There are a lot of threads here.
1. My daughter's willingness to sing religious songs of other faiths when
she was in the High School Choir, and her comfort level with such
performances, was heavily influenced by the diversity or lack of
diversity of the program. If songs of different faiths
I think that argument probably works if one reads the Establishment Clause
broadly to prohibit discrimination among religious communities. But
certainly, the anti-discrimination concerns of the equal protection clause
extend far beyond what the free exercise clause requires. For example,
I was particularly pleased with footnote 8 in the majority opinion that
pointed out that Washington provides greater free exercise protection than
the federal constitution. Conceptually, this resonates with the argument
that there an important connection or equilibrium in interpreting the
Moving away from Lukumi (which never carried as much of a punch for free
exercise rights as some commentators have argued -- so the Court's limited
reading of it is hardly a surprise)) and back to the Washington
constitution and Locke. I am curious, Marci, if you think that Washington's
Sorry for not being clearer, Marci. I'm not focusing on the holding in
Locke but only on the note about expansive free exercise rights under the
Washington constitution. I thought from some earlier posts quite a while
back that you believed that religious exemptions that were not limited to
The Women's Contraceptive Equity Act (WCEA) is not limited to organizations
that receive state funds. Catholic Charities could refuse all state support
and it would still have to comply with the WCEA. Further, the criteria
employed by the Act to determine which religious organizations are
I'm still thinking about this,Doug. Let me ask -- do you think there would
be a constitutional violation under a constitutional regime that protected
the free exercise of religion against neutral laws of general
applicability? The clergy in question would be asking for an exemption from
the
I'm not sure that I understand Tom's argument. (I admit that I have not yet
read his article.)
Let us put aside the historical question. If the only thing the pledge does
is to accurately describe the beliefs of Americans at the time of the
revolution, there is nothing constitutionally
there is no room provided for it.) For that
reason, I think that simply taking out under God is, at best, no better
than simply leaving it in. And I suggest alternatives like a pause to
allows students (with their parents' guidance) to add the phrase they feel
is appropriate.
Tom
_
From: A.E
Yes. That's why the decision challenging ATT's pledge was correct -- but
that does not mean that companies are limited to prohibiting harassment and
discrimination. There is some distance on the continuum of workplace rules
between valuing other people's lifestyles and agreeing not to
In thinking and teaching about these issues I find it useful to develop
analogies. One of the most useful analogies I employ is that between sexual
orientation and religion, gay people and religious minorities, and rights
of intimate association and free exercise rights.
Employing that
I think Chip is largely correct here, but I'm not sure how much of a role
the free speech clause plays here even when we are dealing with exclusions
with viewpoint discriminatory qualifications.
I think the state has considerable discretion to finance study in some
areas other than others --
I don't know that I can explain or rationalize constitutional doctrine
relating to taxes and subsidies, but the distinction between taxes and
subsidies, burdens and benefits, takings and givings is fairly pervasive in
constitutional law -- so much so that it is hardly surprising when the
Court
I was going to respond to Doug along these lines - but Marty beat me to it
and wrote a lot better post than I would have.
Alan Brownstein
UC Davis
At 03:13 PM 5/27/2004 -0400, you wrote:
I agree with Doug that, as a practical matter, the denial of the
scholarship operated as a penalty on
An interesting question. Let me pose another -- Should the law provide a
different answer to this question for religious organization than it
provides to other tax exempt, secular, nonprofit organizations that are
grounded on, or espouse, particular moral principles. And a third, while I
am at
Are restrictions on the political speech of clergy a constitutional problem
for this particular issue (loss of a religious institution's tax exempt
status) or more generally? For example, if the ban on political speech on
military bases upheld in Greer v. Spock is applied to a member of the
I'm not sure I fully understand this argument, but I don't know all that
much about church doctrine or tax law. Can you help me, Tom. Is the
argument that the religious leaders of certain faith communities are
prohibited by church doctrine from serving in leadership positions or
taking on
I think Gene is right. You both are talking past each other. Unfortunately,
it is hard for discussions on this subject to move beyond that. I certainly
haven't figured out how to avoid that result -- which is the reason I don't
participate in this kind of a discussion on the list. If I had the
An odd piece. The author doesn't distinguish between being a minority and
being an outsider. He doesn't distinguish between the experience of
difference that arises when private individuals and institutions espouse
beliefs and engage in practices that do not parallel one's own beliefs and
Mark's recommendation below is necessary -- what's unclear is whether or
not it is sufficient.
I'm fond of telling people that having grown up in New York during the
years when students were directed to recite the Regents Prayer, I still
remember the Prayer, and I remember when it was declared
Kurt,
Would it be fair to say that while that the principle of non-establishment
was still at issue in 1789 at the state level, the principle of generally
applicable free exercise rights (free exercise rights for everyone -- not
just Protestants.) was equally at issue at the state level. Your
I haven't read the opinion, so this comment may not really be related to
the facts of the case -- but off the top of my head I would have thought
that requiring students to participate in the distribution of private
religious messages violates both free speech and establishment clause
There is some merit in Doug's argument. But it seems to me there is a real
problem with a school district stating that it only distributes materials
directly related to the curriculum that it explicitly approves while at the
same time having courts conclude that there is no endorsement of the
In her concurrence in Mitchell v. Helms, Justice O'Connor gives three
reasons for distinguishing indirect aid through private intermediaries
(vouchers) from per capita direct aid to religious schools. Her first
reason is that when the government provides aid directly to the student
Has anyone given any thought to the federalism-based Establishment clause
arguments raised by Virginia in seeking cert in Bass v. Madison and which
the Court may well consider in its review of Cutter v. Wilkinson?
Virginia argues that the federalism purpose of the Establishment clause --
to
I apologize for this being a late submission on this topic, but I was out
of town all weekend.
I would like to offer a few responses to some of the many points that have
been raised in this thread -- hopefully without being redundant.
1. Finding the right term. I used harassment. Marty writes
With respect, I'm not sure I understand Eugene's hypothetical or how it
responds to my post. I recognize (from years of prior posts) that Eugene
and I disagree about the distinctive nature of religion in individual
identity and family life (I think religion is more distinctive than he
does),
California does not have a state RFRA (but not for want of trying). The CA
Supreme Court so far has ducked the issue of whether it will interpret the
state constitution to follow Smith or to provide more rigorous protection
to free exercise rights (also, but not for want of trying).
Alan
Rick's thoughtful post reminded me of an issue I had planned to raise on
the list but never got around to. Having read only a few pieces by early
writers, such as the Elisha Williams excerpt in the McConnell, Garvey,
Berg, Religion and the Constitution casebook, I was struck by the
I should
say at the outset that I think it makes very little sense to posit a
state constitutional rule suggesting that whenever the only way that the
state can comply with a federal constitutional requirement prohibiting
discrimination and a state constitutional provision requiring
the former be entitled to greater constitutional protection, apart
from the fair-notice issue?
- Original Message -
From: A.E.
Brownstein
To: Law
Religion issues for Law Academics
Sent: Monday, December 06, 2004 4:39 PM
Subject: Re: Steven Williams Case
I don't think Cockrel is really
Marci,
Thanks for your thoughtful response. But let me press the issue a bit
further. You suggest in your answer to my hypo about whisky and brandy
that the court may apply strict scrutiny to decisions to accommodate one
religious practice but another when there is no meaningful difference
As I was reading the SG's brief in McCreary, I was struck by the similarity
of the arguments offered in the brief to justify the Ten Commandments
display and the arguments offered by list members to support Williams'
teaching materials. The SG argues that the Ten Commandments display is
The ADL has filed a very thoughtful brief elaborating on Marc and Paul's
points. A link to it can be found on the their web cite
http://www.adl.org/PresRele/SupremeCourt_33/4601_33.htm
Alan Brownstein
UC Davis
At 11:09 AM 12/16/2004 -0500, you wrote:
Content-class:
This is really a critical part of the issue. Are we talking about
distinctly American law or more generic Anglo-American law. I have no
doubt that the American Tories, the British soldiers who shot down the
Minutemen at Lexington, the Hessian mercenaries, and King George III
himself all
I'm not sure that I understand the point here. Is it that it is
acceptable for public school teachers to teach religious beliefs such as
the resurrection of Jesus as historical fact?
Or is it that it is too burdensome for teachers to be saddled
with the responsibility of telling their students
Perhaps the relationship between government and religion and the
relationship between government and science may be different for reasons
that extend beyond the idea that science is knowledge and religion is
opinion. I don't think we deny government the power to declare religious
truth because
When Mike writes that The Ten Commandments is a stark (if not the
first surviving) demonstration that law comes from outside
humankind-- that is, that law is not merely a human artifact, he is
expressing a position with significant sectarian implications. For
traditional Jews, the entire Torah
I think Bobby's is correct that while the term proselytize is strongly
associated with religious contexts, that does not mean that the term always
has a pejorative meaning. There are obviously benign examples of
proselytizing that would be effectively described by using this term in a
In reading arguments defending charitable choice provisions that permit
religious non-governmental providers to discriminate on the basis of
religion in hiring employees to staff government funded programs serving
public purposes -- even if the program is entirely supported by government
funds
-
From: A.E. Brownstein
mailto:[EMAIL PROTECTED][EMAIL PROTECTED]
To: Law Religion issues for Law Academics
mailto:religionlaw@lists.ucla.edureligionlaw@lists.ucla.edu
Sent: Thursday, December 23, 2004 2:24 PM
Subject: charitable choice hypothetical
In reading arguments defending charitable
. O'Connor's opinion in Mitchell.
Is that at all responsive?
- Original Message -
From: A.E. Brownstein
mailto:[EMAIL PROTECTED][EMAIL PROTECTED]
To: Law Religion issues for Law Academics
mailto:religionlaw@lists.ucla.edureligionlaw@lists.ucla.edu
Sent: Thursday, December 23, 2004 2:24 PM
In addition to Marty and Marc's point about the lack of constructive
programs for students who do not participate, isn't there also a problem
with release time programs that are limited exclusively to religious
education. What is the justification for not allowing release time
programming on
I know a little about Australian Constitutional Law. Australia has no Bill
of Rights and there is no explicit constitutional protection of freedom of
speech. There is an implied freedom of political communication. It only
covers speech about government or political matters. I don't know
I think there is a difference between control and having a decent
respect to the opinions of mankind which some of the framers seemed to
think was important in 1776.
Alan Brownstein
UC Davis
At 10:08 PM 3/1/2005 -0800, you wrote:
It's a little hard to predict because I am not familiar with
be evidence of the U.S.' persistent objection to
such customary law.
Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
[Original Message]
From: A.E. Brownstein [EMAIL PROTECTED]
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
If the early news reports on today's oral argument are accurate, Justice
Scalia argued that government may memorialize and endorse overtly and
exclusively religious beliefs accepted by a substantial majority of the
polity -- without regard to history or context. Are those reports correct?
I appreciate Mark's thoughtful post -- both for its substance and its tone.
I think his post raises two issues -- 1. What is the social meaning of the
display of the Ten Commandments? and 2. Is this a social meaning that the
state is permitted to promote or endorse?
As to the first, I recognize
Marci, of course, is more than capable of speaking for herself. But I would
think that the reference to religious intensity of belief that thrives in
an environment of religious neutrality may relate to the inspiration and
energy many religious groups experience in a regime of religious
Richard,
I understand that some religious people think that government today is
hostile to religion, but I think this is a singularly unhelpful way to
understand current church-state issues - and it tells us very little
about the actual relationship between government and religion in our
To follow up on Doug's point, one of the problem's I have with Marci's
arguments about judicial exemptions and legislative accommodations is that
it sometimes appears as if Marci views religious groups seeking legislative
accommodations or constitutionally mandated exemptions as self interested
There are a variety of answers to this question -- about why religion is
special and merits distinct constitutional consideration. I have written
about several of them -- as have many other list members.
But let me add one answer that suggests something of an analogy between
religious liberty
I tend to agree with Eugene that free speech and free exercise rights do
not parallel each other -- so that it does not necessarily follow that
because freedom of speech is protected even when the speech causes harm to
third parties, free exercise rights must receive similar protection. But I
I know I'm falling behind in this thread, but let me do my best to catch up.
I think these are better examples than your first group, Eugene. I could
probably distinguish some of them -- but let me see if I can jump over the
trees and look at the forest instead.
I think there are at least two
One of the reasons list members may not be jumping in to discuss this
question is that it is such a hard question to answer. Many of us believe
that courts should consider the harm to third parties or the public good in
setting limits to the scope of permissible legislative accommodations. I
Yes. I have been arguing that the Leonard Law is unconstitutional since it
was enacted. If it doesn't violate the Establishment Clause under Texas
Monthly, it should be struck down as unconstitutional viewpoint
discrimination in favor of religion and a violation of the Free Speech
Clause under
Director of Litigation
The Becket Fund for Religious Liberty
1350 Connecticut Avenue, NW, Suite 605
Washington DC 20036
202 349-7208 (phone)
202 955-0090 (fax)
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E.
Brownstein
Sent: Thursday, March 31
But, leaving all else aside, not all cults, or groups that operate in the
way that Stanford describes, are religious. Stanford's implication that
only groups identifying themselves as religious engage in the warned
against conduct is simply wrong.
Alan Brownstein
UC Davis
At 06:33 PM
I agree that this is an indefensible decision. (I would probably have
described it as shameful, but indefensible will do.) But it does
illustrate the problem with the argument that government may display
religious symbols and sponsor religious activities such as prayer as long
as it does so in a
I was going to express similar thoughts, but Tom sent his post first (and
probably did a better job in expressing this analysis than I would have.)
County boards, city councils, school boards and the like conduct
interactive sessions. The public addresses the board directly. On some
occasions,
In the Amos case, the employee who was terminated for lack of religious
worthiness apparently alleged that to satisfy his employer's religious
requirements, he was asked to respond to inquiries about his sexual
activities, moral cleanliness and purity, past and future contributions to
the
I think it is a good hypo, Eugene. Perhaps one way to think about an answer
is to ask a different question -- Would it be unconstitutional for the
state to bar a welfare recipient from using his or her welfare payment to
pay church or synagogue membership dues?
Alan Brownstein
UC Davis
At
I appreciate Chip's clarifying that welfare payments have traditionally
been treated as wages -- but his comment prompted a few thoughts.
First, if we are focusing on the real world consequences of the
hypothetical policy, I have never heard of a church or synagogue denying
membership or
I don't think the problem is lack of logic. It is lack of information. We
don't know enough from Locke to determine the class of situations in which
states will be permitted to decline to provide indirect subsidies to
recipients who want to use those funds for religious activities. And we
I hesitate to join in here because I'm enjoying reading two heavyweights
like Chip and Eugene spar on this issue. But I think Eugene's arguments
here (which now extend considerably beyond Locke) need to be broken down to
more discrete questions. Let me suggest some possibilities:
I. What are
Speaking of faith-based initiatives and constitutional law, Vik Amar and I
are writing a series of columns on the Findlaw Web site on whether it is
constitutional for government to allow religious organizations that
directly receive state subsidies in order to provide public services to
I understand Eugene's argument here -- but when official and personal
conduct are mixed together, I'm not sure that we can always ignore the
official aspect of the event for Establishment Clause purposes. A
government official participating in church activities, such as giving a
sermon, can
I continue to think the sermon is an easy case, because it does not involve
an official act.
But let me focus on Eugene's second point. I think there is a distinction
between what we used to call sectarian religious beliefs and what we might
call ethical religious precepts. Today, I would use
We seem to be two ships passing in the night on this one.
Of course, official policy may conform to theological views opposing murder
and the like. My point is that there are other theological precepts, such
as beliefs about the existence, nature, and worship of G-d which have no
real secular
I'm a bit late joining this thread (I was out of town,), but it seems to me
this is a difficult question. I don't think the one-sided focus of the
conference is necessarily problematic. Five or six years ago, the UC Davis
Law Review sponsored a symposium on state RFRA statutes that only
Motive and purpose issues are always problematic. I have often thought that
the only reason to incorporate this kind of an analysis into constitutional
doctrine is that there are some situations in which doctrine would be even
worse if courts could not take motive or purpose into account.
by federal judges?
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E.
Brownstein
Sent: Friday, July 08, 2005 10:11 AM
To: Law Religion issues for Law Academics
Subject: RE: Government displays
There are scenes from various movies that are relevant to church-state
issues. For example, with regard to the recent discussion on the list of
the role of military chaplains, there is a scene from one of the great old
James Cagney war movies (I'm pretty sure it's called something like The
I'm not at all as confident as Rick is that It is always good to stand up
for the academic freedom of teachers, particularly when they are
presenting one-sided religious or political programs in their classrooms
and refuse to accept the curricular guidelines of their school. Perhaps
Rick is
I think Ed's point extends beyond science to other parts of the school
curriculum as well. History, art, literature, and other subjects may
reinforce or conflict with various religious beliefs. Generally speaking, I
don't think the Establishment Clause is violated when that occurs
incidentally
At 12:23 PM 8/21/2005 -0700, you wrote:
Yes, a scientific view could be religious -- and this is why it is so
important that what is claimed as science be science.
Darwin was Christian when he discovered evolution. He had no religious
intent in publishing the theory. As some wag noted,
No one ever suggested that purpose analysis would be easy or even that it
is preferable to grounding constitutional decisions on the effect or the
facial content of laws. We use purpose analysis because purpose matters
(that is, it is related to the normative principles of constitutional law)
But the tensions created by pluralism are not limited to schools. They
extend throughout society. And the movement toward going our separate
ways isn't limited to schools, it extends to many other public programs
(see, e.g. charitable choice). In theory, it could apply to almost the
entire
: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E.
Brownstein
Sent: Sunday, August 21, 2005 5:41 PM
To: Law Religion issues for Law Academics
Subject: Re: Secular purpose and teaching ID (or not teaching
evolution)
No one ever suggested that purpose analysis would be easy
) subjects like
sex education, tolerance, values clarification, and so on -- as so many now
do?
Tom Berg
University of St. Thomas School of Law (Minnesota)
_
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Mon 8/22/2005 11:42 AM
To: Law Religion issues for Law Academics
Subject: Re
connected, and may well reinforce each others. But I haven't
the foggiest notion of which is 'primary.' What do we do?
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E.
Brownstein
Sent: Monday, August 22, 2005 10:45 AM
To: Law Religion
I don't want to belabor the point since no one else is joining this thread
--- but let me take one more shot at explaining why I don't get Eugene's
point -- despite his very good efforts to help me understand his position.
Then I'll give him the last word and end the dialogue.
Eugene writes:
think other
factors began to enter in?
Richard Dougherty
-- Original Message --
From: A.E. Brownstein [EMAIL PROTECTED]
Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Tue, 23 Aug 2005 15:09:37 -0700
I appreciate the power
I think religious apartheid and religious fragmentation have very
different meanings.
But putting that issue aside for the moment, the questions Tom asks are
certainly fair and important ones.
I certainly don't know if there is significant empirical literature that
responds to his questions
I won't go into all the conventional arguments about why government funding
of religious schools and other social service programs is problematic. I
know Rick and the other list members are familiar with these arguments,
even though they are not persuaded by them.
But to keep the focus on the
I don't know anything about the particular classes at issue in this law
suit. But I do know that in the student planners at the junior high schools
and high school in California where I live, each class will be identified
as to whether it is on the UC or CSU approved course list, whether
I don't spend a lot of time worrying about the exact words government
officials use to respond to catastrophes, but Art makes a very legitimate
point here. It's not hard to come up with language that is inclusive.
When we face disasters as a people, and feel the need to speak as a
people,
I guess I disagree with just about all of your points, Brad.
I think a commencement speaker or valedictorian can say a great deal that
is meaningful and substantive without being offensive. Certainly that has
been my experience. It may take more time and effort to prepare that kind
of a talk
One question that has always bothered me about these hair length standards
in prisons is whether prisons require female inmates to wear their hair as
short as males inmates. Presumably, hiding contraband isn't something that
only male inmates do. If women prisoners are permitted to wear their
I'm not sure Steve's right. There are two things the Ninth Circuit knows
now that it did not know when it decided the Newdow case. First, it knows
that Newdow was unable to persuade O'Connor on the merits. How many
government display or prayer cases get struck down on establishment
clause
a decision
that wrongly reached the merits as BINDING seems fishy, at
best. Guess
I'll have to look up the lower court law on prudential
reversals.
David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.
On Wed, 14 Sep 2005, A.E. Brownstein
Marty makes an excellent point that the pledge case can be distinguished
from McCreary County and many other Establishment Clause cases because it
deals with religion in the public schools.
Footnote 22 may not only have been unnecessary, however, it is
unfortunate for another reason.
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