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
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
Please explain what is objectionable about that statement? Are you saying that
religious
groups do not endanger children? That is simply false. This is a law prof
listserv where
the discussion needs to focus on facts, doctrine, and policy. The mythology
that religious
groups always protect
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
Religious institutions are creating the conditions for abuse in MANY
circumstances. That is the reality,
and the notion they should be less culpable than the perpetrators in the
endangerment of children does them
and children no favors. Religious institutions should not have one iota more
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
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
It is not just other constitutional interests that limit liability for harm
to children. It is also other public policies.
For example, in Missouri, where Gibson v. Brewer limits the churchs
liability to cases where they knew about abuse and failed to act, public
schools have no state-law
Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments
and church autonomy arguments:
My previous comments were not about the bankruptcies where federal law, the
U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes
prevail.
Second, it is
To be sure church autonomy arguments outpace RFRA arguments, but less than half
the states have rfras
I don't actually get Doug's point -- a RFRA is irrelevant if it is not the
dispositive issue in most cases? It adds a layer of argument in these cases.
And from the perspective of child
Fascinating discussion, from which I am learning a lot. As a non-expert,
it strikes me that Marci's account is akin to what I hear from family law
attorneys dealing with divorce or child-custody cases -- that it is routine
practice to make claims of spousal or child abuse, but that judges almost
First of all, he goes by Martin, not Marty.
Marci, you have not yet offered a single example of substantial briefing of a
state RFRA issue in a sexual abuse case. It does not have to be the dispositive
issue to count. It does need to be an issue that is seriously argued, and not
a
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
Public schools should also be held to the same standard as any private
institution and it should be child-protective
Marci
On Jun 15, 2012, at 11:04 AM, Douglas Laycock dlayc...@virginia.edu wrote:
It is not just other constitutional interests that limit liability for harm
to children. It
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
Thanks. Seems like we are arguing BIG principles that, actually everyone
agrees with, when the work that needs to be done is in the details.
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 1:33 PM
To:
Ouch. This was obviously just meant for EV. On Friday afternoons, one should
hesitate before hitting the send button.
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 1:35 PM
To: Law Religion issues for
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
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
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
I think Mr. Clark's statement and apparent inability to see the potential for
mischief of RFRA is troubling and supportive of Prof. Hamilton's point. As a
former litigator, I get the sense that some on this list are too dismissive of
the impact of making claims that ultimately may fail, but
Agreed
--Don Clark
In a message dated 6/15/2012 1:03:29 P.M. Central Daylight Time,
vol...@law.ucla.edu writes:
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
That is an inaccurate analysis of my last post -- The attempts to treat these
issues as de minimis are wrong. Read my cert petition and the Redwing case out
of Tennessee
I don't in any way back off of my statement that rfras open the door to more
child sex abuse and less deterrence. They
I think that public schools should be held to, if anything, a HIGHER
standard than the church. After all, children are REQUIRED to attend
public school; attending church is optional. But I also think that I
should be rich and famous. Still waiting for it to happen.
Lisa
On 6/15/2012
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
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
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