Re: Johnson Amendment E.O.

From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu> Sent: Thursday, May 4, 2017 5:30:53 PM To: Law & Religion issues for Law Academics Subject: Re: Johnson Amend

Re: Johnson Amendment E.O.

expressive activities you think deserve protection against state interference as religious exercise rather than speech for constitutional purposes? Alan ____ From: Alan E Brownstein Sent: Thursday, May 4, 2017 3:17 PM To: Law & Religion issues for Law Academics Subjec

Re: Johnson Amendment E.O.

blog: http://www.mirrorofjustice.blogs.com - From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Alan E Brownstein <aebrownst...@ucdavis.edu> Sent: Thursday, May 4, 2017 2:01:34 PM To: Law & Religion issues

Re: Johnson Amendment E.O.

I understand the concern that content-based constraints prohibiting the endorsement of candidates during sermons by clergy during worship services interfere with religious liberty. But it is also the case that such speech is a distinctive religious voice on electoral choices by the polity. The

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

Not all of the same folk who complain about government funding. There are still some of us left who support the old model of significant limitations on government funding of religious institutions and significant protection of religious institutions from government regulation and

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

What I find most surprising is that the demise of the argument that government funding will undermine religious freedom is occurring at a time when the argument may well turn out to be accurate at least in some locations. It may be that for many people on the left the failure of the church

Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

I think the question Michael poses is more complicated than his posts suggest in important respects, but I also think the dischordant rights argument he presents has substantial force. >From an analytic perspective, because religion implicates not only liberty >values but group and identity

Religious objections to deportation policies

Has anyone written anything about (or given some thought to) the possibility of RFRA being employed to challenge the federal government's deportation policies. For example, might a professor or registrar at a private school be permitted to assert RFRA as a defense to a federal law requiring

Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Three quick thoughts. 1. It would be helpful at least as a first step to limit the passages in Hobby Lobby about substantial burden to which Doug refers to claims where the government requires religious individuals or institutions to so some thing that their religion prohibits (often

RE: Standing Rock

The Standing Rock case is only of several religious liberty cases that are likely to arise where, as Doug says “the political valences are reversed.” Obviously, there are already questions regarding the religious liberty and equality rights of Muslims. Also, it isn’t going to be too long before

Re: Sikhs in the Army

It is also worth noting that California Workplace Religious Freedom Act, enacted in 2012, not only imposed a stronger duty to accommodate religious employees on employers generally. It also explicitly included religious dress and grooming practices in the religious belief and observance

Re: Scalia's views of RFRA?

I have suggested to my students (Yeah, I'm still teaching one semester a year) that RFRA as construed in Hobby Lobby pretty much leaves it to each person's conscience to determine when they are substantially burdened by a federal law when the law allegedly compels them to do something that

Exclusion of clergy from holding office

I have an odd question that I hope list members might be able to help me answer. Do any list members know whether there were ever any federal restrictions on clergy serving as elected or appointed officers of the United States early on in our constitutional history that would parallel state

RE: Facially neutral accommodations motivated by some objectors' religious beliefs

rs? (Again, I set aside the question whether this violates the Equal Protection Clause, quite apart from the religious questions.) Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Be

Re: Jewish law, women's bodies, and accommodations

I think the answer to Chip's question is that an Establishment Clause analysis evaluating the harms caused by a religious accommodation does require a balancing of interests. Indeed, the balancing analysis would have significant similarities to the balancing necessary to implement a serious

Re: thoughts on constitutionality of single-sex hours for public pool?

Very thoughtful and helpful post, Chris. Sent from my iPhone On Jun 2, 2016, at 9:18 PM, "Christopher Lund" > wrote: I have thought about these issues a little bit over the years, because a similar program is in place at Wayne State, where I teach.

Re: thoughts on constitutionality of single-sex hours for public pool?

main questions of harm to third parties. Religious diversity in public swimming pools does not seem to present an interest of any importance whatsoever. On Thursday, June 2, 2016, Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: I think it is both r

Re: thoughts on constitutionality of single-sex hours for public pool?

I think it is both reasonable and valid to accommodate religious groups whose members would be unable to enjoy benefits that the majority enjoys because of conflicts with a minority faiths beliefs. No one has to attend the prom or go on discretionary field trips or play in intra mural sports.

RE: Mormon Transhumanist Association

There is an article in the April 20th issue of the New Yorker titled "The Immortality Upgrade." It involves a group called the Mormon Transhumanist Association "who believe that the development and dissemination of advanced technologies-cryogenics, bionics, artificial

Re: speech and religion hypothetical

ligious speakers are no more and no less protected here. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Thursday, April 21, 2016 9:41 PM To: Law &

speech and religion hypothetical

I recognize this hypothetical, based very indirectly on a real incident, is more speech than religion, but I hope Eugene will allow my post to go forward in any case. Suppose a LGBT student group at a public university invites a guest speaker to present a scheduled lecture in a university

RE: Arizona, Indiana . . . and now Georgia

llow how past RFRAs have been applied, but such broad and formerly almost universally praised legislation should be defensible without discussing a relatively narrow aspect of it as the bill's reason for being. On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein <aebrownst...@ucda

RE: Arizona, Indiana . . . and now Georgia

Based purely on anecdotal information, I think this issue is based more on timing than on legislative history. I worked on the attempt to get a state RFRA passed in California in 1998. The bill passed both houses of the legislature -- controlled by the Democrats -- only to be vetoed by the

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts

Re: Zubik / Little Sisters - testing the scope via a hypothetical

I think that attenuation continues to be a useful factor to consider in cases where the government burdens the religious claimant by making it more difficult to engage in religiously mandated practices. But in cases in which the government allegedly compels conduct which the claimant asserts

Re: Texas Cheerleaders display Bible Verses on banners

Vik Amar and I wrote a lengthy column on this case several years ago: The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute Nov. 9, 2012 Justia.com Verdict. Our conclusion was that the cheerleaders should lose under

Re: Excluding religious institutions from public safety benefits

Hi Rick, Viewing the question of religious exemptions and church autonomy on the one hand and equal access to government subsidies on the other from a broad perspective, I "hear" this discord all the time. I spend a lot of time speaking to various civic groups, church groups and the like --

Re: Excluding religious institutions from public safety benefits

Since Doug isn't going to respond and most members of the list have written about these issues at some length, let me make two very brief points here. The focus of the discussion is the government funding of religious institutions. Doug is correct that if funds are made available to

Re: The Establishment Clause question in the Trinity Lutheran case

I'm not about to suggest that Eugene's equal access arguments don't make sense. But I don't think his examples provide persuasive support for an equal access rule either. Example 1 is a designated public forum. As such, it is subject to equal access rules. But it is certainly not clear to

Re: Excluding religious institutions from public safety benefits

It might also be relevant to note that at least for many congregations, pre-schools -- which typically have playgrounds -- are very important sources of revenue for the house of worship at which they are based. Alan Sent from my iPhone > On Jan 17, 2016, at 11:16 AM, "Graber, Mark"

Re: Excluding religious institutions from public safety benefits

be relevant to the way we evaluate the play in the joints when the same state limits subsidies available to religious institutions. Alan From: Alan E Brownstein Sent: Saturday, January 16, 2016 6:55 PM To: Law & Religion issues for Law Academics Subject

Re: Excluding religious institutions from public safety benefits

>From Micah Schwartzman (who is having trouble connecting to the List). I take the larger point from Alan's examples to be that the state in his hypothetical gives religious organizations special treatment by providing them with exemptions and by excluding them from certain legal benefits.

Re: Excluding religious institutions from public safety benefits

I wonder if I might offer a modest (well maybe not so modest) amendment to Eugene's excellent hypotheticals. Say that the government adopted a package bill. It provided that: A. Houses of worship and directly affiliated schools and day care centers: Need not comply with many land use

Re: reserved seat for member of religious organization on police comission

ax." Howard Friedman From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan E Brownstein [aebrownst...@ucdavis.edu] Sent: Saturday, November 14, 2015 4:01 PM To: Law & Religion issues for Law Academics Subject: Re: reserved seat for me

Re: reserved seat for member of religious organization on police comission

Anyone have any thoughts on the constitutionality of a rule that reserves one seat on a multi-member police commission for a member of a local religious organization (any religious organization would be acceptable) who is nominated by the organization. Some compensation is involved. Alan

RE: Muslim-focused "reflection room" in airport

I agree with Chip that an accommodation analysis may permit the creation of these facilities, but the analysis changes if we are evaluating a general funding program where no substantial burden on religious liberty requires accommodation. One important difference is that the accommodation can

RE: Muslim-focused "reflection room" in airport

delete it immediately and call (972) 941-4451 to advise me that you received it. Thank you. PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT From: Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> Reply-To: Law &

RE: Muslim-focused "reflection room" in airport

Ed knows much more about the ownership and management of airports than I do – although it’s not hard to satisfy that standard. But I recall several cases where airport governing authorities were sued for violating the free speech rights of people using the airport terminals for expressive

RE: Muslim-focused "reflection room" in airport

I'm not sure how all of these free speech cases the Sixth Circuit cites apply to the government funding of a chapel. Is the argument that the creation of rooms in an airport terminal for expressive purposes is determined under open-access neutral criteria and that like the public property at

Re: "Call for Constitutional Resistance"

Just wondering -- is anyone circulating a call for scholars to support the fundamental right of same-sex couples to marry as affirmed by the Court in Obergefell and the principles of personal liberty and autonomy and human dignity on which the decision is based?

RE: Assessing a Proposed Solution to the KY Case

the office of county clerk," understood as a government entity or a place that somebody goes. The protection is personal to a human being. Kevin From: Alan E Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> Reply-To: Law & Religion List &l

Re: Assessing a Proposed Solution to the KY Case

I think I understand Kevin's argument from his last post better than I did before, but I still disagree with it. Let me check my understanding of his position. Suppose Kentucky adopted an accommodation which it described in a sign that was to be posted in each county clerk's office.

Re: Assessing a Proposed Solution to the KY Case

While I appreciate Kevin's efforts to identify an accommodation that will work here -- and I certainly try to look for acceptable accommodations in resolving religious liberty disputes -- I'm inclined to agree with Jim and Chip here. A public official's insistence that the government office

RE: Davis doubles down

Doug is probably correct that the absence of Ms. Davis’s name on the marriage license form sends a powerful statement of her beliefs. But in evaluating the merits of granting her an accommodation I would consider that an incidental consequence of her religious liberty claim – and in my judgment

Re: What's happening in KY? -- wrong case, wrong parties

I appreciate Eugene's point here, but let me press the argument because I think it may be more complicated than Eugene suggests. Assume arguendo that having to go to a different county to get a marriage license does not impose a substantial burden on the right to marry. (I think it does, but

Re: Substantial burdens, RFRA, Chip Lupu's comments

Chip raises some important and provocative points about the way this litigation has gone forward. Let me re-characterize one of them and question another. Putting aside issues about complicity and whether Ms. Davis's actually authorizes anything by having her name on the license, let's just

RE: Question about the Kentucky County Clerk controversy

Sorry to be late joining this discussion, but I had two idiosyncratic , left field thoughts on this issue. If an accommodation is created (either through a separate statute or a RFRA decision) that permits the county clerk to delete his or her name from marriage licenses to mitigate the burden

Re: 8th Cir. upholds exclusion of religious schools from playground safety funds

Let me apologize in advance because I probably will not be able to participate in a timely way to further posts in this thread (which is a very interesting thread). But let me question Eugene's suggestion that just as sufficiently cabined rules for parade permits prevent viewpoint

Re: Religious organizations, tax-exempt status and same-sex marriage

I would prefer to see a Supreme Court opinion striking down bans on same-sex marriage based on a due process fundamental right to marry analysis or on the argument that gays and lesbians are a suspect or quasi suspect class or some mixture of the two. If the Court does decide to resolve this

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

such schools now? In what year does your hypo occur? On Thu, Apr 30, 2015 at 2:30 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: None of us can predict the future very well. The world today is very different than I thought it would be 30 years ago

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

as discrimination on the basis of race, sex, religion, and disability, I also believe nonprofit religious institutions with nonconforming views should be able to provide a venue for fellow believers to pursue a shared commitment to their own values. - Jim On Thu, Apr 30, 2015 at 11:30 AM, Alan E Brownstein

Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

at 3:02 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The school or college could discriminate against the LGBT community in a variety of ways -- both as to students and faculty. But let's assume we are talking about 2017 and a privately funded religious

Re: Town of Greece - Canadian Version

Interesting that the Canadian Court was so dismissive of the preamble. As I recall in Australia, the reason the Australian Constitution has a free exercise clause and establishment clause although it does not have a Bill of Rights is that people were sufficiently worried about the reference to

Re: Eugene's Blog Post on Liberals and Exemption Rights

Excellent post, Hillel. I agree with you and also see the current situation as deeply sad and tragic. Alan Sent from my iPhone On Apr 6, 2015, at 9:21 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: In an ideal world I would stand with Sandy's plea for

Re: submission

Thanks, Rob. A very forceful statement. But I guess no one was listening when you spoke. I'm pretty sure I read statements by Indiana legislators to the effect that no one had ever suggested to them that this law might be used to shield discrimination before the law was adopted. Alan

RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws

exemption more favorably in one case than the other. Alan From: Will Esser [mailto:willes...@yahoo.com] Sent: Thursday, April 02, 2015 2:19 PM To: Law Religion issues for Law Academics; Alan E Brownstein Subject: Re: Dignitary Injury as an argument against religious exemptions to non

RE: Dignitary Injury as an argument against religious exemptions to non-discrimination laws

Will and Chip’s exchange ended on such a thoughtful and positive note (which I greatly appreciate) that I hesitate to add another post to this thread out of fear it might break the spell. I agree with Will and Chip’s discussion about when and whether speech by itself constitutes

Re: Eugene's Blog Post on Liberals and Exemption Rights

’ religious observance. On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm

Re: Eugene's Blog Post on Liberals and Exemption Rights

The problem I have with Jim's argument, if I understand him correctly, is that it seems to suggest that no religious exemption can be accepted if it causes any harm to a third party. (I'm not sure if Jim includes the general public or the public fisc in third party.) I think many liberals

Re: civil rights carve out from state RFRAs

Sorry to be returning to prior posts, but I would like further clarification on the argument against adopting a RFRA law with a provision excluding civil rights laws from its application. If a state RFRA is not intended or expected to provide any kind of expansive protection to discrimination

RE: Amazing what Hobby Lobby has wrought

Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws

RE: Amazing what Hobby Lobby has wrought

If it is a mistake to prohibit discrimination in hiring based on mutable characteristics and vaguely defined concepts, then clearly we should not prohibit discrimination based on religion. Other prohibited grounds for discrimination might also fall victim to an insistence that the

Re: Anti-discrimination, legislative compromise, and strict scrutiny

​My question is a bit different than the one Hillel posed. Suppose the religious exemption permitting discrimination on the basis of sexual orientation in places of public accommodation/employment is broader than exemptions provided to religious objectors who believe they are required to

Re: Wedding photographers and freelance writers

and doctor-client speech is broadly subject to much more compulsion than freelance writing, photography, etc. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday

Re: Wedding photographers as creators of art

​I think Steve's focus on the difficulty of drawing distinctions in this area is helpful, but it also demonstrates the potential range of autonomy and/or expressive exemptions from civil rights laws. Let's put prostitution aside for the moment since it involves a form of intimacy that is so

Re: Wedding photographers and freelance writers

-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein Sent: Sunday, February 15, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Wedding photographers as creators of art ​I think Steve's focus