Chip-- do you think a RFRA applies when the defendant is not the government?
RFRA's language is explicit that cases are against the government Not
between private parties.
Language controls, and one of the reasons that the AZ variety amendments are
appearing now is to fix this aspect of the
I am going to go out on a limb here and say it is not right for businesses to discriminate based on race, gender, sexual orientation, alienage, religion, or disability.
Religious groups won in Hosannah-Tabor the right to engage in invidious discrimination against ministers (not just clergy)even
The new RFRAs, like the one in Missouri, includes a line that states that it
applies even if the government is not a party. So I guess, at the least, we
have
an admission that the previous language of the RFRAs did not include every
dispute?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair
I'm stumped by Mark's response. The courts have held that RFRA and RLUIPA are
only good against the government. Due to its language and the state action
doctrine generally.
Are you saying that those cases don't exist, or are all uniformly wrongly
decided? The state language indicates
No state has gone that far yet, because the civil rights groups that were
initially in favor of RFRA (plus gay rights groups) are now lobbying against
these new bills.
As are many ministers, pastors, and business people who do not want to see the
free market Balkanized or compartmentalized
The either/or posited between secularism and faith is actually false as a
sociological matter in the United States. What is happening is that
conservative Christians and Jews who oppose gay marriage
are now facing opposition from religious believers. Secularism is a small
portion of the
I am tracking the state RFRAs and proposals and commentary on my site
www.RFRAperils.com
I welcome any and all commentary to add to the site.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY
Doug--What does such an exemption look like if it is available to anyone other
than clergy or a house of worship? Or is that limitation what makes it
reasonable?
I take it that the Arizona law does not fit your well-drafted notion?
well drafted, narrowly targeted bill when or after same-sex
I thought list participants would find the statistics below interesting. This
is what I meant when I said that opposition to same-sex marriage among believers
is declining. It is even more stark when one asks only the younger generation.
Would you suggest this if it were based on race rather than homosexuality?
If the wedding photographer thinks what the couple is doing, as in getting
married under the state's duly enacted laws, is seriously evil, he needs to
change jobs.
Become a school photographer, though I suppose then
I don't have any desire for them to go out of business, but if they are going
to be in business, they need to operate in the marketplace without
discrimination. If the business they have chosen does not fit their belief,
they need to adjust, or move on. No one is barring religious
The difference is that in the Hobby Lobby cases, the Defendant is the
government. In the AZ cases, both parties would be private, with the business
being able to raise RFRA against
the private actor.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
The argument is the same for race and homosexual persons. For most of America
at this point, discrimination based on sexual orientation is as ugly and wrong
as discrimination
based on race. Greg is correct-- the reasoning cannot be divorced. Also--your
depiction of alternatives is in fact
Racism was supported and encouraged by believers. Religion and clergy played a
critical role in making the Jim Crow south what it was. It wasn't just the
state.
It was the cooperation of racist believers and the government.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin
Have you read anything I've written for the last 20 years?
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
-Original Message-
From: Michael Worley
The hysteria involves the capacity of the bill to permit restaurants, hotels,
and other places of public accommodation to refuse
service to homosexuals. How is it different from a Jim Crow law in that way?
Don't forget the Jim Crow laws were supported
by religious principles and believers as
I think we can all agree, as legal scholars, that religiously-based animus is
still animus. See Loving v. VA; Bob Jones Univ. v. US
The so-called hysterical parade of horribles is squarely included in the
language of the law, no?
Are we supposed to believe that religious believers will
The state RFRAs and the First Amendment are raised in abuse and neglect cases
ALL OF THE TIME.
What is the least restrictive means of punishing a parent who lets a child
die of a treatable ailment? Here is what they argue:
civil penalties, rather than criminal. So let's not put parents in
Michael-- Your assumptions and conclusions are wrong as a matter of empirical
fact.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
-Original
I respect Greg's intent here. But, from where I am sitting, facts are more
important than lofty goals when it comes to the protection of women from sex
abuse and assaults.
To the extent that Greg's reasoning is intended to imply that universities
opposed to contraception are oases of
Doug-- the floor debate on RLPA? It was never passed. And I don't know
what you mean by both sides agreed. Many members agreed
that it was a bad bill, which is why it didn't pass. Bobby Scott was adamantly
opposed from day one, and raised every argument available to halt it,
and
Greg: I agree that views on contraception have nothing to do with the sexual
culture at a school. You wrote the following in which you suggest that a
school that opposes contraception creates an oasis for male/female relations.
Rather, they have seen the assumption that all women use (or
Is Doug correct as a legal matter that the bishops speak for Notre Dame, as
opposed to its officials, and the officials' actions are irrelevant? And that
the actions of its co-religionist officials are irrelevant to proof of the
organization's beliefs? Why don't the practices of Notre Dame's
I am aware of that, Mark. I hope I have not offended Catholics on this list by
raising this fact question. I married into a Philadelphia Irish
Catholic family and have Catholic clergy on my father's side. I was speaking
based on my experience with Catholic family, friends, neighbors.
In the
With all due respect to those disputing the numbers, families of the size I
mentioned were not uncommon before contraceptives were widely available, not
just
among Catholic families, but also other families. It was particularly common
in Ireland, where the Catholic Church was part of the
Fair questions. Legal academics do not operate in an isolated ivory tower, but
rather in the public sphere. Law professors, after all, are primarily
responsible for crafting and supporting
RFRA from an early stage until today, in their roles as professors and lawyers.
Witness the law
I think women do have a right here, which is the right not to be discriminated
against on the basis of gender. We are way outside the bounds of
Hosanna-Tabor, so
the right not to be discriminated against based on gender stands. Marty's
point is correct that there is global equal treatment
Eugene-- I am very familiar with your common law reasoning, which I do find
persuasive in terms of explaining to students the incremental developments of
constitutional law over time. I don't find it persuasive, however, in
explaining institutional competence. I also don't find persuasive the
Inevitable.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
-Original Message-
From: Joel Sogol jlsa...@wwisp.com
To: Religionlaw
With all due respect to this entire thread, how many people have actually read
the state cases involving the priest-penitent privilege? There is a level of
abstraction
to this discussion that indicates to me probably not. As someone who has
actively been involved in arguing the issue in
No question. They can be helped just as believers might not be! But that is
separate from whether, as a legal matter, a privilege attaches.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212)
Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu;
hamilton02 hamilto...@aol.com
Sent: Sun, Dec 1, 2013 11:37 am
Subject: Re: Letter
issues for Law Academics religionlaw@lists.ucla.edu;
hamilton02 hamilto...@aol.com
Sent: Sun, Dec 1, 2013 11:37 am
Subject: Re: Letter of 16 law professors in support of removing substantial
as modifier of burden in state RFRAs
The presence or absence of the word substantial was briefly addressed
For those interested, the following is what I have been able to figure out with
respect to what medications
each of the challengers to the contraception mandate object to. Korte's
objections are the broadest.
Hobby Lobby and Conestoga Woods' objections are medications solely for females.
When a new TRFRA was introduced in Texas earlier this year, I was told that
there was a letter submitted signed by approximately 16 law professors
who supported the removal of substantial from the typical RFRA analysis.
Doug had said on this list that he would send it to me several months ago,
Thanks Marty!
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
-Original Message-
From: Marty Lederman lederman.ma...@gmail.com
To: Law Religion
Brad-Is it your view that for-profit companies over 50 employees (those
affected here), who are subject to Title VII, and may not discriminate on the
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and
gender?
Separately, what is
I'll wait for others to weigh in on the first, but with respect to the second,
I thought the argument was that the employer can't be part of a system that
involves acts by others that violate his religious beliefs.
How does the cheap supplementary plan for transfusions solve the Jehovahs
Tom--
The employer is insisting that employees accept benefit plans tailored to his
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or
gender).
Amos is irrelevant as a religious
I am on deadline here, so can't really pursue this, but I have to say that I do
find it troubling that the fact question of penological interest is now being
decided based on what another state does. It appears to me that RLUIPA has
nationalized state prison system administration. Those
With all due respect, Marc, RLPA was doomed by many forces, not just the civil
rights community. The American Academy of Pediatrics, and many other leading
organizations
for the protection of children took a very strong stand. We lobbied Congress
together as well (we didn't have chairs). The
Marc- I didn't say Doug was lying. I said that the history, as I knew it,
was distinctive from his account. I think we can discuss the facts
on the listserv without having to stoop to such namecalling.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School
I was not particularly interested in solely Doug's statements at the time, but
rather his reasoning in his new piece. Marc and now Eugene have personalized
this.
There is no need for that.
Here is a fact: Many following enactment of RLUIPA have stated unequivocally
that the land use
I am not sure what Paul's reservation is with the concept that for First
Amendment purposes, a belief is the belief being held right now by the
believer, regardless of tradition or history. I had thought the courts had
settled on that concept, and its adjunct theory, which is that no court
can
University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu;
hamilton02 hamilto...@aol.com
Sent: Thu, Oct 4, 2012 12:09 pm
Subject: Re
Actually, this free exercise theory is new. It is the first time that a
religious believer has made a free exercise claim because they
don't want others (with different beliefs) to potentially violate the
believer's religious rules for conduct. The company owner and family won't use
the plan
First, let me applaud Marty's memory. I am certain I could not tell you what
was discussed on this list in 1999! I'm not sure I was even reading it then.
In any event, this is not the Thomas case. In Thomas, the objection was based
on the believer avoiding taking action that he would find
The burden in these cases is a newly configured theory of burden, wherein the
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer
disapproves of. It is no longer about the believer him or herself,
A characterization of abortion as a killing, is a religious assessment, not a
medical or constitutional category.
A fetus is not a person for constitutional purposes. Even abortion foe
Justice Scalia has publicly acknowledged that.
Therefore, analyzing the cases as though abortion fits into
Rick- Are you saying that RFRA stands for the proposition that there is a
rebuttable presumption in favor of
feasible accommodations? I hadn't heard it characterized in that way before.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva
I think Lyng (which explicitly relies on Bowen) is indeed relevan to a
substantial burden analysis, because it states that even a potentially
disastrous burden is not the sort of burden that supports a finding of a free
exercise violation. It supports the view that a subjective view of burden
Actually, I do not recognize my position under either of Chip's either/or
choices. Rather, I would look to the cases, which have dealt with interpreting
substantial burden repeatedly. Courts have held in the vast majority of
cases that cost and convenience are not substantial. That weighs
Doug--The government in Bowen required the applicant to obtain a social
security number to obtain benefits. They did not want to obtain it, because
it would sacrifice their child's soul. Looks like forced complicity with evil
to me. How does that work under your distinction?
I have to say
Doug-- What is wrong, with all due respect, is treating the religious
believer's characterization of the act as the legal characterization of it.
The religious believer's belief that it is a killing does not make it one for
purposes of legal analysis. That was my very simple point.
Marci
Chip-- With respect to RFRA, substantial burden was adopted from the case
law.
Are you suggesting that it has evolved into a different standard?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New
Derek-- You don't mention, though, that the legislative history of RLUIPA is
explicit that substantial burden means what it meant in the free exercise
doctrine.
You can't use the definition of religious exercise (which I view as
reflecting Smith's dictum on the same) to alter the definition
Doug--Are you suggesting that Bowen would have come down differently, under the
substantial burden analysis, depending on whether they, as the case started,
had to apply for a number, or, as the trial indicated, they had to live with
one? Why?
Marci
Marci A. Hamilton
Paul R. Verkuil
Religious groups and their supporters have been trying to water down
substantial
for years. The Alabama rfra doesn't include substantial and neither did the
failed North Dakota or Colorado
initiatives. One of the reasons the latter failed is overreaching, though it
is also attributable to
Chris-- I take it you are arguing that for every religious prisoner with a
dietary restriction, all of them can prove substantial burden,
but the state may or may not win under RLUIPA based on the state's evidence of
compelling interest?
Is it a substantial burden where the believer can
The references to Barnett and Yoder are misplaced. This case is closer to
Bowen, Lee, and Lyng than to either of those cases.
In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the
burden found to be insufficient in those cases is direct
rather than indirect.
The
So long as an organization is hiring outside the faith, I think these cases
should not go in favor of the religious organization.
These arguments are religious liberty-creep arguments in that the argument is
not that the believer will be forced to engage in conduct
that violates his or her
Mark-- Should it matter whether we are talking about blood transfusions or
abortion? If Catholic institutions can win in the ACA cases on abortion, then
Jehovahs Witnesses should be able to not pay for coverage for blood
transfusions for their employees. There is no persuasive distinction
Alan-- These are public policy questions in my view, not constitutional or
RFRA-related.
As a policy matter, I would object to all 3. The first is an unreasonable
life-and-death limitation to put on anyone's health insurance coverage. (Even
Jehovah's Witnesses, who have in some cases,
Steve's point, I believe, was simply that there is no constitutional right to
hold a particular job or conduct a particular business, or business at all.
That has been settled for decades, has it not? Religious believers sometimes
have to make life choices that are narrower than others might
With all due respect to Andrew, but in complete seriousness, religion is often
not a good thing even under the law, and often a deadly and permanently
disfiguring or disabling thing for children, the disabled, and emotionally
disabled adults. A focus on religion as a good thing rather
than a
This kind of act-specific discussion on this thread misses the point in my
view. There is a universe of existing law already can protect children and
should be capable of being brought to bear against parents or guardians who
negligently/recklessly/intentionally/knowingly harm/injure/kill
Courts routinely rule that such an environment is in the best interests of the
child. But specific practices need to be vetted under the standard. It is a
fact question.
Shared values and age-old historic traditions do not cut it, however. The
Muslims who engage in genital mutilation
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
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
Presumably the federal Establishment Clause would limit the reach of Measure 3.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-Original Message-
Other than Conn and Alabama, I'm not aware of another state that eliminated
substantial from the formulation.
Are there others?
I don't know that all bets would need to be off in any case, since other state
RFRAs have long used burden rather than substantial burden, e.g.
Connecticut's.
Nor for Native Americans abused by Catholic priests. For them, religious
liberty has meant less freedom, not more.
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
Eugene's division of RFRA and non-RFRA jurisdictions is also oversimplified.
There were RFRAs like Alabama's, where there is no substantial before burden
(that was another fault with North Dakota's formulation). But as RFRAs
developed, the dangers of permitting large classes of individuals to
It opens the door to churches using RFRA as a defense to discovery, liability,
and penalties in chid sex abuse
cases. And that means less deterrence. Their lawyers embrace the First
Amendment and RFRAs to avoid responsiblity for child sex abuse all the time.
Marci
Marci A. Hamilton
Paul
I used to think that religious groups using the First Amendment as a defense in
child sex abuse cases
was breathtaking. It is just a fact.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
In 3 states, the courts continue to give religious groups First Amendment
protection from abuse claims.
Missouri, Wisconsin, and Utah. A majority of states have rejected such
arguments. A number have not
yet ruled. The three states to embrace such a theory have misread the First
Amendment,
Maine has a strong state establishment clause as I remember. Would that be the
reason
for the differential treatment? The question here is whether parsonages and
church parking lots
are similarly situated to charitable organizations. If so, there might be a
claim. If not, it will
be a
The alternative is to focus on what is in the best interests of the child,
e.g., education, health. Not being forced to
get married at 13 and have children...
Marci
The religious status quo could also be a non-observant or explicitly atheistic
r agnostic household, which would also have
Chip is right, of course.
But Eric's point requires a response.
I don't I don't think PETA folks would appreciate having their sincere concerns
about the humane treatment of
animals traced to the Nazis. To say that humane treatment concerns are more
often than
not pretext and then to have
The cabbies no longer had a problem once the imams spoke, so your reference to
their own religious understandings
is nonsensical in this case. Just for the record, Doug, I actually know the
doctrine, so I get that one can have a view
different from one's religious leaders.I also read all of
Message-
From: Douglas Laycock dlayc...@virginia.edu
To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu;
religionlaw religionlaw@lists.ucla.edu
Sent: Tue, Mar 6, 2012 10:29 pm
Subject: Re: Cabbies vs. lawyers
I apologize if I was too quick to generalize. Maybe you meant
That is, in my view, a misstatement of the facts. The person carrying the
alcohol holds a religious worldview that
permits them to drink, carry, and transport alcohol. The cabdriver refusing to
transport them is making a religious judgment about the passenger. The only
passengers you can be
I disagree. I was in eastern Europe teaching students and talking to scholars
from the Balkans in Budapest a little less than
20 years ago. Here is how it was described: There was a time when people
would get on public transportation and no one was conscious of the religion of
the person
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: hamilton02 hamilto...@aol.com; dlaycock dlayc...@virginia.edu
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-Original Message-
From: Douglas Laycock dlayc...@virginia.edu
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu;
hamilton02 hamilto...@aol.com
Sent: Tue, Mar 6, 2012 9:15 pm
Subject
Rick-- I hear you. The Court indicates that what is a minister will be
fact intensive in each case.
There are lay teachers in a wide variety of contexts and a wide variety of
religious settings. It will
be interesting to learn whether the courts treat, e.g., a coach who only
coaches at a
My apologies for inadvertently sending a private message to the group.
So much sending emails from my new IPhone...
Marci A. Hamilton
36 Timber Knoll Drive
Washington Crossing, PA 18977
215-353-8984
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55
Thanks for the explanation. I'm wondering what the argument would be to
make property
tax exemption constitutionally required. There is a growing movement
against such tax
breaks, which is supported by the economic situation of many local
governments, so I
would expect there will be an
Erik-- Just so I understand the principle here. The city should have
provided an exemption because the
state law grants all religious organizations a property tax exemption? Or
are you saying that
the exemption was constitutionally required?
Thanks---
Marci A. Hamilton
Paul R. Verkuil
Nelson-- Just a historical note-- there really is no church autonomy
doctrine at the Supreme Court. It's not a phrase or doctrine the Court has
adopted, particularly after the long line of free exercise cases that
culminate in Smith, and Jones v. Wolf. From my research, the phrase was
Paul-- I don't disagree with the substance of what you say. Absolute
liberty, or autonomy, is not the US Constitution's role (except when we are
talking about the right to believe). There is always the possibility that
the government can justify burdens on liberty.
What church
If the Court upholds a ministerial exception, it is only fair for the
federal government and the states to amend their anti-discrimination laws to
require employers otherwise covered to disclose to their religious employees
that they will not have the protection of the anti-discrimination
Big surprise that I disagree with Marty on the Bronx Household of Faith case.
The decision should stand. There was no targeting a la Lukumi. Instead, you
have the question in the big picture whether public institutions must host
weekly worship services for a religious group that turns the
Apologies to Marty for overreading his reference to Lukumi. The facts of
Bronx Household indicate that the entire school is transformed into a
worship center every Sunday. Students entering to get their homework or for
any
other reason would be confused regarding their school's support
Preliminarily, let me say that I sincerely hope there is a wide variety of
views among law professors on this issue, and most every other issue in our
field.
The issue in the Hosanna Tabor in my view is not whether there will be a
ministerial exception, but, as Doug puts it, where to
The 2d Cir does not disagree with the equal access point, but rather says
that the School Dist is prohibiting an activity, not expression per se. In
fact, prayer, religious instruction, expression of devotion to God, and the
singing of hymns are not prohibited. What is excluded is
I could have sworn Lee was about endorsement (characterized by J. Kennedy
as coercion) and whether the listener felt disenfranchised by the govt's
apparent endorsement of religion (whether the government intended to endorse
it or not).
Marci
In a message dated 8/15/2011 1:35:48 P.M.
Vance-- Small point-- Aren't you confusing originalist with
textualist? I would have thought an originalist would be interested in the
history
behind the language as well as the language, while the textualist would
eschew the history to focus on the language.
Marci
Marci A. Hamilton
It would be interesting if a gay marriage law made it easier for landlords to
discriminate than before. Especially given how much non-religious property
many religious entities own.
Marci
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: Ira Lupu icl...@law.gwu.edu
Howard-- You say one merely preserves the existing exemption Do you know
if that provision was ever used by a religious organization to
refuse to rent to homosexuals in an apartment building owned by a religious
institution but not otherwise devoted to religious use?
I've never seen this
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