Title IX Guidance Withdrawal

[Friedman, Howard M.]

I believe there is a greater amount of legal ambiguity than the media is 
suggesting in the wake of today's Joint Letter withdrawing Obama 
Administration's Guidance on transgender rights under Title IX. See 
http://religionclause.blogspot.com/2017/02/trump-administration-withdraws-obama.html
Links to the primary source documents are there too.

Howard Friedman
Religion Clause blog
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Re: Re-upping: Sterling: A helpful test case on RFRA burdens

[Ira Lupu]

With respect, I think that neither Mary Anne Case nor Chris Lund have
provided counter-examples to my assertion that prison inmate cases
typically involve only the question of the quality or quantity of the
religious burden (is it "substantial"?) and typically do not involve the
secular cost of compliance with faith.  What would be the "consequences" to
the inmate in Holt v. Hobbs if he did not shave?  If the answer is solitary
confinement until he is willing to shave, that would indeed be a secular
burden on religious compliance.  But if the answer is "we will forcibly
shave your face," that is just a coercive way of refusing permission to
engage in the requested practice.  And, indeed, both of Mary Anne's
examples (whatever they may show about Judge Gorsuch) are likewise about
refusal of permission to do what the prisoner requested (use only a certain
name; eat only certain foods), rather than punishments for engaging in the
practice.  Of course, there may be counterexamples.  But if you look at the
hundreds of RLUIPA cases involving prisoners, where substantiality of
burden is put in issue, I think you will see that the overwhelming majority
of them involve inquiry into the importance of a religious practice, not
the question of secular consequences for choosing to engage in the practice.

I don't want to overdo this point.  It is mainly about analytical clarity
in discussion of whether a burden on religious exercise is substantial.  In
some cases - and prison cases are the best example -- the question is all
about the religious significance of the practice, and not at all about the
penalty for engaging in it.  And that means that prison officials, and
sometimes judges, must weigh the religious significance of the practice to
the complainant.  That weighing, I believe, involves adjudication of a
religious question, outside the state's constitutional competence (just
like the question of who is fit for ministry, see Hosanna-Tabor).

On Tue, Feb 21, 2017 at 11:25 PM, Christopher Lund  wrote:

> I’m probably wrong.  But I’ve traditionally thought that any financial
> penalty is enough.  The fine in *Yoder *was $5.  *Sherbert *involved a
> discretionary governmental benefit—and the Court didn’t seem to care how
> much money Adele Sherbert had, or how much she was losing in benefits.  I
> always thought the rule pretty simple here: If the government requires you
> on pain of penalty to do something your religion forbids, or forbids
> something your religion requires, that’s a substantial burden.  The amount
> of penalty is generally irrelevant.  In *Holt v. Hobbs, *Arkansas
> memorably tells the prisoner, “You will abide by [Arkansas Department of
> Correction] policies and if you choose to disobey, you can suffer the
> consequences.”  The Court says that’s a substantial burden, but the reader
> never learns what “suffer the consequences” actually means.  The Court does
> not say; it’s moved on to the next issue.
>
>
>
> This is not to say that religious claimants can show a substantial burden
> by mere say-so.  There are still significant classes of cases where there’s
> no substantial burden despite the plaintiffs’ contentions otherwise—there’s
> still *Lyng *and *Bowen* and *Braunfeld*.  (And I think there’s a good
> case that *Zubik *fits inside *Lyng/Bowen*.)  But it’s **outside** the
> classic context of the government directly penalizing religiously motivated
> action/inaction that I really think burdens become a matter of degree—a
> sorites paradox, as you say.  This is where there’s the most room for
> judgment, and judgments can differ.
>
>
>
> In that vein—and this really was the original point of my post!—I have an
> example of a sorites paradox for you in the context of hungry religious
> inmates, http://www.opn.ca6.uscourts.gov/opinions.pdf/15a0664n-06.pdf.
> The prison normally serves 2,600 calorie meals.  But bagged Ramadan meals
> have fewer calories.  Substantial burden?  Well, it probably depends on how
> many calories the Ramadan meals actually have.  500 calories—yes, probably
> a substantial burden.  2,500 calories—no, probably not.  In the actual
> case, the Ramadan meals had 1,300 calories—and not only did the 6th Circuit
> say it violated RLUIPA, it denied qualified immunity.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Case, Mary Anne
> *Sent:* Tuesday, February 21, 2017 7:34 PM
> *To:* Law & Religion issues for Law Academics 
>
> *Subject:* RE: Re-upping: Sterling: A helpful test case on RFRA burdens
>