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

[Eric J Segall]

That's fair Doug.

e

Sent from my iPhone

On Feb 20, 2017, at 4:01 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Well, the widespread hostility to enforcing RFRA is a threat to religious 
liberty. Just because RFRA’s supporters overreach on some issues does not 
change the fact that RFRA’s opponents are overreaching on other issues.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Monday, February 20, 2017 3:47 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>; Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Subject: Re: Re-upping: Sterling: A helpful test case on RFRA burdens


Beautifully said Doug. I would just add that the kind of potential abuse you 
are talking about is maybe inevitable when this kind of law becomes part of the 
culture wars, and RFRA certainly has become that. Even Justice Alito has given 
speeches saying the potential non-enforcement of RFRA has become a threat to 
"religious liberty."



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Monday, February 20, 2017 3:37:26 PM
To: Law & Religion issues for Law Academics; Marty Lederman
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

This case may well be a trial lawyer’s failure to put on the evidence. Lawyers 
too often think the burden on religious practice is obvious, and fail to elicit 
the testimony that would clearly explain how and why the practice is religious 
and important and the challenged rule is a substantial burden. I suspect that 
more could have been offered here, but we don’t know that, and the record is 
what it is.

Passages in the Court’s opinion in Hobby Lobby invite the kind of argument that 
Paul is making. But reading those passages for their maximum possible reach 
would be wholly unworkable, which is why seven of eight circuits refused to 
read it that way in the litigation that led to Zubik. The cryptic order in 
Zubik implies a four-four split, which in turn implies that four Justices were 
prepared to find a substantial burden there. I think that would have been a 
mistake, but the claimed burden there, however attenuated, at least connected 
to an important religious teaching. Far more implausible and attenuated claims 
will follow, in which religious claimants seek to govern the world by insisting 
that the way the world is currently being run burdens their religion, and no 
one can question their claim of burden. These kinds of claims will discredit 
the whole enterprise, which faces enough hostility already.





Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>>
Cc: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.scotusblog.com%2Fwp-content%2Fuploads%2F2017%2F01%2F16-814-cert-petition.pdf=02%7C01%7Cesegall%40gsu.edu%7C72928ca1e3034a860aca08d459d06f06%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C1%7C636232199144615699=V0mZRiHFM8Oklida61RZjJfgDsioe9OEHOnxnTVVLSY%3D=0>
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs 

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

[Eric J Segall]

Beautifully said Doug. I would just add that the kind of potential abuse you 
are talking about is maybe inevitable when this kind of law becomes part of the 
culture wars, and RFRA certainly has become that. Even Justice Alito has given 
speeches saying the potential non-enforcement of RFRA has become a threat to 
"religious liberty."


Best,


Eric


From: religionlaw-boun...@lists.ucla.edu  
on behalf of Laycock, H Douglas (hdl5c) 
Sent: Monday, February 20, 2017 3:37:26 PM
To: Law & Religion issues for Law Academics; Marty Lederman
Subject: RE: Re-upping: Sterling: A helpful test case on RFRA burdens

This case may well be a trial lawyer’s failure to put on the evidence. Lawyers 
too often think the burden on religious practice is obvious, and fail to elicit 
the testimony that would clearly explain how and why the practice is religious 
and important and the challenged rule is a substantial burden. I suspect that 
more could have been offered here, but we don’t know that, and the record is 
what it is.

Passages in the Court’s opinion in Hobby Lobby invite the kind of argument that 
Paul is making. But reading those passages for their maximum possible reach 
would be wholly unworkable, which is why seven of eight circuits refused to 
read it that way in the litigation that led to Zubik. The cryptic order in 
Zubik implies a four-four split, which in turn implies that four Justices were 
prepared to find a substantial burden there. I think that would have been a 
mistake, but the claimed burden there, however attenuated, at least connected 
to an important religious teaching. Far more implausible and attenuated claims 
will follow, in which religious claimants seek to govern the world by insisting 
that the way the world is currently being run burdens their religion, and no 
one can question their claim of burden. These kinds of claims will discredit 
the whole enterprise, which faces enough hostility already.





Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, February 20, 2017 3:07 PM
To: Marty Lederman 
Cc: Law & Religion issues for Law Academics 
Subject: Re-upping: Sterling: A helpful test case on RFRA burdens

Now that Paul Clement has filed a cert. 
petition
 in this case, I thought I might revive the thread, which didn't inspire any 
reactions last time around!  Perhaps I'm alone, but it strikes me that the case 
raises a very interesting and important question about how to assess whether a 
burden on religious exercise is "substantial" for RFRA purposes.  To recap the 
very straightforward facts:

1.  Marine Corps Lance Corporal Monfia Sterling posted three identical signs in 
her workspace, each containing only the words “No weapon formed against me 
shall prosper”--two of them in large (28-point) font.  The statement derives 
from Isaiah 54:17.  She posted one sign on the side of her computer tower, one 
above her computer screen, and one above her desk mailbox. The signs were large 
enough for those walking by her desk, and Marines seated at her workspace, to 
read.

2.  Her superior officer insisted that she take the signs down; indeed, that 
officer threw her signs in the trash, and she continued to repost them.  
Therefore Sterling was court-martialed for insubordination, and sentenced to a 
bad-conduct discharge and a reduction in pay grade--no small thing in terms of 
sanctions.  As far as the record shows, her superior officer was not motivated 
by the fact that the signs were, or Sterling was, religious--he would have done 
the same no matter what the employee's motivation was, and no matter whether 
the signs were scriptural.

3.  Sterling testified that the signs had religious significance to her, and 
that she posted them in response to difficulties she was experiencing at work.  
They were, she testified, a "mental reminder” to her and that she did not 
intend to “send a message to anyone” else.  Paul's petition asserts, without 
citation to the record, that "[t]he conduct at issue was an undisputed exercise 
of religion by LCpl Sterling to beseech a higher power for spiritual strength 
and fortitude in the face of challenges."  Although there's no evidence that 
Sterling intended any "beseeching," I think it's fair to say that she did 
intend to invoke the words of a higher power "for 

Re: Hostility vs. feeling that certain people shouldn't marry each other

[Eric J Segall]

I'm not sure it is that easy Doug because often the difference between a 
disparate impact and disparate treatment case turns on the motives/intent of 
the decision-makers.

Mark, it is true that many of us feel that, in the context of the current 
debates over SSM, hostility to allowing gays the same economic and social 
benefits of marriage as heterosexuals cannot be meaningfully separated from 
hostility to gays and lesbians. After all, denied those benefits under the law, 
they have no where else to go to acquire them. That point of course is separate 
from whether such hostility has a remedy under the Constitution.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 3:45 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Eric is talking about disparate impact; Eugene was talking about disparate 
treatment.

If someone deliberately acts on the basis of sex, race, etc., motive is 
generally irrelevant. If government acts on some neutral criterion that has 
disparate impact on the basis of race, sex, etc., there is no constitutional 
violation, unless the government chose that criterion because of its impact on 
race, sex, etc.

That distinction may or may not make sense, but it is pretty clearly the law.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 3:36 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Hostility vs. feeling that certain people shouldn't marry each 
other


I am not sure I understand your Equal Protection point. There is a huge 
difference (according to the Court) between a state adopting a veterans 
preference program in the 1970's knowing 99% of the benefits will go to men and 
doing it because of hostility to women in the military. One is (was) legal one 
is not. There is a difference between a Sunday closing law motivated by a 
secular desire to have one uniform day off for everyone and having one on 
Sunday specifically so Christians will get a leg up on minority faiths with a 
Saturday Sabbath.



I agree there may differences in smoking out this kind of pernicious intent 
when we are talking about state actors as opposed to private folks but I'm not 
sure why that matters in light of the flexible, multi-faceted balancing test 
that Doug originally advocated. I think the state interest side of the ledger 
gets much stronger the closer we get to hostility against a group.



I hope this doesn't offend but the elephant in the room here (or in this 
thread) is that there are probably folks who think that pure discriminatory 
animus justified by faith is somehow different or should be treated differently 
by the law, than animus based on other factors. I think that is sustainable 
inside religious institutions but not when selling furniture, flowers, or 
widgets (again with the caveat that I am more sympathetic to free speech 
possibilities when there is an obvious  expressive component to the business).



Best,



Eric


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
Sent: Wednesday, October 12, 2016 2:30:07 PM
To: Law & Religion issues for Law Academics
Subject: Hostility vs. feeling that certain people shouldn't marry each other

   Well, both the Equal Protection Clause jurisprudence and 
antidiscrimination law requires figuring out whether the defendant deliberately 
treated people differently based on race, sex, religion, etc.

   But I don’t think we ever ask whether a private citizen’s 
discriminatory actions were “at bottom” based on “hostility” or rather based on 
“no objection to [people’s identity]” but rather a “feel[ing]” that people of 
certain identities shouldn’t do something.  And I think we basically don’t do 
that even as to government actors’ imputed motives, either.  To give just one 
example, say that an employer decides not to hire women with small children for 
a particular job.  There may be no evidence at all that this is based on 
“hostility” to women or even “hostility to [women] receiving equal treatment” 
(except in the tautological sense that all decisions to treat unequally are 
based on “hostility” to equal treatment in the sense of a choice against such 
equal treatment).  It may be clear that the employer is very friendly to women 
in many contexts, but just “feel[s] they shouldn’t” work outside the home when 
they have small

RE: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Ira wrote that “I have no idea how to parse such distinctions among religious 
objections to various types of marriage, and I agree that courts should not try 
to evaluate the respect that one deserves compared to the other (nor label some 
of them as prejudice and others as properly religion-based).”

I want to be clear that the distinction I think courts can make is the 
difference between “prejudice” and “not prejudice” not “prejudice” and 
“religion based.” Outside of the internal employment domains of churches, 
temples, mosques, etc., “prejudice” based on religion and “prejudice” based on 
non-religion should, in my opinion, be treated the same when impacted by 
general laws (which is why I suggested in my last post that this controversial 
position may be behind much of this discussion as it relates to religious 
exemptions).

Best,

Eric


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, October 12, 2016 5:21 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

Responding to Eugene's question -- I don't have anything like a theory of how 
compelled speech arguments should work in the anti-discrimination context.  The 
most I have said in print is in a footnote to a recent article (7 Ala. Civ. 
Rts. Civ. Lib. Rev. 1, 52, n. 171).  My intuition is that those in commerce who 
make themselves generally available for all customers, and whose work tends to 
track customer preferences (e.g., the DJ who plays the songs the hosts like 
best; the photographer who takes the standard shots of marrying couple, guests, 
family, etc.) would have a very weak compelled speech claim.  Those who are 
creating different products with their own independent content (e.g., a 
motivational speech, even if tailored to a group) might well have a better 
claim, though I wonder whether those people make themselves "generally 
available."

In any event, I make no sweeping assertion about how this line of argument 
should be resolved across the universe of cases.  When Mitch Berman asked about 
"solicitude" for Fred, I took him to be asking whether Fred's religious 
opposition to inter-religious marriage was more deserving of respect than a 
commercial photographer's religious opposition to same sex marriage.  I have no 
idea how to parse such distinctions among religious objections to various types 
of marriage, and I agree that courts should not try to evaluate the respect 
that one deserves compares to the other (nor label some of them as prejudice 
and others as properly religion-based).


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Re: Scalia's views of RFRA?

[Eric J Segall]

I respectfully object to the term "committed originalist," (self-promoting 
articles omitted).

Kind of hoping you were being 100% saracastic.

e

Sent from my iPhone

On Nov 22, 2016, at 5:26 PM, Ira Lupu 
> wrote:

No apologies necessary except for using Ira instead of Chip. In light of that 
request, you might reflect on how the committed originalist has not one word in 
Smith about the original meaning of the Free Exercise Clause. In 1991, I asked 
him about this when he came to GW to give a lecture, and he replied that the 
Court had to decide 100 cases a year so there was not enough time to do the 
historical research. I was stunned by that answer, which essentially said that 
the Justices lack the resources to do their job the way originalism requires it 
to be done.

On Tue, Nov 22, 2016 at 5:17 PM Case, Mary Anne 
> wrote:

Sorry, Ira, was moved to ask about the deceased’s views in aid of a solicited 
piece on the jurisprudential views and rhetorical moves of the deceased (not 
RFRA specific views).



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Ira Lupu
Sent: Tuesday, November 22, 2016 4:11 PM

To: Law & Religion issues for Law Academics
Subject: Re: Scalia's views of RFRA?



There was no compelling interest test at the time of Reynolds, so being a law 
unto yourself would be the beginning and end of the game. RFRA adds a step to 
the game. And with all respect to the departed, I do not know why we should 
care what Justice Scalia thought about any subject on which he did not offer a 
view. Perhaps it was enough for him that a statute required him to do what he 
thought the Constitution did not.
There are very, very few cases of legislatures cutting back on judicially 
recognized RFRA rights. You might look at my post- Hobby Lobby piece in Harv J 
of Law & Gender, where I discuss this in detail,



On Tue, Nov 22, 2016 at 5:02 PM Case, Mary Anne 
> wrote:

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Ira Lupu
Sent: Tuesday, November 22, 2016 3:37 PM

To: Law & Religion issues for Law Academics

Subject: Re: Scalia's views of RFRA?



The Scalia opinion in Smith of course did not anticipate a law like RFRA; 
instead, he was referencing practice-specific accommodations (like a peyote 
prohibition that exempted Native American Church members who used peyote in 
sacraments.)

--

Agreed. That’s what led me to wonder to what extend RFRA might have upset him.

--



Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby 
Lobby, indeed makes "each conscience a law unto itself” with respect to what is 
burdensome to religious exercise. Nevertheless, judges still have to engage in 
"balancing" in light of RFRA's exception (re: whether application of the burden 
to the person furthers compelling governmental interests, and whether that is 
the least restrictive means to do so).  But the "law unto itself" quality 
associated with RFRA's rule means that the government will very frequently have 
to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith 
law ever had. So the balance seems highly tilted toward the government (though 
I strongly suspect it will not remain that way).

--

This may be a quibble or parsing too fine, but I take “law unto itself” here to 
mean what Reynolds does in using a similar phrase, that the secular law will 
let a person impelled by religion do as s/he pleases, so that not just the 
question of burden, but the whole ball of wax would be decided by the 
individual conscience. As to the rest of what you say, I may be confused, but 
when you say the balance is tilted toward government, I would have said away 
i.e. that narrow tailoring taken literally may be very hard for gov. to 
satisfy, which I agree is not an equilibrium situation.  Whether it will be 
solved by courts watering down the standard without changing its verbiage or by 
legislatures selectively cutting back as Chris Lund has documented I’m less 
sure.





On Tue, Nov 22, 2016 at 4:26 PM, Case, Mary Anne 
> wrote:

The quoted language comes directly from Scalia’s opinion in Smith.  The full 
sentence is: ”It may fairly be said that leaving accommodation to the political 
process will place at a relative disadvantage those religious practices that 
are not widely engaged in; but that unavoidable consequence of democratic 
government must be preferred to a system in which each conscience is a law unto 
itself or in which judges weigh 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
> wrote:

Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much solicitude is Fred due?  (And if you choose to answer, I 
ask that you do so without analogizing to interracial marriage; that’s not my 
case.)

Mitch Berman


From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu]
 On Behalf Of David Bernstein
Sent: Tuesday, October 11, 2016 10:00 AM
To: Marty Lederman >; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics 
>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers


Unlike Marty, I not only don't find the argument in question shocking, I thin 
it's right. I blogged about this at Volokh a couple of years ago, drawing the 
analogy to a caterer who serves Jewish customers, but refuses to cater brises. 
Unusually, the comments section to the post is also mostly worthwhile. 
http://volokh.com/2013/12/14/refusing-provide-commercial-services-circumcision-discrimination-jews/.
 Another hypothetical that could arise is an Orthodox Jewish baker who serves 
all customers.




Is Refusing to Provide Commercial Services for a Circumcision Discrimination 
against Jews?
by David 
Bernstein
 on December 14, 2013 12:46 pm in You Can't Say 
That!

Here’s the hypothetical: Shlomo Cohen has been blessed with a son, but he lives 
in San 

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[Eric J Segall]

Eugene asks tough questions but of course our entire EP jurisprudence requires 
smoking out pernicious v non-pernicious intent as does post Smith free exercise 
law and much free speech law. I'm of course willing to cede much more to the 
political process than most folks but I'm an outlier. The issue here is not 
whose theology is "accurate" or "correct" but rather hostility to a group based 
on pernicious discrimination is at play. That issue permeates constitutional 
law.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 12:02 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   How exactly would courts draw the line between what is really at 
bottom of various religious practices?  Say someone says, “Jews’ objection to 
Jews marrying non-Jews stems from their viewing themselves as God’s Chosen 
People, and other people as not God’s Chosen People.”  Someone else responds, 
as I’ve heard many religious Jews say, “No, it’s not that being Chosen makes us 
better -- it’s just that God has a particular relationship with us that 
involves specific obligations.”  How are courts to tell whose understanding of 
the proper theological interpretation is right?

   Conversely, someone says “Objection to same-sex marriage at 
bottom is hostility to gays receiving equal treatment.”  Someone else says, 
“No, we’re not hostile to gays or to equal treatment generally; we just think 
that marriage is a special sacrament created by God for men and women.”  How 
are courts to tell whose understanding of the proper theological interpretation 
is right?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Wednesday, October 12, 2016 11:44 AM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Cc: David Bernstein <dbern...@gmu.edu<mailto:dbern...@gmu.edu>>; Mitchell 
Berman <mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>>; 
conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>
Subject: Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

I am receptive to trying to draw lines between commercial activities that are 
inherently expressive and those that are not (knowing there will be quite grey 
areas). But I think there is a serious difference in the real world between a 
seller of flowers whose objection to same-sex marriage at bottom is hostility 
to gays receiving equal treatment and a person of faith with no objection to 
Jews or Catholics but feel they shouldn't get married to each other. Thus, 
again, I think we can draw a line b/w requests for religious exemptions based 
on group hostility and claims not based on group hostility, even conceding 
Mitch's typical smart and hard hypo is a hard case.

Best,

Eric

Sent from my iPhone

On Oct 12, 2016, at 11:29 AM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
Mitch Berman's good question asks in general terms about how much "solicitude" 
Fred's claim deserves.  But we cannot answer intelligently unless we know the 
forum and the grounds advanced for Fred.  Is he asking the state legislature to 
exempt religious objectors from public accommodations law?  Is he raising a 
compelled speech claim?  A religious freedom claim under a RFRA, or a state 
constitution?  I would give his claim no solicitude in any of these contexts, 
for reasons I have spelled out at length on this listserv and in law reviews.  
But I can imagine that others might well react differently depending on the 
legal context.

On Tue, Oct 11, 2016 at 2:45 PM, Mitchell Berman 
<mitch...@law.upenn.edu<mailto:mitch...@law.upenn.edu>> wrote:
For what it’s worth, I’d like to add another generally liberal, pluralist voice 
in support of Doug and David.

I don’t have a strong view regarding precisely what the doctrine should be to 
govern cases of this sort, largely because I believe that the adequacy of 
available alternatives will be a critical factor, and I am open to the 
possibility that, due to difficulties of case-by-case inquiry into such 
questions, the law (statutory or judge-made) should adopt prophylactic rules.  
That acknowledged, as a matter of political morality, I also believe that folks 
on my side of the aisle are often insufficiently sensitive to interests of the 
Shlomo Cohens and Barronelle Stutzmans of our nation.

Take this case: in a large city, an observant Jewish photographer or dj, Fred, 
declines to work at an interfaith marriage between a Jew and a Gentile.  Fred 
is happy to take on any other work for Jews or Gentiles, or for both together.  
But he objects to being complicit in a venture—interfaith marriage—that he 
deems wrongful or religiously proscribed.

Marty, Eric: how much so

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

[Eric J Segall]

The first sentence of Mark's email is partly why many of us keep writing over 
and over that there is no longer a real difference between Originalists and 
non-Originalists...

e

Sent from my iPhone

On Apr 22, 2017, at 11:19 AM, Mark Scarberry 
> wrote:

Originalism needs to be applied in context in light of underlying principles 
and entrenched nonoriginalist doctrine. No one would have thought in 1868 that 
the Establishment Clause would be given its current expansive reading, as 
applied to the states; it now places very substantial limits on a state that 
desires to give religious groups equal access to resources. There are not 
enough originalists on the Court to modify that reading substantially, putting 
to one side the appropriate role of stare decisis for an originalist. Nor does 
it seem likely that the very expanded role of governments at all levels in 
controlling and allocating resources was contemplated in 1868.

To the extent that incorporation requires that the First Amendment be given the 
same effect as applied to the states that it is given as applied to the federal 
government, it's not just equality as against a state that is at issue; 
equality in access to federal resources is also at issue.

Chip's approach amounts to a kind of unilateral disarmament for those of us who 
think the underlying originalist principles incorporate at the very least 
non-discrimination against religious groups. When a nonoriginalist reading of 
the Establishment Clause puts the underlying originalist principles out of 
balance, there may be a justification for restoring the balance to honor 
originalist principles at a fairly high level of generality.

Mark

Mark S. Scarberry
Pepperdine University School of Law
_
From: Laycock, H Douglas (hdl5c) >
Sent: Saturday, April 22, 2017 8:09 AM
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?
To: Law & Religion issues for Law Academics 
>



Actually, the Court adhered to a strong no-aid principle from 1971 to 1985. 
There are no cases striking down aid programs before or after that window. And 
even in that window there were a lot more than three pence worth of exceptions.



Everson announced two principles: no aid in absolutist terms, and no person can 
be deprived of social welfare benefits because of his religion. The two 
principles turn out to be inconsistent, because any government money can be 
understood either as aid or as a social welfare benefit. The inconsistency 
accounts for the inconsistencies of theLemon-era cases. And the social welfare 
benefit principle accounts for the result inEverson, and Board of Education v. 
Allen in 1968, and all the cases fromWitters forward.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, April 22, 2017 9:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

A few points:

1) Trinity Lutheran has never been asked for or given its "word that the 
playground will be used for [exclusively] secular purposes." If it receives a 
grant, nothing in Missouri law will stop the church from using the playground 
for worship services or religious instruction.

2) In my original post, I did not claim that the Madisonian narrative behind 
the "no funding" rules of the Establishment Clause was correct or persuasive as 
an original matter.  I did suggest that the Madisonian narrative was the basis 
for a view that held a majority of the Supreme Court from 1947 until at least 
2002, and that no majority of the Court had ever repudiated.  Yet that 
narrative has dramatically declined within public discourse -- legal, cultural, 
political, and journalistic.

3) Trinity Lutheran is not an Establishment Clause case. The "no funding" 
decision did not rest on the few and ambiguous words of the Establishment 
Clause.  Rather, it rested on the clear and explicit words of Art. I, sec. 7 of 
the Missouri Constitution: "No money shall ever be taken from the public 
treasury, directly or indirectly, in aid of any church, sect, or denomination 
of religion." That is a no funding provision, and it cannot be squared with an 
equal funding principle. The question in the case is not whether equal funding 
is permissible under the federal constitution; rather, it is whether equal 
funding is required by the federal constitution.

4) I 

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

[Eric J Segall]

Well said Chip, and if there was a true originalist on the Court, there isn't, 
they'd know the only true original meaning of Article III that we are sure 
about is there must be two adverse parties. In this case, there aren't.

Best,

Eric

Sent from my iPhone

On Apr 21, 2017, at 5:24 PM, Ira Lupu 
> wrote:

I have been struck this week by how almost all of the pro-state discussion of 
Trinity Lutheran has focused on the problem of discrimination by state funded 
churches (i.e., why should taxpayers fund activities from which some are 
invidiously excluded?).  It's as if we (academics as well as informed 
journalists) have all forgotten the origins and justifications of no-funding 
rules.  Madison's Memorial & Remonstrance, the classic defense of such rules, 
is certainly not concerned with discrimination by recipient churches.  It is, 
rather, focused on other policies that justify separation in funding matters -- 
religious voluntarism (not forcing taxpayers to subsidize faiths with which 
they disagree or agree); the danger of church dependence on the state; mutual 
corruption of church and state that financial relationships might produce, 
etc.. As John Ely wisely wrote, the Establishment Clause is a separation of 
powers provision, and the same is true for the state constsitutions' no-funding 
provisions, including Missouri's.
Of course, times have changed, and the state now provides many more forms of 
largesse, including funds for safe playground surfaces. So we can argue about 
whether it is wise to relax state-based no funding rules (the 1st A rules have 
already been relaxed to some extent), or whether it is fair to exclude churches 
from some forms of largesse. (No one is excluding them from police and fire 
protection).  My point here is that the Madisonian understanding of 
church-state separation, and the no-funding rules that followed, has been 
largely lost.  Maybe that's because the fight, so prominent from the mid-19th 
century until relatively late in the 20th century, about funding Catholic 
schools has long been over. Maybe our collective forgetfulness about the 
Madisonian narrative is also about the expanded welfare state, where religious 
communities play a huge partnership role.  Maybe we now have full confidence in 
religious pluralism and the unlikelihood of sectarian discrimination by the 
state, though the continuing experience of Muslims and Native Americans in the 
U.S. should be a cautionary note on that one.
All I know for sure is that the conversation has changed.  Not even Justices 
Ginsburg, Sotomayor, or Kagan seemed up to the task on Wednesday of maintaining 
continuity with that tradition.  When the no-funding tradition is reduced to a 
formal rule -- the state cannot write a check to the church -- it will soon 
disappear in the face of countervailing legal and political pressure.
And I must add that the idea that the Free Exercise Clause, as an original 
matter, entitles houses of worship to equal treatment in state funding 
arrangements seems spectacularly unpersuasive.  So let's see what our new 
Justice, the self-proclaimed orginalist, says (or agrees with) in Trinity 
Lutheran.

On Fri, Apr 21, 2017 at 2:30 PM, Alan E Brownstein 
> wrote:

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 values, and speech values, I think there are 
cases where religion may need to be treated differently than non-religion and 
situations where it should be treated the same as non-religion. But equality 
and speech consequences present powerful counterweights to the idea that 
religious institutions should as a general matter receive special exemptions 
from general laws because of their distinctive nature while at the same time be 
eligible for government grants and largess on the same terms as their secular 
counterparts.


From a policy perspective, I might rephrase Michael's question this way (my 
apologies Michael if my rephrasing does not capture your meaning), If a 
pre-school operated by an adjacent church should be conceptualized as religious 
for the purpose of evaluating claims that 1. unlike its secular counterparts, 
it should be permitted to discriminate on the basis of religious belief and 
conduct in hiring staff -- including playground monitors; 2. unlike its secular 
counterparts it should be permitted to discriminate on the basis of religious 
belief and conduct in admitting students -- even if most of what the students 
do is to play on the playground; 3. unlike its secular counterparts it should 
be provided additional discretion in designing its curriculum, and 4. unlike 
its secular counterparts, it should be 

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

Well if that is true, and I think it is, the state's promise to treat their 
grant applications in the future equally with all others is all they can get 
(admittedly they'd rather have an injunction) but that seems a slender reed.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:22 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.

So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be eligible to compete, and the church is 
receiving the requested relief?

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reve

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

I don't think there was a claim for damages (and it would be barred by 11th 
Amendment anyway) so I agree with Marty that the plaintiff has received all the 
relief it sought. The State is saying that from now on, the church's requests 
for funding under the program will be treated like all other requests. The fact 
that the state may change its mind later seems hardly a sufficient basis to 
decide a major constitutional case.

Best,

Eric

From: religionlaw-boun...@lists.ucla.edu  
on behalf of Marty Lederman 
Sent: Tuesday, April 18, 2017 4:39:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be eligible to compete, and the church is 
receiving the requested relief?

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) 
> wrote:
Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reverse the policy change. A decision to that effect could be 
reviewed in a different lawsuit, but that is always true in voluntary cessation 
cases. If the policy is ever reversed, the court could decide about it then. 
But the voluntary cessation doctrine says that the plaintiff who has gotten 
this far is entitled to a decision now, in this case.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 3:31 PM
To: Law & Religion issues for Law Academics 
>
Subject: Is Trinity Lutheran Church moot?

Answer:  Probably, but it may depend upon some still-uncertain facts:

https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html

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messages to others.

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

Section 1983 is not abrogation of 11th Amendment Immunityas crazy as that 
is.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:33 PM, Ashutosh A Bhagwat 
<aabhag...@ucdavis.edu<mailto:aabhag...@ucdavis.edu>> wrote:


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.



They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.



Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.



Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does th

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Have they given the dollars? Or just said they will?

The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.

Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.

Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.

They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted to grant cert in that 
case will now vote to grant in Douglas County.

Full disclosure: I am on the briefs in Douglas County. But I write about 
voluntary cessation under my Remedies hat.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 4:40 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Is Trinity Lutheran Church moot?

But Doug, the relied requested was simply the ability to compete for the grant 
without the church disqualification -- and they've now received precisely that. 
 It's also not simply a policy change -- it is, presumably, a conclusion that 
they are legally required not to exclude the church.

Yes, it is true that if the agency gives the $$ to TLC, there might well be a 
state-court lawsuit by a taxpayer--one that might one day reach the SCOTUS.  
But why does that possibility make this case -- between the church and the 
agency -- justiciable, when both of those parties (there is no "other side") 
agree that the church should be eligible to compete, and the church is 
receiving the requested relief?

On Tue, Apr 18, 2017 at 4:32 PM, Laycock, H Douglas (hdl5c) 
> wrote:
Giving the church the tires or the money would moot the case. But so far, they 
have only announced a policy change, and that does not moot the case—especially 
where, as here, the other side has a plausible claim and could immediately sue 
the state officials to prevent them from granting the money or the tires and to 
force them to reverse the policy change. A decision to that effect could be 
reviewed in a different lawsuit, but that is always true in voluntary cessation 
cases. If the policy is ever reversed, the court could decide about it then. 
But the voluntary cessation doctrine says that the plaintiff who has gotten 
this far is entitled to a decision now, in this case.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Tuesday, April 18, 2017 3:31 PM
To: Law & Religion issues for Law Academics 
>
Subject: Is Trinity Lutheran Church moot?

Answer:  Probably, but it may depend upon some still-uncertain facts:

https://balkin.blogspot.com/2017/04/is-trinity-lutheran-church-case-moot.html

___
To post, send message to 

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.

Best,

Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a state official in his 
official capacity, is a “person” within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I may be completely wrong here, but if this is a section 1983 case enforcing 
the Religion Clauses as incorporated through the 14th Amendment, does that 
trump 11th Amendment immunity?  What am I missing?


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C6a35bc4fcb7c45205bfe08d486a38b95%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281484364514771=Av4bcO%2FXXog5oVlalmHJ11msNrKAuEDKd77kZSt755Q%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


I haven’t looked at the complaint, but that has to be right. Damages for delay 
could not be recovered from the state, or from any state official in his 
official capacity,  because of sovereign immunity. And they could not be 
recovered from any state official in his personal capacity, because of 
qualified immunity. There is certainly no clearly settled law in favor of the 
church.



So injunction or declaratory judgment against an official in his or her 
official capacity are the only possible remedies.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, April 18, 2017 5:13 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



Doug, is the complaint seeking money as damages for wrongful denial? That seems 
to run into the 11th. I assumed plaintiffs can only ask for prospective relief 
in this case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:04 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Have they given the dollars? Or just said they will?



The voluntary cessation doctrine is all about the just-said-they-will cases. 
They might change their mind, and here there would seem to be a very live 
threat that they will change their mind because they might be forced to.



Maybe there are countervailing considerations of constitutional avoidance here. 
Maybe they should dig it. But they should not say it is moot unless the dollars 
are actually transferred.



Of course as with any justiciability doctrine, they can make it moot by how 
they describe the facts. They can simply say there is no chance of a policy 
reversal, even if that is obviously false. With five votes you can do anything, 
as the saying goes. But I think that this case is not moot, at least until the 
church gets the money. I assume that no one could sue under Missouri law to 
force the state to reclaim the money after it’s paid out, but I don’t actually 
know that.



They have been holding Douglas County Schools for Trinity Church. Douglas 
County presents more-or-less the same issue in the context of a school choice 
program. A reasonable prediction is either GVR or cert denied, depending on 
what happens on the merits in Trinity Church. But if Trinity Church is digged, 
or held moot, then it seems likely that those who voted 

Re: Is Trinity Lutheran Church moot?

[Eric J Segall]

I would just say Sandy, that when it comes to standing, ripeness and mootness, 
the only way the Court could act in a principled manner would be to shelve all 
prior cases and start over.

e

Sent from my iPhone

On Apr 18, 2017, at 6:45 PM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

I can’t refrain from asking the snarky question as to whether anyone believes 
that the decision of the Supreme Court to decide or to dump the case will 
represent a “principled” elaboration of mootness doctrine, as against 1) a 
desire by Gorsuch and the other four to announce their solicitude for religious 
organizations in a comparatively easy case; 2) a prudential desire by the Court 
to wait a while before it so clearly illustrates the possible difference 
between a Justice Gorsuch and Justice Garland (contrary to my assertion that 
this is an “easy” case, which rests on its not being a 5=4 decision.

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:36 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?


I am once again reminded why I refuse to teach the 11th Amendment :-).  But of 
course you are all correct, I had forgotten about that line of cases.



Ash


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D193880=02%7C01%7Cesegall%40gsu.edu%7C714646cdacde479b914908d486aca2bb%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636281523408998610=PqE5ZqjlSfdE5cshEYOIhkB0a6MORELMKhWpuUOSUpA%3D=0>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
<religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>>
Sent: Tuesday, April 18, 2017 2:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Is Trinity Lutheran Church moot?



See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):



"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.





- Jim





On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
<eseg...@gsu.edu<mailto:eseg...@gsu.edu>> wrote:

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:

Because the Court held that neither a state, nor a stat

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

[Eric J Segall]

When I worked for DOJ in the late 80's and litigated a major Chapter (now I 
think Title) 2 funding case in San Francisco, the main plaintiff's lawyer was a 
devout 7th Day Adventist who strongly feared government grants to religious 
schools would ultimately dissipate religious freedom. Many religious folks at 
the time held this view. I agree with Marty and Chris that this view seems to 
have largely disappeared.

Best,

Eric

Sent from my iPhone

On Apr 26, 2017, at 5:03 PM, Christopher Lund 
> wrote:

Marty makes some good points here.

It leads me back to a recurring thought I’ve had about Trinity Lutheran and 
Dignity Health.  They don’t have much in common.  But in both cases, the 
rationale for distinctive treatment rests on an old separationist rationale 
that few people believe anymore or even understand.  “Separation for the sake 
of separation,” they will say.  Marty talks about Trinity Lutheran this way and 
he’s right, but I think Dignity Health is strikingly similar.  If Dignity 
Health were litigated today, and the religious exemption were requested under 
RFRA or Sherbert/Yoder, would it even raise a genuine issue?  I assume not—I 
can’t see a cognizable burden on religion.

Things are changing all around.

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-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, April 22, 2017 11:36 AM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

Yes, but neither before, nor during, nor after, that 14-year window (1971-1985) 
did the Court ever suggest that direct money payments to a church would be 
constitutional under the Establishment Clause -- let alone that a state would 
be constitutionally prohibited from adhering to such a bright-line rule, 
something that 39 states have done for 200 or so years (Missouri's prohibition 
having been in its Constitution when it joined the union in 1821).  (And even 
in the states that do not have such an express prohibition, and within the 
federal government, I am not aware of any practice, until very recently, of 
direct money grants being given to churches.  The examples cited at pages 6-9 
of the Orthodox Jewish Congregations 
brief
 (cited by Justice Alito at oral argument) are all very recent.)

To the contrary, in the most recent direct funding case, Mitchell, Justice 
O'Connor's controlling opinion stated that there are “special dangers 
associated with direct money grants to religious institutions”—a “form of aid 
[that] falls precariously close to the original object of the Establishment 
Clause’s prohibition.”  And even in Rosenberger, Justice Kennedy's majority 
opinion stated that “we have recognized special Establishment Clause dangers 
where the government makes direct money payments to sectarian institutions” and 
that “[i]t is, of course, true that if the State pays a church’s bills it is 
subsidizing it, and we must guard against this abuse.”  (Both of these were, of 
course, in the context of "neutral" programs that did not favor religious 
recipients.)

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause constraint been virtually forgotten, the Court is likely 
on the verge of replacing a "no funding" prohibition with a "must fund" 
requirement!

He's also right that one major reason why this could happen is that the 
rationales for the "no funding" rule--in particular, Madison's 
church-autonomy-protective rationales--have virtually disappeared from the 
litigation, and from the public discourse more broadly.  (Note, for instance, 
that in Mitchell, O'Connor refers to "the original object of the Establishment 
Clause’s prohibition" without mentioning what it might be.)  One minor 
exception is the BJC amicus 

Re: Johnson Amendment E.O.

[Eric J Segall]

Depends entirely on whether Justice Alito gets his way.


e


From: religionlaw-boun...@lists.ucla.edu  
on behalf of David Cruz 
Sent: Thursday, May 4, 2017 11:12:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

(This) one would hope.


David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From:  on behalf of Marty Lederman 

Reply-To: Law & Religion issues for Law Academics 
Date: Thursday, May 4, 2017 at 8:08 AM
To: Law & Religion issues for Law Academics 
Subject: Re: Johnson Amendment E.O.

Well, if Hobby Lobby's dictum that RFRA radically altered the pre-Smith law 
were correct, that'd be one thing.  But it's 
not.
  And therefore doesn't the unanimous "no burden" holding in Jimmy Swaggart, 
cited by the court in Rossetti, pretty much settle the question?

___
To post, send message to Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: Johnson Amendment E.O.

[Eric J Segall]

I am new to this issue so pardon what might be an ignorant question. The 
government says to most non-profits if you want special tax treatment, you must 
give up certain rights to political speech. If that is constitutional, it seems 
like the government could say to churches if you want special tax treatment, 
you too must give up the exact political speech rights. Why in the world would 
we privilege political speech by churches over political speech by 
non-churches? Leaving aside EC and EP concerns, that seems plainly wrong.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 8:09 PM, Ira Lupu 
> wrote:

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a violation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
> wrote:

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu
SSRN: 
http://ssrn.com/author=261564
Weblog: http://www.mirrorofjustice.blogs.com 

-

From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Alan E Brownstein 
>
Sent: Thursday, May 4, 2017 2:01:34 PM
To: Law & Religion issues for Law Academics
Subject: 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 Court has 
held repeatedly that religious speech constitutes a viewpoint and that 
discrimination against such speech constitutes viewpoint discrimination -- 

Re: Johnson Amendment E.O.

[Eric J Segall]

I was referring to special rules for sermons as opposed to public speeches by 
the leaders of Planned Parenthood or the NRA.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 9:20 PM, Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:


The pending bills to amend the Johnson Amendment would apply to religious and 
secular charities alike.



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia
580 Massie Road
Charlottesville, VA 22903
434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Eric J Segall [eseg...@gsu.edu<mailto:eseg...@gsu.edu>]
Sent: Thursday, May 04, 2017 9:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Johnson Amendment E.O.

I am new to this issue so pardon what might be an ignorant question. The 
government says to most non-profits if you want special tax treatment, you must 
give up certain rights to political speech. If that is constitutional, it seems 
like the government could say to churches if you want special tax treatment, 
you too must give up the exact political speech rights. Why in the world would 
we privilege political speech by churches over political speech by 
non-churches? Leaving aside EC and EP concerns, that seems plainly wrong.

Best,

Eric

Sent from my iPhone

On May 4, 2017, at 8:09 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

I am wondering how far Tom's notion of privilege for sermons (compared with all 
other communications by leaders of non-profit groups or entities) can be 
carried.  Does anyone think that a clergyman, speaking in a sermon, has a 
privilege to defame a third party who is not a member of, or in any other 
relationship to, the worship community?  How about to incite imminent violence, 
or to threaten others with violence?  If there are no "sermon" privileges with 
respect to these speech wrongs, why should we treat differently those sermons 
that demonstrate a violation of the terms of tax exempt status? (The 
"ministerial exception" does not rest on a speech privilege, but let's not 
rehash all of that in this thread.) There is no justification for allowing tax 
deductible contributions to support political advocacy by paid clergy on any 
terms different from what is allowed to comparable spokespersons for secular 
non-profits. Indeed, Texas Monthly strongly suggests there is a constitutional 
bar on any such religious privilege in the substance of tax treatment,

I am completely mindful of the concerns about spying on clergy, sending into 
worship services agents wearing a wire, etc.  But so is the IRS.  And, as I 
recall, leading academics have suggested that infiltration of and spying on 
mosques in America is completely justified by the dangers of terrorism. I think 
that would be a presumptively terrible idea, but the relevant standards should 
be no different for a mosque as compared to a meeting of the White Nationalist 
Party.

On Thu, May 4, 2017 at 5:04 PM, Berg, Thomas C. 
<tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote:

Alan, do you think that "there can no special protection for religious speech" 
always trumps "don't delve into the content of clergy communications"? The 
rejection of clergy malpractice claims, which is thought to rest on 1st 
Amendment grounds, is a special protection for clergy communications and not 
communications by other counselors. Why don't ministers' sermons likewise fit 
into the zone where there is special concern for non-interference?


-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: 
tcb...@stthomas.edu<https://na01.safelinks.protection.outlook.com/?url=https%3A%2F%2Fmail.stthomas.edu%2Fowa%2Fredir.aspx%3FC%3D6b610058a5ad42118976395f869e05d3%26URL%3Dmailto%253atcberg%2540stthomas.edu=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=N7JJIM1E91%2BY5JrCb8HFNhbwLpAkCO7NCiBXt7D0lwI%3D=0>
SSRN: 
http://ssrn.com/author=261564<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fssrn.com%2Fauthor%3D261564=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7C515ad73d8d5e4169895c9789dc742a70%7C0%7C0%7C636295397473530238=VcxvNDICm4MfErhl8TfBN4hPSNC4fR3NXFNYQc8oDKE%3D=0>
Weblog: http://www.mirrorofjustice.blogs.com 
<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.mirrorofjustice.blogs.com=02%7C01%7Cesegall%40gsu.edu%7C65a76881c98f4005692508d4934af199%7