumcised, and those who are happy they weren't circumcised - would need to be adjusted accordingly (though I don't know exactly how). Second, and more fundamentally, I think there is a general moral principle that people usually have a right not to have their bodies altered without their permission, at least in a way that involves some substantial risk of substantial loss of function (thus setting aside the ear piercing example). I think that principle can be trumped by parents' reasonable medical judgments, on the theory that someone has to make these medical choices, and the parents are the best people to make them. But I don't think that principle can be trumped by parents' personal religious preferences, which might not match the religious preferences of the adult into whom the child grows. (On that, I think Marty and I may agree.) And, tentatively, I don't think that principle can be trumped by a desire to make life easier for other adults into whom other children will grow. If John Doe asks, Why did the law let my parents cut off part of my body?, I don't think the answer that We thought most people whose parents ordered this would be happier with it removed, for religious reasons suffices, because that's not a sufficient reason to justify such surgery in the absence of the patient's own mature consent. Does that make sense? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, July 06, 2012 3:26 PM To: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Eugene: Without regard to what adult subjects generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. Eugene Eric Rassbach writes: I am not sure that you can even rely on a claim that the sexual function was necessarily reduced; I know that some proponents of circumcision claim that circumcision actually enhances sexual function. Would you agree that if the evidence on that point is ambiguous or equivocal, then circumcision falls within the realm of things that parents can decide? That is reinforced by the fact that there are health reasons offered for circumcision; if those rationales are true (or perhaps just plausible?) then it is less like having an ear cut off and more like having an unsightly mole excised or an extra toe removed, both of which are easier at a younger age. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
RE: Equivocal evidence, and the right to choose
Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it's possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It's not unreasonable for adults to tattoo themselves; it's not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization - and it was even more correct when tattoos were very hard to reverse. It's true that this is a decision by the state, but it's a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it's not unreasonable for adults to get vasectomies or have their fallopian tubes tied - it's much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Equivocal evidence, and the right to choose
(1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg Sent: Saturday, July 07, 2012 9:22 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Equivocal evidence, and the right to choose Why consider only medical costs and benefits and ignore the parents' interest in the religious upbringing of their sons and the sons' own interest in conforming to their religion? As to harms, shouldn't the burden be on the proponent of banning the procedure? Sent from my iPhone On Jul 7, 2012, at 3:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Part of the reason, I think, is that irreversible decisions should, when possible, be left to the adult that the child will become; and while lack of circumcision is painful to reverse in adulthood, it's possible, while circumcision is at the very least much harder to reverse effectively. Consider a few analogies. It's not unreasonable for adults to tattoo themselves; it's not my choice, but a substantial minority of people do it. Yet I think California law is right to bar all tattooing of minors, regardless of parental authorization - and it was even more correct when tattoos were very hard to reverse. It's true that this is a decision by the state, but it's a decision that increases the decisionmaking authority of the adult that the child will become. At the other extreme, it's not unreasonable for adults to get vasectomies or have their fallopian tubes tied - it's much rarer, especially in people who have no children at all, but it does happen. Indeed, it may have some benefits, because it decreases the risk of pregnancy; and it can even provide some benefit to a teenage minor. Plus if a child has especially serious genetic conditions, deciding on such a surgery may be especially plausible. But I take it that parents would generally not be allowed to order such a surgery on their children (setting aside exceptional circumstances, such as when a child is mentally retarded, sexually active, and likely to get pregnant without such surgery), again because that is a decision that should be made by the adult that the child will become. The same argument, I think, could be made about circumcision, depending on the evidence about medical costs and benefits (the case for allowing parents to decide becomes stronger when there are serious medical benefits) and on the evidence about whether circumcision indeed causes sufficient loss of sexual sensation. Eugene Brian Landsberg writes: In the case of a newborn the possible decision makers are the parents and the state. Why should we trust the state's judgment more than the parents' on an issue as to which reasonable minds can differ? ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Equivocal evidence, and the right to choose
I should think that the law's treating people interests differently based on the ethnicity of their mothers would raise insuperable Equal Protection Clause problems, as an unconstitutional discrimination based on ethnicity. It may well be that private religious organizations should be free to engage in such discrimination; but I don't think that the government can. So to the extent that the legal considers people's interest in conforming to their religion, it has to base that on the people's actual religious beliefs, and not to religious identity imputed to them by others as a result of the people's ethnic background. An interesting analogy here, I think, is the special treatment of children of American Indian tribe members in adoption cases, and the recognition of tribal interests with regard to those children even when the children are too young to themselves have any felt tribal identity. But to the extent that is permissible, I think that this is only because of the special treatment of Indian-related classifications as being political - given the tribes' political identities - rather than racial or ethnic. See Morton v. Mancari. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Sunday, July 08, 2012 10:09 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand religion only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of who is a Jew were engaged in ethnic origin discrimination (which British law equates with racial discrimination). Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene ___ 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.
What religion is an 8-day-old?
The theoretical principle behind my claim that, As to 'the sons' own interest in conforming to their religion,' I don't think it's 'their religion' at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system), is simply that, under the First Amendment and under equal protection principles, any special treatment of people based on their religion must stem from their religious beliefs - their own understanding of God's commands - and not because of their bloodlines. First, the justifications for religious freedom have generally stemmed from the burden that is imposed on people when they are ordered by secular law to do something and feel ordered by their religious beliefs to do the opposite. And it is the individual's beliefs that are important, not to the beliefs of the group to which society says he belongs. See, e.g., Thomas v. Review Bd. Second, claims that we should treat some people's interests differently because of the ethnic group to which their mothers belonged conflicts with well-established equal protection principles, under which our secular rights and interests are not supposed to be affected by our ethnicity. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz Sent: Monday, July 09, 2012 5:35 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose I am also curious about roughly the same point Howard raises. I always value the doctrine- and act-specific discussions I get on this list--I learn a great deal from them, and the theory I can more or less do on my own. But these discussions often seem to me to be just one step away from fairly major and consequential statements or assumptions about the underlying theory. So what is driving Eugene's paragaph (2), or some of the other statements (not just from Eugene) that have taken place in the course of this valuable discussion? Is it a moral intuition? A belief, as the paragraph below indicates, both that we have a secular legal system and about what that entails? A belief about the Constitution itself and what it requires? A belief in a wholly individualist and voluntarist conception of the self as a legal subject? A kind of implication that the Constitution enacts Mill's On Liberty or Joel Feinberg's work and not, say, Charles Taylor's work? A thin or thick conception of what harm means? A belief about the relevance or irrelevance of history, tradition, community, the sources of or proper occasions for thick commitments? I appreciate that these are large questions. And in many particular fact-based cases what I loosely call my common-sense intuitions *might* comport with Eugene's views. But it seems to me, as I wrote earlier, that there are some fairly large theoretical commitments guiding those intuitions here and that they are reasonably subject to questioning. Paul Horwitz University of Alabama School of Law Subject: RE: Equivocal evidence, and the right to choose Date: Sun, 8 Jul 2012 13:08:57 -0400 From: howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu It seems to me that your paragraph (2) focuses the issue. Should the Free Exercise clause understand religion only as a belief system? Traditional Judaism does not define it that way. Instead (for those who are born of a Jewish mother) it is an identity that precedes a belief system. Can the 1st Amendment be seen as protecting a concept of religion that is different from the Christian notion that belief (acceptance of Jesus) defines religion? It was the insistence on seeing religion as only a belief system that led to the controversial decision by the Supreme Court of the United Kingdom in 2009 that ruled Jewish schools using the Orthodox Jewish definition of who is a Jew were engaged in ethnic origin discrimination (which British law equates with racial discrimination). Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 7/8/2012 12:29 AM To: Law Religion issues for Law Academics Subject: RE: Equivocal evidence, and the right to choose (1) I'm not sure why A's interest in B's religion should give A the right to alter B's body - even if A is B's parent. (2) As to the sons' own interest in conforming to their religion, I don't think it's their religion at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system). Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get
RE: What religion is an 8-day-old?
I appreciate the force of this argument in many situations. But, as I argued before, it’s not clear to me that this approach should be followed when a parent’s choice to order surgery performed on the child will essentially be irrevocable for the child – I mentioned the hypotheticals about a parent’s tattooing the child (illegal in California and other states, I think), especially in a time before tattoos could easily be removed, or for that matter about a parent’s ordering that the child be sterilized. Perhaps one can argue that such decisions are clearly against the child’s best interest, but I’m not sure; the better argument, I think, that such permanent decisions are decisions that children should make when they are old enough to think through the matter for themselves. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg Sent: Monday, July 09, 2012 8:38 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: What religion is an 8-day-old? There is much we do not know about what the 8 day old boy will want or believe at age 18 or 50? Yet decisions must be made for the child. Normally we trust the parent to act in the child's best interest. We turn the job over to the state only when there is clear evidence that the parents are not acting in the child's best interest. The evidence here seems in conflict. Sent from my iPhone On Jul 9, 2012, at 7:13 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: The theoretical principle behind my claim that, “As to ‘the sons' own interest in conforming to their religion,’ I don't think it's ‘their religion’ at age 8 days, at least under what should be the secular legal system's understanding of religion (the subject's own belief system),” is simply that, under the First Amendment and under equal protection principles, any special treatment of people based on their religion must stem from their religious beliefs – their own understanding of God’s commands – and not because of their bloodlines. First, the justifications for religious freedom have generally stemmed from the burden that is imposed on people when they are ordered by secular law to do something and feel ordered by their religious beliefs to do the opposite. And it is the individual’s beliefs that are important, not to the beliefs of the group to which society says he “belongs.” See, e.g., Thomas v. Review Bd. Second, claims that we should treat some people’s interests differently because of the ethnic group to which their mothers belonged conflicts with well-established equal protection principles, under which our secular rights and interests are not supposed to be affected by our ethnicity. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Circumcision
I would think that a distinction between physical alteration of a child's body and other actions would indeed be a sensible one (though not always a dispositive one), and one that is consistent with our general view that physical alteration of another's body is an especially serious intrusion on that person. But let me ask Perry what he thinks of these hypotheticals: (1) California law, as best I can tell, categorically bans all tattooing of under-18-year-olds. Let's go back to a time when tattoos were essentially permanent. Would parents nonetheless have a constitutional right -- just as the exercise of their parental rights -- to tattoo a child, especially one too young to have a view on the subject? Or could the state say that this is a decision that should be left to the person whose body this actually is, at a time when the person can make the decision? (2) Say that parents decide to sterilize their child, perhaps because they believe that either God or Gaea doesn't want more children to be born on the planet, or perhaps because they have some genetic condition that they do not want the child to risk spreading. (Set aside the special case when the child is mentally retarded, unable or unwilling to use contraceptives, and unlikely to ever be able to make an informed decision about sterilization.) Do parents have a constitutional right to do this, or should this be left for the child to decide when he or she becomes an adult? I take it that whatever one might say of sterilization, one wouldn't say that it is necessarily an unquestionably grave harm, physical or psychological; quite a few sane adults choose to be sterilized. Of course it may be an unquestionably grave harm when done without the subject's informed consent; but why wouldn't removal of a functioning and an apparently quite sexually sensitive part of the body likewise be seen as a sufficiently grave harm? (Or is the point simply that it is questionabl[e] whether the removal really does affect sexual sensitivity?) (3) Say that parents have a doctor perform an artificial insemination of their 14-year-old daughter, with the daughter's agreement; assume the daughter is sufficiently sexually mature that the pregnancy poses no medical risk. (There's also no sex involved, so it isn't a statutory rape question.) Perhaps one of the parents is dying and wants the experience of being a grandparent as quickly as possible, or perhaps they take be fruitful and multiply to mean as soon as possible. I take it having a baby, even at 14, is not as such an unquestionably grave harm, physical or psychological; and I don't think the problem here is really that pregnancy is not developmentally appropriate as such. Rather, it seems to me that it's reasonable for the state to say that the decision about whether and when (and with what sperm) to become a parent is a decision that should optimally be made by an adult, or at least by someone older than 14. (While of course the 14-year-old could get pregnant the old-fashioned way, assume the law also prohibits that, by making it statutory rape on the man's part, and by making any adults who facilitate or encourage such an action accessories to statutory rape.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Wednesday, July 11, 2012 1:42 PM To: religionlaw@lists.ucla.edu Subject: Circumcision Hi, Just a couple of general thoughts: 1. Most everyone, including Eugene, admits that parents are empowered within broad limits to make all sorts of major decisions, inlcuding decisions with likely irreversible consequences, on behalf of their minor children. These include decisions about education, religious training (or lack of it), form of community (e.g., living in a small rural town vs. living in Manhattan), forms of cultural exposure or immersion, and etc., etc., etc. I therefore don't see why we should take seriously a bright line between physical interventions such as circumcision and all these other myriad ways that parents (often irreverisbily) influence their children's lives. Indeed, even with respect to the narrow question of sexual gratification, circumcision is probably very low (even if it appears at all) on the list of deeply consequential parental interventions, conscious and unconscious. 2. It also bears emphasis that most everyone, including the non-libertarians among us, admit that adult men should have the right to have themselves circumcised. That is not merely because the adult has the capacity to consent. There are all sorts of things that even consenting adults don't have the right to do. Rather, it is because society doesn't understand circumcision -- and in particular circumcision for
Corporate donations to religious groups
Folks: I'm trying to make an argument using religious contributions as an analogy, and wanted to make sure I'm not missing something in the thing I'm analogizing to. I wanted to say something about the protecting shareholders rationale for limiting corporate campaign-related speech, and consider an analogy to corporate contributions to religious organizations (whether those contributions would go entirely to religious uses, or would also partly promote the charitable function of the organization). As I understand the protecting shareholders argument, it goes something like this: Many people don't want to have their money used to support or oppose candidates or ballot measures, even when the use is indirect (i.e., when they have rights under a retirement fund, the retirement fund buys stock in a corporation, and then the corporation spends the money, based on its managers' judgment that spending the money would be good for business). Moreover, it's not so easy for people to avoid this, since many people can't meaningfully control where their retirement money is being invested. Therefore, there's a sufficiently compelling interest in preventing this imposition on such involuntary shareholders by banning corporations from spending money to support or oppose candidates or ballot measures. My questions: (1) Has anyone similarly argued that states should bar corporate donations to religious organizations, on the theory that this protects shareholders from having their money used to support religious beliefs they disagree with? (2) Would such a prohibition be constitutionally permissible, or would it violate the Lukumi Babalu / McDaniel no-discrimination-against-religion principle? My inclination is to say that it wouldn't be proper, and would likely even be unconstitutional, to bar such corporate donations, and that protecting shareholders isn't a sufficient reason for such a bar - and it likewise wouldn't be as to a bar on corporate expenditures on campaign-related speech. But I wanted to make sure that I hadn't missed some arguments, or some situations in which some such bar has indeed been imposed. I'm not talking here about the perennial question of whether public money can be given to various religious organizations; I'm speaking of hypothetical laws that would bar corporate funds from being given to such organizations. (Note also that I'm not talking about evenhanded application of the business judgment rule to foreclose contributions that can't reasonably be seen as furthering the corporate interest; assume the prohibition also extends to contributions that do further the corporate interest, for instance because they build goodwill.) Thanks in advance for any feedback people might have, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: New circumcision policy statement from the AAP
I don't think it changes my analysis, since I've all along acknowledged that there are plausible medical arguments in favor of circumcision. I'm hesitant to treat the AAP statement as materially changing that, since I take it that there's some disagreement among pediatric groups - especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision - and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision - but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, my view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can't make such decisions. (3) Yet some such medical decisions must be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement - precisely because the matter was uncertain - and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Friday, August 24, 2012 4:26 PM To: Law Religion issues for Law Academics Subject: New circumcision policy statement from the AAP http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision circumcisionhttp://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: New circumcision policy statement from the AAP
The question is why, in the first place, people should have rights to control not only their own bodies, but also other people's (their children's) bodies. I think there are good prudential answers to this question - as someone put it, no government official will love my children like I will, and no government official will know them like I will, and that's true for the great bulk of parents. But it is prudential factors such as this, and not some preexisting inherent moral right, that is doing the work here, it seems to me. And such questions must indeed be considered by us as a political community, in deciding to what extent we should protect some of our fellow citizens (children) against other fellow citizens (their parents). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Friday, August 24, 2012 5:35 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: New circumcision policy statement from the AAP With appreciation to Eric and especially to Eugene for pushing us to think carefully about the right legal rule regarding circumcision, I wonder if focusing on even more fundamental considerations can clarify even more. As I see it, we do not delegate the authority to parents to make decisions of this sort. Rather, we recognize as a political community that there is no general warrant for interfering with the decisions that parents make for their children regarding circumcision. Even if the outcomes will be the same whether one views the issue through the first framing or the second, the two seem worth distinguishing. On Aug 24, 2012, at 7:56 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I don't think it changes my analysis, since I've all along acknowledged that there are plausible medical arguments in favor of circumcision. I'm hesitant to treat the AAP statement as materially changing that, since I take it that there's some disagreement among pediatric groups - especially internationally -- even now. (The statement does make it even more unlikely that any U.S. jurisdiction would ban infant circumcision - and likely makes it morally and practically unjustifiable for the jurisdiction to make that decision - but any such ban was unlikely even before this statement.) Given this situation, what is the right result? As I mentioned in my July 4 message, http://lists.ucla.edu/pipermail/religionlaw/2012-July/026058.html, my view is generally this: (1) People should generally have the power to make medical decisions for themselves. (2) Infants and children can't make such decisions. (3) Yet some such medical decisions must be made quickly, before the child becomes mature enough to decide. (4) We therefore delegate this power to make medical decisions to the parents. (Indeed, Parham v. J.R. states, whether or not correctly, that this is a constitutional mandate.) Circumcision was a reasonable medical decision before the AAP statement - precisely because the matter was uncertain - and it is a reasonable medical decision now; I think parents who make such a medical decision should indeed be free to do that. The interesting question is what happens if the medical evidence eventually ends up being contrary, or if the parents make a decision for nonmedical reasons. I will say that focusing on the views of pediatricians here is good, because it focuses on what I think is the right question: what is in the best interest of the child whose body is being pretty much irreversibly altered, and not what the parents prefer or on what is in the interest of religious communities. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edumailto:boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Friday, August 24, 2012 4:26 PM To: Law Religion issues for Law Academics Subject: New circumcision policy statement from the AAP http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-http://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision circumcisionhttp://www.tabletmag.com/scroll/110165/leading-pediatric-group-endorses-circumcision Eugene -- Would this change your legal analysis with respect to this issue? Eric ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw bin/mailman/listinfo/religionlawhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot
RE: New circumcision policy statement from the AAP
Sorry for the delay responding -- I was working on a cert petition all week, and just handed it off to my cite-checker. As list readers might recall, my position was not that circumcision restriction would be justified. Rather, I wrote, From what I understand, think the health arguments for circumcision are substantial, and, as I've noted before, to the extent that parents are making a medical choice in favor of circumcision, I think it makes sense to defer to their judgment, just as it does for other medical choices. Likewise, I'm inclined to say that if there was reason to think (though also reason to doubt) that circumcision would enhance sexual function, parents could also reasonable choose that as a medical matter. The interesting question, I think, is how we should resolve the matter if (1) the medical consensus comes to be that there was no medical benefit of circumcision and no sexual function benefits, but (2) there comes to be no consensus on whether there is a sexual function cost. My inclination would be to say that the uncertainty should not be resolved in favor of parental choice, but rather resolved in favor of patient choice: the principle that - absent medical need - practically irreversible and potentially harmful surgery should not be undertaken without the actual consent of the adult subject of the surgery. The AAP decision reinforces my understanding that the health arguments for circumcision are substantial, though we have to recognize, I think, that the matter is still up to debate, with different views being expressed by organizations in different countries. Moreover, the medical understanding may well change with time, as there is more research into the connection with sexual function, more research into the connection with disease, and changes in other disease-related factors -- for instance, if a major medical plus of circumcision is greater protection against some diseases, then the develop of a new and effective immunization against the disease may reduce this marginal plus. As to the philosophy, more in a separate e-mail. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, August 27, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: RE: New circumcision policy statement from the AAP Eugene -- I have to respectfully continue to disagree with your approach to this issue, as well as your assessment of the effect of the AAP decision on your argument: Previously I think you had offered both medical and philosophical/legal reasons for why you felt a circumcision-restrictive position would be justified. At this point your proffered medical reasons no longer serve as support for your legal position. The AAP decision does not say that it is wrong for parents to fail to circumcise their children, but the medical nod (including as to issues of sexual sensation) now goes to circumcision as opposed to non- circumcision. You say that there is disagreement among doctors overseas, but I am not aware of any medical association overseas that has conducted a similar multi-year study to the AAP's and reached a contrary conclusion. And it is a commonplace that circumcision is medically indicated in many parts of the world (e.g. sub-Saharan Africa). There are of course advocates on both sides, including licensed doctors, but the great weight of international medical opinion seems to be on the side of circumcision in both developed and developing countries. And the AAP is I believe the largest (and perhaps the most respected) pediatric medical association in the world. As for future changes, it seems quite speculative for you to say if the medical evidence eventually ends up being contrary when the AAP has moved closer to the circumcision-positive end of the debate after taking into account both the vigorous criticisms of circumcision and and making a multi-year study of the entire medical literature in the area. In short, at this point you bear the burden of overcoming medical opinion that favors circumcision. Thus your previously-offered medical reasons provide no support for your position and you now have a new medical hurdle to overcome. That leaves you with what I refer to as legal/philosophical reasons. Your second line of argument was couched in legal terms, but I think it is really a species of political philosophy. It goes directly to questions about whether individuals and associations of individuals and their rights/privileges/immunities precede the state or whether the state has some sort of defining role in the first instance that regulates all interactions outside of monadic individuals, as indicated by your use of the word delegate. Here is where I pushed back on you in the original discussion and I am
Liberty and parent-child relatiosn
Let me try to respond, relatively briefly, to Eric's long and interesting argument about the philosophical issues raised by the circumcision debate. Here is my general thought -- I don't know whether most Americans, most Finns, most Germans, or most of anyone else will agree with me, but it still strikes me as sound. (1) There are powerful arguments for broad liberty to do things with one's own body and with the bodies of consenting adults, free of government restriction. But those arguments do not apply the same way to an asserted liberty to do things with the bodies of others who are not consenting -- including others who happen to be your children. This claim of a liberty to do things to unconsenting others is thus a very different creature than the normal claims of liberty we have. (2) Indeed, at this point the claim of liberty runs up against the liberty of the rest of us to try to defend our fellow people against aggression. If I see a parent trying to kill his child, it seems to me I have the right to step in and stop that. That too is not quite the same sort of liberty as the liberty just to do what I please with myself, because the parent is an unconsenting other for purposes of my formulation. But it is, I think, a rightly recognized liberty, precisely because it is aimed at preventing unconsented-to violence to an innocent third party. The same is true if I see a parent trying to rape his child, or -- what is not far off -- handing over his obviously unwilling daughter for an underage marriage (however religiously or culturally sanctioned that might be). The same is true if I learn that parents are about to mutilate their daughter's genitals. In these cases (though, as I'll note, not necessarily all other cases), my liberty to come to the defend of others applies just as much to defending children against their parents as it does to defending anyone else against anyone else. (3) State power to protect children against such abuse is, I think, largely derivative of the power of each of us to come to the defense of innocent others, including strangers. It is of course more dangerous, because it can lead to more organized oppression if abused. But it is also in many respects superior, both because it can lead to more reliable protection if properly used, and can be done in a more procedurally reliable way that diminishes the risk of error, as well as of a cycle of violent retaliation. (4) The hard questions, of course, arise not when we're talking about parents killing their children, raping them, or marrying them off at too early an age, but about less grave harms -- indeed, things that not everyone thinks are harms. What if a parent is beating a child quite seriously by today's standards? Spanking the child? Taking the child back to a totalitarian country (e.g., Cuba or North Korea) from which the child might be unable to flee? Tattooing the child? Donating the child's kidney to a stranger? Circumcising the child? In such situations, it may well be that I should not have the liberty to come what I see as the defense of the child, and the state should not have such a power, either. Or maybe I and the state should have such power. And maybe views on that subject may change over time -- consider the serious beating situation, or some of the others. But I don't think that these questions can be resolved just by referring to some preexisting liberty of parents over the bodies of third persons (even those whom they brought into the world), just as they can't be resolved just by referring to a preexisting liberty of third parties (which might be delegated to the state) to rescue such third persons from the parents. Nor do I think that long tradition should carry much weight in this field; I think that the last few centuries have fortunately involved a rejection of many traditions related to the power of people over third parties (such as wives or children), even when they have been defended as being benevolently motivated. It seems to me quite proper to reexamination such traditions as to circumcision as well as to other matters. On balance, it appears to me that when it comes to parental physical actions related to children -- as opposed to parental teachings, which raise additional freedom of speech concerns -- are rightly resolved through the democratic process, with all of us deciding on the proper limitations on both our interests as parents wanting to do things to our children and our interests in being able to protect third parties from abuse. One possible exception might be for substituted judgment as to medical decisions, see Parham v. J.R., though I'm not positive that this is the right approach. (Note that, as I mentioned in my post earlier this morning, I have
Stanford Religious Liberty Clinic: Staff Attorney Post
This might be a great opportunity for some of our former students, so I thought I'd pass it along: Stanford Law School Religious Liberty Clinic Staff Attorney The Mills Legal Clinic of Stanford Law School invites applicants for the staff attorney position with its Religious Liberty Clinic (RLC). The staff attorney will join the thriving clinical community at Stanford Law School where, together with the clinical faculty and staff, he or she will represent clients and help train law students at one of the country's leading institutions for legal scholarship and education. The RLC is the newest of the eleven clinics comprising the Mills Legal Clinic, and is the only one of its kind in the country. The RLC was launched in August 2012, and will be open to students in January 2013. The Stanford clinical program is unique in that students participate in a clinic on a full-time basis; the clinic is the only course a student takes during the term of enrollment. The Mills Legal Clinic occupies an entire floor in an award-winning central campus building opened earlier this year. The RLC will focus on developing professional skills in a dynamic way. Specifically, students will be introduced to the real practice of law through their representation of a diverse group of clients in disputes arising from a wide range of religious beliefs, practices, and settings. Projects might involve a prisoner facing obstacles to religious observance, a small church, synagogue, or mosque with zoning challenges, or a faith-based group seeking access to public facilities. Students will learn and apply the laws affecting religious liberty, and will be expected to counsel individual or small institutional clients and litigate on their behalf with excellence, professionalism, and maturity. As a litigation-focused clinic, the RLC will involve administrative, trial, and appellate work. Most administrative and trial work will take place in California, while appellate work will be done nationally. Because the RLC is a new and unique project, near-term clinic activities will also include marketing, outreach, and development efforts. The staff attorney will participate in all activities of the RLC, including client development, student supervision, and client representation. The attorney will also assist the RLC's director with curriculum design, teaching and evaluation matters, and clinic operations. All Mills Legal Clinic attorneys are part of the intellectual community within the clinical program and the Law School and university at large. For example, the staff attorney will be invited to attend weekly workshops at which scholars from Stanford and throughout the world present works in progress. The clinic also provides resources for its lawyers to participate in continuing education and other professional development activities. Applicants for the staff attorney position should have at least three years of litigation experience, preferably at the trial level, and be a member of the California bar (or be willing to take the next-offered California bar exam). Applicants must possess strong academic credentials, an interest in religious liberty, and organizational and team skills essential to helping run what is, in essence, a small law firm. Successful teaching and/or student supervision experience or the demonstrated potential for such skills are desirable. The salary is based on a formula that is competitive with similar positions. Applicants should submit their resumes through http://jobs.stanford.edu, referencing job number 49499. Applicants should also send the following materials electronically to Judy Gielniak, Mills Legal Clinic administrative manager, at jgieln...@law.stanford.edu: * a statement no longer than one page describing the applicant's: (i) prior litigation or other relevant experience; (ii) interest in religious liberty; and (iii) interest and potential for clinical supervision and teaching; * a resume * a list of at least three references * a complete law school transcript Applications will be considered on a rolling basis until the position is filled. * * * * * * * * inline: image001.jpg___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
