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

[James Oleske]

The petitioner's briefing at the cert stage of this case has been
profoundly discouraging.

Although the case does raise a genuinely interesting question that may be
worthy of Supreme Court review -- must a RFRA plaintiff show "an honest
belief that the practice is important to his free exercise of religion" --
the original cert petition completely ignored the CAAF's "honest
belief/important" language in an effort to portray the case as implicating
a circuit split over whether the religious practice at issue must be
"religiously compelled."

Then, after the federal government pointed out this mischaracterization and
the petitioner was forced to acknowledge the CAAF's "honest
belief/important" language in its reply, the petitioner continued to insist
the CAAF was on the wrong side of a circuit split without acknowledging
that the two circuits that have used the same "honest belief/important"
test as the CAAF (5th and 10th) are circuits petitioner claims are on the
right side of the split. *See *Abdulhaseeb v. Calbone, 600 F.3d 1301, 1316
(10th Cir. 2010) ("The practice burdened need not be central to the
adherent's belief system, but the adherent must have an honest belief that
the practice is important to his free exercise of religion.") (quoting Sossamon
v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir. 2009)).

Although the reader would never know it from the petitioner's argument,
 the CAAF decision was explicitly rooted in the 5th and 10th Circuit's
approaches:

But while we will not assess the importance of a religious practice to a
practitioner's exercise of religion or impose any type of centrality test,
a claimant must at least demonstrate “an honest belief that the practice is
important to [her] free exercise of religion” in order to show that a
government action substantially burdens her religious exercise. Sossamon,
560 F.3d at 332; see also Ford, 352 at 593–94. A substantial burden is not
measured only by the secular costs that government action imposes; the
claimant must also establish that she believes there are religious costs as
well, and this should be clear from the record. See Ira C. Lupu, Hobby
Lobby and the Dubious Enterprise of Religious Exemptions, 38 Harv. J.L. &
Gender 35, 80 (2015); cf. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (10th
Cir.2010).

United States v. Sterling, 75 M.J. 407, 417–18 (C.A.A.F. 2016)


In the ultimate irony, the petitioner's reply brief relies on the 10th
Circuit's decision in Calbone without acknowledging that that decision
approved the "honest belief" test applied by CAAF.

As of today, there is no circuit split over the "honest belief" test
applied by the 5th Circuit, the 10th Circuit, and the CAAF. Perhaps the
issue is important enough that the Supreme Court should grant cert in the
absence of as split, but the petitioner's briefing in this case has been
far less than forthright.

- Jim


On Fri, May 5, 2017 at 8:20 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> Paul Clement's reply brief
> .
> Case schedule for Conference on 05/18.
>
> On Mon, Feb 20, 2017 at 3:05 PM, Marty Lederman  georgetown.edu> wrote:
>
>> 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

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

[James Oleske]

I'm confused about how the "deal" has changed.

The Title VII exemption allowing religious preferences by religious
organizations has remained the same since its expansion in 1972, and the
key cases rejecting its application to other types of discrimination were
decided in the 1980s -- the same period Eric refers to below. See Rayburn
v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) ("While the language of § 702 makes clear that religious institutions
may base relevant hiring decisions upon religious preferences, Title VII
does not confer upon religious organizations a license to make those same
decisions on the basis of race, sex, or national origin.") (collecting
cases).

The Court unanimously recognized the ministerial exception in 2012,
explicitly following the pattern established by the circuit courts since
the 1970s.

Sure, there are some commentators who opposed both the 1972 expansion of
the Title VII exemption and the Court's 2012 recognition of the ministerial
exception, but I'm having difficulty seeing how the prevailing
understanding of "church autonomy" to "hire and fire for religious reasons"
has changed.

- Jim


On Wed, Apr 26, 2017 at 2:47 PM, Marc Stern  wrote:

> That’s all true, but the deal used to be no funding and lots of church
>  autonomy in return., including the right to hire and fire for religious
> reasons. The same folks who complain about government funding are quite
> willing to  allow government regulation of religious organizations with our
> regard to funding.
>
>
>
> Marc D. Stern
>
> General Counsel
>
> AJC
>
> 212 891 1480 <(212)%20891-1480>
>
> 646 289 2707 <(646)%20289-2707> (c )
>
> 212 891 1495 <(212)%20891-1495> (f)
>
> ste...@ajc.org
>
> www.ajc.org
>
> Facebook.com/AJCGlobal 
>
> Twitter.com/AJCGlobal 
>
> [image: Description: cid:image005.jpg@01CFA04D.71B24C30]
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Eric J Segall
> *Sent:* Wednesday, April 26, 2017 5:17 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Trinity Lutheran and the ERISA cases - Do Churches Want
> Special Treatment or Not?
>
>
>
> 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-bounces@
> 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 

Re: Is Trinity Lutheran Church moot?

[James Oleske]

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  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> 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 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu ] *On Behalf Of *Ashutosh
> A Bhagwat
> *Sent:* Tuesday, April 18, 2017 5:31 PM
> *To:* Law & Religion issues for Law Academics 
> *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
> 
>
>
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu  ucla.edu> on behalf of Laycock, H Douglas (hdl5c) 
> *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 <(434)%20243-8546>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu ] *On Behalf Of *Eric
> J Segall
> *Sent:* Tuesday, April 18, 2017 5:13 PM
> *To:* Law & Religion issues for Law Academics 
> *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> 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 

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

[James Oleske]

It is also worth noting that Texas has filed an amicus brief in support of
Sterling's cert. petition that appears to be in some tension with the
state's 5th Circuit brief in *Sossoman*.

Compare Texas Amicus Br. in Sterling at 6-9 ("The Court Below *Wrongly
Inquired into the Religious Importance* of an Exercise of Religion
courts should not embark on an attempt to pronounce the centrality,
*importance,
or significance of a religiously motivated practice in a person’s faith*")
(emphasis added) with Texas Supp. Br. in Sossamon at ("A government action
or regulation creates a 'substantial burden' on a religious exercise if it
truly pressures the adherent to significantly modify his religious
behavior *and
significantly violate his religious beliefs*") (emphasis added) (citing for
support the very page of the Fifth Circuit case, Adkins v. Kaspar, in which
that court first held that a RLUIPA claimant bears the "burden of
demonstrating the honesty and accuracy of his contention that the religious
practice at issue *is important to the free exercise of his religion*").

Like Sterling's cert. petition, Texas's supporting amicus brief
completely ignores the "honest belief" component of the CAAF's "important
to free exercise" reasoning, even though that component comes directly from
the Fifth Circuit's decision in *Sossamon*, which in turn relied on the
earlier *Adkins* case cited in Texas's *Sossamon *brief.

- Jim


On Tue, Feb 21, 2017 at 7:08 AM, James Oleske <jole...@lclark.edu> wrote:

> Thanks to Marty for re-upping this thread. Two initial, related thoughts:
>
> 1. It would be very interesting to hear from Chip on this issue, as the
> Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent
> article, "*Hobby Lobby* and the Dubious Enterprise of Religious
> Exemptions," for the proposition that RFRA's "substantial burden" inquiry
> includes both a "secular cost" and a "religious cost" component.
>
> 2. Interestingly, although the CAAF does not explicitly acknowledge Chip's
> warning about the dangers of the "religious cost" component of the
> substantial-burden inquiry -- that "to the extent the regime permits judges
> to determine the religious weight and significance of certain practices,
> the regime unconstitutionally entrusts the state with questions that it is
> constitutionally incompetent to answer" -- the CAAF applies the "religious
> cost" component in a way that seems designed to avoid the danger by only
> asking whether the claimant demonstrated an "honest belief" that there was
> a religious cost:
>
> [W]hile we will not assess the importance of a religious practice to a
> practitioner’s exercise of religion or impose any type of centrality test,
> a claimant must at least demonstrate “an honest belief that the practice is
> important to [her] free exercise of religion” in order to show that a
> government action substantially burdens her religious exercise. *Sossamon*,
> 560 F.3d at 332 …. This requirement is not novel; language in central
> Supreme Court opinions on the question of substantial burden affirms that
> the adherent’s subjective belief in the importance of a practice to her
> religion is relevant to the sub- stantial burden inquiry…. In this case,
> Appellant did not present any testimony that the signs were important to
> her exercise of religion …. While Appellant testified that posting the
> signs was religiously motivated in part, she did not testify that she
> believed it is any tenet or practice of her faith to display signs at
> work…. Although Appellant did not have to provide evidence that posting
> signs in her shared workspace was central to her belief system, she did
> have to provide evidence indicating an honest belief that “the practice
> [was] important to [her] free exercise of religion.” *See Sossamon, *560
> F.3d at 332.
>
>
> Notably, the cert. petition completely ignores the "honest belief"
> component of the CAAF's reasoning above, reframing the CAAF's holding as
> follows:
>
> The CAAF focused on "the subjective importance of the conduct to the
> person’s religion,” and *it held that adherents must show that a desired
> practice “is important to her religious exercise”* and implicates a
> “tenet” or precept” of her faith. This entire line of inquiry, which was
> central to the CAAF’s rejection of LCpl Sterling’s RFRA claim, took the
> CAAF to a place no secular court is equipped or authorized to go. (emphasis
> added).
>
>
> The petition also ignores the fact that the CAAF's "honest belief that the
> practice is important" test comes from the Fifth Circuit's decision in
> *Sossamon*, a decision that is nowhere acknowle

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

[James Oleske]

Thanks to Marty for re-upping this thread. Two initial, related thoughts:

1. It would be very interesting to hear from Chip on this issue, as the
Court of Appeals for the Armed Forces (CAAF) explicitly cited his excellent
article, "*Hobby Lobby* and the Dubious Enterprise of Religious
Exemptions," for the proposition that RFRA's "substantial burden" inquiry
includes both a "secular cost" and a "religious cost" component.

2. Interestingly, although the CAAF does not explicitly acknowledge Chip's
warning about the dangers of the "religious cost" component of the
substantial-burden inquiry -- that "to the extent the regime permits judges
to determine the religious weight and significance of certain practices,
the regime unconstitutionally entrusts the state with questions that it is
constitutionally incompetent to answer" -- the CAAF applies the "religious
cost" component in a way that seems designed to avoid the danger by only
asking whether the claimant demonstrated an "honest belief" that there was
a religious cost:

[W]hile we will not assess the importance of a religious practice to a
practitioner’s exercise of religion or impose any type of centrality test,
a claimant must at least demonstrate “an honest belief that the practice is
important to [her] free exercise of religion” in order to show that a
government action substantially burdens her religious exercise. *Sossamon*,
560 F.3d at 332 …. This requirement is not novel; language in central
Supreme Court opinions on the question of substantial burden affirms that
the adherent’s subjective belief in the importance of a practice to her
religion is relevant to the sub- stantial burden inquiry…. In this case,
Appellant did not present any testimony that the signs were important to
her exercise of religion …. While Appellant testified that posting the
signs was religiously motivated in part, she did not testify that she
believed it is any tenet or practice of her faith to display signs at
work…. Although Appellant did not have to provide evidence that posting
signs in her shared workspace was central to her belief system, she did
have to provide evidence indicating an honest belief that “the practice
[was] important to [her] free exercise of religion.” *See Sossamon, *560
F.3d at 332.


Notably, the cert. petition completely ignores the "honest belief"
component of the CAAF's reasoning above, reframing the CAAF's holding as
follows:

The CAAF focused on "the subjective importance of the conduct to the
person’s religion,” and *it held that adherents must show that a desired
practice “is important to her religious exercise”* and implicates a “tenet”
or precept” of her faith. This entire line of inquiry, which was central to
the CAAF’s rejection of LCpl Sterling’s RFRA claim, took the CAAF to a
place no secular court is equipped or authorized to go. (emphasis added).


The petition also ignores the fact that the CAAF's "honest belief that the
practice is important" test comes from the Fifth Circuit's decision in
*Sossamon*, a decision that is nowhere acknowledged in the petition. This
oversight is particularly interesting given that the petition seeks to
portray the CAAF's decision as being on the wrong side of a circuit split
in which the Fifth Circuit allegedly represents the right side.

- Jim


On Mon, Feb 20, 2017 at 12:05 PM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> 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 

Re: Arlene's Flowers

[James Oleske]

Stutzman did make an argument in that regard, and the Washington Supreme
Court did squarely address it, but neither Stutzman nor the court sharply
distinguished Stutzman's "least restrictive means/narrowly tailored"
argument from her "serves a compelling state interest" argument.

Stutzman's brief included a short section on "narrowly tailored means" (Br.
at 47-48) asserting that the "State must prove that the violation of Mrs.
Stutzman’s fundamental rights is absolutely necessary to accomplish its
asserted interests" and arguing that the State could not do so because
Stutzman was willing to make "good-faith referrals to an alternate
provider" and the same-sex couple "confirmed they had multiple offers from
florists to do their wedding."

A page earlier (Br. at 46), Stutzman made the same argument within the
"does not serve a compelling interest" section of her brief, arguing
that it was "completely unnecessary as a practical matter" to require
Arlene's Flowers to provide the service because the couple "had no trouble
finding another florist in the Tri-Cities area who was happy to design
flowers for their wedding" and "received multiple offers to do so for free."

The court explicitly addressed this argument, but quoted from the version
of the argument laid out in the "does not serve a compelling interest"
section of Stutzman's brief rather than the "narrowly tailored means"
section. Here is the Court's response to the argument:

Stutzman argues that strict scrutiny is not satisfied in this case. She
reasons that since other florists were willing to serve Ingersoll, no real
harm will come from her refusal. And she maintains that the government
therefore can't have any compelling interest in applying the WLAD to her
shop. In other words, Stutzman contends that there is no reason to enforce
the WLAD when, as she puts it, "[N]o access problem exists."

We emphatically reject this argument. We agree with Ingersoll and Freed
that "[t]his case is no more about access to flowers than civil rights
cases in the 1960s were about access to sandwiches." As every other court
to address the question has concluded, public accommodations laws do not
simply guarantee access to goods or services. Instead, they serve a broader
societal purpose: eradicating barriers to the equal treatment of all
citizens in the commercial marketplace. *Were we to carve out a patchwork
of exceptions for ostensibly justified discrimination, that purpose would
be fatally undermined*. Slip. Op. at 52 (emphasis added)


In addition to the final sentence in the passage above, the court also
favorably quoted "no less restrictive means"/"could be substantially
frustrated"/"defeat its compelling purpose" language from several earlier
cases upholding the denial of exemptions from antidiscrimination laws
(Slip. Op. at 51).

- Jim

On Thu, Feb 16, 2017 at 9:26 AM, Marty Lederman <
martin.leder...@law.georgetown.edu> wrote:

> No specific discussion of the "least restrictive means" requirement.  Did
> Stutzman make any argument in that regard?
>
> On Thu, Feb 16, 2017 at 12:08 PM, James Oleske <jole...@lclark.edu> wrote:
>
>> One initial observation: While much of the ground in the opinion has
>> previously been covered by courts in New Mexico and Colorado, this case
>> involved one issue not present in prior "wedding vendor" cases: an
>> exemption claim under a state constitutional provision that has been
>> interpreted to require strict scrutiny post-Smith of burdens imposed by
>> neutral and generally applicable laws (see pages 42-53 of the opinion).
>>
>> - Jim
>>
>>
>> On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
>> hd...@virginia.edu> wrote:
>>
>>> Unanimous affirmance.
>>>
>>>
>>>
>>> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>>>
>>>
>>>
>>> Douglas Laycock
>>>
>>> Robert E. Scott Distinguished Professor of Law
>>>
>>> University of Virginia Law School
>>>
>>> 580 Massie Road
>>>
>>> Charlottesville, VA 22903
>>>
>>> 434-243-8546 <(434)%20243-8546>
>>>
>>>
>>>
>>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Arlene's Flowers

[James Oleske]

One initial observation: While much of the ground in the opinion has
previously been covered by courts in New Mexico and Colorado, this case
involved one issue not present in prior "wedding vendor" cases: an
exemption claim under a state constitutional provision that has been
interpreted to require strict scrutiny post-Smith of burdens imposed by
neutral and generally applicable laws (see pages 42-53 of the opinion).

- Jim


On Thu, Feb 16, 2017 at 9:00 AM, Laycock, H Douglas (hdl5c) <
hd...@virginia.edu> wrote:

> Unanimous affirmance.
>
>
>
> https://www.courts.wa.gov/opinions/index.cfm?fa=opinions.recent
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA 22903
>
> 434-243-8546 <(434)%20243-8546>
>
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Symposium Issue: Law and Religion in an Increasingly Polarized America

[James Oleske]

Dear Colleagues,

I am pleased to announce the publication of "Law and Religion in an
Increasingly Polarized America," a symposium issue of the Lewis & Clark Law
Review. The nine papers in the symposium offer a variety of perspectives on
religious accommodation and church-state boundaries, and all of the papers
can be found online at the following link:

https://law.lclark.edu/law_reviews/lewis_and_clark_law_review/past_issues/volume-20/volume-20-number-4-2017/

I am extremely grateful to the extraordinary group of scholars who agreed
to contribute to the symposium, and I do hope folks have an opportunity to
read all of the papers (the titles of which are listed below).

Best,

Jim Oleske


*SYMPOSIUM: LAW AND RELIGION IN AN INCREASINGLY POLARIZED AMERICA*

*The Disappearance of Religion from Debates about Religious Accommodation *
Kathleen A. Brady

*Religious Accommodation, Religious Tradition, and Political Polarization*
Marc O. DeGirolami

*Religion and Polarization: Various Relations and How to Contribute
Positively Rather than Negatively*
Kent Greenawalt

*Kingdom Without End? The Inevitable Expansion of Religious Sovereignty
Claims*
B. Jessie Hill

*If Liberals Knew Themselves Better, Conservatives Might Like them Better*
Andrew Koppelman

*Agora, Dignity, and Discrimination: On the Constitutional Shortcomings of
“Conscience” Laws that Promote Inequality in the Public Marketplace*
Ronald J. Krotoszynski, Jr.

*The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church &
School v. EEOC*
Ira C. Lupu & Robert W. Tuttle

*A Regrettable Invitation to “Constitutional Resistance,” Renewed Confusion
over Religious Exemptions, and the Future of Free Exercise*
James M. Oleske, Jr.

*The Nonsense About Bathrooms: How Purported Concerns Over Safety Block
LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns*
Robin Fretwell Wilson
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Religious Test for Immigration/Refugee--Lawsuits?

[James Oleske]

The first count of the complaint filed today in the Eastern District of
Virginia by CAIR lawyers challenging the EO is based on the Establishment
Clause (the complaint also raises free exercise, equal protection, and APA
arguments):

https://assets.documentcloud.org/documents/3438649/Complaint-Sarsour-ED-Va.pdf

In addition, the national legal director of the ACLU has indicated that
they will be challenging the EO on Establishment Clause grounds, and he has
previewed the argument here:

https://www.justsecurity.org/36936/well-court-trumps-executive-order-refugees-violates-establishment-clause/

- Jim


On Mon, Jan 30, 2017 at 7:11 AM, Hillel Y. Levin 
wrote:

> Is anyone aware of or involved in lawsuits that have been filed
> challenging the distinction between Christian and Muslim
> refugees/immigrants in Trump's EOs on Estab Clause grounds?
>
> --
> Hillel Y. Levin
> Associate Professor
> University of Georgia School of Law
> Director, Georgia Law in Atlanta
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=
> 466645
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Scalia's views of RFRA?

[James Oleske]

During the Holt v. Hobbs oral argument, in discussing the strict scrutiny
standard in RLUIPA, Justice Scalia said the following:

"We’re talking here about a compelling State interest. *Bear in mind
I would not have enacted this statute*, but there it is. It says there has
to be a compelling State interest. And you’re ­­ you’re asking, well,
let’s balance things; let’s be reasonable. Compelling State interest is not
a reasonableness test at all." (emphasis added)

- Jim

On Tue, Nov 22, 2016 at 1:07 PM, Case, Mary Anne 
wrote:

> Other than his stray remarks at the Hobby Lobby oral argument (for example
> noting that RFRA went beyond the pre-Smith case law in mandating not just a
> compelling state interest but narrow tailoring) did Scalia ever in any
> venue set forth his views on RFRA (for example expressing disappointment
> that Congress had rejected his bid for a clear rule and sent back to judges
> the task of “weigh[ing] the social importance of all laws against the
> centrality of all religious beliefs”(Smith) or expressing satisfaction that
> exemptions now had the democratic warrant he said in Smith they needed?
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

Agreed on all fronts, Marty.

I would just add this regarding the observation that Stutzman "purportedly
doesn't care about what Robert Ingersoll's sexual orientation is, or
whether he has sex with Curt Freed."

Whatever may the source of opposition to same-sex marriage in specific
cases, the available data would indicate that the vast majority of people
who oppose legalization of same-sex marriage also believe "gay and lesbian
relations" more broadly are "morally wrong." See
http://www.gallup.com/poll/1651/gay-lesbian-rights.aspx (May 2016 results
showing 37% opposition to same-sex marriage and 37% belief that gay and
lesbian relations are morally wrong).

See also Justice Scalia in Lawrence, stating that "'preserving the
traditional institution of marriage' is just a kinder way of describing the
State’s moral disapproval of same-sex couples."

There may, of course, be exceptions, just as there may be instances of
people who oppose interracial or interfaith marriage without believing in
the superiority or inferiority of particular races or religion. But if
exemptions from the civil rights laws are to be given for such individuals,
I don't think the way to do it is to interpret [racial
discrimination][religious discrimination][sexual-orientation
discrimination] as not including refusals of service to
[interracial][interfaith][same-sex] couples.

- Jim


On Wed, Oct 12, 2016 at 2:18 PM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> Thanks, Jim.  I'd be *very *surprised if the Washington Supreme Court
> decides otherwise.  But even apart from the absence of any prospect of
> success, what's so striking about the scholars' amicus brief is that it
> doesn't even try to contend with this Colorado decision, or with most of
> the Supreme Court and other cases cited therein -- let alone offer any
> analysis of the Washington statute at issue.  Instead, it ultimately falls
> back on the argument that Arlene's Flowers doesn't discriminate on the
> basis of sexual orientation because it would also refuse to make
> arrangements for two *heterosexual *men who chose to marry one
> another--an argument that doesn't warrant much more of a response than the
> one paragraph (para. 41) the Colorado court gives it, citing *Bray*.
>
> It's also worth noting that the basic argument in the scholars' brief is
> that this is a form of *sex *discrimination rather than *sexual
> orientation* discrimination (Stutzman purportedly doesn't care about what
> Robert Ingersoll's sexual orientation is, or whether he has sex with Curt
> Freed, but "only" about the fact that Freed is the same sex as
> Ingersoll--if Ingersoll were a woman, she'd sell him flower arrangements
> for the marriage to Freed).  But in that case, its coverage under the act
> would be even more self-evident, wouldn't it?
>
> On Wed, Oct 12, 2016 at 4:55 PM, James Oleske <jole...@lclark.edu> wrote:
>
>> In case it's of interest, I believe the most extensive judicial
>> discussion of this issue to date comes from the Colorado Court of Appeals
>> in the Masterpiece Caskeshop case:
>> https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
>> on/2015/14CA1351-PD.pdf (pages 12-23).
>>
>> In concluding that a refusal to provide marriage-related services to a
>> same-sex couple constitutes sexual-orientation discrimination under
>> Colorado's civil rights law, the court relies on reasoning in Bob Jones,
>> CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).
>>
>> The court also rejects the bakery's First Amendment compelled speech and
>> free exercise (selective-exemption theory) arguments, and those issues are
>> the subject of a cert. petition pending with the United States Supreme
>> Court (the Colorado Supreme Court denied cert in the case):
>> http://www.adfmedia.org/files/MasterpieceCertPetition.pdf
>>
>> I think it is unlikely the Court will grant cert. in the Masterpiece
>> Cakeshop case, and I think the compelled speech argument is a very
>> difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
>> FAIR. But I do think the Court will eventually have to take a case to
>> resolve the outstanding questions about the contours of the free-exercise,
>> selective-exemption rule (aka the "Sherbert exception to Smith" or "how
>> much underinclusion makes a law non-generally applicable?"). Three justices
>> recently gave an indication of where they were on that issue in Stormans v.
>> Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
>> joined by the Chief and Justice Thomas).
>>
>> Colorado's brief in opposition to Masterpiece's petition is due on
>> November 29.
>>
&g

Re: Noteworthy, puzzling scholars' brief in Arlene Flowers

[James Oleske]

In case it's of interest, I believe the most extensive judicial discussion
of this issue to date comes from the Colorado Court of Appeals in the
Masterpiece Caskeshop case:
https://www.courts.state.co.us/Courts/Court_of_Appeals/Opini
on/2015/14CA1351-PD.pdf (pages 12-23).

In concluding that a refusal to provide marriage-related services to a
same-sex couple constitutes sexual-orientation discrimination under
Colorado's civil rights law, the court relies on reasoning in Bob Jones,
CLS, Elane Photgraphy, and Obergefell (see pages 15-18 of the decision).

The court also rejects the bakery's First Amendment compelled speech and
free exercise (selective-exemption theory) arguments, and those issues are
the subject of a cert. petition pending with the United States Supreme
Court (the Colorado Supreme Court denied cert in the case):
http://www.adfmedia.org/files/MasterpieceCertPetition.pdf

I think it is unlikely the Court will grant cert. in the Masterpiece
Cakeshop case, and I think the compelled speech argument is a very
difficult one in light of the Chief's opinion for the Court in Rumsfeld v.
FAIR. But I do think the Court will eventually have to take a case to
resolve the outstanding questions about the contours of the free-exercise,
selective-exemption rule (aka the "Sherbert exception to Smith" or "how
much underinclusion makes a law non-generally applicable?"). Three justices
recently gave an indication of where they were on that issue in Stormans v.
Wiesman (Part III.B. of Justice Alito's dissent from the denial of cert.,
joined by the Chief and Justice Thomas).

Colorado's brief in opposition to Masterpiece's petition is due on November
29.

- Jim


On Mon, Oct 10, 2016 at 7:40 AM, Marty Lederman 
wrote:

> Some of you may be familiar with the *Washington v. Arlene's Flowers*
> case, which will be argued in the Washington Supreme Court next month.
> Barronelle Stutzman and her husband are the owners of Arlene’s Flowers,
> Inc., a closely held for-profit corporation.  Over the course of nine
> years, Stutzman regularly sold floral arrangements to Robert Ingersoll,
> knowing that he was gay.  When Ingersoll asked Stutzman to sell him flower
> arrangements for his wedding to Curt Freed, however, she refused to provide
> them, even if they were prepared by others in her shop, because doing so,
> she claimed, would "constitute a demonstration of [her] approval for the
> wedding," whereas in fact she has religious objections to same-sex
> marriages.  (She agreed to provide the raw materials for the
> arrangements--the flowers and such--but not to have her shop do the
> arranging.)
>
> The Washington Attorney General sued Arlene's Flowers, seeking an
> injunction against such discrimination in the future.  (Ingersoll and Freed
> also sued, seeking nominal damages for the costs they incurred when
> Stutzman refused to serve them.)  The principal basis for the suit is a
> claim of discrimination on the basis of sexual orientation, prohibited by
> the Washington Law Against Discrimination (WLAD), RCW 49.60.215, which
> provides that "It shall be an unfair practice for any person or the
> person's agent or employee to commit an act which *directly or indirectly*
> results in *any* distinction, restriction, or discrimination, . . . or
> the refusing or withholding from any person the admission, patronage,
> *custom*, presence, frequenting, dwelling, staying, or lodging in any
> place of public resort, accommodation, assemblage, or amusement."  The
> forms of prohibited discrimination are listed in RCW 49.60.030:  "The right
> to be free from discrimination because of race, creed, color, national
> origin, sex, honorably discharged veteran or military status, *sexual
> orientation*, or the presence of any sensory, mental, or physical
> disability or the use of a trained dog guide or service animal by a person
> with a disability is recognized as and declared to be a civil right. This
> right shall include, but not be limited to: . . . (b) The right *to the
> full enjoyment *of any of the accommodations, advantages, facilities, or
> privileges of any place of public resort, accommodation, assemblage, or
> amusement."
>
> Stutzman defended on both statutory and state and federal constitutional
> (Free Speech and Free Exercise) grounds; but the lower court ruled
> 
> in favor of the Attorney General.  The appeal from that decision is now
> before the Washington Supreme Court, which will hear arguments in about
> five weeks.
>
> A couple of weeks ago, a group of 27 scholars, some of whom are on these
> listservs, filed an amicus brief
>  on behalf of
> Arlene's Flowers.  (According to Rick Garnett, it was written by Steve
> Smith, although he is not listed as counsel.)  That brief does not make a
> 

Re: New Version of Proposed First Amendment Defense Act

[James Oleske]

Agreed.

That said, Judge Reeves's concern about "religious preference" in HB 1523
went beyond the "one side of same-sex marriage" issue. See Reeves Op. at 50
("Some Jewish and Muslim citizens may sincerely believe that their faith
prevents them from participating in, recognizing, or aiding an interfaith
marriage Why should a clerk with such a religious belief not be allowed
to recuse from issuing a marriage license to an interfaith couple, while
her coworkers have the full protections of HB 1523?"). To fully address
Judge Reeves's concerns, I think the FADA sponsors would have had to expand
protection to all religious beliefs about marriage. So extended, however,
the bill would likely lose any chance it previously may have had of passing
in the House.

The other dynamic I think is at work here is a tension between the
priorities of (1) achieving protection of religious dissenters though
exemption bills and (2) using exemption bills to resist Obergefell. FRC's
statement indicates that there will be reluctance among some FADA
supporters to sacrifice #2 to achieve #1.

- Jim


On Wed, Jul 13, 2016 at 3:52 PM, Michael Masinter <masin...@nova.edu> wrote:

> The “both sides” language may be a response to Judge Reeves’ injunction
> against enforcement of Mississippi’s HB 1523.  Judge Reeves enjoined
> enforcement of HB 1523 in part because, in his view, it created a
> discriminatory religious preference, protecting those who for religious
> reasons opposed same sex marriage but not those who for religious reasons
> favored it.  Although the state has appealed his ruling and sought a stay
> of his injunction pending appeal, some FADA proponents might have thought
> it wise to account for it lest it fail in the House even before facing
> certain death in the Senate.
>
>
>
> Mike
>
>
>
>
>
> Michael R. Masinter
>
> Professor of Law
>
> Nova Southeastern University
>
> 3305 College Avenue
>
> Fort Lauderdale, FL 33314
>
> 954.262.6151
>
> masin...@nova.edu
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Wednesday, July 13, 2016 6:29 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: New Version of Proposed First Amendment Defense Act
>
>
>
> Update: The Family Research Council has pulled it's support of FADA due to
> the change described below.
>
>
>
> https://www.frcaction.org/updatearticle/20160713/fada-concession
>
>
>
> It's been a very interesting week for FADA, between the RNC Platform
> Committee endorsement Monday, the House hearing yesterday, and conflicting
> messages from its supporters today (Heritage has invoked the "both sides"
> aspect of the revised FADA to defend it, while that is precisely what has
> led FRC to withdraw its support of the bill).
>
>
>
> - Jim
>
>
>
>
>
> On Wed, Jul 13, 2016 at 8:47 AM, James Oleske <jole...@lclark.edu> wrote:
>
> In the wake of yesterday's hearing on the proposed First Amendment Defense
> Act (FADA), which now has 171 co-sponsores in the House, there has been
> some confusion about the text of the bill. I believe the source of this
> confusion is the fact that the version discussed at the hearing was neither
> (1) the introduced version of the bill, which is the only version available
> on Congress.gov nor (2) the revised version of the bill posted by Senator
> Lee last September, which limited the definition of protected "persons" to
> exclude federal employees working within the scope of employment,
> for-profit federal contractors operating within the scope of their
> contract, and medical providers with respect to issues of visitation and
> provision of care.
>
>
>
> The version discussed at the hearing is available here:
>
>
>
>
> https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf
>
>
>
> In addition to including the modifications proposed by Senator Lee last
> September, the newest proposal appears designed to address concerns about
> viewpoint discrimination and equal protection by making the following
> modification to the first paragraph of the bill's operative section (new
> provision in all caps):
>
>
>
> "Notwithstanding any other provision of law, the Federal Government shall
> not take any discriminatory action against a person, wholly or partially on
> the basis that such person believes, speaks, or acts in accordance with a
> sincerely held religious belief or moral conviction that (1) marriage is or
> should be recognized as the u

Re: New Version of Proposed First Amendment Defense Act

[James Oleske]

Update: The Family Research Council has pulled it's support of FADA due to
the change described below.

https://www.frcaction.org/updatearticle/20160713/fada-concession

It's been a very interesting week for FADA, between the RNC Platform
Committee endorsement Monday, the House hearing yesterday, and conflicting
messages from its supporters today (Heritage has invoked the "both sides"
aspect of the revised FADA to defend it, while that is precisely what has
led FRC to withdraw its support of the bill).

- Jim


On Wed, Jul 13, 2016 at 8:47 AM, James Oleske <jole...@lclark.edu> wrote:

> In the wake of yesterday's hearing on the proposed First Amendment Defense
> Act (FADA), which now has 171 co-sponsores in the House, there has been
> some confusion about the text of the bill. I believe the source of this
> confusion is the fact that the version discussed at the hearing was neither
> (1) the introduced version of the bill, which is the only version available
> on Congress.gov nor (2) the revised version of the bill posted by Senator
> Lee last September, which limited the definition of protected "persons" to
> exclude federal employees working within the scope of employment,
> for-profit federal contractors operating within the scope of their
> contract, and medical providers with respect to issues of visitation and
> provision of care.
>
> The version discussed at the hearing is available here:
>
>
> https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf
>
> In addition to including the modifications proposed by Senator Lee last
> September, the newest proposal appears designed to address concerns about
> viewpoint discrimination and equal protection by making the following
> modification to the first paragraph of the bill's operative section (new
> provision in all caps):
>
> "Notwithstanding any other provision of law, the Federal Government shall
> not take any discriminatory action against a person, wholly or partially on
> the basis that such person believes, speaks, or acts in accordance with a
> sincerely held religious belief or moral conviction that (1) marriage is or
> should be recognized as the union of (A) two individuals of the opposite
> sex; or (B) TWO INDIVIDUALS OF THE SAME SEX; or (2) extramarital relations
> are improper."
>
> As previously discussed on the list, "discriminatory action" is defined to
> include, among other things, "caus[ing] any tax, penalty, or payment to be
> assessed against."
>
> Under this latest modification to FADA, those with religious objections to
> facilitating opposite sex marriage (if any such individuals or entities
> exist) would have the same protection as those with religious objections to
> facilitating same-sex marriage.
>
> The bill's findings (Section 2) remain focused on religious objections to
> same-sex marriage.
>
> - Jim
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

New Version of Proposed First Amendment Defense Act

[James Oleske]

In the wake of yesterday's hearing on the proposed First Amendment Defense
Act (FADA), which now has 171 co-sponsores in the House, there has been
some confusion about the text of the bill. I believe the source of this
confusion is the fact that the version discussed at the hearing was neither
(1) the introduced version of the bill, which is the only version available
on Congress.gov nor (2) the revised version of the bill posted by Senator
Lee last September, which limited the definition of protected "persons" to
exclude federal employees working within the scope of employment,
for-profit federal contractors operating within the scope of their
contract, and medical providers with respect to issues of visitation and
provision of care.

The version discussed at the hearing is available here:

https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf

In addition to including the modifications proposed by Senator Lee last
September, the newest proposal appears designed to address concerns about
viewpoint discrimination and equal protection by making the following
modification to the first paragraph of the bill's operative section (new
provision in all caps):

"Notwithstanding any other provision of law, the Federal Government shall
not take any discriminatory action against a person, wholly or partially on
the basis that such person believes, speaks, or acts in accordance with a
sincerely held religious belief or moral conviction that (1) marriage is or
should be recognized as the union of (A) two individuals of the opposite
sex; or (B) TWO INDIVIDUALS OF THE SAME SEX; or (2) extramarital relations
are improper."

As previously discussed on the list, "discriminatory action" is defined to
include, among other things, "caus[ing] any tax, penalty, or payment to be
assessed against."

Under this latest modification to FADA, those with religious objections to
facilitating opposite sex marriage (if any such individuals or entities
exist) would have the same protection as those with religious objections to
facilitating same-sex marriage.

The bill's findings (Section 2) remain focused on religious objections to
same-sex marriage.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Why didn't Stormans bring a state free exercise claim?

[James Oleske]

In my message to the list yesterday, I described "my perception that there
was a stronger state law claim than federal law claim in the case, as well
as my perception that the Washington Supreme Court would be no less
hospitable to Stormans federal claim than the Ninth Circuit."

I've since gone back and read the briefs to the Washington Supreme Court in
the pending *Arlene's Flowers* case, and based on one of the Washington
Supreme Court cases cited in the ACLU brief -- Backlund v. Bd. of Comm'rs
of King Cty. Hosp. Dist. 2, 106 Wash. 2d 632 (1986) -- I'm feeling less
confident about the first of my previously expressed perceptions.

Backlund looks very similar to United States v. Lee in that the Court first
performed the Sherbert/Yoder "strict scrutiny" analysis in denying the
exemption claim, but then added a passage at the end of the opinion that
could be read to cast doubt more broadly on exemption claims brought by
those who choose to enter into commercial activity, at least if granting an
exemption would "be to the detriment of others":

"Dr. Backlund freely chose to enter into the profession of medicine. Those
who enter into a profession as a matter of choice, necessarily face
regulation as to their own conduct and their voluntarily imposed personal
limitations cannot override the regulatory schemes which bind others in
that activity. Dr. Backlund's practice is open to the public. He enjoys the
economic benefits of his practice. However, the practice of orthopedic
surgery is a specialty which exposes the practitioner to the risk of large
liability claims. Therefore, with these benefits come corresponding
burdens, and in this case the need to show financial responsibility in
order to meet the liabilities which might result from his practice.
Financial irresponsibility presents a substantial risk to his patients. The
Board must protect those to whom it is responsible. The Board did so in
mandating professional liability insurance. The Board's decision not to
grant an exemption is supported by the findings and does not impinge upon
Dr. Backlund's right to believe as he chooses, only upon his practice of
those beliefs when such practice can be to the detriment of others."


Nothing in Backlund would indicate that the Washington courts would be less
hospitable to the targeting theories Stormans raised, either on federal or
state constitutional grounds, and Stormans certainly could have made
arguments to distinguish Backlund if they had pursued an exemption claim in
state court, but I do think the passage above (particularly the second
sentence and the final sentence) could reasonably have given Stormans'
attorneys pause about the prospects for success in making an exemption
claim in the Washington state courts.

On a different note, in a discussion with Mike Manister offlist, he raised
the issue of attorney's fees. I have no experience with the issue in
Washington state courts, but my brief research indicates that attorney's
fees for a prevailing party in a state constitutional law case might be
capped at $200 total. By contrast, after Stormans prevailed in the federal
district court on their section 1983 claim, that court approved an award of
over $2 million in attorney's fees.

- Jim


On Tue, Jun 28, 2016 at 9:12 PM, James Oleske <jole...@lclark.edu> wrote:

> Thanks, Greg. Will Baude also raised the Pennhurst issue with me offline,
> and I agree that it provides a very good reason for Stormans not to have
> brought the state law claim in the federal court lawsuit.
>
> That said, given that the Washington constitution has been interpreted to
> provide broader protection to religious exercise than the federal
> constitution, I do wonder why Stormans chose to prioritize exclusively
> pursuing a federal lawsuit, even after the Ninth Circuit's decision in 2009
> that the pharmacy rules should only be subject to rational basis review
> under the federal constitution.
>
> Of course, the choices left to litigants by Pennhurst can be tough,
> particularly if such litigants cannot utilize an England reservation in
> state court to preserve their ability to litigate the federal issues in
> federal court. In the past, the Ninth Circuit has held that litigants can
> utilize an England reservation in bifurcated litigation resulting from a
> Pennhurst bar, UPS v. Cal. Pub. Utilities Comm'n, 77 F.3d 1178, 1182-1186
> (9th Cir. 1996), but Will has pointed out to me that a portion of the
> Supreme Court's subsequent  opinion in San Remo Hotel v. San Francisco, 545
> U.S. 323 (2005), could be read as inconsistent with the England analysis in
> UPS.
>
> So, at the end of the day, while I might have made a different strategic
> choice based on my perception that there was a stronger state law claim
> than federal law claim in the case, as well as my perception that the
> Washington Supreme Cour

Re: Why didn't Stormans bring a state free exercise claim?

[James Oleske]

Thanks, Greg. Will Baude also raised the Pennhurst issue with me offline,
and I agree that it provides a very good reason for Stormans not to have
brought the state law claim in the federal court lawsuit.

That said, given that the Washington constitution has been interpreted to
provide broader protection to religious exercise than the federal
constitution, I do wonder why Stormans chose to prioritize exclusively
pursuing a federal lawsuit, even after the Ninth Circuit's decision in 2009
that the pharmacy rules should only be subject to rational basis review
under the federal constitution.

Of course, the choices left to litigants by Pennhurst can be tough,
particularly if such litigants cannot utilize an England reservation in
state court to preserve their ability to litigate the federal issues in
federal court. In the past, the Ninth Circuit has held that litigants can
utilize an England reservation in bifurcated litigation resulting from a
Pennhurst bar, UPS v. Cal. Pub. Utilities Comm'n, 77 F.3d 1178, 1182-1186
(9th Cir. 1996), but Will has pointed out to me that a portion of the
Supreme Court's subsequent  opinion in San Remo Hotel v. San Francisco, 545
U.S. 323 (2005), could be read as inconsistent with the England analysis in
UPS.

So, at the end of the day, while I might have made a different strategic
choice based on my perception that there was a stronger state law claim
than federal law claim in the case, as well as my perception that the
Washington Supreme Court would be no less hospitable to Stormans federal
claim than the Ninth Circuit, I can understand why Stormans might choose to
forgo bringing a state lawsuit to avoid the possibility of a state court
decision precluding their ability to litigate the federal issue in federal
court. And given Stormans' success in the district court, and the fact that
they came within one vote of getting cert using the federal court vehicle,
perhaps their strategic choice was the right one.

- Jim



On Tue, Jun 28, 2016 at 8:21 PM, Gregory S. Baylor <gbay...@adflegal.org>
wrote:

> In *Pennhurst*, the Supreme Court held that the Eleventh Amendment
> forbids federal courts from awarding injunctive relief against state
> officials on the basis of state law.
>
>
>
> This rule did not apply in *Merced*, where the plaintiffs sued municipal
> officials.
>
>
>
> Greg Baylor
>
>
> [image: Alliance Defending Freedom] <http://www.adflegal.org/>   Gregory
> S. Baylor
> Senior Counsel, Director of Center for Religious Schools
> 202-393-8690 (Office)
> 202-888-7628 (Direct Dial)
> 202-347-3622 (Fax)
> gbay...@adflegal.org
> ADFlegal.org
> Not Licensed in DC
> Practice Limited to Federal Court
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Tuesday, June 28, 2016 9:48 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Why didn't Stormans bring a state free exercise claim?
>
>
>
> Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I
> believe the owners of Stormans could have brought both (1) a federal free
> exercise claim, which faced the challenge of getting past the Smith hurdle,
> and (2) a state free exercise claim under a Sherbert/Yoder-like exemption
> regime, which exists in Texas by virtue of a state RFRA and in Washington
> State by virtue of the state Supreme Court's interpretation of the
> Washington constitution.
>
>
>
> Unlike the plaintiff in Merced, who made both arguments and prevailed on
> their Texas RFRA claim, the owners of Stormans did not bring a state-law
> exemption claim.
>
>
>
> Does anyone on the list know why?
>
>
>
> - Jim
>
> This e-mail message from Alliance Defending Freedom and any accompanying
> documents or embedded messages is intended for the named recipients only.
> Because Alliance Defending Freedom is a legal entity engaged in the
> practice of law, this communication contains information, which may include
> metadata, that is confidential, privileged, attorney work product, or
> otherwise protected from disclosure under applicable law. If you have
> received this message in error, are not a named recipient, or are not the
> employee or agent responsible for delivering this message to a named
> recipient, be advised that any review, disclosure, use, dissemination,
> distribution, or reproduction of this message or its contents is strictly
> prohibited. If you have received this message in error, please immediately
> notify the sender and permanently delete the message. PRIVILEGED AND
> CONFIDENTIAL - ATTORNEY-CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT.
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe,

Why didn't Stormans bring a state free exercise claim?

[James Oleske]

Like the plaintiff in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), I
believe the owners of Stormans could have brought both (1) a federal free
exercise claim, which faced the challenge of getting past the Smith hurdle,
and (2) a state free exercise claim under a Sherbert/Yoder-like exemption
regime, which exists in Texas by virtue of a state RFRA and in Washington
State by virtue of the state Supreme Court's interpretation of the
Washington constitution.

Unlike the plaintiff in Merced, who made both arguments and prevailed on
their Texas RFRA claim, the owners of Stormans did not bring a state-law
exemption claim.

Does anyone on the list know why?

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

d so many times. And of course I like the Alito dissent. But I have
>>> to say that his footnote 6 is utterly shameless in light of his dissent
>>> yesterday in *Woman’s Whole Health*.  He says that of course Stormans
>>> can bring “a future as-applied challenge to the Board’s regulations.” But
>>> yesterday, a much less thorough litigation of a pre-enforcement challenge
>>> was obviously res judicata in a post-enforcement challenge based on actual
>>> experience. It is hard to see how he can have it both ways.
>>>
>>>
>>>
>>> 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 *James Oleske
>>> *Sent:* Tuesday, June 28, 2016 11:28 AM
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>>>
>>>
>>>
>>> The bulk of Justice Alito's dissent focuses on the argument Stormans
>>> made at the beginning of its cert petition in support of summary reversal:
>>> the pharmacy regulations amount to religious targeting akin to the
>>> targeting in Lukumi. (Marty notes below the central problem with this
>>> argument: the regulations actually cover all moral and ethical objections,
>>> not just religious objections. Thus, the pharmacy owner who has secular
>>> ethical objections to carrying drugs tested on animals or produced in
>>> countries with records of human rights abuses is no more entitled to an
>>> exemption under the regulations than are the owners of Stormans.)
>>>
>>>
>>>
>>> Notwithstanding the dissent's primary focus on the religious-targeting
>>> argument, there is one section of the dissent (III.B) indicating how the
>>> three dissenting justices might come down on the broader
>>> "selective-exemption" issue that has split the circuits: whether, in the
>>> absence of a religious targeting, the inclusion of one or more secular
>>> exemptions in a law triggers a constitutional requirement that religious
>>> exemptions be made when requested. Section III.B. of the dissent indicates
>>> that three justices believe the answer is "yes" if the religious exemptions
>>> would not undermine the state's interest in the law more than the existing
>>> exemptions.
>>>
>>>
>>>
>>> - Jim
>>>
>>>
>>>
>>>
>>>
>>> On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman <
>>> lederman.ma...@gmail.com> wrote:
>>>
>>> This case is *very *confused, and complicated, as a factual matter, by
>>> virtue of the interactions of two different Washington regulations--the
>>> "Stocking" rule and the "Delivery" rule--and the fact that the State has
>>> not enforced either rule against Storman's or any other religious
>>> objector.  For what it's worth, I believe Alito's description of the
>>> facts--his treatment of the distinct operations of, and practices under,
>>> the two rules--is incomplete and misleading, for reasons I'd be happy to
>>> discuss offline.  But that's really beside the point now that the Court has
>>> denied cert.  (It would have created a nightmare of untangling had they
>>> granted cert.)
>>>
>>>
>>>
>>> For now, I would just point out the following:  Even on Alito's own
>>> account of the facts and the Washington regulations, the State does not
>>> "uniquely burden religiously motivated conduct."  This is the telling
>>> passage in his dissent:
>>>
>>>
>>>
>>> While the regulations themselves do not expressly single out *religiously
>>> motivated* referrals, the Board’s guidance accompanying the regulations
>>> does: “The rule,” it warns, “does not allow a pharmacy to refer a patient
>>> to another pharmacy to avoid filling the prescription *due to moral or
>>> ethical objections*.” SER 1248 (emphasis added).
>>>
>>>
>>>
>>> Religious objections to contraception, in other words, are not "uniquely
>>> burdened," even on Alito's view of the case; instea

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

Dan -- I agree that Lukumi did not answer this question directly, but
didn't Yoder? Here's what the Court said about the issue there:

"A way of life, however virtuous and admirable, may not be interposed as a
barrier to reasonable state regulation of education if it is based on
purely secular considerations; to have the protection of the Religion
Clauses, the claims must be rooted in religious belief. Although a
determination of what is a 'religious' belief or practice entitled to
constitutional protection may present a most delicate question, the very
concept of ordered liberty precludes allowing every person to make his own
standards on matters of conduct in which society as a whole has important
interests. Thus, if the Amish asserted their claims because of their
subjective evaluation and rejection of the contemporary secular values
accepted by the majority, much as Thoreau rejected the social values of his
time and isolated himself at Walden Pond, their claims would not rest on a
religious basis. Thoreau's choice was philosophical and personal, rather
than religious, and such belief does not rise to the demands of the
Religion Clauses."

- Jim

On Tue, Jun 28, 2016 at 8:52 AM, Conkle, Daniel O. 
wrote:

> I don’t think this is obviously so, Marty.  Lukumi didn’t present this
> question because a narrow sense of religion was clearly at issue.  I think
> the constitutional definition of religion remains an open question, and the
> resolution of that question could bear on the proper application of the
> Lukumi analysis as to deliberate targeting as well as general applicability.
>
>
>
> Dan
> 
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University Maurer School of Law
> Bloomington, Indiana  47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail con...@indiana.edu
> 
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, June 28, 2016 11:44 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Cert. Petition Filed in Pharmacy Free Exercise Case
>
>
>
> *Seeger *provides a definition of "religion" for a particular *statute*.
> I don't think there's any dispute that the FEC -- and *Lukumi* -- adopts
> a narrower view of what constitutes "religion."
>
>
>
> On Tue, Jun 28, 2016 at 11:32 AM, Conkle, Daniel O. 
> wrote:
>
> With respect to the issue of religious as opposed to other moral and
> ethical objections:
>
>
>
> Does it matter for purposes of the Lukumi analysis whether religious
> exercise, as protected by the Free Exercise Clause, is defined narrowly and
> traditionally or, instead, is defined broadly enough to include the
> exercise of moral and ethical beliefs that are comparable to traditionally
> religious beliefs?  Cf. Seeger.
>
>
>
> Dan
>
> 
>
> Daniel O. Conkle
>
> Robert H. McKinney Professor of Law
>
> Indiana University Maurer School of Law
>
> Bloomington, Indiana  47405
>
> (812) 855-4331
>
> fax (812) 855-0555
>
> e-mail con...@indiana.edu
>
> 
>
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

The bulk of Justice Alito's dissent focuses on the argument Stormans made
at the beginning of its cert petition in support of summary reversal: the
pharmacy regulations amount to religious targeting akin to the targeting
in Lukumi. (Marty notes below the central problem with this argument: the
regulations actually cover all moral and ethical objections, not just
religious objections. Thus, the pharmacy owner who has secular ethical
objections to carrying drugs tested on animals or produced in countries
with records of human rights abuses is no more entitled to an exemption
under the regulations than are the owners of Stormans.)

Notwithstanding the dissent's primary focus on the religious-targeting
argument, there is one section of the dissent (III.B) indicating how the
three dissenting justices might come down on the broader
"selective-exemption" issue that has split the circuits: whether, in the
absence of a religious targeting, the inclusion of one or more secular
exemptions in a law triggers a constitutional requirement that religious
exemptions be made when requested. Section III.B. of the dissent indicates
that three justices believe the answer is "yes" if the religious exemptions
would not undermine the state's interest in the law more than the existing
exemptions.

- Jim


On Tue, Jun 28, 2016 at 7:20 AM, Marty Lederman <lederman.ma...@gmail.com>
wrote:

> This case is *very *confused, and complicated, as a factual matter, by
> virtue of the interactions of two different Washington regulations--the
> "Stocking" rule and the "Delivery" rule--and the fact that the State has
> not enforced either rule against Storman's or any other religious
> objector.  For what it's worth, I believe Alito's description of the
> facts--his treatment of the distinct operations of, and practices under,
> the two rules--is incomplete and misleading, for reasons I'd be happy to
> discuss offline.  But that's really beside the point now that the Court has
> denied cert.  (It would have created a nightmare of untangling had they
> granted cert.)
>
> For now, I would just point out the following:  Even on Alito's own
> account of the facts and the Washington regulations, the State does not
> "uniquely burden religiously motivated conduct."  This is the telling
> passage in his dissent:
>
> While the regulations themselves do not expressly single out *religiously
> motivated* referrals, the Board’s guidance accompanying the regulations
> does: “The rule,” it warns, “does not allow a pharmacy to refer a patient
> to another pharmacy to avoid filling the prescription *due to moral or
> ethical objections*.” SER 1248 (emphasis added).
>
> Religious objections to contraception, in other words, are not "uniquely
> burdened," even on Alito's view of the case; instead, they are--at 
> *worst*--treated
> exactly the same as other "moral or ethical objections."
>
>
>
> On Tue, Jun 28, 2016 at 9:43 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> 15-page Alito dissent from denial, joined by Roberts and Thomas:
>>
>> http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf
>>
>> On Thu, Jun 2, 2016 at 1:20 AM, James Oleske <jole...@lclark.edu> wrote:
>>
>>> A quick update on the petition in Stormans. After the petition was
>>> relisted for conference several times, the lower court record was requested
>>> on May 19 and received on May 26, and the petition is back on the schedule
>>> for tomorrow's conference (June 2).
>>>
>>> As I've said before, I think some of the legal arguments made in the
>>> petition are cert worthy. But the Ninth Circuit decided the case by
>>> rejecting a factual predicate for those arguments -- a predicate that was
>>> central to the district court's decision in favor of Stormans. Which might
>>> explain the record request.
>>>
>>> In any event, if cert is granted, this has the makings of a landmark
>>> free exercise case.
>>>
>>> - Jim
>>>
>>>
>>> On Mon, Jan 4, 2016 at 11:34 PM, James Oleske <jole...@lclark.edu>
>>> wrote:
>>>
>>>> On Monday, Stormans Inc. -- which operates a pharmacy in Washington
>>>> State -- filed a cert. petition seeking review of the Ninth Circuit's
>>>> decision in *Stormans, Inc. v. Wiesman*. As described more fully
>>>> below, Stormans is challenging state regulations that effectively require
>>>> its pharmacy to stock and dispense emergency contraception, a practice that
>>>> is contrary the religious beliefs of Stormans' owners. The petition is
>>>> available he

Re: Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

A quick update on the petition in Stormans. After the petition was relisted
for conference several times, the lower court record was requested on May
19 and received on May 26, and the petition is back on the schedule for
tomorrow's conference (June 2).

As I've said before, I think some of the legal arguments made in the
petition are cert worthy. But the Ninth Circuit decided the case by
rejecting a factual predicate for those arguments -- a predicate that was
central to the district court's decision in favor of Stormans. Which might
explain the record request.

In any event, if cert is granted, this has the makings of a landmark free
exercise case.

- Jim


On Mon, Jan 4, 2016 at 11:34 PM, James Oleske <jole...@lclark.edu> wrote:

> On Monday, Stormans Inc. -- which operates a pharmacy in Washington State
> -- filed a cert. petition seeking review of the Ninth Circuit's decision in 
> *Stormans,
> Inc. v. Wiesman*. As described more fully below, Stormans is challenging
> state regulations that effectively require its pharmacy to stock and
> dispense emergency contraception, a practice that is contrary the religious
> beliefs of Stormans' owners. The petition is available here:
>
>
> http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf
>
> In my view, the arguments made in the Stormans case concern some of the
> most interesting and unresolved aspects of the Court's post-Smith free
> exercise doctrine. If engaged on the merits, the arguments in Stormans
> would require the Court to clarify what type and what degree of secular
> exemptions to a law, short of the religious gerrymandering in Lukumi, are
> sufficient to render a law non-neutral and/or non-generally applicable, and
> thus subject to heightened scrutiny. Given that different circuits have
> taken different approaches to the issue, eventually the Court will have to
> step in. And Stormans argues that this is an ideal case in which to do so.*
>
> The principal challenge Stormans faces in obtaining Supreme Court review
> is that the Ninth Circuit decided the case by rejecting a factual predicate
> for the selective-exemption argument. Specifically, the Ninth Circuit
> concluded that the state agency responsible for enforcing the regulations
> has never actually endorsed or approved any of the unwritten secular
> exemptions upon which Stormans placed principal reliance. According to the
> Ninth Circuit, the agency has a complaint-based enforcement process, no
> complaints have ever been filed against pharmacies that are engaging in the
> types of secular practices that Stormans claims are undermining the
> regulations, and hence no exemptions for those practices can be said to
> exist. In its petition, Stormans contends that the Ninth Circuit's
> reasoning on this front is inconsistent with both Lukumi and the Third
> Circuit's decision in the Tenafly Eruv Association case, but my initial
> instinct is that the factual backdrops of the three cases are not nearly as
> similar Stormans contends. The logical implication of Stormans' argument
> seems to be that religiously motivated violations of laws must be excused
> anytime the government uses a complaint-driven enforcement scheme and
> complaints haven't been filed against some non-religiously motivated
> violators, and that result does not seem to be a necessary result of either
> Lukumi or Tenafly. In any event, it's not clear that this predicate issue
> is particularly cert. worthy.
>
> * Stormans also argues that the Court could summarily reverse the Ninth
> Circuit on the ground that the Washington State regulations amount to
> religious targeting as bad as the religious gerrymandering in Lukumi. I'm
> skeptical of this argument given that the Washington regulations apply
> equally to secular moral objections to dispensing particular drugs (whether
> it be emergency contraception or drugs produced in countries with
> objectionable human rights practices or drugs tested on particular animals)
> and religious moral objections.
>
> - Jim
>
>
> On Thu, Jul 23, 2015 at 10:48 AM, James Oleske <jole...@lclark.edu> wrote:
>
>> Today, the Ninth Circuit issued its opinion in *Stormans, Inc. v.
>> Wiesman*, a long-running case involving a pharmacy's free-exercise
>> challenge to Washington State's requirement that pharmacies dispense all
>> lawfully prescribed or approved drugs, including emergency contraception.
>> The court ruled in favor of the state, holding that the state's rule was
>> neutral and generally applicable and thus subject to only rational basis
>> review. The pharmacy had argued that because the state's rule excuses
>> failures to dispense for certain reasons (e.g., lack of specialized
>> equipment to make drug; drug o

Heffernan, Establishment, and Justice Scalia

[James Oleske]

In the *Heffernan* decision issued earlier this week, the Court held a
public employer can violate the First Amendment when it acts with the
motive of punishing protected employee political activity, even if the
punished employee was not actually engaged in protected political activity.

In reading the decision, I could not help but think of this line from
Justice Scalia's *McCreary* dissent (referring to his *Aguillard* dissent):

"I have remarked before that it is an odd jurisprudence that bases the
unconstitutionality of a government practice that does not *actually*
advance religion on the hopes of the government that it *would* do so."

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Zubik: Revisiting the Laycock/BJC Amicus Brief in Light of the Supplemental Briefing

[James Oleske]

My impression after oral argument was that things went better for the
petitioners and worse for the government than many expected, in large part
because the substantial-burden issue got so little play.

My impression after reading the two rounds of supplemental briefs, which
ended with the filing of today's reply briefs, is that the petitioners may
have put the substantial-burden issue squarely back on the table.

In particular, the argument the petitioners have chosen to focus on in the
supplemental briefs -- that they are now okay with their insurance
companies providing contraceptive coverage to their employees, but that
coverage cannot be the "automatic" result of their opting out and must be
delivered through a "separate policy with a separate card" -- might well
remind the justices of following passage from the amicus brief filed by
Doug and the Baptist Joint Committee (a passage, by the way, that follows a
hypothetical that looks quite similar to the proposal in the Court's order):

"These objections reach too far. They are in fact objections to the
government pursuing its own interests by its own means. Petitioners object
to how the government regulates secular insurers No matter how they
describe it, their objection seeks to control their secular insurance
companies and the government’s regulation of those companies. The acts
required of them are purely incidental; they would have the same objections
if the government required nothing of them. Some substantial-burden cases
may be difficult, but many, including these cases, are amenable to
bright-line rules. Religious objectors are not entitled to exemptions for
secular entities they deal with at arm’s length, or to control the
government’s regulation of such entities."


- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Additional Equal Protection Argument & Local Government Law Clarifications (Charlotte Ordinance/NC Law)

[James Oleske]

Greg,

At my instigation, we've moved far afield from Law & Religion issues into
State & Local Government issues, so I'll keep this response brief. Although
there is clearly a state policy in North Carolina against the
*state legislature* creating a patchwork of local laws, I do not read
*Williams* suggesting as state policy against *cities and counties* passing
ordinances that result in such a patchwork. *Williams *recognizes that one
of the purposes of the constitutional prohibition on the legislature
passing local laws was "to strengthen local self-government by providing
for the delegation of local matters by general laws to local authorities."
And, of course, delegating by general laws to localities will inevitably
result in a patchwork of different local laws. That's precisely what
happened with public accommodations ordinances in North Carolina pursuant
to the general delegations in 153A-121 and 160A-174, and I raised those
provisions because I (mis?)read your initial post as implying that
localities might not have had the authority to pass public accommodations
ordinances pre-HB2. What *King *described as the "broad" delegations in
153-121 and 160A-174 seem clearly to me to include the power to pass such
ordinances.

On the vulnerability of HB 2 to equal protection challenge, I appreciate
Will's efforts to distinguish *Romer*, but I am not convinced that applying
the principles underlying that case to HB 2 is a "stretch."

- Jim


On Mon, Apr 4, 2016 at 3:18 PM, Wallace, E. Gregory <walla...@campbell.edu>
wrote:

> Jim,
>
> The reason the NC Supreme Court in *Williams v. BCBS *held the law at
> issue unconstitutional was that the state legislature, at the behest of
> local officials, had passed enabling legislation that authorized Orange
> County to adopt the employment discrimination law under which the plaintiff
> sued BCBS. That state legislation, the court held, was a “local act”
> regulating labor or trade—something the NC Constitution specifically
> prohibits in Art. II § 24(1)(j). The only way the state legislature could
> address employment discrimination by state statute, the court said, was
> either enact a statewide law applicable to employers and their employees
> regardless where they reside within the state or enact a general law that
> treats a locality or region differently based on reasonable differences of
> circumstances. The local officials’ last gasp was to argue that, even if
> the state enabling legislation was unconstitutional, they had inherent
> authority to enact such legislation under the two statutes you quoted. The
> court decided that question on a narrow ground: by creating a private cause
> of action, the locality had gone “far beyond” merely requiring a higher
> standard of conduct or condition. The court did not express any opinion as
> to whether a NC locality has inherent authority to adopt such a
> nondiscrimination ordinance or add additional protected classes beyond
> state law.
>
> There has been a long-standing dispute between the state and local
> governments regarding whether localities have the power to pass certain
> ordinances under NCGS §§ 153A-121 and 160A-174. The most recent NC Supreme
> Court decision on this matter, *King v. Town of Chapel Hill *[Go Heels!],
> specifically stated that “[l]ocal ordinances must, however, be in harmony
> with State law; whenever the two come in conflict, the former must bow to
> the latter” and “[t]his need to avoid dual regulation is generally referred
> to as preemption.” The court went on to examine whether Chapel Hill’s
> prohibition on mobile phone use while driving was preempted by state law
> and concluded that it was.
>
> Of course, the issue with HB2 is not whether Charlotte had inherent
> authority to adopt the ordinance—a matter that was hotly disputed in the
> run up to the city’s decision—but whether HB2 is constitutional. I
> referenced the *Williams *case not to question whether Charlotte was
> empowered to adopt this law in the first instance, but for the NC Supreme
> Court’s recognition in 2003 that the NC Constitution’s prohibition on local
> acts suggests a state policy against a patchwork of local nondiscrimination
> laws—something that HB2 specifically cites as justification for the law.
>
> You are correct that nothing in the prohibition on local acts would have
> precluded the legislature from passing a narrower bill limited to statewide
> restroom use, but that does not make HB2 necessarily unconstitutional. For
> the reasons Will explained, it seems a stretch to apply apply *Romer *
> here.
>
> Greg Wallace
> Campbell Law School
>
> From: James Oleske <jole...@lclark.edu>
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date

Additional Equal Protection Argument & Local Government Law Clarifications (Charlotte Ordinance/NC Law)

[James Oleske]

A few thoughts on some of the comments made in yesterday's discussion
between Greg Lipper and Greg Wallace.

Greg L. wrote: “Starting on a clean slate and defeating an amendment to add
a particular protected category [to a statewide antidiscrimination law]
doesn’t seem suspect by itself. But adopting legislation that is designed
to affirmatively remove the possibility of local antidiscrimination
protections for all LGBT people … is quite a different story.”

I agree that what happened in North Carolina last week is far more suspect
under the Court's current equal protection jurisprudence than the situation
of a state legislature declining to amend a statewide nondiscrimination law
to add a particular protected category. But I do think the latter situation
can raise equal protection issues, and I have recently developed the
argument - some would say “radical” argument - that states deny equal
protection when they fail to protect against sexual-orientation
discrimination in laws that broadly protect against other types of
invidious discrimination (ssrn.com/abstract=2589743) (apologies to those
who are also on the conlaw list for the duplicate plug).

Greg W. wrote: "The NC state legislature has never delegated to cities
generally, or to Charlotte specifically, express authority to adopt public
accommodations ordinances. Local ordinances must be in harmony with state
law; whenever the two conflict, local law must give way."

I'm neither an expert in local government law generally nor North Carolina
law in particular, but the above passage left me with a different initial
impression than the one I had after reading the 2003 NC Supreme Court
decision Greg brought to our attention and the underlying statutory
provisions discussed at the end of that opinion.

North Carolina law gives cities and counties the power to enact ordinances
that "define, regulate, prohibit, or abate acts, omissions, or conditions
detrimental to the health, safety, or welfare of its citizens and the peace
and dignity of the county." See NCGSA 153A–121(a) & 160A-174(a). North
Carolina law also provides that "[t]he fact that a State or federal law,
standing alone, makes a given act, omission, or condition unlawful shall
not preclude city ordinances requiring a higher standard of conduct or
condition." 160A-174(b).

The reason the court in the 2003 case rejected Orange County's defense of
its employment discrimination ordinance under those statutory provisions
was not because the county had included protected categories broader than
those in state law, but rather, because its ordinance gave citizens
subpoena power and private rights of action "even in the absence of a
finding of cause" by county officials. The Court found that "[s]uch a new
and independent framework for litigation substantially exceeds the leeway
permitted to individual counties by these statutes." But the Court never
questioned the ability of cities and counties under the general enabling
legislation quoted above to pass nondiscrimination ordinances or to
"requir[e] a higher standard of conduct” in those ordinances. And, as
evidenced in both Orange County and the City of Charlotte, local
governments in North Carolina had been doing so long before Charlotte
amended its ordinance this February (in the 2003 case, the court was
careful to point out that its decision only concerned the employment
discrimination provisions in the Orange County ordinance and did not
concern its public accommodation or housing provisions).

Greg W. also wrote that “[b]ecause of NC Constitution’s prohibition on [the
legislature passing] local acts that regulate labor or trade (Art. II,
§24(1)(j)), the NC legislature could not, as some have suggested, pass a
law that simply overruled the Charlotte ordinance.”

Perhaps some have suggested that the NC legislature should have passed a
Charlotte-specific law, but I don't think that is the main thrust of the
overbreadth criticism. The principal overbreadth argument is that if the
legislature was concerned about restrooms, it should have passed a law
about restrooms, not a law stripping all LGBT protections in local
ordinances. Nothing in the constitutional provision Greg W. cites would
seem to have precluded the legislature from passing a bill limited to the
issue of restroom use statewide.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The Charlotte City Ordinance and Religious Freedom

[James Oleske]

Will,

I'm glad the information was helpful. With respect to your follow-up
question, I'm not familiar with any other jurisdictions in which restroom
carveouts have been eliminated. That said, I would not expect there to be
many such jurisdictions as it appears that restroom carveouts to public
accommodation provisions are relatively rare.

As to why Charlotte eliminated its carveout, I think it is much more likely
to have been aimed at making sure transgendered individuals could use the
bathroom (or Y facility) matching their gender identity than it was to
achieve the "radical" goal of eliminating separate men and women's
bathrooms (or Y facilities). In at least one prior case, a restroom
carveout like the one in the old Charlotte ordinance resulted in the
dismissal of a discrimination case by a person who was allegedly harassed
by a security guard after using a women's restroom because they were
perceived to be transgendered. See In the Matter of Toni Jefferson, 2001 WL
474465.

I strongly suspect the supporters of the Charlotte ordinance had situations
like that in mind, and I have a very difficult time imagining the Charlotte
Community Relations Committee interpreting and applying the new ordinance
-- which, again, is identical to public accommodations provisions in states
and localities across the country -- as requiring a brave new world in
which pubic accommodations are required to allow "straight boys into the
girls showers." But if the NC law is struck down or repealed, perhaps we'll
find out.

- Jim


On Thu, Mar 31, 2016 at 6:21 PM, Will Esser <willes...@yahoo.com> wrote:

> Jim,
>
> That is helpful information and I appreciate you sharing.
>
> Do you know if any of those other non-discrimination provisions contained
> specific carevouts for bathrooms, showers and locker rooms, and the
> carveouts were later eliminated?  Here, the Charlotte City Council knew the
> public concern on this point, and could have amended the law in some form
> or fashion if they did not mean to entirely eliminate single
> sex bathrooms.  They did not do so.  If I'm not mistaken, the normal rule
> of statutory construction is that if a statute contains an exception and
> that exception is explicitly removed, then the exception no longer
> applies.  That is certainly the normal and logical way to look at the
> ordinance.
>
> What makes that argument even more compelling here is that the Charlotte
> City ordinance had three carveouts to the sex discrimination provision.
> The one about bathrooms and showers was the first.  The second carveout was
> for the "YMCA, YWCA and similar types of dormitory lodging facilities" and
> the third was for private clubs.  The private clubs exception is still in
> the statute (just another section).  The bathroom/shower exception and the
> YMCA / YWCA exceptions were stricken.   It would be a curious argument that
> elimination of the YMCA carveout was meaningless and the YMCA and YWCA were
> still exempt from the sex discrimination provisions of the ordinance,
> particularly when one of the three exceptions was left in the statute.
>
> Will Esser
>
>
> --
> *From:* James Oleske <jole...@lclark.edu>
> *To:* Will Esser <willes...@yahoo.com>; Law & Religion issues for Law
> Academics <religionlaw@lists.ucla.edu>
> *Sent:* Thursday, March 31, 2016 7:16 PM
> *Subject:* Re: The Charlotte City Ordinance and Religious Freedom
>
> Will expresses concern about "how truly radical the Charlotte City
> ordinance was" and how it was "entirely over the top." It would appear,
> however, that the changes made to the ordinance in February simply made it
> consistent with the majority of other state and local laws prohibiting sex
> discrimination in places of public accommodation, most of which do not have
> explicit restroom carveouts written into them. Here are just a few examples
> of such laws without explicit restroom carveouts:
>
> Missouri:
> http://www.moga.mo.gov/mostatutes/stathtml/2130651.html
>
> West Virginia:
> http://www.legis.state.wv.us/wvcode/code.cfm?chap=05=11
>
> Utah:
> http://le.utah.gov/xcode/Title13/Chapter7/13-7-S2.html
>
> Oregon:
> http://www.oregonlaws.org/ors/659A.403
>
> City of Atlanta:
>
> https://www.municode.com/library/ga/atlanta/codes/code_of_ordinances?nodeId=COORATGEVOII_CH94HURE
>
> When the unusual (but not unprecedented) separate sex discrimination
> provision in Charlotte's old ordinance was removed, and sex was placed into
> the general public accommodations provision with all the other protected
> classes, here is how the operative provision of the new Charlotte ordinance
> read:
>
>
> It shall be unlawful to deny any person the full and equal enjoym

Re: The Charlotte City Ordinance and Religious Freedom

[James Oleske]

Will expresses concern about "how truly radical the Charlotte City
ordinance was" and how it was "entirely over the top." It would appear,
however, that the changes made to the ordinance in February simply made it
consistent with the majority of other state and local laws prohibiting sex
discrimination in places of public accommodation, most of which do not have
explicit restroom carveouts written into them. Here are just a few examples
of such laws without explicit restroom carveouts:

Missouri:
http://www.moga.mo.gov/mostatutes/stathtml/2130651.html

West Virginia:
http://www.legis.state.wv.us/wvcode/code.cfm?chap=05=11

Utah:
http://le.utah.gov/xcode/Title13/Chapter7/13-7-S2.html

Oregon:
http://www.oregonlaws.org/ors/659A.403

City of Atlanta:
https://www.municode.com/library/ga/atlanta/codes/code_of_ordinances?nodeId=COORATGEVOII_CH94HURE

When the unusual (but not unprecedented) separate sex discrimination
provision in Charlotte's old ordinance was removed, and sex was placed into
the general public accommodations provision with all the other protected
classes, here is how the operative provision of the new Charlotte ordinance
read:


It shall be unlawful to deny any person the full and equal enjoyment of the
goods services, facilities, advantages, and accommodations of a place of
public accommodation because of race, color, religion, sex, marital status,
familial status, sexual orientation, gender identity, gender expression, or
national origin.

If that provision is "truly radical" and "over the top," so are the
provisions of numerous other jurisdictions.

And of course, as Doug has pointed out, if the lack of an explicit restroom
carveout in the new Charlotte ordinance was the North Carolina
legislature's real concern, it could have passed a law limited to that
issue. Instead, it removed all municipal nondiscrimination protections for
LGBT individuals.

At this point, it seems pretty obvious that having failed to convince the
public that protecting against sexual-orientation and gender-identiy
discrimination is a bad idea as a general matter, opponents of LGBT
nondiscrimination laws are focusing on the restroom issue because the "men
in women's bathrooms" talking point has proven politically salient (see,
e.g., Houston campaign), even if there is no evidence that it has ever been
a problem in any of the 21 states or hundreds of municipalities that have
added sexual-orientation discrimination and gender-identity to their public
accommodations laws.

- Jim


On Thu, Mar 31, 2016 at 2:20 PM, Will Esser  wrote:

> Paul,
>
> My main point was how truly radical the Charlotte City ordinance was in
> entirely doing away with unisex bathrooms in public accommodations.  (I
> trust you are not taking the position that it is advisable public policy to
> allow non-transgender, straight boys into the girls showers in the YMCA?)
> The point was that the Charlotte City ordinance was entirely over the top.
> People can have a healthy debate about whether the NC law should go
> farther in providing allowance for changes to a birth certificate, but
> that's a very different debate than entirely doing away with unisex
> bathrooms.  The Charlotte City Council used a club when they should have
> tried a scalpel.
>
> To turn this back to religion and the law, let's assume that the Charlotte
> City ordinance had gone into place as drafted (i.e. a
> non-discrimination provision that does not allow discrimination on the
> basis of sex with no exceptions for bathrooms).  The YMCA is defined as a
> public accommodation under the ordinance and it is sued when it refuses
> to allow boys into the girls' showers.  The YMCA argues that it won't let
> the boys into the girls showers based upon its religious principles which
> flow from the Bible, including a prohibition on pre-marital sex and an
> obligation to protect youth from temptation.
>
> How do listserv members think that comes out?  Isn't this an example in
> which the religious principles of the YMCA should clearly trump the
> non-discrimination provision?  (Again, this is not a fictional
> hypothetical.  That is actually the ordinance the Charlotte City Council
> passed and which would have gone into law but for the NC legislature's
> action).
>
> Will
>
>
> Will Esser
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The Establishment Clause question in the Trinity Lutheran case

[James Oleske]

A very belated thanks (the semester has gotten away from me) to Eugene for
his clarification below. Although recognizing that the Court has not
adopted it, Eugene endorses an equal-treatment theory that runs in both
directions, prohibiting religion-only accommodations as well as
religion-only exclusions. I think this position has considerable normative
appeal. I also think Eugene's backup position -- equal treatment with
respect to funding -- has considerable normative appeal. I'm not convinced,
however, that either position is constitutionally mandated (i.e., that all
religion-only accommodations are laws respecting an establishment of
religion and that all exclusions of religion from funding programs are
prohibitions of free exercise).

- Jim


On Mon, Jan 18, 2016 at 9:13 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>I’d prefer, generally speaking, a version of Justice
> Harlan’s view in *Welsh *and *Walz *is basically right:  The government
> should neither discriminate in favor of or against religion; if religious
> exemptions are given, they should also be given to comparable secular
> objectors.
>
>
>
> I think the result in *Hosanna-Tabor *is largely right, but I think (not
> quite consistently the Court, I realize) that the best approach would have
> been to focus on a conclusion that similar rights would be available for
> secular groups as well, under the Free Speech Clause.  The KKK has to be
> free to choose its leaders based on race and religion; the Sierra Club has
> to be free to bar leaders from speaking out in ways that it views as
> anti-environmentalist, even when a state (such as my own California)
> categorically bars employers from setting up rules limiting their
> employees’ political activity.  I realize that *Hosanna-Tabor *provides
> more protection than cases such as *Boy Scouts v. Dale*, because it
> doesn’t require a showing that the employment law substantially burdens the
> institution’s speech.  If that is justifiable (and I think it probably is),
> it would simply because of the principle that the government may not decide
> the reasonableness of religious claims; inquiring what is the true reason
> for a religious institution’s dismissal of a ministerial employee would
> often risk violating that principle, so it may make sense to just
> categorically immunize employment decisions related to churches’
> ministerial employees.
>
>
>
> But I realize that the Court has not taken my view on this, see *Hosanna-Tabor
> *and *Cutter v. Wilkinson*.  The question then is what effect this should
> have on the general principle of no discrimination against religious
> people, practices, and institutions.  It seems to me that it shouldn’t.
> That all religious groups get a rather modest special benefit in the form
> of a few constitutionally compelled exemptions (see *Hosanna-Tabor*) and
> that some religious people end up benefiting from religion-only exemption
> says quite little, I think, about the possible exclusion of religious
> people and institutions from the massive benefits offered by the modern
> welfare state, potentially ranging into the billions of dollars’ worth
> (e.g., when it comes to school choice funding programs).
>
>
>
> The better analogy, I think, is to ask how we deal with the question here
> – funding.  *Texas Monthly v. Bullock *tells us that, given the
> Establishment Clause, the government can’t discriminate *in favor of*
> religious institutions when it comes to funding.  (That’s one reason I’m
> skeptical about the parsonage exemption, one of the few really
> religion-preferential tax exemptions.)  It seems to  me quite consistent
> with that to read the *Lukumi / McDaniel *principle broadly as barring
> government discrimination * against* religion, including when it comes to
> funding.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Sunday, January 17, 2016 5:19 PM
> *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
> *Subject:* Re: The Establishment Clause question in the Trinity Lutheran
> case
>
>
>
> An equal treatment theory also does not fit the "ministerial exception"
> constitutionally mandated in Hosanna-Tabor Lutheran Church v.  EEOC. I
> wonder if Eugene, and others who question the Trinity Lutheran Church
> outcome, think that unanimous decision is incorrect.
>
>
> Sent from my iPhone
>
>
> On Jan 17, 2016, at 5:33 PM, James Oleske <jole...@lclark.edu> wrote:
>
> To clarify, Eugene: Would this "maximalist equal treatment" theory
> prohibit legislative exemptions available to religion but not non-religion,

Re: Religious exemptions, antidiscrimination law, and businesses

[James Oleske]

Another Minnesota for-profit case, which I don't think was mentioned in the
earlier chain, but which was cited in Justice Ginsburg's *Hobby Lobby*
dissent, is *Minnesota ex rel. McClure*, 370 N.W.2d 844, 847 (Minn.1985)
(upholding under *Sherbert*/*Yoder*-type scrutiny the application of a
state law prohibiting religious and marital status discrimination to a
health club owned by born-again Christians).

The dissent in *Rasmussen v. Glass* cited *McClure*, but the majority did
not. And the Minnesota Supreme Court subsequently distinguished *McClure* in
*Cooper v. French *(mentioned in the previous chain) on the ground that
"employment cases are distinguishable from housing cases."

As to how helpful these older for-profit cases might be in answering
Professor Kwall's original question for the list -- "whether current or
pending state RFRA Acts might be used to allow a landlord who opposed gay
marriage to refuse to lease to a married gay couple" -- I tend to think the
earlier cases are of limited utility for two reasons, which cut in opposite
directions:

1. All of the earlier cases were decided in an era when the Supreme Court's
most relevant statement seemed to be the passage in *Lee *casting doubt on
the availability of free exercise exemptions in the commercial realm. In *Hobby
Lobby*, however, the Court wrote that the *Lee* passage "is squarely
inconsistent with the plain meaning of RFRA."

2. The decision in *Obergefell *would seem to strengthen the argument that
combatting sexual-orientation discrimination should be recognized as a
compelling state interest, regardless of whether combatting marital-status
discrimination was recognized as such an interest in the older cases.

- Jim


On Thu, Feb 4, 2016 at 12:41 PM, Volokh, Eugene  wrote:

> If the question is more broadly cast as “for-profit
> entities” and antidiscrimination law, we might also add *Rasmussen v.
> Glass*, 498 N.W.2d 508 (Minn. Ct. App. 1993).  Tim Glass’s Beach Club
> Deli delivered food to local customers, but refused to deliver to an
> abortion clinic.  The clinic’s director complained, claiming this violated
> the Minnesota ban on discrimination based on “creed.”  The Minneapolis
> Commission on Human Rights concluded that Glass’s actions were indeed
> illegal.
>
>
>
> The Minnesota Court of Appeals reversed, by a 2-to-1
> vote.  First, it held that the ban on discrimination based on “creed” was
> limited to discrimination based on the customer’s religious beliefs, and
> not the customer’s political and philosophical beliefs and the actions that
> were based on those beliefs.  (The dissenting judge thought the ban on
> discrimination based on creed indeed covered discrimination based on a
> customer’s being involved in abortions.)
>
>
>
> Second, the court held that, “Even if it could be soundly
> argued that the term ‘creed’ contained in the Minneapolis ordinance should
> be defined by this court to include a nonreligious philosophy such as that
> held by respondents Rasmussen and [the abortion clinic], this court would
> still be required to reverse the Commission's decision” under the Minnesota
> Constitution’s religious freedom provision, which the Minnesota Supreme
> Court had been read to basically follow *Sherbert/Yoder*.  (The
> dissenting judge disagreed with this as well.)
>
>
>
> Eugene
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: help wanted

[James Oleske]

Some years back, I wrote an article about whether Title VII's reasonable
accommodation provision is valid Section 5 enforcement legislation
abrogating state sovereign immunity (http://ssrn.com/abstract=476621).
Here's the conclusion:

"When Title VII's reasonable-accommodation provision was enacted in 1972,
it was a fitting compliment to the Supreme Court's own pro-accommodation
view of the Free Exercise Clause. However, the Court has since changed its
approach, and [free exercise] accommodations are now the constitutional
exception, not the rule. As a result, a serious question arises under the
Court's current federalism jurisprudence as to whether the
reasonable-accommodation provision can be considered appropriate Section 5
legislation that abrogates state sovereign immunity. This Article proposes
that the Court answer that question by focusing on the relationship between
the reasonable-accommodation provision and the selective-exemption rule
that was announced in Smith and reaffirmed in Lukumi. By doing so, the
Court could preserve the ability of state employees to vindicate their
rights under Title VII while bringing much needed clarity to its free
exercise and Section 5 doctrines."


As I discuss in the article, the reasonable-accommodation provision would
be on the strongest footing if the Court were to hold that the Smith/Lukumi
selective-exemption rule can be implicated, and heightened scrutiny
triggered, not only when the government maintains a system of
individualized exemptions, but also when a government rule has categorical
secular exemptions. This issue has divided the lower courts.

Assuming categorical exemptions can sometimes trigger the
selective-exemption rule, the question then arises as to what type of
categorical exemptions will trigger the rule, and under what circumstances.
I've come to believe that a proper interpretation of the
selective-exemption rule would lead to the rule being implicated only
rarely in cases involving categorical exemptions, a view I've outlined in a
more recent article (http://ssrn.com/abstract=2216207). But many leading
scholars, including several on this list, take a broader view of the rule
-- a view laid out in an amicus brief filed last month in the Supreme
Court:

http://www.becketfund.org/wp-content/uploads/2016/02/Stormans-Brief-of-Religious-Liberty-Scholars.pdf

If the Court grants cert in Stormans and takes the broader view of the
Smith/Lukumi selective-exemption rule, I think a very strong case could be
made that Title VII's reasonable-accommodation provision is valid Section 5
enforcement legislation. The case would be tougher, though not impossible,
if the Court takes a narrower view of the selective-exemption rule.

- Jim



On Mon, Feb 22, 2016 at 12:24 PM, Volokh, Eugene 
wrote:

>I agree that there might be Eleventh Amendment problems
> here, as there may well be with regard to the Title VII religious
> accommodation requirement, see *Holmes v. Marion County Office of Family
> and Children*, 349 F.3d 914 (7th Cir. 2003); but a statute could avoid
> them by allowing lawsuits by the federal government, or (I take it) by
> authorizing *Ex-parte-Young*-like injunctions, no?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Scarberry, Mark
> *Sent:* Monday, February 22, 2016 12:07 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* RE: help wanted
>
>
>
> What about Seminole Tribe?
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Volokh, Eugene
> *Sent:* Monday, February 22, 2016 11:39 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: help wanted
>
>
>
>If the question is just of Congressional power, I would
> think that the Commerce Clause would be more than ample – just as Title VII
> can apply to commerce in labor (whether by government employers or private
> ones), so can this hypothetical statute.  (I think the proposed statute
> would be far too broad, and might pose Thornton v. Caldor
> undue-burden-on-third-parties concerns; but it wouldn’t pose Boerne v.
> Flores enumerated-power concerns.)
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Ira Lupu
> *Sent:* Monday, February 22, 2016 11:17 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: help wanted
>
>
>
> Try the spending power.  But why would Congress want to do this, rather
> than leave it to each state? And if Congress did, why not include a
> provision that would specify that the law does not apply to 

Re: The Establishment Clause question in the Trinity Lutheran case

[James Oleske]

To clarify, Eugene: Would this "maximalist equal treatment" theory prohibit
legislative exemptions available to religion but not non-religion, or just
legislative burdens placed on religion but not non-religion? If only the
latter, is it really a maximalist equal treatment theory? If both the
former and the latter, is it remotely reconcilable with either current
doctrine or longstanding tradition allowing legislative accommodation of
religion? See Cutter ("Religious accommodations ... need not 'come packaged
with benefits to secular entities'").

- Jim

On Sun, Jan 17, 2016 at 1:36 PM, Volokh, Eugene  wrote:

>I share Sandy’s skepticism about the “play in the joints”
> locution, but I wonder why equal treatment doesn’t make sense as a
> maximalist theory?
>
>
>
> Consider Sandy’s auditoria hypothetical.  It’s hard to
> infer much based on it, I think, because it’s hard to imagine the
> government actually building auditoria for private organizations.  But
> let’s consider two more plausible versions:
>
>
>
> 1.   The government builds a city auditorium, not for its own speech
> but to enable private organizations to speak.  Churches would indeed have a
> First Amendment right to equal access to such an auditorium.  See
> Rosenberger v. Rector.
>
>
>
> 2.   The government offers property tax exemptions for a wide range
> of nonprofits, and makes contributions to such nonprofits tax-deductible.
> Thus, if a nonprofit is building an auditorium, it in effect gets a massive
> matching-grant subsidy from the government.  There’s nothing nonsensical,
> it seems to me, about churches being entitled to use this subsidy for
> building their churches.  Indeed, they get such a subsidy now, and it’s
> seen as constitutional.  See Walz.  And I think that, if some government
> decided to exclude churches from such subsidies (while making them
> available to a vast range of comparable nonprofits), that would indeed
> violate the Free Exercise Clause.
>
>
>
> Now one can argue that, as a matter of history, police, or what have you,
> the Free Exercise Clause should not be read as mandating equal treatment
> for religious observers in general, as to funding, as to some kinds of
> funding, or what have you.  But I just don’t see why the equal access rule
> wouldn’t “make[] sense.”
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V
> *Sent:* Sunday, January 17, 2016 9:58 AM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: The Establishment Clause question in the Trinity Lutheran
> case
>
>
>
> Shouldn't we admit that "play in the joints" is simply a euphemism for
> judicial balancing between the competing notions of no establishment, on
> the one hand, and free exercise+equality on the other. Neither makes sense
> as maximalist theory. The former would prohibit police protection, the
> latter would require the state to build churches if it auditoria for the
> people to use as gathering places to discuss important issues. So we rely
> on Rehnquist's and his successors' hunches as to where one should draw the
> line. We delude ourselves in believing that legal doctrine can work itself
> pure in this--or, for that matter, any other significant--area. "The life
> of the law is experience, not logic."
>
>
>
> The problem is that it is awkward for well-paid law professors to teach
> their students that law often comes down to the idiosyncratic views of the
> median justices and that it is basically foolish to believe there are true
> doctrinal rationales that can predict future decisions.
>
>
>
> Sandy
>
> Sent from my iPhone
>
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Cert. Petition Filed in Pharmacy Free Exercise Case

[James Oleske]

On Monday, Stormans Inc. -- which operates a pharmacy in Washington State
-- filed a cert. petition seeking review of the Ninth Circuit's
decision in *Stormans,
Inc. v. Wiesman*. As described more fully below, Stormans is challenging
state regulations that effectively require its pharmacy to stock and
dispense emergency contraception, a practice that is contrary the religious
beliefs of Stormans' owners. The petition is available here:

http://www.becketfund.org/wp-content/uploads/2016/01/Stormans-SCOTUS-Cert-Petition.pdf

In my view, the arguments made in the Stormans case concern some of the
most interesting and unresolved aspects of the Court's post-Smith free
exercise doctrine. If engaged on the merits, the arguments in Stormans
would require the Court to clarify what type and what degree of secular
exemptions to a law, short of the religious gerrymandering in Lukumi, are
sufficient to render a law non-neutral and/or non-generally applicable, and
thus subject to heightened scrutiny. Given that different circuits have
taken different approaches to the issue, eventually the Court will have to
step in. And Stormans argues that this is an ideal case in which to do so.*

The principal challenge Stormans faces in obtaining Supreme Court review is
that the Ninth Circuit decided the case by rejecting a factual predicate
for the selective-exemption argument. Specifically, the Ninth Circuit
concluded that the state agency responsible for enforcing the regulations
has never actually endorsed or approved any of the unwritten secular
exemptions upon which Stormans placed principal reliance. According to the
Ninth Circuit, the agency has a complaint-based enforcement process, no
complaints have ever been filed against pharmacies that are engaging in the
types of secular practices that Stormans claims are undermining the
regulations, and hence no exemptions for those practices can be said to
exist. In its petition, Stormans contends that the Ninth Circuit's
reasoning on this front is inconsistent with both Lukumi and the Third
Circuit's decision in the Tenafly Eruv Association case, but my initial
instinct is that the factual backdrops of the three cases are not nearly as
similar Stormans contends. The logical implication of Stormans' argument
seems to be that religiously motivated violations of laws must be excused
anytime the government uses a complaint-driven enforcement scheme and
complaints haven't been filed against some non-religiously motivated
violators, and that result does not seem to be a necessary result of either
Lukumi or Tenafly. In any event, it's not clear that this predicate issue
is particularly cert. worthy.

* Stormans also argues that the Court could summarily reverse the Ninth
Circuit on the ground that the Washington State regulations amount to
religious targeting as bad as the religious gerrymandering in Lukumi. I'm
skeptical of this argument given that the Washington regulations apply
equally to secular moral objections to dispensing particular drugs (whether
it be emergency contraception or drugs produced in countries with
objectionable human rights practices or drugs tested on particular animals)
and religious moral objections.

- Jim


On Thu, Jul 23, 2015 at 10:48 AM, James Oleske <jole...@lclark.edu> wrote:

> Today, the Ninth Circuit issued its opinion in *Stormans, Inc. v. Wiesman*,
> a long-running case involving a pharmacy's free-exercise challenge to
> Washington State's requirement that pharmacies dispense all lawfully
> prescribed or approved drugs, including emergency contraception. The court
> ruled in favor of the state, holding that the state's rule was neutral and
> generally applicable and thus subject to only rational basis review. The
> pharmacy had argued that because the state's rule excuses failures to
> dispense for certain reasons (e.g., lack of specialized equipment to make
> drug; drug out of stock; payment-type not accepted), and gives the state
> some discretion in applying those exemptions, it is not neutral and
> generally applicable, and must include an exemption allowing pharmacies to
> refuse to dispense drugs for religious reasons unless the state can satisfy
> strict scrutiny.
>
> Professor McConnell, the Becket Fund, and the Alliance Defending Freedom
> represented the pharmacy, and a group of 24 law professors filed an amicus
> brief supporting the pharmacy's selective-exemption argument. The amicus
> brief concisely distills its core argument as follows: "Laws that burden
> religion and apply to some but not all analogous secular conduct are not
> generally applicable A singular secular exception triggers strict
> scrutiny if it undermines the state interest allegedly served by applying
> the rule to religious conduct." Perkins Coie and Planned Parenthood
> represented Intervenors who joined the State as appellants in the Ninth
> Circuit, and amicus briefs we

Re: the unconstitutionality of barring Muslims from entering the U.S.

[James Oleske]

 Amendment. No offense to the worthy statements
>> of those who have posted, or written elsewhere, although I do think
>> academics generally have a comparative advantage at calm and slow
>> reflection, not short-term reactions and predictions, in which they are
>> largely as subject to cognitive limitations as all humans are.
>>
>> To that end, may I commend Timothy Zick's The Cosmopolitan First
>> Amendment: Protecting Transborder Expressive and Religious Liberties
>> (Cambridge University Press, 2015),
>>
>> http://www.amazon.com/The-Cosmopolitan-First-Amendment-Transborder/dp/1107547210.
>> His endnotes point to other relevant and reflective treatments. See also
>> this valuable report of a task force on religion and U.S. foreign policy
>> sponsored by the Chicago Council on Global Affairs:
>> http://kroc.nd.edu/sites/default/files/engaging_religious_communities_abroad.pdf.
>> I think everyone will find both sources valuable, interesting, and
>> time-consuming.
>>
>>
>> On Dec 9, 2015, at 11:12 PM, James Oleske <jole...@lclark.edu> wrote:
>>
>> Although Rick and Chip agree that Trump's proposal violates the
>> Establishment Clause, they travel different paths to that conclusion, and
>> those different paths raise (I think) an interesting question:
>>
>> Under the Court's precedents, is it clear that the "denominational
>> discrimination" rule Rick invokes is, like the "ecclesiastical question"
>> rule Chip originally invoked, structural in nature and not rights oriented?
>>
>> Between O'Connor's opinion in Lynch, and the Court's opinions in Grand
>> Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of
>> language that makes the issue of endorsement or disapproval sound in
>> individual rights ("person's standing in the political community" "not full
>> members of the political community" “perceived by … nonadherents as a
>> disapproval[] of their individual religious choices"). In its latest
>> explanation of the denominational-discrimination rule in McCreary, the
>> Court wrote that "Manifesting a purpose to favor one faith over another ...
>> clashes with the 'understanding, reached ... after decades of religious
>> war, that liberty and social stability demand a religious tolerance that
>> respects the views of all citizens." If we're talking about non-citizens
>> who are not part of the American political community, could one colorably
>> argue that the denominational-discrimiantion rule -- as currently
>> understood by the Court -- does not apply?
>>
>> - Jim
>>
>> On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan <nebraskalawp...@yahoo.com>
>> wrote:
>>
>>> I missed Chip's great post before I asked my question.
>>>
>>> I agree completely with what Chip says here. It seems like a clear
>>> violation of  EC limitations on National power. The clearest command of the
>>> EC forbids denominational discrimination by the National government
>>> ("Congress shall make no law").
>>>
>>> The only problem might be standing. Would a non-citizen-foreign-national
>>> have standing to challenge the exclusion under the EC?
>>>
>>> Rick Duncan
>>> Welpton Professor of Law
>>> University of Nebraska College of Law
>>> Lincoln, NE 68583-0902
>>>
>>>
>>> --
>>> *From:* Ira Lupu <icl...@law.gwu.edu>
>>> *To:* Law & Religion issues for Law Academics <
>>> religionlaw@lists.ucla.edu>
>>> *Sent:* Tuesday, December 8, 2015 7:10 PM
>>> *Subject:* the unconstitutionality of barring Muslims from entering the
>>> U.S.
>>>
>>> There has been much discussion in the press and on blog posts re: the
>>> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from
>>> entering the U.S.  Several commentators have suggested the "plenary power"
>>> doctrine, governing Congressional power over immigration, would insulate
>>> such a proposal from a finding of unconstitutionality.
>>> I think the strongest constitutional argument against this proposal is
>>> based on the Establishment Clause, which severely limits the government's
>>> power to decide who is and who is not a Muslim. Suppose the person seeking
>>> entry disputes the label; how will immigration officials adjudicate the
>>> question? What criteria would the government apply to decide who fits the
>>> disqualification? This is an 

Re: the unconstitutionality of barring Muslims from entering the U.S.

[James Oleske]

Thanks, Chip. I can see why sincerity might be more difficult to judge in
the denial-of-affiliation situation than in the claim-of-affiliation
situation, but I'm not sure a sincerity inquiry is impossible in the former
situation. And I do wonder how often the line between a permissible
sincerity inquiry and an impermissible judicial development of a religious
test gets blurred in the latter situation. In one BIA decision affirmed by
the Ninth Circuit, an immigration judge included this explanation for why
it had found that the claimant had not converted to Christianity:

"The respondent cannot even name the 12 apostles of Jesus Christ. With the
Court's understanding that Christianity begins with the life and teaching
of Jesus Christ in the New Testament, the 12 apostles have some of the most
important, if not the most important, writings of Christianity. The Court
has serious doubt in the respondent's conversion to Christianity when he
cannot even give the names of the 12 apostles of Jesus Christ."

Toufighi v. Mukasey, 538 F.3d 988, 991 (9th Cir. 2008) (affirming the BIA's
decision after finding that the court lacked jurisdiction to review the
IJ's factual findings). But see id. at 1000 (Berzon, dissenting) ("[T]he
question is *not* what Toufighi believes but what Iran understands him to
believe—or, more accurately, *not* to believe. It is thoroughly plausible
that because he attends Christian services and belongs to a Christian
church, Toufighi will be taken to have renounced Islam. Neither the BIA's
nor the IJ's 'opinion[s] ... consider[ed] what could count as conversion in
the eyes of an Iranian religious judge, which is the only thing that *would*
count as far as the danger to [the petitioner] is concerned.' Even if his
conversion is not 'genuine,' he remains at risk.") (quoting Bastanipour v.
I.N.S.*,* 980 F.2d 1129, 1132 (7th Cir.1992)).

Putting aside the dispute between the majority and dissent in Toufighi over
the relevance of the IJ's factual finding, I think the finding itself could
be viewed not only as a questionable sincerity finding, but also an
impermissible assumption of judicial authority to determine the religious
importance of the 12 apostles.

- Jim


On Thu, Dec 10, 2015 at 3:46 PM, Ira Lupu <icl...@law.gwu.edu> wrote:

> Thanks, Jim, for the kind words about the book.
>
> On the asylum and refugee problem -- someone asked me about this
> yesterday, off-list.  I answered with a variation on the following:
> In persecution cases, someone is claiming to be of a certain faith (or at
> least that she fears persecution because others perceive her to be of that
> faith).  Sincerity is an appropriate inquiry into either of those
> assertions.  But the context of the Trump proposal involves someone denying
> that she is a Muslim.  If the person seeking entry denies affiliation, what
> questions can you ask?  The government may not assert that anyone who
> believes X is therefore a member of Faith Y.  If immigration judges probe
> affiliation, I'll bet they don't ask whether the applicant believes in the
> divinity of Christ, or believes in the inviolability of teachings in the
> Koran.  Reaching conclusions based on those questions would involve the
> government taking a position on matters disputed within the faith itself.
>
> On Thu, Dec 10, 2015 at 5:23 PM, James Oleske <jole...@lclark.edu> wrote:
>
>> I agree with Marty that this whole discussion is unnerving, but given the
>> initial polls showing (1) substantial majority support for Trump's proposal
>> among likely Republican primary voters, as well as support from a sizable
>> minority of likely Democratic primary voters, and (2) Trump reaching new
>> heights in the GOP primary, I think a discussion of the constitutionality
>> of Trump's deplorable proposal is inevitable.
>>
>> And even putting Trump's proposal aside, some of the proposals from more
>> "conventional" candidates would seem to raise similar issues to those that
>> we've been discussing here. For example, Governor Bush recently indicated
>> that Christian refugees from Syria should receive preference over other
>> Syrian refugees because there are "no Christian terrorists in the Middle
>> East." When asked by a reporter about how the screening process would work,
>> Bush responded: "You’re a Christian — I mean, you can prove you're a
>> Christian. You can’t prove it, then, you know, you err on the side of
>> caution.”
>>
>> This approach would potentially implicate both the "ecclesiastical
>> question" rule and the "denominational discrimination" rule (assuming
>> persecuted Christians are given preference over persecuted Yazidis,
>> Shiites, etc.). Which brings us back to the question of whether these ru

Re: the unconstitutionality of barring Muslims from entering the U.S.

[James Oleske]

Although Rick and Chip agree that Trump's proposal violates the
Establishment Clause, they travel different paths to that conclusion, and
those different paths raise (I think) an interesting question:

Under the Court's precedents, is it clear that the "denominational
discrimination" rule Rick invokes is, like the "ecclesiastical question"
rule Chip originally invoked, structural in nature and not rights oriented?

Between O'Connor's opinion in Lynch, and the Court's opinions in Grand
Rapids, Allegheny, Sante Fe, and McCreary, there is a a fair amount of
language that makes the issue of endorsement or disapproval sound in
individual rights ("person's standing in the political community" "not full
members of the political community" “perceived by … nonadherents as a
disapproval[] of their individual religious choices"). In its latest
explanation of the denominational-discrimination rule in McCreary, the
Court wrote that "Manifesting a purpose to favor one faith over another ...
clashes with the 'understanding, reached ... after decades of religious
war, that liberty and social stability demand a religious tolerance that
respects the views of all citizens." If we're talking about non-citizens
who are not part of the American political community, could one colorably
argue that the denominational-discrimiantion rule -- as currently
understood by the Court -- does not apply?

- Jim

On Wed, Dec 9, 2015 at 12:21 PM, Rick Duncan 
wrote:

> I missed Chip's great post before I asked my question.
>
> I agree completely with what Chip says here. It seems like a clear
> violation of  EC limitations on National power. The clearest command of the
> EC forbids denominational discrimination by the National government
> ("Congress shall make no law").
>
> The only problem might be standing. Would a non-citizen-foreign-national
> have standing to challenge the exclusion under the EC?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> --
> *From:* Ira Lupu 
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Tuesday, December 8, 2015 7:10 PM
> *Subject:* the unconstitutionality of barring Muslims from entering the
> U.S.
>
> There has been much discussion in the press and on blog posts re: the
> constitutionality of of Trump's proposal to bar (non-citizen?) Muslims from
> entering the U.S.  Several commentators have suggested the "plenary power"
> doctrine, governing Congressional power over immigration, would insulate
> such a proposal from a finding of unconstitutionality.
> I think the strongest constitutional argument against this proposal is
> based on the Establishment Clause, which severely limits the government's
> power to decide who is and who is not a Muslim. Suppose the person seeking
> entry disputes the label; how will immigration officials adjudicate the
> question? What criteria would the government apply to decide who fits the
> disqualification? This is an ecclesiastical question, the decisions of
> which are off-limits to the government. (See Hosanna-Tabor v. EEOC; more
> generally, see Lupu & Tuttle, Secular Government, Religious People, chaps.
> 1-2.)
>  Because the Establishment Clause is structural, and not rights-oriented,
> It does not matter whether or not the decisions pertain to American
> nationals. The plenary power doctrine cannot undo this structural
> limitation, any more than it can undo limitations based on separation of
> powers (e.g., Congress may not delegate to a congressional committee the
> power to process immigration cases).
>
> Reactions from list members to this argument?
>
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
> People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: State RFRAs and their equivalents

[James Oleske]

In addition to Doug's piece, this March 2014 post from Eugene has a map and
comprehensive legend covering both RFRAs and state constitutional
provisions that have been interpreted as providing exemption rights:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/

Mississippi, Indiana, and Arkansas have since adopted RFRAs. I don't know
if any additional states have interpreted their constitutions to require
exemptions since March 2014, but Washington State's Supreme Court will soon
be hearing a case (the florist/same-sex marriage case) in which it will be
called upon to apply the state's constitutional provision on religious
freedom. Although Eugene has Washington listed in the constitutional
"strict scrutiny" category, and although the Washington Supreme Court has
continued to use "compelling interest"/"narrow means" language, it has also
used "reasonableness" language, which has muddied the waters. See City of
Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 n.3
(2009) ("Of course, the government may require compliance with reasonable
police power regulation.").

- Jim


On Sat, Dec 5, 2015 at 10:02 AM, Douglas Laycock 
wrote:

> I collect these in my Illinois piece, in footnotes in the 20s. Indiana and
> Arkansas have been enacted since.
>
> On Sat, 5 Dec 2015 12:16:12 -0500
>  Marty Lederman  wrote:
> >Is there a reliable, up-to-date list of state RFRAs and state
> >constitutional provisions that have, more or less, been construed to
> >incorporate Sherbert/Yoder?  I know that many are compiled in Chris's 2010
> >article.  Anything more recent?
> >
> >Thanks in advance.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>  434-243-8546
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: State RFRAs and their equivalents

[James Oleske]

Don's very helpful tracker refers to one recently introduced bill -- HB 401
in Florida -- that would provide complete immunity for certain
religiously-motivated conduct rather than subjecting government regulation
of that conduct to strict scrutiny. In that respect, the bill looks more
like the proposed First Amendment Defense Act (FADA) than like traditional
RFRAs. Indeed, the Florida bill would go beyond FADA, and beyond the state
analogs recently proposed in Illinois and Indiana, by extending protection
for service refusals beyond the marriage context (although the sponsor's
comments to the media make clear that the relevant provision was motivated
by recent marriage vendor cases).

It will be interesting to see whether 2016 brings more FADA-like proposals
than RFRA-like proposals.

- Jim


On Sat, Dec 5, 2015 at 4:08 PM, Don Byrd <don.b...@comcast.net> wrote:

> Professor Laycock’s Illinois piece is available at the link below. His
> footnote 22 compiles 14 states that have “interpreted their state
> constitutions to protect religiously motivated conduct even from generally
> applicable laws.”
>
>
> http://www.illinoislawreview.org/wp-content/ilr-content/articles/2014/3/Laycock.pdf
>
> Thanks for the plug, Howard! Following today’s discussion, I added the
> above link, and a list of the states he references, to the State RFRA
> Tracker I maintain for the Baptist Joint Committee for Religious Liberty -
> http://bjconline.org/state-rfra-tracker-2015/
>
> Don Byrd
> http://bjconline.org/blog/
>
>
> On Dec 5, 2015, at 5:44 PM, Friedman, Howard M. <
> howard.fried...@utoledo.edu> wrote:
>
> There is also an excellent tracker for enacted and pending state RFRA's at
> Don Byrd's Blog from the Capital:
> http://bjconline.org/state-RFRA-tracker-2015/ It is kept updated.  It
> does not however cover the state constitutional part.
>
> Howard Friedman
>
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
> jole...@lclark.edu]
> *Sent:* Saturday, December 05, 2015 3:20 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: State RFRAs and their equivalents
>
> In addition to Doug's piece, this March 2014 post from Eugene has a map
> and comprehensive legend covering both RFRAs and state constitutional
> provisions that have been interpreted as providing exemption rights:
>
>
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/
>
> Mississippi, Indiana, and Arkansas have since adopted RFRAs. I don't know
> if any additional states have interpreted their constitutions to require
> exemptions since March 2014, but Washington State's Supreme Court will soon
> be hearing a case (the florist/same-sex marriage case) in which it will be
> called upon to apply the state's constitutional provision on religious
> freedom. Although Eugene has Washington listed in the constitutional
> "strict scrutiny" category, and although the Washington Supreme Court has
> continued to use "compelling interest"/"narrow means" language, it has also
> used "reasonableness" language, which has muddied the waters. See City of
> Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 n.3
> (2009) ("Of course, the government may require compliance with reasonable
> police power regulation.").
>
> - Jim
>
>
> On Sat, Dec 5, 2015 at 10:02 AM, Douglas Laycock <dlayc...@virginia.edu>
> wrote:
>
>> I collect these in my Illinois piece, in footnotes in the 20s. Indiana
>> and Arkansas have been enacted since.
>>
>> On Sat, 5 Dec 2015 12:16:12 -0500
>>  Marty Lederman <lederman.ma...@gmail.com> wrote:
>> >Is there a reliable, up-to-date list of state RFRAs and state
>> >constitutional provisions that have, more or less, been construed to
>> >incorporate Sherbert/Yoder?  I know that many are compiled in Chris's
>> 2010
>> >article.  Anything more recent?
>> >
>> >Thanks in advance.
>>
>> Douglas Laycock
>> Robert E. Scott Distinguished Professor of Law
>> University of Virginia Law School
>> 580 Massie Road
>> Charlottesville, VA  22903
>>  434-243-8546
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>&g

Re: Post-Obergefell, post-Indiana state initiatives for religious exemptions

[James Oleske]

In addition to the anticipated re-introduction of the Georgia RFRA that
Chip mentions below, a state analog of the federal First Amendment Defense
Act (FADA) has been introduced in Illinois. In addition, a bill has been
introduced in Indiana that would combine statewide LGBT-rights protections
with FADA-style language exempting certain religious objectors. The
Campaign for American Principles, a new Super PAC led by Professor Robert
George, has made the federal FADA a top priority. Meanwhile, the Family
Research Council is urging the passage of state FADAs and offering model
legislation. As a result, it seems likely that additional FADA bills will
be introduced soon for consideration during 2016 state legislative sessions.

As for the federal and Illinois FADAs that have already been proposed, both
provide that, notwithstanding any other provision of law, the [Federal
Government/State] cannot impose penalties upon or withdraw tax exemptions
from "any person" on the basis that the person "acts in accordance with a
[sincerely held] religious belief or moral conviction that marriage is or
should be recognized as the union of one man and one woman, or that sexual
relations are properly reserved to such a marriage." (The modifier
"sincerely held" does not appear in the Illinois bill.)


In the Illinois FADA, "person" is defined to include any corporation,
nonprofit or for-profit. The same was originally true of the federal FADA,
but Senator Lee has since announced revisions that would exclude publicly
traded for-profit corporations; federal government employees; for-profit
federal contractors; and medical providers with respect to visitation,
recognition of designated decisionmakers, and necessary medical care. The
religious exemptions in the Indiana bill are both broader and narrower than
those in the federal and Illinois bills. They are broader in that they
apply to all religious beliefs about marriage (so, presumably, objections
to interracial marriage, interfaith marriage, and re-marriage of divorced
individuals, not just objections to same-sex marriage). They are narrower
in that they extend to commercial entities only if those entities have
fewer than 4 employees.


As for Marty's question about whether the Indiana and Arizona experiences
put a damper on these initiatives, I think the answer is "yes, but." On the
one hand, the experiences in Indiana and Arizona (and I'd add Louisiana)
indicate that standalone RFRAs or FADAs will face serious headwinds in
2016. On the other hand, opposition to the Obergefell decision will likely
fuel the introduction of new RFRAs and FADAs, regardless of their prospects
for ultimate passage. And perhaps in a state that does not yet have
statewide LGBT rights protections, a political compromise to obtain those
protections will include some RFRA or FADA-like provisions.


- Jim


Latest Version of the federal First Amendment Defense Act:

http://www.lee.senate.gov/public/index.cfm/press-releases?ID=8e6fc9c9-730f-49a6-ad32-82e486f6e5bb


Illinois Religious Freedom Defense Act:

http://www.ilga.gov/legislation/fulltext.asp?DocName==88=99=SB=2164=13=92003==


Indiana LGBT Rights/FADA Bill:

http://www.indianasenaterepublicans.com/clientuploads/Documents/2016%20Session/SB100_LS6175.pdf



Campaign for American Principles on FADA: "[G]iven our First Amendment
rights, FADA should not even have to exist, but in the current political
environment – where everyone from bakers to religious schools are in the
cross-hairs after the Obergefell decision [–] FADA is must pass
legislation This important piece of legislation would protect the First
Amendment religious conscience rights of those American who believe that
marriage is between one man and one woman, without impeding the rights of
Americans who might disagree."
https://campaignforamericanprinciples.com/first-amendment-defense-act/

Family Research Council on FADAs (which it calls GNDAs): "Like the First
Amendment Defense Act at the federal level, states need to pass legislation
now to protect individuals and entities from state discrimination on the
basis of their beliefs in natural marriage."

http://frc.org/gnda


On Sun, Nov 29, 2015 at 6:41 AM, Ira Lupu  wrote:

> As I understand it, many state legislatures meet only in the first few
> months of the year, and have not been in session since the Obergefell
> decision.  I have heard from several reliable sources that Georgia
> legislators will re-introduce a RFRA in January 2016.  In spring 2015, it
> appeared that Georgia would enact a RFRA, but the bill was tabled as a
> result of a last minute motion to carve out state and local
> non-discrimination laws (like the Indiana fix). The Bill's sponsor had said
> all along that the RFRA would not protect acts of discrimination, but he
> refused to accede to the carve out and pulled the Bill.
>
> On Sun, Nov 29, 2015 at 4:37 AM, Marty Lederman 
> wrote:
>
>> A while back we discussed 

Re: 3rd Circuit's Interesting Religious Discrimination Decision

[James Oleske]

I've admittedly only skimmed the decision, but given that the court found
that the plaintiffs had pled a free exercise claim, it's not entirely clear
why (1) the majority had to decide the equal-protection/scrutiny-level
question and (2) Judge Roth's preference for intermediate scrutiny of
religious discrimination under the Equal Protection Clause isn't moot given
the Supreme Court's binding free exercise precedent requiring strict
scrutiny of religious discrimination. See Lukumi ("A law failing to satisfy
these requirements [of neutrality and general applicability] must be
justified by a compelling governmental interest and must be narrowly
tailored to advance that interest.").

- Jim



On Wed, Oct 14, 2015 at 7:52 AM, David Cruz  wrote:

> Judge Roth always struck me as a very careful judge when I was clerking
> for the late Judge Becker at the Third Circuit.  Her concurrence here is
> thus all the more striking.  I’m assuming she meant something like "in
> other types of discrimination cases" *where strict scrutiny is not
> required by binding Supreme Court precedent*.
>
> 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 "Friedman, Howard
> M." 
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Wednesday, October 14, 2015 at 5:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: 3rd Circuit's Interesting Religious Discrimination Decision
>
> The 3rd Circuit yesterday issued rather remarkable majority and concurring
> opinions in Hassan v. City of New York refusing to dismiss Muslims' attack
> on NYPD's surveillance program.
>
> http://religionclause.blogspot.com/2015/10/3rd-circuit-challenge-to-nypd-muslim.html
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: "Call for Constitutional Resistance"

[James Oleske]

A doctrinal question concerning the full statement:

One of the "grave" consequences the statement says can be "predicted with
confidence" as a result of *Obergefell* is that individuals and
organizations who do not accept same-sex marriage will be "denied
constitutional rights in order to pressure them to conform to the new
orthodoxy."

Are the "constitutional rights" referenced in this line free exercise
exemption rights? In other words, is one premise of the statement that
*Smith* was incorrectly decided? Or is the statement referencing some other
constitutional right?

- Jim


On Fri, Oct 9, 2015 at 12:29 PM, Marty Lederman 
wrote:

> FYI:
>
>
> https://americanprinciplesproject.org/founding-principles/statement-calling-for-constitutional-resistance-to-obergefell-v-hodges%E2%80%AF/
>
> We call on all federal and state officeholders:
>
> *To refuse to accept Obergefell as binding precedent for all but the
> specific plaintiffs in that case.*
>
> To recognize the authority of states to define marriage, and the right of
> federal and state officeholders to act in accordance with those definitions.
>
> To pledge full and mutual legal and political assistance to anyone who
> refuses to follow *Obergefell *for constitutionally protected reasons.
>
> To open forthwith a broad and honest conversation on the means by which
> Americans may constitutionally resist and overturn the judicial usurpations
> evident in *Obergefell*.
>
> And in a companion "call to action" (
> https://campaignforamericanprinciples.com/scholars-statement/), Robbie
> George solicits scholars' signatures to "call on all who aspire to be our
> next President to pledge to treat *Obergefell*, not as 'the law of the
> land,' but rather (to once again quote Justice Alito) as 'an abuse of
> judicial power,'” and to "refuse to recognize *Obergefell* as creating a
> binding rule controlling other cases or their own conduct as President."
>
> Does anyone recall any remotely similar initiative by legal scholars in
> the past half-century or so?  Predictions on how many, if any, presidential
> candidates will make the pledge?
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Kim Davis announcement about what she'll do at work today

[James Oleske]

Update:

Unlike the licenses previously issued by deputy clerk Brian Mason to
same-sex couples, which included "in the office of Rowan County," the
license he issued this morning has the words "in the office of" crossed out
and the language "Pursuant to the Federal Court Order" in the place where
ordinarily the names of the clerk and the county would be inserted (image
here: https://twitter.com/alanblinder/status/643447815641899008).

So Davis appears to have imposed her position from the deposition (that
both her name AND the name of her county must be removed from the form). As
several of us have noted on the religionlaw list, this approach raises both
establishment and equal protection questions, but the more immediate
question is whether it is consistent with Judge Bunning's non-interference
order.

- Jim



On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman 
wrote:

> summarizing:
>
> http://balkin.blogspot.com/2015/09/kim-davis-developments.html
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Kim Davis announcement about what she'll do at work today

[James Oleske]

Sorry -- "deposition" in the message below should be "preliminary
injunction hearing." - Jim

On Mon, Sep 14, 2015 at 9:14 AM, James Oleske <jole...@lclark.edu> wrote:

> Update:
>
> Unlike the licenses previously issued by deputy clerk Brian Mason to
> same-sex couples, which included "in the office of Rowan County," the
> license he issued this morning has the words "in the office of" crossed out
> and the language "Pursuant to the Federal Court Order" in the place where
> ordinarily the names of the clerk and the county would be inserted (image
> here: https://twitter.com/alanblinder/status/643447815641899008).
>
> So Davis appears to have imposed her position from the deposition (that
> both her name AND the name of her county must be removed from the form). As
> several of us have noted on the religionlaw list, this approach raises both
> establishment and equal protection questions, but the more immediate
> question is whether it is consistent with Judge Bunning's non-interference
> order.
>
> - Jim
>
>
>
> On Mon, Sep 14, 2015 at 6:32 AM, Marty Lederman <lederman.ma...@gmail.com>
> wrote:
>
>> summarizing:
>>
>> http://balkin.blogspot.com/2015/09/kim-davis-developments.html
>>
>>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Assessing a Proposed Solution to the KY Case

[James Oleske]

Stepping back from the detailed discussion Kevin, Marty, and others have
been having today about the intricacies and proper interpretation of
Kentucky law, I wanted to address more broadly Kevin's suggested solution
to the Davis situation.

Here's the key testimony from Kim Davis that Kevin quotes in his earlier
message to the list and in a blog post at Mirror of Justice:

THE COURT: All right. You just object to your name being on the license?

THE WITNESS: My name and my county, yeah.

THE COURT: Well, your county, you're elected by the county. But if it said
Rowan County and listed a deputy clerk -- let's say the deputy clerk that
would be permitted to, or has agreed that he or she would not be
religiously opposed to issuing the license, if it just was the deputy
clerk's name with Rowan County and not your name, would you object to that?

THE WITNESS: It is still my authority as county clerk that issues it
through my deputy.

THE COURT: All right. Very well. You may step down. Thank you.


To address Davis's concerns, Kevin's proposed solution is to have deputy
clerks working in Rowan County issue marriage licenses on the authority of
clerks from other counties. Thus, the resulting license issued in Rowan
County would say something like "issued by the office of Bobbie Holsclaw,
Jefferson County Clerk, by [insert name of Rowan County deputy clerk]."

In a message to list earlier today, Kevin reports that some of the
resistance he has gotten to this idea has come from people who raise the
race analogy. But arguing that "particulars matter," Kevin notes that "the
transition in marriage licensing is not remotely as complicated as
desegregating schools" and concludes, "I'm unpersuaded that there are
unacceptable harms to the interests of plaintiffs and others similarly
situated."

The reference to school desegregation strikes me as a non-sequitur. In the
wake of Loving, there were clerks and magistrates who refused to issue
marriage licenses to interracial couples. That phenomenon, not resistance
to school desegregation, seems like the relevant race analogy. Which leads
to the following question: If the clerk of Rowan County had religious
objections to interracial marriage, would it be an acceptable solution to
say that the authority of the Rowan County Clerk's Office won't be used to
license interracial marriages? Alternatively, would we allow the
marriage-licensing authority of Rowan County to be put on the shelf because
the clerk religiously opposed the remarriage of divorced people and didn't
want to facilitate what she sincerely believed to be adultery? Can the use
or nonuse of county authority really be determined by the religious beliefs
of county officeholders?

Both from an establishment perspective and an equal protection perspective,
I'm having a hard time seeing how it's acceptable to let Kim Davis's
religious beliefs preclude the Rowan County Clerk's Office's from
authorizing same-sex marriages, regardless of whether there is a way to
deliver Jefferson County licenses to Rowan County residents with no
additional delay.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Davis doubles down

[James Oleske]

For what it's worth, in their filing to the Sixth Circuit yesterday,
Davis's attorneys insisted that she was *not* making a complicity claim
akin to that being made in the contraception cases, and they emphasized
that her concern was the appearance of her name on the forms (emphasis in
original):


"Importantly, Davis is not claiming a substantial burden on her religious
freedom if *someone else authorizes* and approves a SSM license *devoid of
her name*. For example, Davis is not claiming that her religious freedom is
substantially burdened if she must complete an opt-out form to be exempted
from issuing SSM licenses. Davis is also not claiming that a SSM license
authorized by the Rowan County Judge/Executive and devoid of her name and
authority substantially burdens her religious freedom. Davis is also not
claiming that her religious freedom is substantially burdened if the
license were issued by someone else in Rowan County (*e.g.*, a deputy
clerk), so long as that license is not issued under her name or on her
authority."


I gather that the last phrase -- "on her authority" -- is what her
attorneys are now emphasizing. As long as she is the County Clerk, the
issuance of marriage licenses in the name of the County Clerk's office,
even without her name, is on her authority and a violation of her RFRA
rights.

In his post, Eugene notes that this claim may go beyond what the Kentucky
RFRA guarantees, but he also opines that "the accommodation doesn't seem
terribly burdensome."

Do others feel similarly? Is it really just no big deal to require the
government to alter the use of government names (Rowan County Clerk's
Office) to accommodate the religious beliefs of individual government
officials, even after their names have been removed from the equation? If
the U.S. Attorney for the District of Massachusetts opposed the death
penalty on religious grounds, and was allowed to take his name off of all
filings in capital cases, would we really entertain a claim that it would
not be terribly burdensome to require the government to take the office's
name off of all such filings?

- Jim

On Tue, Sep 8, 2015 at 3:28 PM, Marty Lederman 
wrote:

> Eugene reports, pursuant to a phone conversation with Davis's attorneys,
> that she will continue to press her RFRA claim, and insist that the
> licenses not be issued, because, even though her name is no longer on the
> licenses, the name of her *office *is!
>
>
> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/
>
> It's just like the contraception cases -- whenever the government
> accommodates even the most implausible theories of complicity by
> eliminating the aspects of the scheme that the plaintiff asserted made her
> morally complicit, the plaintiff then unveils a new (and even more
> attenuated) theory of responsibility that is said not to be left
> unaddressed by the accommodation.  In this way, the plaintiffs effectively
> exploit the fact that the governments in question (admirably) do not choose
> to challenge the sincerity of the ever-evolving theories of complicity.
>
> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman 
> wrote:
>
>> I'm pressed for time, so this is only a preliminary take, but thought
>> it'd be worth throwing it out there for reactions:
>>
>>
>> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html
>>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Davis doubles down

[James Oleske]

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney
General had said that he would not be defending Kentucky's marriage law,
but that his office would continue to do so through his deputy. It made
sense that the state hired private counsel instead."

I'm not sure this analogy works. It's one thing for an AG to refuse to have
their office defend a law based on the AG's conclusion that a district
judge correctly found the law to be unconstitutional and that the Supreme
Court is likely to agree. It is quite another for an AG to refuse to have
their office defend a law based solely on the AG's religious objection to
the law. The idea that we wouldn't have state lawyers defend state laws
based on  state AGs' religious objections to those laws strikes me as
extremely odd.

Back to Davis, my point was not that she hasn't preserved the "on her
authority" argument for objecting to the issuance of "Rowan County Clerk's
Office" licenses. It appears that she has preserved that argument. But
given Marty's comparison of that argument to the complicity arguments in
the contraception case, I thought it was worth noting that her lawyers
specifically argued in their latest filing that her claim should be viewed
as more modest than the claims in the contraception cases and they framed
that argument by emphasizing (their emphasis, not mine) the phrase "devoid
of her name."

Finally, in judging the burden a claimed accommodation imposes on the
government, I'm inclined to think that we need to look at more than the
logistical issue of whether "the government could easily substitute another
official." It seems to me that requiring the government to modify the use
of government office names to satisfy the religious beliefs of government
employees imposes a burden (and raises concerns) beyond logistics.
(Alternatively, perhaps this is all best approached not by focusing on the
burden on government, but instead, the lack of a cognizable burden on
plaintiff per Roy and Lyng).

- Jim


On Tue, Sep 8, 2015 at 7:21 PM, Walsh, Kevin <kwa...@richmond.edu> wrote:

> Based on a quick review of the filings, I don't see how Davis's position
> has shifted.
>
> Davis's opposition to the preliminary injunction motion from July 30 says:
> "Even though one of her deputy clerks (and perhaps two) is (or are) willing
> to issue a SSM license, she instructed all deputy clerks to stop issuing
> marriage licenses because licenses are issued with her authority (not the
> deputy clerk’s) and every license requires her name to appear on the
> license (even if signed by a deputy clerk)."
>
> The idea that licenses issued from the Rowan County Clerk's Office are
> issued under the authority of the Rowan County Clerk makes sense. And it
> also makes sense that if Davis does not wish her authority to be used to
> authorize marriages, then she would not wish her office to issue
> authorizations to marry. It would have been odd, for example, if Kentucky's
> Attorney General had said that he would not be defending Kentucky's
> marriage law, but that his office would continue to do so through his
> deputy. It made sense that the state hired private counsel instead.
>
> It is not "no big deal" to let a marriage licensing official take his or
> her office out of the business of doing something the official's religious
> conscience forbids. But neither is doing so "terribly burdensome" if the
> government could easily substitute another official to carry out the
> state's duty so that nobody's right to marry is burdened.
> 
> From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
> jole...@lclark.edu]
> Sent: Tuesday, September 08, 2015 7:28 PM
> To: Law & Religion issues for Law Academics
> Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard
> Wasserman
> Subject: Re: Davis doubles down
>
> For what it's worth, in their filing to the Sixth Circuit yesterday,
> Davis's attorneys insisted that she was not making a complicity claim akin
> to that being made in the contraception cases, and they emphasized that her
> concern was the appearance of her name on the forms (emphasis in original):
>
> "Importantly, Davis is not claiming a substantial burden on her religious
> freedom if someone else authorizes and approves a SSM license devoid of her
> name. For example, Davis is not claiming that her religious freedom is
> substantially burdened if she must complete an opt-out form to be exempted
> from issuing SSM licenses. Davis is also not claiming that a SSM license
> authorized by the Rowan County Judge/Executive and devoid of her name and
> authority substantially burdens her religious freedom. Davis is

Re: Question about the Kentucky County Clerk controversy

[James Oleske]

Thanks for the clarification, Eugene. I had assumed the clerk would be
seeking an accommodation specific to licenses for same-sex couples. But in
looking at the various alternatives the clerk has proposed in describing
her putative state RFRA claim, only one is explicitly limited to same-sex
licenses, one other would likely be so limited, whereas four others would
not be so limited and instead disengage her from all marriage licenses. I
agree that the alternatives in the latter category don't raise as acute of
a separate-but-equal issue, but one of the four still leaves some of that
dynamic (by resulting in different licenses in this county than all other
Kentucky counties due to a government official's opposition to same-sex
marriage) and I suspect the state could defeat the other three proposed
alternatives at the compelling interest-stage (state not required to change
statewide marriage licensing program to accommodate a single county clerk).

For what it's worth, I didn't read Eugene's initiation of this thread as
advocacy for the clerk. I read it as a testing of the nearly universal
assumption that the clerk has no colorable legal arguments, and I suspect
Eugene would be inclined to do the same type of testing if new cases arose
involving clerks refusing to issue licenses because of opposition to
interracial marriages (there were such cases in the 1960s), interfaith
marriages, or marriages of divorced people. I'm still highly skeptical of
the Kentucky clerk's claims, but I appreciate having my assumptions tested,
and I've thought far more carefully about the potential state RFRA claim as
a result of this thread than I otherwise would have.

- Jim


On Wed, Sep 2, 2015 at 10:12 PM, Volokh, Eugene  wrote:

>I appreciate Jim’s “separate-but-equal feel” point; but as
> I understand it, the County Clerk would want her name removed from *all 
> *marriage
> licenses and certificates, not just same-sex ones.  The reason for that, to
> be sure, will be known to be her opposition to same-sex marriage.  But the
> certificates would be the same for all married couples in Rowan County,
> under the accommodation she is suggesting.
>
>
>
>Eugene
>
>
>
>
>
> Jim Oleske writes:
>
>
>
>
>
> I'm not sure the distinction would affect the analysis of the hypothetical
> Kentucky RFRA claim you posit. I think if we still had a federal
> constitutional exemption regime, the Court might utilize the distinction to
> disallow certain free exercise claims by government employees, analogizing
> to the speech context. And some state courts might do likewise with state
> constitutional free exercise claims. But to the extent Congress or state
> legislatures give government employees additional protections statutorily,
> whether through Title VII, RFRA, or other similar measures, the distinction
> might not be a barrier, especially given the examples you've found from the
> Title VII context.
>
>
>
> As for the reasonableness of providing the requested accommodation,
> telling one group of citizens that they don't get the certification that
> state law requires all other citizens of their county to receive has a
> separate-but-equal feel to me that I don't think is implicated in any of
> the Title VII cases cited below.
>
>
>
> - Jim
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Question about the Kentucky County Clerk controversy

[James Oleske]

I agree with Eugene that being elected doesn't disqualify one from getting
exemptions that lower-level officials might get, but I read Howard's email
to be raising a different distinction that might have an analog in the free
speech context.

Some speech by a government employee is the employee's speech, and
potentially protected, but other speech by a government employee is on
behalf of the government, and not protected. See Garcetti. Likewise, a
police officer's conduct in growing a beard may qualify as his religious
conduct, while a police officer's conduct in issuing tickets may qualify as
official government conduct (even if the police officer signs his name to
the tickets, as he's doing so in his government capacity).

This might not resolve the RFRA issue, but I do think its a distinction
worth thinking about.

- Jim

On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene  wrote:

>It seems to me that even government officials are sometimes
> acted upon by the government, and might get exemptions from
> government-imposed rules.  That’s certainly true for lower-level government
> employees, but I would think the same might be true of election officials,
> too.  (Compare *McDaniel v. Paty*, which the plurality viewed as a
> *Sherbert*-based exemption case, though it has since been largely viewed
> as a discrimination case.)
>
>
>
>Say, for instance, that there is a statute or ordinance
> mandating a no-facial-hair rule for law enforcement officials, including
> elected sheriffs.  A sheriff who belongs to a beard-wearing religion is
> elected to office.  Why wouldn’t he have a RFRA claim to an exemption from
> the no-facial-hair rule?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Friedman, Howard M.
> *Sent:* Wednesday, September 02, 2015 7:10 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
>
>
> Kentucky law requires the license to be signed by the clerk or deputy
> clerk. http://www.lrc.ky.gov/statutes/statute.aspx?id=36475
>
>
>
> I have a different question though. State RFRAs protect against actions by
> the government that infringe religious liberty.  Here Kim Davis "is" the
> government, i.e. she is objecting to actions she is required to take in her
> official capacity.  Should RFRAs be read to protect government officials in
> that kind of situation?
>
>
>
> Howard Friedman
> --
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman [
> paul.finkel...@yahoo.com]
> *Sent:* Wednesday, September 02, 2015 8:48 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
> Quick question. Does anyone know if KY law requires the clerk to issue the
> license in the Clerk's name, as opposed to "the office of the Clerk" as
> Eugene suggests?
>
>
>
>
> **
> Paul Finkelman, Ph.D.
>
>
>
> *Senior Fellow Penn Program on Democracy, Citizenship, and
> Constitutionalism University of Pennsylvania and *
>
>
> *Scholars Advisory Panel National Constitution Center  Philadelphia,
> Pennsylvania *
> 518-439-7296 (w)
> 518-605-0296 (c)
> paul.finkel...@yahoo.com
> www.paulfinkelman.com
>
>
> --
>
> *From:* "Volokh, Eugene" 
> *To:* "Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)"
> 
> *Sent:* Wednesday, September 2, 2015 6:31 PM
> *Subject:* Question about the Kentucky County Clerk controversy
>
>
>
>I was wondering what list members thought – as a legal
> matter – of this following issue that arises in the Kentucky County Clerk
> controversy.  A federal judge issued an injunction ordering County Clerk
> Kim Davis to issue marriage licenses, including same-sex marriage
> licenses.  See
> http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
> (the application for stay from the Supreme Court, with the orders below
> attached).  I think that’s quite correct.
>
>
>
>But as I understand it, Kim Davis’s stated objection is not
> to having any same-sex marriages be processed by her office, but only to
> authorizing the distribution of marriage license and certificate forms in
> which her name appears (see PDF p. 133 of the linked-to file above).  In
> particular, she says that she would accept the option of “Modifying the
> prescribed Kentucky marriage license form to remove the multiple references
> to Davis’ name, and thus to remove the personal nature of the authorization
> that Davis must provide on the current form” (PDF p. 40); presumably those
> forms might say “Clerk of Rowan County” or perhaps the name of a deputy
> clerk who is willing to have his or her name used 

Re: Question about the Kentucky County Clerk controversy

[James Oleske]

I'm not sure the distinction would affect the analysis of the hypothetical
Kentucky RFRA claim you posit. I think if we still had a federal
constitutional exemption regime, the Court might utilize the distinction to
disallow certain free exercise claims by government employees, analogizing
to the speech context. And some state courts might do likewise with state
constitutional free exercise claims. But to the extent Congress or state
legislatures give government employees additional protections statutorily,
whether through Title VII, RFRA, or other similar measures, the distinction
might not be a barrier, especially given the examples you've found from the
Title VII context.

As for the reasonableness of providing the requested accommodation, telling
one group of citizens that they don't get the certification that state law
requires all other citizens of their county to receive has a
separate-but-equal feel to me that I don't think is implicated in any of
the Title VII cases cited below.

- Jim


On Wed, Sep 2, 2015 at 9:17 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:

>I agree in general, but how would that affect the analysis
> here?  For example, processing draft registration forms is official
> government conduct, as is the IRS’s working on tax-exempt status
> applications from various groups.  But the cases I cited show that Title
> VII’s religious accommodation mandate apply to that, too.  Likewise, if a
> County Clerk simply wants an exemption from the requirement that her own
> name appear on marriage certificates – or death warrants – and a deputy is
> fine with having his name appear instead, why wouldn’t that be a reasonable
> accommodation, and thus mandated by the Kentucky RFRA?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
> *Sent:* Wednesday, September 02, 2015 9:09 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Question about the Kentucky County Clerk controversy
>
>
>
> I agree with Eugene that being elected doesn't disqualify one from getting
> exemptions that lower-level officials might get, but I read Howard's email
> to be raising a different distinction that might have an analog in the free
> speech context.
>
>
>
> Some speech by a government employee is the employee's speech, and
> potentially protected, but other speech by a government employee is on
> behalf of the government, and not protected. See Garcetti. Likewise, a
> police officer's conduct in growing a beard may qualify as his religious
> conduct, while a police officer's conduct in issuing tickets may qualify as
> official government conduct (even if the police officer signs his name to
> the tickets, as he's doing so in his government capacity).
>
>
>
> This might not resolve the RFRA issue, but I do think its a distinction
> worth thinking about.
>
>
>
> - Jim
>
>
>
> On Wed, Sep 2, 2015 at 8:41 PM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
>It seems to me that even government officials are sometimes
> acted upon by the government, and might get exemptions from
> government-imposed rules.  That’s certainly true for lower-level government
> employees, but I would think the same might be true of election officials,
> too.  (Compare *McDaniel v. Paty*, which the plurality viewed as a
> *Sherbert*-based exemption case, though it has since been largely viewed
> as a discrimination case.)
>
>
>
>Say, for instance, that there is a statute or ordinance
> mandating a no-facial-hair rule for law enforcement officials, including
> elected sheriffs.  A sheriff who belongs to a beard-wearing religion is
> elected to office.  Why wouldn’t he have a RFRA claim to an exemption from
> the no-facial-hair rule?
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Friedman, Howard M.
> *Sent:* Wednesday, September 02, 2015 7:10 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Question about the Kentucky County Clerk controversy
>
>
>
> Kentucky law requires the license to be signed by the clerk or deputy
> clerk. http://www.lrc.ky.gov/statutes/statute.aspx?id=36475
>
>
>
> I have a different question though. State RFRAs protect against actions by
> the government that infringe religious liberty.  Here Kim Davis "is" the
> government, i.e. she is objecting to actions she is required to take in her
> official capacity.  Should RFRAs be read to protect government officials in
> that kind of situation?
>
>
>
> Howard Friedman
> -

Re: Ninth Circuit Decides Pharmacy Free Exercise Case

[James Oleske]

Link to decision:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/23/12-35221.pdf

On Thu, Jul 23, 2015 at 10:48 AM, James Oleske jole...@lclark.edu wrote:

 Today, the Ninth Circuit issued its opinion in *Stormans, Inc. v. Wiesman*,
 a long-running case involving a pharmacy's free-exercise challenge to
 Washington State's requirement that pharmacies dispense all lawfully
 prescribed or approved drugs, including emergency contraception. The court
 ruled in favor of the state, holding that the state's rule was neutral and
 generally applicable and thus subject to only rational basis review. The
 pharmacy had argued that because the state's rule excuses failures to
 dispense for certain reasons (e.g., lack of specialized equipment to make
 drug; drug out of stock; payment-type not accepted), and gives the state
 some discretion in applying those exemptions, it is not neutral and
 generally applicable, and must include an exemption allowing pharmacies to
 refuse to dispense drugs for religious reasons unless the state can satisfy
 strict scrutiny.

 Professor McConnell, the Becket Fund, and the Alliance Defending Freedom
 represented the pharmacy, and a group of 24 law professors filed an amicus
 brief supporting the pharmacy's selective-exemption argument. The amicus
 brief concisely distills its core argument as follows: Laws that burden
 religion and apply to some but not all analogous secular conduct are not
 generally applicable A singular secular exception triggers strict
 scrutiny if it undermines the state interest allegedly served by applying
 the rule to religious conduct. Perkins Coie and Planned Parenthood
 represented Intervenors who joined the State as appellants in the Ninth
 Circuit, and amicus briefs were filed in support of the appellants by
 Americans United and the National Women's Law Center. Additional amicus
 briefs were filed on both sides.

 The case previously reached the Ninth Circuit (as *Stormans, Inc. v.
 Selecky*) back in 2009, and the court at that time reversed the district
 court's grant of a preliminary injunction in favor of the pharmacy.
 Specifically, the Ninth Circuit rejected the district court's decision to
 apply strict scrutiny, instead concluding that the existing exemptions to
 the dispensing requirement are a reasonable part of the regulation of
 pharmacy practice, and their inclusion in the statute does not undermine
 the general applicability of the [dispensing requirement]. Notwithstanding
 that ruling, the district court -- based on further fact-finding at trial
 -- concluded in February 2012 that the dispensing requirement was not
 neutral and generally applicable and was being selectively applied, and it
 again applied strict scrutiny and ruled in favor of the pharmacy (the
 district court's opinion, findings of fact, and conclusions of law fill
 over ninety pages in the Federal Supplement). The case went back up to the
 Ninth Circuit, which held argument last fall. (The argument was originally
 scheduled for late 2013, but it was postponed after the Supreme Court
 granted cert in *Hobby Lobby*.)

 In today's decision, the Ninth Circuit again found the rule to be neutral
 and generally applicable, relying in part on its previous decision as law
 of the circuit. In rejecting the pharmacy's secular exemptions require
 religious exemptions argument, the court relied on its earlier decision to
 conclude that the secular exemptions to Washington's pharmacy rules
 further (rather than undermine) the rules' goal. Slip op. at 28. In
 response to the argument that the rules gave the state discretion on
 granting exemptions, and thus triggered the Sherbert/Smith/Lukumi
 indiviidualized exemptions rule, the court concluded:

 The mere existence of an exemption that affords some minimal governmental
 discretion does not destroy a law’s general applicability. . . . In
 summary, because the exemptions at issue are tied directly to limited,
 particularized, business related, objective criteria, they do not create a
 regime of unfettered discretion that would permit discriminatory treatment
 of religion or religiously motivated conduct. Slip op. at 32-33

 In support of this conclusion, the Court cited decisions from both the
 Third and Tenth Circuits, which is interesting because other decisions from
 those same circuits are often cited as the strongest support for a broad
 understanding of the selective-exemption rule that would go beyond
 situations suggesting discriminatory intent. While I have argued that the
 broad understanding of the selective-exemption rule cannot be reconciled
 with the Supreme Court’s current understanding of the Free Exercise Clause
 (ssrn.com/abstract=2216207), many religious-liberty scholars disagree, as
 evidenced by the amicus brief filed in Stormans (
 http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf)
 and a more recent amicus brief filed by Doug Laycock and Tom Berg in
 Obergefell

Times Story on Tax-Exempt Status for Religious Schools Opposing Same-Sex Marriage

[James Oleske]

At least four list members (Doug, Rick, Chip, and Eugene) quoted in this
Times story:

http://www.nytimes.com/2015/06/25/us/schools-fear-impact-of-gay-marriage-ruling-on-tax-status.html

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: New Minnesota Freedom of Conscience Bill

[James Oleske]

Quick Correction: the final letter referenced in my message below went to
legislators in Illinois, not Wisconsin. Sorry about that. - Jim


On Sat, May 9, 2015 at 2:28 PM, James Oleske jole...@lclark.edu wrote:

 The text of the bill, which was announced on Thursday and formally
 introduced yesterday, is here:


 https://www.revisor.mn.gov/bills/text.php?version=latestsession=ls89session_number=0session_year=2015number=sf2158

 As compared to many of the legislative proposals we've seen recently, the
 Minnesota bill more closely resembles the proposal that a group of scholars
 suggested to policymakers in 12 states (including Minnesota) between 2009
 and 2013:


 http://mirrorofjustice.blogs.com/mirrorofjustice/2009/08/memosletters-on-religious-liberty-and-samesex-marriage.html

 Like the academic proposal, the Minnesota bill (1) is focused specifically
 on accommodating religious objections to marriages, (2) would extend those
 accommodations into the for-profit commercial realm, but limited to
 individuals, sole proprietorships, and small businesses, and (3) would
 preclude an accommodation if it would cause a substantial hardship for the
 couple seeking service.

 Unlike the academic proposal, the Minnesota bill (1) defines a small
 business as one that has 20 or fewer employees, rather than one that has 5
 or fewer employees, (2) does not include a unit-size limit for landlords,
 (3) specifically defines substantial hardship as being unable to obtain
 the same services within 30 miles, and (4) is explicitly limited to beliefs
 regarding whether marriage is only the union of one man and one woman;
 thus, it could not be invoked to deny services or benefits to interracial
 couples, interfaith couples, or couples in which one or both of the
 partners is divorced (this explicit limitation would likely make the
 Minnesota bill more vulnerable to both Establishment Clause and Equal
 Protection Clause challenges than the academic proposal).

 Note: Although the academic proposal did receive considerable support
 within the academy (a total of 15 scholars, with a variety of views on
 same-sex marriage, signed on to supportive letters or testimony at one time
 or another), there was also considerable opposition, including this 2013
 letter from 5 scholars to Wisconsin legislators:


 http://blogs.chicagotribune.com/files/five-law-professors-against-changing-sb-10.pdf

 - Jim

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: By the power vested in me . . . ?

[James Oleske]

Hypothetical Statute (building off of Marty's, but designed to raise
Nelson's Hosanna-Tabor point more directly):

Michigan passes a statute that says schools can only be licensed if they
adhere to nondiscrimination conditions in their employment relations.

If Michigan attempted to enforce those nondiscrimination conditions against
Hosanna-Tabor with respect to its relations with its called teachers, would
it run up against the unconstitutional conditions doctrine? If so, would
the same be true of Marty's hypothetical statute?

On a related note, Bob and Chip tackled some of the issues we're working
through in their 2010 piece, Same-Sex Equality and Religious Freedom:

Although such a coercive policy is politically inconceivable, it could be
designed in a constitutionally defensible way. For example, the government
could treat the celebration of civil marriage as a public accommodation,
and prohibit discrimination by providers of that service. Or, the
government could impose a condition on its grant of the authority to
solemnize marriages, requiring the celebrant to be willing to serve all
couples. In response to fears of this character, the states that have
enacted same-sex marriage legislation have provided explicit assurances
that neither clergy nor religious communities will be forced to cooperate
in these ways Lawyers and scholars share a common intuition that the
First Amendment, as well as state constitutional guarantees, protect these
categories of religious freedom, but thus far there has been little
explanation of why this is so. Our analysis of other, less muscular claims
of religious liberty will unfold more cleanly if we first explain the
conventional wisdom that neither clergy nor faith communities can be
directly coerced into celebrating weddings for anyone, same-sex couples
included.

http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp
(pp. 282-84)


- Jim

On Thu, May 7, 2015 at 10:03 AM, Marty Lederman lederman.ma...@gmail.com
wrote:

 Perhaps the *couple *has an affirmative *due process *right to have the
 state grant them a marriage license.  (That's one of the issues currently
 before the Court.)  But even so, if the state can insist that they have
 their wedding solemnized in order to obtain that license--something that
 state laws apparently require, and a condition that I will for present
 purposes assume to be constitutional -- do they have a fundamental right to
 obtain the license even if they have not had the marriage solemnized by
 one of the thousands of people who the state has licensed to perform that
 function?  I'm skeptical.

 In any event, that's not the question I was addressing.  You had suggested
 that the *ministers* have a *Free Exercise *right to be licensed by the
 state to solemnize marriages--i.e., to be designated as one of the persons
 whose officiating will be credited for purposes of a civil marriage license
 -- even if they are unwilling to live by the (nondiscrimination) conditions
 that our (completely hypothetical) state might impose on its
 solemnizing-official designations.  That's the argument I have trouble
 with.

 On Thu, May 7, 2015 at 12:36 PM, Nelson Tebbe nelson.te...@brooklaw.edu
 wrote:



  Wow, that's interesting. I think vouchers are quite a bit different.
 Deb Widiss and I characterized civil marriage as a benefit in our piece in
 Penn. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594361. And I
 stand by our arguments there -- you're right that understanding civil
 marriage as a benefit can be useful for understanding some problems, like
 the question of equal access for same-sea couples. But there are strong
 arguments that access to civil marriage performed by clergy is a
 fundamental right. So that's one difference with school vouchers. Also,
 doctrinally, the statute you suggest would run up against Hosanna-Tabor, at
 least insofar as the clergy's actions are governed by theology. But I'm
 actively thinking about all of this right now and may well change my view.



 On May 7, 2015, at 12:10 PM, Marty Lederman lederman.ma...@gmail.com
 wrote:

   Thanks, Nelson.  These really are quibbles, since we all agree -- I'm
 sure everyone on this list agrees -- that ministers are not about to be
 excluded from solemnizing marriages because they refuse to do so for
 same-sex or mixed-religion couples.  Justice Kagan's give me a break
 response to Scalia was exactly right.

  Even so, I agree with Mike that there might be some value in us
 lawprofs trying to figure out precisely why that is--or at least which
 doctrines might need to be addressed.

  Norwood is *not *a state action case--that is to say, it's not a case
 about whether the private actors' conduct violates the Constitution because
 they should be deemed representatives of the state.  It's a case about
 whether *the state itself* violates the Constitution when it knowing
 chooses to confer benefits on *private* discriminators.  I 

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

[James Oleske]

My apologies to Michael for the delay in answering the question he asked of
Chip and me earlier about Gordon College. I'll be honest, the Gordon
College situation was not on my radar, and now I think I know why.

Last October, the College issued a statement that [c]ontrary to recent
media reports, Gordon’s accreditation is not in jeopardy, as its admission
and employment policies have always been in full compliance with the NEASC
Standards for Accreditation and with nondiscrimination employment law,
which has been in place in the Commonwealth since 1989. In covering the
statement, Christian publisher OneNewsNow (American Family News Network)
further reported that the college's spokesman attests that the NEASC is
not pressing Gordon College to make concessions when it comes to upholding
its Christian heritage and behavioral standards.

The College's statement appears to have ended most news coverage of the
matter, but the story continued to generate commentary. For example, in a
January National Review piece entitled The Persecution of Gordon College,
David French wrote that the accrediting agency had sent Gordon the message
that [y]ou have one year to choose between your conscience and your
accreditation. Thus, French wrote, [f]or Gordon, the death penalty now
looms. This characterization of the situation is mighty hard to square
with either (1) Gordon College's own representation of the situation back
in October or (2) the President of the Council of Christian Colleges
statement this March that We knew all along that Gordon's accreditation
was not at risk.

Again: We knew all along that Gordon's accreditation was not at risk.
From the President of the Council of Christian Colleges.

As for Bob Jones, I think it is really difficult to read that opinion as
anything other than a decision to treat racial discrimination in education
as a sui generis category for the reasons Chip has given. Based on that
uniqueness, the Court was willing to (1) accept an IRS interpretation that
almost certainly would have been rejected if it concerned any other type of
discrimination and (2) reject a free exercise claim by a nonprofit
religious institution that likely would have succeeded at the time if any
other type of discrimination had been at issue (e.g., sex or religious
discrimination). As I said in my earlier message, I'm skeptical that the
current Court would defer to a new interpretation of the statute by the
IRS. And though several people have responded by expressing suspicion that
the Administration has designs on changing the interpretation (a suspicion
I do not share), nothing I've read so far makes me any less skeptical that
the Court would be willing to accept such a new interpretation. That leaves
Congress, which is not going to strip religious institutions of tax-exempt
status anytime soon, if ever.

It seems to me that the actual conflicts that are likely to arise in the
coming years will be similar to the ones that have already been arising,
most of which have involved for-profit enterprises, but some of which have
involved non-profits (e.g., the New Jersey pavilion case). From my
perspective, most of the solutions to these conflicts are best found by
looking at how we have -- or have not -- accommodated similar religious
claims in the past. In the past, we haven't made religious exemptions to
civil rights laws in the for-profit realm, but we often have done so in the
nonprofit realm.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[James Oleske]

Relevant to point #4 below, one Orthodox rabbi has weighed in very publicly
on the Louisiana controversy:

http://www.nola.com/opinions/index.ssf/2015/04/religious_freedom_louisiana.html


On Thu, Apr 30, 2015 at 6:20 AM, Kwall, Roberta rkw...@depaul.edu wrote:

   I have been following this thread with interest, given that I have been
 doing a significant amount of research on homosexuality and Judaism.  A few
 thoughts based on this perspective-

  1) The discussion regarding tax exemptions has relevance not only for
 Conservative Christian but also for Orthodox Jewish educational
 institutions. On a general level, Judaism is believed to be
 counter-cultural by most of its traditional authorities (including some
 authorities who do not denominate as Orthodox).  This means that the
 beliefs of the rest of society are irrelevant even if those beliefs
 constitute the majority perspective.  That said, the parameters of Jewish
 lawmaking can be fuzzy especially when it comes to social issues such as
 this with a very public presence.  Inevitably, although in theory the law
 does not change (according to the most traditional authorities), there is
 definitely a social factor in its application.

  2) With respect to homosexuality specifically, there is an explicit
 biblical prohibition against homosexual behavior (interestingly, that
 biblical prohibition applies only to male behavior but the rabbinic
 tradition extends it to lesbian acts as well).   According to Jewish law,
 biblical prohibitions carry more weight than rabbinic prohibitions, but
 both are seen as within the authority of the tradition.

  3) Given this explicit biblical prohibition, it is hard to imagine that
 even according to the most lenient interpretations of Jewish law by
 Orthodox authorities, Jewish same-sex marriage (known as kidushin,
 meaning sanctified) will ever be possible.  Interestingly, many gay
 Orthodox Jews not only understand this reality but also support it because
 they see this limitation as a part of the tradition they otherwise hold
 dear.   When an openly gay rabbi with an Orthodox ordination performed a
 same-sex marriage a few years ago (a civil ceremony with Jewish trappings),
 this triggered mixed reactions even among gay Orthodox Jews.

  4) Recent discussion has surfaced about whether Orthodox Jews can
 support gay rights in the secular political arena and this has triggered
 mixed responses.  Orthodox Jews are far from a monolithic group. There are
 Orthodox authorities who see a distinction between Judaism's religious
 views and secular political issues involving homosexuality (including
 homosexual marriage).

  5) On the tax exemption issue, I may be mistaken but it seems to me that
 same-sex marriage is not the only issue that can potentially surface in
 connection with homosexuality.  When the Conservative movement considered
 the issue of gay marriage back in 2006, the issue of rabbinic ordination
 also arose.  Today, both Reform and Conservative rabbinic schools invite
 and permit openly gay people (men and women) to apply for admission. A
 recent article in Tablet Magazine discussed how LBGT issues are now getting
 traction at the Modern Orthodox Yeshiva University in N.Y. (Out, Proud,
 and Kinda Loud at Yeshiva University), but I can't imagine that a
 conventional Orthodox yeshiva would ever support ordination for openly gay
 men who engage in homosexual activity.  And speaking of discrimination, no
 woman (gay or straight) currently can be ordained as an Orthodox rabbi and
 I highly doubt that mainstream Orthodoxy will ever change this.

 Roberta Rosenthal Kwall
 Raymond P. Niro Professor
 Founding Director, DePaul University College of Law
 Center for Intellectual Property Law  Information Technology



 Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition

 http://amzn.to/15f7bLH



  You can view my papers on the Social Science Research Network (SSRN) at
 the following
 URL:  http://ssrn.com/author=345249



  --


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[James Oleske]

Alan,

I would not support the denial. Although I think sexual-orientation
discrimination should be subject to heightened constitutional scrutiny, and
although I think sexual-orientation discrimination should be prohibited in
any context where the government maintains civil-rights laws that use race
as a model for broadly prohibiting discrimination on the basis of other
classifications that are subject to heightened constitutional scrutiny (as
virtually every state does in regulating the for-profit commercial
marketplace), I feel differently about situations in which the government
has uniquely targeted racial discrimination (as has been done with tax
exemptions for nonprofit schools).

I don't think targeting of racial discrimination obligates the government
to prohibit discrimination on the basis of all other constitutionally
suspect classifications (shameless plug: I discuss the Canadian Supreme
Court's adoption of this position on pages 36-37 of this piece:
ssrn.com/abstract=2589743). And as a policy matter, given that we have
never conditioned tax-exempt status on religious schools' willingness to
comply with nondiscrimination norms outside of the racial context, I'm not
inclined to start selectively doing so now. Although I think
sexual-orientation discrimination should be banished from the for-profit
commercial marketplace as thoroughly as discrimination on the basis of
race, sex, religion, and disability, I also believe nonprofit religious
institutions with nonconforming views should be able to provide a venue for
fellow believers to pursue a shared commitment to their own values.

- Jim


On Thu, Apr 30, 2015 at 11:30 AM, Alan E Brownstein 
aebrownst...@ucdavis.edu wrote:


  None of us can predict the future very well. The world today is very
 different than I thought it would be 30 years ago.


  The question we can answer today is whether we would support or oppose
 the denial of a tax exemption to a privately funded religious school that
 engages in discrimination against the LGBT community. That answer, even as
 a matter of principle, may change over time. But it is a place to begin.


  So if I may ask, Jim. Would you support or oppose the denial of a tax
 exemption in such a case?


  Alan

  --
 *From:* religionlaw-boun...@lists.ucla.edu 
 religionlaw-boun...@lists.ucla.edu on behalf of James Oleske 
 jole...@lclark.edu
 *Sent:* Thursday, April 30, 2015 8:55 AM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Gordon College v. Bob Jones Redux v. Conflicts Actually
 Likely to Arise

   Thanks, Michael. Let me close on a point of agreement, albeit one that
 I understand will give you no comfort.

 In a 2011 article, Doug wrote the following: There will come a time when
 religious hostility to gays and to same-sex relationships will be as
 disreputable as religious hostility to blacks and to interracial
 relationships But it makes all the difference in the world how we get
 there.

 I have disagreed with Doug on the how we get there piece of that
 assessment, as he supports broader accommodations in the short term than do
 I, but I think Doug's long-term assessment is likely correct, with one
 caveat. The caveat is that because racial discrimination is our original
 sin as a nation, and because it had consequences beyond those flowing from
 any other type of discrimination, it may always be subject to special
 targeting in some circumstances. Thus, although our antidiscrimination laws
 and regulations usually ban other types of discrimination alongside racial
 discrimination, sometimes racial discrimination is singled out for unique
 treatment, as the IRS rule illustrates. I think that same pattern will hold
 true in the future -- sexual-orientation discrimination will join sex,
 religion, and often a host of other types of prohibited classifications
 alongside race in most contexts, but there will continue to be contexts in
 which race discrimination is treated as unique and targeted alone.

 Overall, however, I think you are right to suspect that the status/conduct
 distinction will be rejected and beliefs condemning homosexual conduct will
 become very marginalized in our society by the time your children and
 grandchildren are adults. The process has already begun, and it will
 continue to accelerate. And regardless of what happens with the IRS rule in
 the long-term, countless other laws and regulations prohibiting
 discrimination on a variety of bases will be extended to sexual-orientation
 discrimination, and that -- along with the growing acceptance of married
 same-sex couples raising families in our communities -- will reinforce a
 growing societal norm against sexual-orientation discrimination, which will
 be widely viewed as including discrimination against same-sex couples.

 I think movement toward that new norm is a good thing, others think it is
 a bad thing, but I don't think there can be any doubt that it is where we
 are headed

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

[James Oleske]

Luke,

Speaking only for myself, I would approach each case by asking how the law
or regulation would have treated similar discrimination issues before gay
people asked for equal access. My understanding of the New Jersey rule is
that it would have prohibited the denial of access for marriages involving
interracial couples, interfaith couples, or couples involving divorced
individuals. Under those circumstances, I think the same rules should apply
to same-sex couples. If, by contrast, the rule generally exempted the
nonprofit from complying with nondiscrimination requirements, I would
extend that exemption to discrimination on the basis of sexual-orientation.

As for the constitutional question, I could see the argument being made
that some of these cases (though the pavilion case would not be a good
candidate) should be treated more like Hosanna-Tabor than like Smith, and
perhaps this will be the context that eventually leads the Court to add
some more clarity to its distinction between those cases. I do not have
confidence in my ability to predict where exactly the Court will end up on
that. Wherever it ends up, I don't think religious defenses of
sexual-orientation discrimination should prevail where religious defenses
of other types of suspect discrimination would fail (with the previously
discussed exception of situations where racial discrimination has been
uniquely targeted).

In terms of how concerned religious organizations or individuals who oppose
same-sex marriage should be, I'll stick with my final response to Michael
from earlier today.

Best,

Jim


On Thu, Apr 30, 2015 at 3:18 PM, Luke Goodrich lgoodr...@becketfund.org
wrote:

  I have a question for Marty, Jim, and others who seem to be arguing that
 denial of tax-exempt status, at least at the federal level, is an extremely
 remote risk. What do you think of similar efforts at the state level?



 I'm thinking, for example, of how New Jersey denied tax-exempt status to a
 Methodist pavilion that declined to host a civil union ceremony (
 http://www.nytimes.com/2007/09/18/nyregion/18grove.html?_r=0), and the
 bill in California that would have stripped the Boy Scouts of their state
 tax-exempt status due to their policy on gay scoutmasters (
 http://www.huffingtonpost.com/2013/05/30/boy-scouts-nonprofit-status_n_3362079.html).
 That bill apparently passed the California Senate by a vote of 27-9, but
 didn't have quite enough votes to get a two-thirds majority in the House.



 (1) Do you think we're likely to keep seeing these efforts (to deny tax
 exempt status to organizations that discriminate against same-sex couples)
 at the state level in the next decade or so?

 (2) Do you think these efforts are good policy?

 (3) Do you think organizations that would lose their tax exempt status due
 to these efforts would likely prevail on a federal constitutional challenge?

 (4) Do you think it is unwarranted for religious organizations to be
 concerned about these efforts?



 Thanks in advance for your thoughts.



 Luke Goodrich



 P.S. My apologies if this question is too late to the discussion; I only
 get the religionlaw emails in a once-a-day digest.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[James Oleske]

Quick correction to my email below -- in point 2, the dissent of two
justices should read the dissent of one justice (I was also reading
Runyan today, in which both White and Rehnquist dissented, and I confused
that case in my mind with Bob Jones, in which only Rehnquist dissented). -
Jim

On Wed, Apr 29, 2015 at 7:18 PM, James Oleske jole...@lclark.edu wrote:

 My quick take is that, at least in the short term, the prospect of such
 schools losing their tax-exempt status is very low for the following
 reasons:

 1. Unlike most antidiscrimination statutes and regulations, which
 typically extend beyond racial discrimination to religious discrimination
 and sex discrimination, and often to a host of non-constitutionally suspect
 types of discrimination (age, disability, marital status), the IRS rule at
 issue in Bob Jones has never been extended beyond racial discrimination.
 Thus, a religious school that prohibits interfaith marriages or marriages
 between divorced individuals, or that excludes individuals from certain
 activities based on sex, has never been at risk of losing its tax-exempt
 status under the long-standing IRS rule, which has always been limited to
 racial discrimination.

 2. The threshold issue in Bob Jones was whether the IRS's interpretation
 of the statute, which makes no mention of racial discrimination, was
 reasonable. In the unique context surrounding issues of race and education,
 and in light of Congress's acquiescence in the agency's interpretation, the
 Court deferred to that interpretation (over the dissent of two justices).
 I'm skeptical that the current Court would defer to a new interpretation of
 the statute, whether extending it to prohibit religious discrimination, sex
 discrimination, sexual-orientation discrimination, or any other type of
 discrimination. Perhaps if the Court rules in Obergefell that
 strict-scrutiny applies to sexual-orientation there would be an argument to
 add sexual-orientation to the IRS rule when sex has never been added, but I
 don't think anyone believes the Court is going to adopt strict scrutiny for
 sexual-orientation discrimination.

 3. There is virtually no chance that the current Congress would amend the
 statute to strip tax-exempt status from religious schools that prohibit
 same-sex marriages among their students.

 Of course, if Congress was to amend the statute, or if the IRS was to
 reinterpret the statute and that interpretation was upheld by the Court,
 the schools would still be able to make a RFRA claim. And given that Hobby
 Lobby interpreted RFRA as providing more protection than the pre-Smith free
 exercise jurisprudence, and given that sexual-orientation is not likely to
 be deemed a fully suspect class like race, it would seem the schools would
 have a better chance of prevailing than did Bob Jones.

 - Jim

 On Wed, Apr 29, 2015 at 6:39 PM, Brad Pardee bp51...@windstream.net
 wrote:

 In an article from the Weekly Standard, the question was raised about the
 implications for religious organizations losing their tax-exempt status if
 they continue to oppose same-sex marriage.  The article talked about the
 case of Bob Jones University v. United States (1983), where they lost their
 tax-exempt status based on their opposition to interracial dating.  Given
 the number of instances I've seen where parallels are drawn between
 interracial relationships and same-sex relationships, it seems realistic to
 ask if religious organizations would be similarly stripped of their
 tax-exempt status if the Supreme Court finds a constitutional right to
 same-sex marriage.  The article includes this piece of discussion between
 Justice Samuel Alito and Solicitor Donald Verrilli Jr.



 JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college
 was not entitled to tax-exempt status if it opposed interracial marriage or
 interracial dating. So would the same apply to a university or a college if
 it opposed same-sex marriage?

 GENERAL VERRILLI: You know, I -- I don't think I can answer that question
 without knowing more specifics, but it's certainly going to be an issue. I
 -- I don't deny that. I don't deny that,

 JUSTICE ALITO: It is -- it is going to be an issue.




 http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma



 What is the consensus of this list?  Would a ruling in favor of same-sex
 marriage lead to the same requirement that religious organizations accept
 same-sex marriage to avoid losing their tax exempt status, or would the
 religious freedom provisions of the First Amendment prevail here where they
 did not prevail where Bob Jones University is concerned?



 Brad Pardee


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

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

[James Oleske]

As far as I know, no one thinks these schools will be in danger
immediately

Professor Michael Greve, in a piece on the Law and Liberty blog that has
been excerpted favorably in relevant part on the CLR Forum, argues that the
threat will be immediate on July 1 if the Court rules in favor of same-sex
marriage. For the reasons I give below, I don't think that is correct.

Could it be an issue in 2022? Possibly, but the fact that Democrats have
never tried to extend the prohibition to sex discrimination in the three
decades since Bob Jones makes me skeptical that this rule governing
nonprofits is going to be a priority in future efforts to combat
sexual-orientation discrimination. Almost all of the talk by Democrats in
this area has been about combating discrimination by for-profit businesses,
not nonprofit religious organizations.

- Jim

On Wed, Apr 29, 2015 at 7:26 PM, Michael Worley mwor...@byulaw.net wrote:

 As far as I know, no one thinks these schools will be in danger
 immediately, but the accreditation issues arising (Gordon College, for one)
 seem foreshadowing pressure on religious schools to change their policies
 on sexual orientation.

 Why should we be confident in 2022 under a democratic congress and
 President, they won't put pressure on the same schools that have had their
 accreditation threatened (Gordon and perhaps others) using the tax-exempt
 status hammer?

 On Wed, Apr 29, 2015 at 8:18 PM, James Oleske jole...@lclark.edu wrote:

 My quick take is that, at least in the short term, the prospect of such
 schools losing their tax-exempt status is very low for the following
 reasons:

 1. Unlike most antidiscrimination statutes and regulations, which
 typically extend beyond racial discrimination to religious discrimination
 and sex discrimination, and often to a host of non-constitutionally suspect
 types of discrimination (age, disability, marital status), the IRS rule at
 issue in Bob Jones has never been extended beyond racial discrimination.
 Thus, a religious school that prohibits interfaith marriages or marriages
 between divorced individuals, or that excludes individuals from certain
 activities based on sex, has never been at risk of losing its tax-exempt
 status under the long-standing IRS rule, which has always been limited to
 racial discrimination.

 2. The threshold issue in Bob Jones was whether the IRS's interpretation
 of the statute, which makes no mention of racial discrimination, was
 reasonable. In the unique context surrounding issues of race and education,
 and in light of Congress's acquiescence in the agency's interpretation, the
 Court deferred to that interpretation (over the dissent of two justices).
 I'm skeptical that the current Court would defer to a new interpretation of
 the statute, whether extending it to prohibit religious discrimination, sex
 discrimination, sexual-orientation discrimination, or any other type of
 discrimination. Perhaps if the Court rules in Obergefell that
 strict-scrutiny applies to sexual-orientation there would be an argument to
 add sexual-orientation to the IRS rule when sex has never been added, but I
 don't think anyone believes the Court is going to adopt strict scrutiny for
 sexual-orientation discrimination.

 3. There is virtually no chance that the current Congress would amend the
 statute to strip tax-exempt status from religious schools that prohibit
 same-sex marriages among their students.

 Of course, if Congress was to amend the statute, or if the IRS was to
 reinterpret the statute and that interpretation was upheld by the Court,
 the schools would still be able to make a RFRA claim. And given that Hobby
 Lobby interpreted RFRA as providing more protection than the pre-Smith free
 exercise jurisprudence, and given that sexual-orientation is not likely to
 be deemed a fully suspect class like race, it would seem the schools would
 have a better chance of prevailing than did Bob Jones.

 - Jim

 On Wed, Apr 29, 2015 at 6:39 PM, Brad Pardee bp51...@windstream.net
 wrote:

 In an article from the Weekly Standard, the question was raised about
 the implications for religious organizations losing their tax-exempt status
 if they continue to oppose same-sex marriage.  The article talked about the
 case of Bob Jones University v. United States (1983), where they lost their
 tax-exempt status based on their opposition to interracial dating.  Given
 the number of instances I've seen where parallels are drawn between
 interracial relationships and same-sex relationships, it seems realistic to
 ask if religious organizations would be similarly stripped of their
 tax-exempt status if the Supreme Court finds a constitutional right to
 same-sex marriage.  The article includes this piece of discussion between
 Justice Samuel Alito and Solicitor Donald Verrilli Jr.



 JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a
 college was not entitled to tax-exempt status if it opposed interracial
 marriage or interracial

Re: Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)

[James Oleske]

Thanks much, Doug. I'm definitely not an expert on state treatment of local
government law, and certainly not on the specific issue of whether
Louisiana law typically treats state actors as including municipal actors
for statutory purposes. If it doesn't, the results would indeed be strange
-- businesses that refused marriage-related services to interracial or
interfaith couples would be shielded from proceedings brought by the
Louisiana Commission on Human Rights under state antidiscrimination law,
but businesses that refused marriage-related services to same-sex couples
would not be shielded from proceedings brought by the Shreveport Human
Relations Commission. I think it's fair to say that the sponsor did not
intend that result.

Perhaps, as the sponsor said today, he doesn't intend for the bill to apply
to business transactions at all, but if that's the case, I'm not sure what
perceived conflict the bill is intended to resolve.

- Jim


On Wed, Apr 8, 2015 at 7:50 PM, Douglas Laycock dlayc...@virginia.edu
wrote:

 A reporter told me that the sponsor was insisting that the bill has
 nothing to do with suits by private citizens. Only actions by government.

 Louisiana has no sexual orientation nondiscrimination law, but the
 reporter said the New Orleans and Shreveport do. The bill says nothing
 about local government, and it is not obvious (as it would be in a federal
 bill) that restrictions on the state include restrictions on local
 government. My impression is that state legislation usually spells that out.

 It's a very strange bill -- narrow in some ways and overbroad in others.

 On Wed, 8 Apr 2015 19:27:06 -0700
  James Oleske jole...@lclark.edu wrote:
 Apologies to my fellow list members -- I dashed off the message below
 quickly before heading to class without a sufficiently close read of the
 statutory language. The benefits clause of theadverse action provision
 in the Louisiana bill is limited to penalties for actions taken or not
 taken with respect to *employee* benefits, not customer services, and the
 sponsor has indicated he will be removing the employee-benefits clause.
 With the employee-benefits provision removed, the relevant language of the
 Louisiana bill reads:
 
 Notwithstanding any other law to the contrary, this state shall not take
 any adverse action against a person, wholly or partially, on the basis
 that
 such person acts in accordance with a religious belief or moral conviction
 about the institution of marriage [A]n adverse action means any action
 taken by this state to do any of the following  Otherwise discriminate
 against or disadvantage such person The term person means a natural
 or juridical person as defined in Civil 19 Code Article 24, and includes
 any such person regardless of religious affiliation or lack thereof, and
 regardless of for-profit or nonprofit status.
 
 The language would still seem to shield a business that refused to provide
 marriage-related services for religious reasons from *state* proceedings
 against it under antidiscrimination laws (which would constitute the state
 disadvantaging the business for acting in accordance with religious
 beliefs), but it is less clear whether it would shield a business from
 being subject to a *private* suit for such a refusal (does a court issuing
 a monetary judgment in a private suit constitute the state taking
 adverse action to disadvantage for purposes of the bill?).
 
 Meanwhile, the New Orleans Convention Bureau came out against the bill
 today, and the radio host who interviewed the sponsor reported that senior
 members of the legislature, including those sympathetic to the bill, were
 concerned that it would jeopardize difficult budget discussions during the
 short two-month session. So perhaps the debate won't proceed as far as it
 seemed it might after the Governor's earlier endorsement.
 
 - Jim
 
 
 On Wed, Apr 8, 2015 at 4:08 PM, James Oleske jole...@lclark.edu wrote:
 
  In a radio interview moments ago, the sponsor of the Louisiana bill
 stated
  that the bill doesn't have anything to do with the provision of goods
 and
  services and doesn't have any application at all to private business
  transactions. This is contrary to how the Catholic Bishops have
 described
  the benefits of the federal version of the bill (business owners as
 well
  as churches would be protected), and contrary to how legal scholars
 have
  described the Louisiana bill so far.
 
  Here is the relevant language in the bill:
 
  Notwithstanding any other law to the contrary, this state shall not
 take
  any adverse action against a person, wholly or partially, on the basis
 that
  such person acts in accordance with a religious belief or moral
 conviction
  about the institution of marriage [A]n adverse action means any
 action
  taken by this state to do any of the following ... cause any tax,
 penalty,
  or payment to be assessed against, such person or such person's
 employees
  with respect

Re: Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)

[James Oleske]

In a radio interview moments ago, the sponsor of the Louisiana bill stated
that the bill doesn't have anything to do with the provision of goods and
services and doesn't have any application at all to private business
transactions. This is contrary to how the Catholic Bishops have described
the benefits of the federal version of the bill (business owners as well
as churches would be protected), and contrary to how legal scholars have
described the Louisiana bill so far.

Here is the relevant language in the bill:

Notwithstanding any other law to the contrary, this state shall not take
any adverse action against a person, wholly or partially, on the basis that
such person acts in accordance with a religious belief or moral conviction
about the institution of marriage [A]n adverse action means any action
taken by this state to do any of the following ... cause any tax, penalty,
or payment to be assessed against, such person or such person's employees
with respect to any benefit provided or not provided by such person to such
person's employees, wholly or partially on the basis that the benefit is
provided or not provided on account of a religious belief or moral
conviction  Otherwise discriminate against or disadvantage such
person The term person means a natural or juridical person as defined
in Civil 19 Code Article 24, and includes any such person regardless of
religious affiliation or 20 lack thereof, and regardless of for-profit or
nonprofit status.

This language would seem to prohibit either an administrative agency or a
court from awarding a penalty or civil payment against, or otherwise
disadvantaging, a for-profit business (or one of its employees) because it
refuses to provide marriage-related services contrary to existing local or
future state laws prohibiting LGBT discrimination (in a case involving a
same-sex couple) or existing local and state laws prohibiting race
discrimination and religious discrimination (in cases involving interracial
or interfaith couples).

Am I reading that language wrong? If I am, does anyone know what problem
this bill is trying to solve (the interview was not illuminating on that
point)?

- Jim

On Mon, Apr 6, 2015 at 8:37 PM, James Oleske jole...@lclark.edu wrote:

 Gov. Jindal's office announced today that he will support newly proposed
 legislation in Louisiana that would give businesses the right to refuse to
 provide marriage-related services and benefits for religious reasons (see
 my message below for more details and background on the proposal).
 Meanwhile, the sponsor of the bill has indicated that he might modify it so
 it does not apply to employee benefit programs.


 http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_will_support_loui.html

 http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_bill_altered.html

 At this point, I'm not sure a bill like this would be politically feasible
 in any state outside the context of a tradeoff (e.g., exemption included in
 new law prohibiting sexual-orientation discrimination in the marketplace),
 but if it is, Louisiana would seem to be one of the most promising venues
 for supporters. Gov. Jindal will be very motivated to make it happen given
 his target demographic in the Presidential primary, and according to at
 least one recent poll, the state has the ninth lowest support of same-sex
 marriage in the nation.

 It will be interesting to see if the NFL takes a stand on the bill
 (Louisiana has hosted 10 Super Bowls).

 - Jim

 On Sun, Apr 5, 2015 at 11:55 AM, James Oleske jole...@lclark.edu wrote:

 When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal
 said the following:

 Let's remember what this debate was originally all about.  This is about
 business owners that don't wanna have to choose between their Christian
 faith, their sincerely held religious beliefs, and being able to operate
 their businesses. Now, what they don't want is the government to force them
 to participate in wedding ceremonies that contradict their beliefs.


 http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html

 Longtime advocates of RFRAs would understandably object to this
 characterization as ignoring all the many less-controversial religious
 liberty claims that originally motivated the push for RFRAs, but in terms
 of the political impetus for the new state RFRAs, Gov. Jindal is
 undoubtedly correct as to what the debate is all about.

 Accordingly, it seems appropriate that the coming debate in Louisiana
 won't be about a new RFRA or new RFRA amendment (like those considered in
 Indiana and Arizona) that would leave the answer to the wedding vendor
 cases unclear and subject to future judicial balancing. Rather, the coming
 debate in Louisiana will be over proposed legislation (introduced Friday)
 that would clearly give businesses the right to refuse marriage-related
 services and benefits to same-sex couples.

 Bill:
 http://www.nola.com

Re: And One vote for Cert Denied

[James Oleske]

I think there is one very big cert-worthy issue on the horizon that could
still arise out of the wedding vendor cases in states that do not cover
sexual-orientation discrimination in their otherwise broad civil rights
laws: Do such omissions violate the Equal Protection Clause? I make the
fairly radical argument that the answer is yes in the following new piece:

 State Inaction, Equal Protection, and Religious Resistance to LGBT Rights

http://ssrn.com/abstract=2589743

In terms of the market and changing views, I agree with Marty that those
dynamics will reduce the number of claims as time goes on, but I think it's
also important to remember that there are vast geographic differences in
how quickly views are changing. Support for same-sex marriage is 75% in New
Hampshire, while it's only 32% in Alabama and Mississippi, and 40% or below
in five additional states. Plus, more specific polling is split on whether
there is nationwide support for allowing business owners to decline wedding
services (AP says yes, Pew no). Overall, I suspect there are many
communities in the country where businesses will remain willing to decline
marriage related services to same-sex couples for some time. And I wonder
if exemption proponents may end up having more success focusing on specific
marriage bills rather than RFRAs as it will enable them to more cleanly
make the argument that the law won't allowing denying services to LGBT
people as such (which is political poison), but rather, just
marriage-related services to same-sex couples (about which views are more
mixed).

In terms of the legal avenues to bring such claims, I agree with Marty that
most of the legal issues in the cases going forward will not be cert.
worthy (e.g., state constitutional interpretation as in the Washington
Florist case or state RFRA interpretation as in the New Mexico photography
case). But Doug and Tom's brief indicates that claims will continue to be
made under the Free Exercise Clause, under two theories: (1)
antidiscrimination laws with small business exemptions trigger strict
scrutiny under Smith and Lukumi; (2) the Court should revisit Smith. And
presumably Eugene, Mark, and others will continue to press the compelled
speech argument. Finally, even if the refusal to serve is based on state
law (either no coverage of LGBT rights in the state antidiscrimination law
or a state-law exemption), there is the equal protection argument I offer
above that the failure to protect the same-sex couple violates the state's
equal-protection obligation.

- Jim



On Tue, Apr 7, 2015 at 5:52 AM, Marty Lederman lederman.ma...@gmail.com
wrote:

 I predict that there will be few such cases, because both the market and
 changing religious views will moot them out.  (As to the former, note the
 lead item in Saturday Night Live's Weekend Update two weeks ago:  Colin
 Jost:  The Governor of Indiana has signed a new law allowing businesses to
 turn away gay and lesbian customers, saying it’s part of their religious
 freedom. You’ll be able to tell which stores are supporting the new law,
 because they’ll have these helpful little signs”: [cut to storefront with
 Going Out of Business sign].)

 And most or all remaining religious liberty claims will, in any event, be
 brought under state RFRAs or state constitutional provisions, which the
 SCOTUS could not review.

 When ENDA is (eventually) enacted, it probably won't have a religious
 exemption -- and I doubt it'll be subject to many RFRA claims (which would,
 in any event, be many years off).  There *might *be a few
 free-speech-based claims, as in *Elane Photogrpahy*, but I doubt there
 will emerge a split on those that would warrant serious *cert.* consideration.


 Therefore, I think there won't even be any *cert.*-worthy vehicles . . .
 except perhaps in terms of ascertaining the contours of the *Hosanna-Tabor
 *ministerial exception.

 On Mon, Apr 6, 2015 at 8:39 PM, Graber, Mark mgra...@law.umaryland.edu
 wrote:

 I am wondering whether, on the assumption that the Supreme Court decides
 a constitutional right to same-sex marriage exists, the justices should for
 a five-ten year period adopt a policy of denying cert when cases arise
 raising the sort of issues we are discussing.  Of course, the justices
 infamously adopted that strategy in Brown, but here this seems more
 defensible.  Same-sex couples will be able, legally and practically, in all
 states to get married, even if a few justices of the peace do not issue
 licenses.  And in five or ten years we will be able to work out better than
 we can now whether wedding photographers who refuse to photograph same-sex
 weddings merely create inconveniences that seem best ignored, given their
 religious beliefs, or represent a serious threat to the dignity rights of
 same-sex couples.

 MAG
 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 

Louisiana Update: Gov. Jindal Will Support Marriage Conscience Act (specific exemption, not a RFRA)

[James Oleske]

Gov. Jindal's office announced today that he will support newly proposed
legislation in Louisiana that would give businesses the right to refuse to
provide marriage-related services and benefits for religious reasons (see
my message below for more details and background on the proposal).
Meanwhile, the sponsor of the bill has indicated that he might modify it so
it does not apply to employee benefit programs.

http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_will_support_loui.html
http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_bill_altered.html

At this point, I'm not sure a bill like this would be politically feasible
in any state outside the context of a tradeoff (e.g., exemption included in
new law prohibiting sexual-orientation discrimination in the marketplace),
but if it is, Louisiana would seem to be one of the most promising venues
for supporters. Gov. Jindal will be very motivated to make it happen given
his target demographic in the Presidential primary, and according to at
least one recent poll, the state has the ninth lowest support of same-sex
marriage in the nation.

It will be interesting to see if the NFL takes a stand on the bill
(Louisiana has hosted 10 Super Bowls).

- Jim

On Sun, Apr 5, 2015 at 11:55 AM, James Oleske jole...@lclark.edu wrote:

When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said
 the following:

 Let's remember what this debate was originally all about.  This is about
 business owners that don't wanna have to choose between their Christian
 faith, their sincerely held religious beliefs, and being able to operate
 their businesses. Now, what they don't want is the government to force them
 to participate in wedding ceremonies that contradict their beliefs.


 http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html

 Longtime advocates of RFRAs would understandably object to this
 characterization as ignoring all the many less-controversial religious
 liberty claims that originally motivated the push for RFRAs, but in terms
 of the political impetus for the new state RFRAs, Gov. Jindal is
 undoubtedly correct as to what the debate is all about.

 Accordingly, it seems appropriate that the coming debate in Louisiana
 won't be about a new RFRA or new RFRA amendment (like those considered in
 Indiana and Arizona) that would leave the answer to the wedding vendor
 cases unclear and subject to future judicial balancing. Rather, the coming
 debate in Louisiana will be over proposed legislation (introduced Friday)
 that would clearly give businesses the right to refuse marriage-related
 services and benefits to same-sex couples.

 Bill:
 http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html
 Story about the Bill (in which Doug is quoted):
 http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html

 The Louisiana bill would, in Steve's words below, have the benefits of
 clarity, but it would likely cut too broadly even for many who support
 carve-outs from antidiscrimination laws in the same-sex marriage context,
 as the language of the proposal would allow vendors to refuse service to
 interracial couples, interfaith couples, couples involving divorced
 individuals, or any other type of couple to which there is a religious
 objection.

 The legislation closely mirrors the proposed Marriage and Religious
 Freedom Act that was introduced in the last Congress and was sponsored by
 103 Representatives and 17 Senators. It is also similar to an exemption
 proposal first offered by a group of law professors in 2009, although that
 group subsequently modified its proposal to limit it to small businesses
 and include a hardship exemption that would require services to be provided
 when no other business was available to provide them. The group has also
 suggested that states could make a race exception to the religious
 exemption if they are concerned about the exemption allowing discrimination
 against interracial couples. (The Louisiana proposal, like its federal
 counterpart, begins with the following finding: Leading legal scholars
 concur that conflicts between religious liberty and changing ideas about
 the institution of marriage are very real, rapidly increasing, and should
 be addressed by legislation.) (note: the federal version explicitly says
 same-sex marriage in this finding, rather than changing ideas about the
 institution of marriage).

 I have argued that exemptions designed to allow businesses to refuse
 services and benefits to same-sex couples, such as the exemption proposed
 in Louisiana (and previously, in Oklahoma, Oregon, Washington, Minnesota,
 Kansas, South Dakota, Tennessee, and the U.S. Congress), would be
 vulnerable to challenge under the Equal Protection Clause. Others have
 argued that they would be vulnerable to Establishment Clause challenge. I
 suspect both arguments, however, would be strongly disputed by proponents

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

[James Oleske]

When asked about the Indiana RFRA on Meet the Press today, Gov. Jindal said
the following:

Let's remember what this debate was originally all about.  This is about
business owners that don't wanna have to choose between their Christian
faith, their sincerely held religious beliefs, and being able to operate
their businesses. Now, what they don't want is the government to force them
to participate in wedding ceremonies that contradict their beliefs.

http://www.nola.com/politics/index.ssf/2015/04/bobby_jindal_religious_freedom.html

Longtime advocates of RFRAs would understandably object to this
characterization as ignoring all the many less-controversial religious
liberty claims that originally motivated the push for RFRAs, but in terms
of the political impetus for the new state RFRAs, Gov. Jindal is
undoubtedly correct as to what the debate is all about.

Accordingly, it seems appropriate that the coming debate in Louisiana won't
be about a new RFRA or new RFRA amendment (like those considered in Indiana
and Arizona) that would leave the answer to the wedding vendor cases
unclear and subject to future judicial balancing. Rather, the coming debate
in Louisiana will be over proposed legislation (introduced Friday) that
would clearly give businesses the right to refuse marriage-related services
and benefits to same-sex couples.

Bill:
http://www.nola.com/politics/index.ssf/2015/04/louisiana_religious_freedom_bi.html
Story about the Bill (in which Doug is quoted):
http://www.nola.com/politics/index.ssf/2015/04/religious_freedom_fight_headed.html

The Louisiana bill would, in Steve's words below, have the benefits of
clarity, but it would likely cut too broadly even for many who support
carve-outs from antidiscrimination laws in the same-sex marriage context,
as the language of the proposal would allow vendors to refuse service to
interracial couples, interfaith couples, couples involving divorced
individuals, or any other type of couple to which there is a religious
objection.

The legislation closely mirrors the proposed Marriage and Religious Freedom
Act that was introduced in the last Congress and was sponsored by 103
Representatives and 17 Senators. It is also similar to an exemption
proposal first offered by a group of law professors in 2009, although that
group subsequently modified its proposal to limit it to small businesses
and include a hardship exemption that would require services to be provided
when no other business was available to provide them. The group has also
suggested that states could make a race exception to the religious
exemption if they are concerned about the exemption allowing discrimination
against interracial couples. (The Louisiana proposal, like its federal
counterpart, begins with the following finding: Leading legal scholars
concur that conflicts between religious liberty and changing ideas about
the institution of marriage are very real, rapidly increasing, and should
be addressed by legislation.) (note: the federal version explicitly says
same-sex marriage in this finding, rather than changing ideas about the
institution of marriage).

I have argued that exemptions designed to allow businesses to refuse
services and benefits to same-sex couples, such as the exemption proposed
in Louisiana (and previously, in Oklahoma, Oregon, Washington, Minnesota,
Kansas, South Dakota, Tennessee, and the U.S. Congress), would be
vulnerable to challenge under the Equal Protection Clause. Others have
argued that they would be vulnerable to Establishment Clause challenge. I
suspect both arguments, however, would be strongly disputed by proponents
of the exemptions.

- Jim

On Sun, Apr 5, 2015 at 10:45 AM, Steven Jamar stevenja...@gmail.com wrote:

 The benefits of clarity in regulation are that it obviates the need for
 litigation and it allows for compromise among disparate and often competing
 interests as well as allowing for compromise of competing values.  If a law
 specifically exempts a well-defined business or entity, then the very real
 costs of litigation to enforce rights either by the person excluded or by
 the business seeking to exclude  are avoided.  If a law specifically draws
 a line and includes specific examples or a limited exclusive list, then to
 that extent people can understand and predict results without resorting to
 expensive litigation and broad-brush misinterpretation (willful or
 otherwise).  A law exempting from public accommodation laws cake bakers,
 photographers/videographers, and florists would be clear (in many cases at
 least), but would cut too broadly — allowing race discrimination, gender
 discrimination, religious discrimination, and so on.  If the carve-out were
 only for one type of discrimination — sexual orientation — and only for
 that would the public accommodation law not apply, again one might have
 relative clarity and compromise, but, of course, at a social justice cost
 for some but with some accommodation of some who wish to discriminate 

Religious Non-Profits

[James Oleske]

At the end of his post below, Chip writes: The hardest questions for me,
and I don't see a whole lot of discussion on the list about these, are the
exemptions for religiously affiliated non-profits.

As someone who has been guilty of focusing almost all my attention on the
for-profit disputes, I agree with Chip that there needs to be more
discussion of the difficult questions that arise in the non-profit context.

To that end, I want to commend to list members Nelson Tebbe's excellent new
article focusing on issues surrounding existing exemptions for non-profits:

Religion and Marriage Equality Statutes

http://ssrn.com/abstract=2579337

- Jim

On Sun, Apr 5, 2015 at 7:51 AM, Ira Lupu icl...@law.gwu.edu wrote:

 Mark and I agree on fewer legal premises than he thinks.  Yes, the wedding
 photographer creates art.  And I'm sure that the best wedding caterers,
 planners, florists, and bakers also have artistic elements in their work.
 So what?  Davey O'Brien created political theater when he burned his draft
 card; his actions could be regulated because they threatened legitimate
 state interests (in an orderly selective service system), independent of
 their communicative content.

 I think the concept of hybrid rights is made up hooey.

 I don't draw lines based on art vs. non-art.  I might draw lines, for free
 speech purposes, based on the communicative character of the business
 covered by public accommodations law.  Regulating the content of newspapers
 and films seems much more troubling than regulating the content of food
 presentations in restaurants.  So I am tempted, but only a little, by Jim
 Oleske's suggestion on this list that certain predominantly communicative
 trades -- photographer, videographer, free lance writer -- be removed from
 the coverage of public accommodations law entirely.  I am not at all
 convinced that the First A doctrines of compelled speech require this, but
 I can see how First A expressive values support this move, if the coverage
 is narrow.

 I strongly disfavor covering these or any other trades with public
 accommodations laws while simultaneously granting exemptions to religious
 objectors, either explicitly or through a RFRA balancing test.  The
 assurances that Tom Berg and Doug Laycock give, that the only successful
 RFRA defenses to discrimination will be in same sex wedding cases, are
 politically self-serving, totally unreliable, and objectionable on their
 own terms.   If weddings get special treatment, then anniversary parties,
 children's birthdays, etc. may follow. (Cf. the doctors who refuse to
 provide infertility treatments to lesbian couples; those are real cases,
 not scare hypotheticals.)

 And who among us knows when other religious exemptions will be sought and
 gained -- re: Muslims, Jews, Hispanics, immigrants from certain places,
 etc.? Today's intense culture war will fade, and tomorrow will bring a new
 one.

 The hardest questions for me, and I don't see a whole lot of discussion on
 the list about these, are the exemptions for religiously affiliated
 non-profits.  Are they all ministries, to be left unregulated?  When
 government funded?  When government licensed? These are not merely
 speculative questions -- see the Indiana RFRA fix, and see
 http://www.irfalliance.org/hidden-restriction-on-faith-
 based-organizations-in-vawa-reauthorization/
 ​.​

 On Thu, Apr 2, 2015 at 2:04 PM, Scarberry, Mark 
 mark.scarbe...@pepperdine.edu wrote:

 Let's see what Chip and I seem to agree on, and then I'll express my
 strong disagreement on one point.

 We seem to agree that the wedding photographer creates art. It is hard to
 see how visual portrayals of an event can convey a message of beauty and
 authenticity and not be called art. Indeed it would seem to be celebratory
 art, as I've been saying all along, if it deals with beauty and
 authenticity.

 We seem to agree that the wedding photographer (if she can be required to
 photograph the same sex ceremony) cannot (as a colleague put it off list)
 sabotage the photography, by intentionally portraying the ceremony as ugly
 or false (in the sense that the two persons are insincere or that the
 ceremony doesn't have whatever legal effect the law provides). I suppose
 I'd go further and say that the photographer has to use the same
 high-quality equipment that she normally would use, has to take photos from
 the normal angles, and has to fix red-eye problems and similar problems
 before sending the proofs to the clients for their selection.

 I can't agree that the photographer can be required to create visual
 works that portray the ceremony as beautiful (or authentic, if that means
 posing the couple so as to bring out their sincere commitment to each
 other). The state may be able to require her to photograph the ceremony,
 but it can't require her to express the view that the ceremony is
 beautiful. The state has no business deciding what is beautiful or
 requiring people to create expressive works 

Re: Text of Indiana RFRA Fix; Video of Hearing

[James Oleske]

Tom,

Again, I can't speak for others, but I think I was pretty clear in my
message below that I was only talking about the for-profit-commercial
context when I suggested using the race example as a tool for
distinguishing between businesses that should be covered by state public
accommodations laws and businesses that should not (central concern ...
for-profit commercial realm ... commercial businesses ... bakery). But in
case not, let me be explicit: I was only making an argument about
regulation in the for-profit-commercial realm.

American law has traditionally treated the nonprofit-religious-organization
context very differently than the for-profit-commercial context, and it has
allowed many more exemptions in the former context than the latter. If a
given federal or state law allows nonprofit religious organizations to
discriminate on all typically proscribed grounds except race, I could see
an argument that sexual-orientation discrimination should be treated like
sex discrimination and religious discrimination and allowed rather than
race discrimination and disallowed. I would be troubled, however, if
exemptions were adopted to allow discrimination in the nonprofit realm
uniquely on the basis of sexual-orientation (e.g., nonprofit wedding venue
can't discriminate against interfaith couple or couple including a divorced
person, but can discriminate against a same-sex couple). And when it comes
to the for-profit commercial context, where I do not believe there is any
tradition of federal and state public accommodations laws making exemptions
that allow businesses to discriminate on all typically proscribed grounds
except race, it seems to me that the race example can be a helpful tool for
identifying the proper scope of the public accommodations laws when
libertarian arguments are made for limiting their scope.

- Jim


On Thu, Apr 2, 2015 at 2:35 PM, Berg, Thomas C. tcb...@stthomas.edu wrote:

  Well, those list members, and activist groups, who wanted civil-rights
 claims excluded altogether want religious nonprofits not to be able to
 bring them either.  And if the test is where we would allow discrimination
 based on race, religious nonprofits have almost never been exempted from
 race discrimination laws, except with respect to churches and ministers.
 So treating sexual-orientation claims exactly the same would mean a huge
 number of religious exemptions in existing state laws should be eliminated,
 and a vast number of actions brought against nonprofit institutions such as
 colleges and schools--evangelical, Catholic, Orthodox Jewish, Muslim,
 etc.--who should also lose their tax exemptions.

 The NCAA and other business critics are happy with the Indiana fix, and
 that may indicate that the for-profit/non-profit line appeals to a lot of
 people who generally want to respect both gay rights and religious
 liberty.  But the wave that worked against the Indiana law won't stop at
 that line.

  -

 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://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=mailto%3atcberg%40stthomas.edu

 SSRN: http://ssrn.com/author='261564
 https://mail.stthomas.edu/owa/redir.aspx?C=6b610058a5ad42118976395f869e05d3URL=http%3a%2f%2fssrn.com%2fauthor%3d'261564

 Weblog: http://www.mirrorofjustice.blogs.com


 
 --
 *From:* religionlaw-boun...@lists.ucla.edu [
 religionlaw-boun...@lists.ucla.edu] on behalf of James Oleske [
 jole...@lclark.edu]
 *Sent:* Thursday, April 02, 2015 3:30 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Text of Indiana RFRA Fix; Video of Hearing

The Indiana House just passed the fix 66-30.

  Thanks to Tom, Doug, and Marty for their responses.

 As Doug notes, things are moving to fast to expect either of the
 law-professor groups who weighed in earlier on the Indiana RFRA to
 formulate a new group position on the fix, and I didn't meant to be asking
 for group positions. I merely meant to be asking if individual members of
 the list who had signed letters on either side might be supportive or not
 supportive of the proposed fix. And I should have mentioned that I am
 supportive of the fix, which seems to me to deliver at least 99% of the
 religious liberty protection that academic proponents of RFRA want, while
 excluding the 1% of cases that so concern the LGBT community.

 With regard to Tom's prediction that many list members would oppose
 allowing nonprofit religious institutions to make RFRA claims, and speaking
 only for myself: Although I'm not a fan of RFRA's strict scrutiny standard
 in general,* I would not actively oppose legislation

Re: Text of Indiana RFRA Fix; Video of Hearing

[James Oleske]

After lots of testimony in favor of the fix by members of the business
community, Advance America's Eric Miller made the case against the fix at
length, repeatedly citing the letter signed by 16 law professors in favor
of the Indiana RFRA.

I'm guessing that, while many of those law professors think the fix is
unnecessary, some of them might not join Miller in actively opposing the
fix. Miller has championed RFRA for the very specific reason that he
believes it would provide clear protection to businesses that refuse to
provide marriage-related services to same-sex couples, but the
law-professor letter he invokes does not portray that protection as clearly
forthcoming under RFRA (But whatever one thinks of the arguments for and
against exempting such individuals, it is not at all clear that the
proposed Indiana RFRA would lead courts to recognize such an exemption
[E]ven had the New Mexico RFRA applied [to the claim in Elane Photography],
the New Mexico Supreme Court ... would likely have held that enforcement of
the anti-discrimination laws served a compelling interest by the least
restrictive means.).

As some of the professors who supported the original Indiana RFRA are list
participants, I'm wondering if they think my perception is correct. Are any
planning to actively support or oppose the fix?

We also have list participants who signed a letter opposing the original
Indiana RFRA, and it would be interesting to hear from them whether they
plan to actively support or oppose the fix.

- Jim

On Thu, Apr 2, 2015 at 7:33 AM, James Oleske jole...@lclark.edu wrote:

 The text of the fix is here:
 http://t.co/58d1K81D1L

 It provides that the RFRA does not:

 (1) authorize a provider to refuse to offer or provide services,
 facilities, use of public accommodations, goods, employment, or housing to
 any member or members of the general public on the basis of race, color,
 religion, ancestry, age, national origin, disability, sex, sexual
 orientation, gender identity, or United States military service;

 (2) establish a defense to a civil action or criminal prosecution for
 refusal by a provider to offer or provide services, facilities, use of
 public accommodations, goods, employment, or housing to any member or
 members of the general public on the basis of race, color, religion,
 ancestry, age, national origin, disability, sex, sexual orientation, gender
 identity, or United States military service”

 The measure exempts tax-exempt churches, non profit religious
 organizations and societies, including church affiliated schools, as well
 as ministers of churches or nonprofit religious organizations.

 The hearing on the fix is streaming live here:
  http://iga.in.gov/legislative/2015/session/senate_video_archive/





___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Text of Indiana RFRA Fix; Video of Hearing

[James Oleske]

The text of the fix is here:
http://t.co/58d1K81D1L

It provides that the RFRA does not:

(1) authorize a provider to refuse to offer or provide services,
facilities, use of public accommodations, goods, employment, or housing to
any member or members of the general public on the basis of race, color,
religion, ancestry, age, national origin, disability, sex, sexual
orientation, gender identity, or United States military service;

(2) establish a defense to a civil action or criminal prosecution for
refusal by a provider to offer or provide services, facilities, use of
public accommodations, goods, employment, or housing to any member or
members of the general public on the basis of race, color, religion,
ancestry, age, national origin, disability, sex, sexual orientation, gender
identity, or United States military service”

The measure exempts tax-exempt churches, non profit religious organizations
and societies, including church affiliated schools, as well as ministers of
churches or nonprofit religious organizations.

The hearing on the fix is streaming live here:
 http://iga.in.gov/legislative/2015/session/senate_video_archive/
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Report on Draft Language of Indiana Fix

[James Oleske]

From the Indianapolis Star, which says it has obtained the language that is
being presented to the Governor today:

***

The clarification would say that the new religious freedom law does not
authorize a provider – including businesses or individuals -- to refuse to
offer or provide its services, facilities, goods, or public accommodation
to any member of the public based on sexual orientation or gender identity.



The proposed language exempts churches or other nonprofit religious
organizations -- including affiliated schools – from the definition of
provider.


http://www.indystar.com/story/news/politics/2015/04/01/indiana-rfra-deal-sets-limited-protections-for-lgbt/70766920/

***
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: So much for Arkansas RFRA?

[James Oleske]

The Arkansas Senate passed a new bill tonight, and the House is expected to
take it up tomorrow. The text is here:
http://www.arkleg.state.ar.us/assembly/2015/2015R/Amendments/sb975-S1.pdf

My guess is that the new version of the Arkansas RFRA bill -- which is
intended to more closely mirror the federal RFRA than the earlier version
of the Arkansas RFRA bill -- will not satisfy most opponents of the earlier
bill. A principal source of concern about adopting new state RFRAs today is
the Hobby Lobby interpretation of the federal RFRA extending exemption
rights to commercial businesses, so mirroring the federal RFRA doesn't do
much for the opponents. The question is whether it does enough for Gov.
Hutchinson to avoid the Indiana firestorm moving to Arkansas if Indiana
adds a civil rights carve-out and Arkansas does not ...

- Jim

On Wed, Apr 1, 2015 at 10:53 AM, Marty Lederman lederman.ma...@gmail.com
wrote:


 http://www.nytimes.com/2015/04/02/us/arkansas-indiana-religious-freedom-hutchinson-pence.html



 On Tue, Mar 31, 2015 at 9:39 PM, Friedman, Howard M. 
 howard.fried...@utoledo.edu wrote:

  The Arkansas legislature today passed a state RFRA. While national
 media is reporting that the bill is similar to Indiana's, in fact it is
 broader in several ways. See
 http://religionclause.blogspot.com/2015/03/arkansas-legislature-passes-rfra-law.html

 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.



 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Eugene's Blog Post on Liberals and Exemption Rights

[James Oleske]

Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’
(sensible) retreat from the old Justice Brennan/ACLU position on religious
exemptions. The piece is lengthy, and I recommend folks read it in full,
but I want to take issue with the following assertion at the heart of
Eugene's analysis:

Yes, religious objectors can use these RFRAs to try to get exemptions from
antidiscrimination laws. But religious objectors could have done the same
under the Sherbert-era Free Exercise Clause that the ACLU had long
championed.


http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/

Insofar as we're talking about discrimination in the commercial
marketplace, which is the context generating almost all of the liberal
concerns about exemptions today, I have to disagree with Eugene's
characterization of the law in the Sherbert era. Indeed, I make precisely
the opposite argument at length in Part II of the following piece:
http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/
(The Real Issue: The Unprecedented Expansion of Exemption Rights into the
Commercial Realm).

Nowhere in his post does Eugene acknowledge either United States v. Lee,
which is the only Sherbert-era case in which the Court explicitly addressed
the issue of commercial exemptions, or Piggie Park, where the Court
dismissed a commercial businesses' claim for an exemption from an
antidiscrimination law as patently frivolous. Instead, Eugene refers to
Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever
Justice Brennan's views in 1961, it is difficult to understand how they are
a better representation of the Sherbert-era law than the following explicit
statement of the Court in Lee, which was joined by Justice Brennan (as was
Piggie Park):

When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter
of conscience and faith are not to be superimposed on the statutory schemes
which are binding on others in that activity. Granting an exemption from
social security taxes to an employer operates to impose the employer's
religious faith on the employees.

Accordingly, I don't think the ACLU's current position can be accurately
described as a retreat from their support of Sherbert-era exemption
rights. As Eugene notes in his post, the ACLU still opposes Smith and
supports exemption rights outside the commercial context. As I note in my
piece, this is also true of Americans United and the Brennan Center. The
strong opposition of those organizations to extending exemption rights into
the for-profit commercial realm has sometimes been misread as a reversal of
their position on exemption rights in general (indeed, I myself have made
that mistake in the past), but as I detail in the piece cited above, an
examination of the full record shows that [l]iberals who opposed *Smith*
in 1990 and supported RFRA in 1993 — including liberal organizations,
professors, and politicians — largely continue to support religious
exemptions for individuals, while opposing the extension of such exemptions
to commercial businesses.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

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

[James Oleske]

I discuss this question -- which is about the merits of the Sherbert-era
distinction between commercial and non-commercial, not the existence of the
distinction -- in another recent piece:

There was very good reason, however, for the earlier consensus that owners
of for-profit businesses must comply with secular laws regardless of their
religious beliefs. In the commercial context, religious exemptions will
almost always impose burdens on third parties, whether employees,
customers, or business competitors. As a result, such exemptions implicate
a rule “with a long history in libertarian thought”— that rights are
limited by the need for “prevention of tangible harm to specifiable others
without their consent.” Even in its pre-*Smith *jurisprudence, which held
that exemptions from generally applicable laws were sometimes required, the
Supreme Court gave force to this limitation, refusing to exempt an employer
from the Social Security system because doing so would “operate[] to impose
the employer’s religious faith on the employees.” In so reasoning, the
Court was acting in accord with the general principle espoused by Justice
Jackson four decades earlier that the “limitations which of necessity bound
religious freedom . . . begin to operate whenever activities begin to
collide with liberties of others or of the public.” Or as Justice Ginsburg
has put it more recently, “with respect to free exercise claims no less
than free speech claims, ‘your right to swing your arms ends just where the
other man’s nose begins.’”


http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2400100 (pp. 39-40)

As I discuss in footnote 149 of the same piece, the Court has long made a
similar commercial/non-commercial distinction in its free association
jurisprudence.

- Jim

On Wed, Apr 1, 2015 at 11:51 AM, Gaubatz, Derek dgaub...@imb.org wrote:

  “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 —
 including liberal organizations, professors, and politicians — largely
 continue to support religious exemptions for individuals, while opposing
 the extension of such exemptions to commercial businesses.



 I’m not sure I’m seeing the principled distinction.   Do not many
 individuals depend for their livelihood on commercial businesses?   Why do
 liberals see the conscience of individuals like Sherbert or Thomas worthy
 of protection, but the conscience of an individual photographer, florist,
 baker, or bed and breakfast owner less worthy of protection?Justice
 Kagan, at least back in 1996 when she was in the Clinton White House,
 appeared to recognize that the consciences of individuals operating small
 commercial businesses was worthy of protection under a RFRA regime.
 Commenting on the short shrift given to the claim of a Evelyn Smith who,
 for religious reasons, did not want to rent one of her units to a
 co-habitating couple, Kagan noted that the court’s reasoning was
 “outrageous.”   She wrote that it was “almost as if a court were to hold
 that a state law does not impose a substantial burden on religion because
 the complainant is free to move to another state.”
 http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers





 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Wednesday, April 01, 2015 2:25 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Eugene's Blog Post on Liberals and Exemption Rights



 Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’
 (sensible) retreat from the old Justice Brennan/ACLU position on religious
 exemptions. The piece is lengthy, and I recommend folks read it in full,
 but I want to take issue with the following assertion at the heart of
 Eugene's analysis:

 Yes, religious objectors can use these RFRAs to try to get exemptions
 from antidiscrimination laws. But religious objectors could have done the
 same under the Sherbert-era Free Exercise Clause that the ACLU had long
 championed.




 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/


 Insofar as we're talking about discrimination in the commercial
 marketplace, which is the context generating almost all of the liberal
 concerns about exemptions today, I have to disagree with Eugene's
 characterization of the law in the Sherbert era. Indeed, I make precisely
 the opposite argument at length in Part II of the following piece:
 http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/
 (The Real Issue: The Unprecedented Expansion of Exemption Rights into the
 Commercial Realm).

 Nowhere in his post does Eugene acknowledge either United States v. Lee,
 which is the only Sherbert-era case in which the Court explicitly addressed
 the issue of commercial exemptions, or Piggie Park, where the Court
 dismissed a commercial businesses' claim for an exemption from

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

[James Oleske]

The butcher example Chip gives is why I suggested last spring that the
Court might want to read the Lee language not as an absolute rule, but
rather, a strong presumption against exemptions in the commercial realm
that can be overcome in the very rare case where the basis for the
presumption (a third-party harm) does not exist. Alas, the Court instead
simply discarded the Lee language wholesale by saying RFRA went further
than the pre-Smith law.

- Jim


On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu icl...@law.gwu.edu wrote:

 I do not think most liberals oppose exemptions for businesses per se --
 imagine a law that compelled a butcher to carry products in conflict with
 religious dietary laws to which the butcher and his customers subscribe.
 Liberals oppose exemptions that impinge on the welfare of third parties --
 Hobby Lobby (those female employees still do not have contraceptive
 coverage) or wedding vendor exemptions from public accommodations laws
 (those exemptions allow material and dignitary injury to potential
 customers). U.S. v. Lee involved injury to other family members of Amish
 employees, as well as others in the social insurance pool.

 On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek dgaub...@imb.org wrote:

  “[l]iberals who opposed *Smith* in 1990 and supported RFRA in 1993 —
 including liberal organizations, professors, and politicians — largely
 continue to support religious exemptions for individuals, while opposing
 the extension of such exemptions to commercial businesses.



 I’m not sure I’m seeing the principled distinction.   Do not many
 individuals depend for their livelihood on commercial businesses?   Why do
 liberals see the conscience of individuals like Sherbert or Thomas worthy
 of protection, but the conscience of an individual photographer, florist,
 baker, or bed and breakfast owner less worthy of protection?Justice
 Kagan, at least back in 1996 when she was in the Clinton White House,
 appeared to recognize that the consciences of individuals operating small
 commercial businesses was worthy of protection under a RFRA regime.
 Commenting on the short shrift given to the claim of a Evelyn Smith who,
 for religious reasons, did not want to rent one of her units to a
 co-habitating couple, Kagan noted that the court’s reasoning was
 “outrageous.”   She wrote that it was “almost as if a court were to hold
 that a state law does not impose a substantial burden on religion because
 the complainant is free to move to another state.”
 http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers





 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Wednesday, April 01, 2015 2:25 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Eugene's Blog Post on Liberals and Exemption Rights



 Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’
 (sensible) retreat from the old Justice Brennan/ACLU position on religious
 exemptions. The piece is lengthy, and I recommend folks read it in full,
 but I want to take issue with the following assertion at the heart of
 Eugene's analysis:

 Yes, religious objectors can use these RFRAs to try to get exemptions
 from antidiscrimination laws. But religious objectors could have done the
 same under the Sherbert-era Free Exercise Clause that the ACLU had long
 championed.




 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/


 Insofar as we're talking about discrimination in the commercial
 marketplace, which is the context generating almost all of the liberal
 concerns about exemptions today, I have to disagree with Eugene's
 characterization of the law in the Sherbert era. Indeed, I make precisely
 the opposite argument at length in Part II of the following piece:
 http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/
 (The Real Issue: The Unprecedented Expansion of Exemption Rights into the
 Commercial Realm).

 Nowhere in his post does Eugene acknowledge either United States v. Lee,
 which is the only Sherbert-era case in which the Court explicitly addressed
 the issue of commercial exemptions, or Piggie Park, where the Court
 dismissed a commercial businesses' claim for an exemption from an
 antidiscrimination law as patently frivolous. Instead, Eugene refers to
 Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever
 Justice Brennan's views in 1961, it is difficult to understand how they are
 a better representation of the Sherbert-era law than the following explicit
 statement of the Court in Lee, which was joined by Justice Brennan (as was
 Piggie Park):

 When followers of a particular sect enter into commercial activity as a
 matter of choice, the limits they accept on their own conduct as a matter
 of conscience and faith are not to be superimposed on the statutory schemes

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

[James Oleske]

Following up on Alan and Nelson's discussion of third-party burdens, I
think it might be helpful to identify two separate legal issues that are
impacted by such burdens:

1. The issue of whether a party has a right to a religious exemption in a
given case.
2. The issue of whether a discretionary legislative decision to grant an
exemption in a given situation violates the Establishment Clause.

I only meant to be addressing Issue #1, and I think the Sherbert-era
decisions are best read as not requiring exemptions as a matter of right
when such exemptions would burden identifiable third parties. And I think
the Lee language is best explained as a recognition that exemptions for
commercial businesses will almost always impose burdens on third parties,
whether employees, customers, or business competitors. I don't think,
however, that burdens shouldered by the government or the public at large
qualified as a third-party burdens under the Sherbert-era decisions, as
evidenced by the exemption required in Sherbert itself.

As for Issue #2, my view of the Establishment Clause limitations on
exemptions is not as robust as Nelson's, and I think legislatures can
likely require burdens on third parties that go beyond the burdens that the
Sherbert-era Court would have imposed in granting exemptions as a matter of
right.

- Jim


On Wed, Apr 1, 2015 at 2:46 PM, Alan E Brownstein aebrownst...@ucdavis.edu
wrote:

   I appreciate your point, Nelson. And I think the principle
 that private citizens should not have to bear the costs associated with
 other citizens’ religious observance deserves respect. Standing alone, it
 would often be dispositive.  Where we disagree, I think, is that in
 religious exemption cases I see two principles here that deserve our
 respect. The one I just quoted above and the principle that the majority
 and government should not prohibit or burden another citizen's religious
 observance. I think, you can tell me if I'm wrong, that you would agree
 that this principle standing alone also deserves respect. If there is no
 harm to third parties, you would support religious exemptions.


  Then the question becomes what do we do when these two principles are in
 conflict with each other. I don't think either trumps the other all of the
 time. I think as the harm to third parties increases, the principle that
 citizens should not have to bear the costs associated with the other
 citizen's religious observance outweighs the religious liberty principle. I
 understand you to be saying that the religious liberty principle is always
 trumped in these cases without regard to the magnitude of the costs
 involved.


  There are a lot of religious accommodations that result in third parties
 incurring some cost.  A RLUIPA land use accommodation might result in some
 neighboring homeowner, business or farmer incurring some diminution of
 value in their property. A public university accommodation shifting move-in
 day so that it doesn't fall on the Jewish High Holy days may require a
 shift in the academic calendar that inconveniences the travel plans of
 specific faculty, students and their families. A court accommodating the
 religious obligations of a religious attorney or witness may delay or
 otherwise increase the cost of litigation. A law banning male circumcision
 exempts Jewish families from its requirements. Does the existence of harm
 to third parties in these situations and others require the invalidation of
 all of these accommodations without regard to the magnitude of the harm
 borne by third parties?


  Alan


  --
 *From:* religionlaw-boun...@lists.ucla.edu 
 religionlaw-boun...@lists.ucla.edu on behalf of Nelson Tebbe 
 nelson.te...@brooklaw.edu
 *Sent:* Wednesday, April 1, 2015 1:38 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Eugene's Blog Post on Liberals and Exemption Rights



  Alan, I can’t speak for others who have been defending a principle
 against burden-shifting to third parties, but I do not believe it prohibits
 religion accommodations that result in costs to the government or to the
 public. Rather, the principle prohibits government accommodations that
 shift meaningful costs from religious citizens to other identifiable
 private citizens. And the reason for this is easy to articulate and deeply
 rooted — private citizens should not have to bear the costs associated with
 other citizens’ religious observance.

  On Apr 1, 2015, at 4:07 PM, Alan E Brownstein aebrownst...@ucdavis.edu
 wrote:

  The problem I have with Jim's argument, if I understand him
 correctly, is that it seems to suggest that no religious exemption can be
 accepted if it causes any harm to a third party. (I'm not sure if Jim
 includes the general public or the public fisc in third party.) I think
 many liberals believe (or at least they used to believe) that rights are
 expensive political goods. We protect them even if we have to incur some
 cost or harm to 

Re: Amazing what Hobby Lobby has wrought

[James Oleske]

The fact remains that such cases are not arising (I know of only one,
thirty years ago in Minnesota)

Regrettably, incidents of businesses discriminating against gay and lesbian
people for religious reasons are still arising and are not limited to
wedding services. *See, e.g.*, Salemi v. Gloria's Tribeca Inc., 982
N.Y.S.2d 458, 459-60 (2014) (restaurant owner discriminated against lesbian
employee by repeatedly stating that homosexuality is 'a sin,' and that
'gay people' were 'going to go to hell' and generally subjecting her to an
incessant barrage of offensive anti-homosexual invective; plaintiff was
was retaliated against for refusing to fire another employee because of
his sexual orientation; owner defended behavior as part of his right to
express his religious views);
http://www.businessinsider.com/hawaii-bed-breakfast-lesbian-couple-suit-2013-4
(Bed and Breakfast owner refused room to gay couple for religious reasons).

The restaurant owner in the Gloria's Tribeca case is the kind of employer
the Family Research Council believes should have the right not to employ
gay people. FRC would not be making the argument for this right if a
constituency that wanted the right did not exist. It does.

Again, this is not just about opposition to same-sex marriage. It is also
about strong opposition to homosexuality, which is almost as prevalent. As
of May 2014, Gallup reported that 30% of the population still thought sex
between people of the same sex should be illegal. The FRC's constituency
comes from that group, and many in that constituency believe that business
owners should be allowed to refuse to hire openly gay people and refuse to
rent to openly gay people because hiring or renting to gay people serves to
normalize homosexuality.

The constituency that shares those beliefs is shrinking with each passing
year, but it still very much exists, and FRC and its allies are fighting to
legally empower it by blocking LGBT nondiscrimination laws and by passing
broad religious exemption laws (regardless of whether we think such
exemption laws will actually serve FRC's goals).

no one has ever won a religious exemption from a discrimination law in a
case not involving a minister suing a religious organization

If that is the case, it seems that passing a RFRA with a civil-rights
carve-out would accomplish at least 99% of the gains for religious liberty
that most academic advocates of state RFRAs are seeking. The Constitution
will still protect religious organizations against civil rights claims in
the ministerial context, as it has with respect to all the other classes
protected under state civil rights laws. Plus, many of those state laws
already provide additional protections for religious organizations that can
be applied equally in the LGBT context as they are in cases involving other
statutorily protected classes.

I understand why some of the political advocates for state RFRAs reject a
carve out (they care passionately about the business owners who most
academic RFRA supporters think will only rarely, if ever, be able to make a
successful claim in a civil rights case), but I don't understand why those
in the academy who have been championing RFRAs since the early 1990s don't
view 99% as better than 0%, which is what resulted from the refusal to
accept a civil-right carve-out in RLPA (though the gap was partially filled
by RLUIPA).

- Jim


On Sat, Mar 28, 2015 at 8:03 AM, Douglas Laycock dlayc...@virginia.edu
wrote:

 Of course those quotes are real. Part of the problem here is conservative
 legislators and activists pandering to the base and promising things they
 can't deliver.

 The fact remains that such cases are not arising (I know of only one,
 thirty years ago in Minnesota) and that no one has ever won a religious
 exemption from a discrimination law in a case not involving a minister
 suing a religious organization.

 On Fri, 27 Mar 2015 23:58:40 -0700
  James Oleske jole...@lclark.edu wrote:
 no one is talking about discrimination against gay and lesbian people as
 such
 
 That assertion is simply incorrect.
 
 In opposing ENDA, the Family Research Council complained that, under it,
 [y]ou can’t decline to hire a homosexual for religious reasons.
 Similarly, in opposing the recent Utah legislation, the FRC objected that
 it leaves profit-making businesses ... vulnerable to being forced to hire
 homosexual and transgender persons.
 
 Last I checked, FRC was still a pretty major player in conservative
 circles. Among other things, it sponsors the annual Values Voter summit
 that routinely draws leading Republican presidential candidates (Mitt
 Romney, among others, attended in both 2011 and 2012). I would have
 expected Ryan to be familiar with FRC's position given that he has
 appeared
 on its radio program at least twice in recent years, including one
 appearance that was all about opposing ENDA.
 
 And it's not just FRC that frames the discussion in terms of opposition to
 gay rights in general

Re: civil rights carve out from state RFRAs

[James Oleske]

Quick update from Indiana: Gov. Pence just did a press conference, and the
Indianapolis Star characterizes the bottom line as follows:

Pence said he had come to the conclusion that it will be helpful to move
legislation this week to amend the law to make it clear that it does not
give businesses the right to deny services to anyone.

http://www.indystar.com/story/news/politics/2015/03/31/gov-mike-pence-hold-news-conference-clarify-religious-freedom-law/70712968/

The Governor again insisted that the bill was never about allowing denials
of services to anyone, a curious statement given that the person standing
right next to the Governor when he signed the bill, Advance America's Eric
Miller, had loudly and proudly championed the bill for the very reason that
it would allow denials of service to same-sex couples. (The Governor is
quite familiar with Eric Miller and Advance America and has heaped praise
on both in the past - https://www.youtube.com/watch?v=phPaeuU2Xzc#t=129 ).

- Jim


On Tue, Mar 31, 2015 at 6:19 AM, Ira Lupu icl...@law.gwu.edu wrote:

 Alan asks very good questions. I think the answer about civil rights
 carve-outs has to start with 1) justifications and 2) political costs.
 Once upon a time, the political costs of RFRA's were very low; they were
 abstract and obscure to most voters.  It was Hobby Lobby, coupled with the
 rise of marriage equality and the specter of wedding vendor cases, that
 made the costs of enacting a RFRA so much higher.  RFRA's are now a dog
 whistle for hostility to LGBT equality.  And the push against RFRA's from
 LGBT rights advocates represents concerns broader than wedding celebrations
 -- what would stop an employer from relying on a RFRA to justify refusal to
 pay spousal benefits for a same sex spouse?  If the discrimination claim
 arose under state law, none of us knows with certainty how such a case
 would be decided by a conservative state supreme court.

 So, Alan asks, why not carve civil rights out of RFRA's (eliminating that
 uncertainty) and negotiate a package of 1) LGBT rights extensions (say, a
 statewide law in Indiana) with explicit religious carve-outs.  As Alan
 knows, blue and purple states played this out between 2009 and 2013.
 Clergy and houses of worship were always guaranteed the right to marry only
 those couples who fit their religious criteria, but those actors were never
 covered by civil rights laws, and the First A in any event protects their
 rights to determine who gets their blessing and sacraments.  Public
 employees and commercial vendors were never given carve outs, despite pleas
 to do so from some of our list members.  The hardest policy cases involve
 religious charities involved in family services -- adoption, marriage
 counseling, foster care, etc.  Connecticut and NH carved some of those out
 from non-discrimination laws; in Connecticut, the carve-out did not apply
 to any religious entity that received government funds.  But these states
 already had state-wide prohibitions on LGBT discrimination.

 So, in red states, the questions involve willingness to extend LGBT rights
 state-wide, and the details of the carve-outs.  Who gets a carve-out in
 Indiana? Commercial vendors?  Not a chance. Public employees?  Not in the
 political climate of the moment, and the 14th A severely limits what can be
 done.

 Religious charities and social service providers are the best candidates
 for carve-outs  But what if they are government funded? Government
 licensed?  I have no authority to speak for anyone in this political fight,
 but I could imagine a grand bargain that 1) expanded LGBT rights statewide
 (housing, employment, public accommodations); and 2) clarified that
 religious charities -- but not hospitals, other medical providers, or
 government funded family services -- would not be subject to
 non-discrimination principles. If Utah could strike a deal -- not a model
 for the country, but a fair deal in Utah -- Indiana can do likewise. But
 this would take a clear-headed leadership that I suspect was present in
 Utah (LDS church leaders, among others, and they avoided the public
 accommodations piece) and is sorely lacking elsewhere.

 With respect to employment, the key question is whether religious entities
 should be totally exempt (as in Utah), or limited to the co-religionist
 exemption, as found in federal law.  That's a tough one to bargain through,
 especially if the outliers on one or both sides are still engaged in
 name-calling.



 On Mon, Mar 30, 2015 at 11:06 PM, Alan E Brownstein 
 aebrownst...@ucdavis.edu wrote:

  Sorry to be returning to prior posts, but I would like further
 clarification on the argument against adopting a RFRA law with a provision
 excluding civil rights laws from its application.


  If a state RFRA is not intended or expected to provide any kind of
 expansive protection to discrimination in employment or public
 accommodations based on religious beliefs, then the argument against a
 

Re: state RFRA's and local anti-discrimination laws

[James Oleske]

Dale Carpenter addresses this issue briefly at the end of a piece he just
posted on VC, which is primarily focused on responding to the claim that
there is nothing to see here because the Indiana law is modeled on 1990s
era RFRAs.

Here's the relevant passage concerning claims for state-law RFRA exemptions
from local ordinances prohibiting LGBT discrimination:

[T]here are numerous municipalities in Indiana that do prohibit such
discrimination. These local laws are newly vulnerable to the defense that
they impose substantial burdens on religious practices and beliefs. And
local authorities will now have to argue, despite the absence of any
statewide legal protection for LGBT people and without the state
legislature offering a finger to help, that ending such discrimination
constitutes a compelling interest. If they jump that hurdle, they will
then have to show that they sought to end discrimination in the narrowest
way possible, the usual basis on which laws fall under strict scrutiny
standards

In the past, I might have been as optimistic as some apologists for
Indiana’s RFRA that civil rights laws protecting LGBT people would pass the
test. But the refusal of the legislature to codify any such assurances,
combined with a backlash claiming to champion religious freedom and an
anti-gay legal establishment ready to pounce, leaves me unpersuaded that
there’s nothing to be worried about.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/03/30/the-clash-of-religious-freedom-and-civil-rights-in-indiana/

It would be very interesting to know if this dynamic has arisen in any
other contexts: local jurisdiction claims a compelling interest in
enforcing a legal norm and the RFRA claimants relies on the lack of
adoption of that norm by the state legislature to argue that the interest
should not be deemed compelling.

- Jim

On Mon, Mar 30, 2015 at 10:44 AM, Ira Lupu icl...@law.gwu.edu wrote:

 One very important question I have never seen discussed is the
 relationship between a state RFRA (say, Texas or Indiana) and a local
 anti-discrimination ordinance (say, San Antonio or Indianapolis) that
 covers public accommodations and protects the LGBT population.  This is a
 common configuration; most RFRA states do NOT have state-wide LGBT laws re:
 public accommodations, but many have cities or counties with such laws.
 So, when the local wedding vendor refuses to sell to a same sex couple and
 is cited by the local Human Rights Commission for violating the public
 accommodations law, and the defense is state RFRA, how will the arguments
 play?  Can a local law ever present a compelling interest sufficient to
 defeat a state religious freedom law? If not, the outcome of these
 conflicts is pre-ordained; the vendor will win.  Or can the local interest
 be sufficiently compelling in that community to defeat the state RFRA
 defense? Does this depend on state-to-state generic principles of local
 government law?

 All thoughts welcome.
 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Amazing what Hobby Lobby has wrought

[James Oleske]

no one is talking about discrimination against gay and lesbian people as
such

That assertion is simply incorrect.

In opposing ENDA, the Family Research Council complained that, under it,
[y]ou can’t decline to hire a homosexual for religious reasons.
Similarly, in opposing the recent Utah legislation, the FRC objected that
it leaves profit-making businesses ... vulnerable to being forced to hire
homosexual and transgender persons.

Last I checked, FRC was still a pretty major player in conservative
circles. Among other things, it sponsors the annual Values Voter summit
that routinely draws leading Republican presidential candidates (Mitt
Romney, among others, attended in both 2011 and 2012). I would have
expected Ryan to be familiar with FRC's position given that he has appeared
on its radio program at least twice in recent years, including one
appearance that was all about opposing ENDA.

And it's not just FRC that frames the discussion in terms of opposition to
gay rights in general, not just same-sex marriage.

The sponsor of a recent RFRA bill in Oklahoma proudly states on the front
page of his website that homosexuals do not have the right to be served in
every store. And as I mentioned in my earlier message, the sponsor of the
failed Arizona RFRA amendment indicated that hotel owners might be allowed
to refuse to rent rooms to same-sex couples.

This is not just about marriage. Rather, for many opponents of same-sex
marriage, that opposition is part of a larger fight against what FRC
President Tony Perkins has decried as the normalization of homosexuality.

- Jim


On Fri, Mar 27, 2015 at 12:22 PM, Ryan T. Anderson 
ryantimothyander...@gmail.com wrote:

 What you call discriminate I call freedom to operate in public square in
 accordance with well-founded beliefs about marriage. As Doug pointed out,
 no one is talking about discrimination against gay and lesbian people as
 such. No religion teaches that, and no case is about a blanket policy of
 refusing to serve gays and lesbians. The religious liberty concerns are
 about helping to celebrating a same-sex wedding.  The candor that is truly
 remarkable is that you think it an appropriate use of government coercion
 to force a 70 year old florist to do this. Here I thought you embraced
 liberty for all.

 On Fri, Mar 27, 2015 at 2:10 PM, Greg Lipper lip...@au.org wrote:

  Ryan’s candor is refreshing: he very much wants businesses to be able
 to discriminate against same-sex couples, and he thinks that state RFRAs
 are important to that goal. That’s precisely why sports leagues,
 pharmaceutical companies, technology companies, and even certain houses of
 worship are reacting so strongly to the Indiana RFRA.


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Amazing what Hobby Lobby has wrought

[James Oleske]

I have to disagree with Doug and Ryan that the earlier controversy over the
Arizona bill casts any doubt on Marty's point about the consequences of the
Hobby Lobby decision. Recall, the Arizona bill wasn't an initial RFRA
enactment. Rather, it was a proposed amendment to the existing Arizona RFRA
that would have explicitly expanded the law to cover corporate entities. In
other words, the Arizona bill was a failed attempt to do through statutory
amendment exactly what Hobby Lobby did a few months later through
interpretation. Thus, it is not at all surprising that the Arizona bill
generated the same controversy that the Hobby Lobby decision did.

Also, before dismissing concerns over the Arizona bill as propaganda, it
might be well to recall that the national firestorm over the bill was
preceded by its legislative sponsor telling a reporter that the bill might
allow hotels to refuse to rent rooms to same-sex couples. It hardly seems
fair to malign the LGBT community for taking sponsors of legislation at
their word, whatever assurances us law professors may give them separately.

Like many on this list, Doug has long been championing RFRAs for reasons
that transcend today's controversies over the propriety of granting
religious exemptions to commercial businesses and granting religious
exemptions from civil rights laws. And I can understand why academic
supporters of RFRAs like Doug are frustrated that their general effort to
right the wrong of Smith is now getting identified so closely with
resistance to LGBT rights. But the solution seems simple, and it is the one
Alan suggested in his earlier post: exclude civil rights claims from the
coverage of state RFRAs. Alas, this likely won't happen, because the
driving political force behind the current push for state RFRAs is all
about securing exemptions from civil rights laws in the context of LGBT
rights. Don't take my word for it. Here are the two lead talking points
from Advance America, one of the leading advocacy organizations that helped
secure passage of the Indiana RFRA:


   - *Christian* bakers, florists and photographers should not be punished
   for *refusing to participate* in a *homosexual marriage!*
   - A *Christian business* should *not* be punished for *refusing to allow*
   a man to use the women’s restroom!


Again, we should not blame the LGBT community for taking the bill's
supporters at their word, regardless of the fact that law professors are
uncertain that the bill will accomplish what its supporters are seeking.

- Jim


On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu
wrote:

 Right. The widespread exaggeration of what *Hobby Lobby* did may be
 adding fuel to the fire.  But this propaganda began before *Hobby Lobby*,
 and it worked, so it continues. This is really the Big Lie in action. And a
 lot of people who know better feel compelled to go along. I know that is
 true of some of the ACLU lawyers who have brought RFRA claims for clients;
 I obviously have no way to know, but it may well be

 true of Hillary Clinton.



 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 *Ryan T. Anderson
 *Sent:* Friday, March 27, 2015 2:16 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Amazing what Hobby Lobby has wrought



 The reaction to Indiana strikes me as similar to Arizona. Arizona took
 place well before Hobby Lobby ruling. So the causal relationship you
 suggest here seems off.  Something else explains this.



 On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com
 wrote:


 http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill



 If the new Indiana RFRA had been enacted last year, I think it's fair to
 say, the NCAA would have pulled the Final Four out of Indianapolis; and I
 think it's safe to predict that the NCAA tourney won't be coming back to
 Indiana anytime soon.  Think about that -- a basketball boycott *in
 Indiana!  *How far we've come . . .



 RFRA has gone from being benign, milquetoast legislation that garnered
 support across the political spectrum 20 years ago -- like Chevrolet and
 apple pie -- to becoming the political equivalent of a state adopting the
 confederate flag, or refusing to recognize MLK Day.  I doubt this would
 have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy
 Swaggart*, *Tony  Susan Alamo*, etc., would have rejected the
 accommodation claim 9-0.



 Of course, the market will ultimately undo the damage:  In order to
 preserve states' economic competitiveness, their RFRAs will either be
 repealed or construed to recreate the pre-Smith FEC regime.



 The more interesting question is what Justice Alito's initiative augurs
 for the future of religious 

Re: Utah Bill re: LGBT discrimination, with religious exemptions

[James Oleske]

http://le.utah.gov/~2015/bills/static/SB0296.html

On Wed, Mar 4, 2015 at 1:15 PM, Ira Lupu icl...@law.gwu.edu wrote:

 Many stories on-line about the new proposal, e.g.,
 http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/

 Does anyone have a link to the text of the Bill?

 Thanks in advance.

 Chip

 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Utah Bill re: LGBT discrimination, with religious exemptions

[James Oleske]

A quick follow-up:

The earlier housing/employment LGBT antidiscrimination bill to which Doug
linked (SB 100) was filed the same day as a public accommodations LGBT
antidiscrimination bill (SB 99). They were both filed January 29, 2015,
before the LDS Church's announcement that it would support a LGBT
Rights/Religious Liberty compromise.

The new compromise bill (SB 296) introduced today adds LGBT protections to
Utah's housing and employment laws, but not its public accommodations law
(Utah Code 13-7-3). So it would appear to leave untouched the status quo in
Utah concerning the baker/florist/wedding-venue conflicts (couples denied
service would not have a state law claim, but might have a claim under a
local ordinance).

Apologies in advance if my quick read is off base.

- Jim

P.S. Here are the three bills:

SB 99 (original public accommodations bill)
http://le.utah.gov/~2015/bills/static/SB0099.html

SB 100 (original housing and employment bill)
http://www.le.utah.gov/~2015/bills/static/SB0100.html

SB 296 (compromise housing, employment, and religious liberty bill)
http://le.utah.gov/~2015/bills/static/SB0296.html
http://ssrn.com/author=357864

On Wed, Mar 4, 2015 at 1:36 PM, Doug Laycock dlayc...@virginia.edu wrote:

 Delete my e-mail. Jim’s version is more recent.



 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 *Doug Laycock
 *Sent:* Wednesday, March 04, 2015 4:30 PM
 *To:* 'Law  Religion issues for Law Academics'
 *Subject:* RE: Utah Bill re: LGBT discrimination, with religious
 exemptions



 I am not involved and so I’m not sure, but I think this is the bill.  It’s
 many small amendments, which makes it complicated.



 http://www.le.utah.gov/~2015/bills/static/SB0100.html





 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
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
 *Sent:* Wednesday, March 04, 2015 4:15 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Utah Bill re: LGBT discrimination, with religious exemptions



 Many stories on-line about the new proposal, e.g.,
 http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/



 Does anyone have a link to the text of the Bill?



 Thanks in advance.



 Chip



 --

 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053

 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Merits Decision in Washington Florist Case

[James Oleske]

http://www.atg.wa.gov/uploadedFiles/Home/News/Press_Releases/2015/Arlene%27s%20Flowers%20summary%20judgment.pdf

Earlier today, a state court judge in Washington granted summary judgment
on the merits against Arlene's Flowers and its owner Barronelle Stuzman. I
believe this is the first judicial decision in a wedding vendor case since
Elane Photography (the Oregon and Colorado bakery cases were both decided
by ALJs, and the Iowa venue case recently settled).

Doctrinally, this case is of particular interest because the Washington
Supreme Court has interpreted the religious freedom provision in its state
constitution as providing greater protection than *Smith*. The court
ostensibly adheres to *Sherbert *and strict scrutiny, but its decisions
sometimes add language about reasonableness and deferring to the
legislature on necessity that seems inconsistent with true strict scrutiny
(and perhaps even intermediate scrutiny). In any event, in analyzing the
state free exercise defense, the trial court here:


   1. Assumed that Washington's antidiscrimination law substantially
   burdened Stuzman's exercise of religion
   2. Found that combating discrimination in public accommodations is a
   compelling interest (relying on *Roberts v. Jaycees* and the dicta in *Hobby
   Lobby *about prohibiting race discrimination) and that there is no
   compelling legal argument for a different result for the Legislature's
   decision to include the protected class of sexual orientation than its
   decision to include race and gender in the antidiscrimination law
   3. Concluded that there is no less restrictive way for the state to
   advance its compelling interested in eradicating sexual-orientation
   discrimination in public accommodations than prohibiting all such
   discrimination


   - The Defendants claim that the WLAD is not narrowly tailored because
   the State could achieve its goal in other ways. Defendants propose an
   approach to the issue of discrimination, where businesses would be allowed
   to deny goods and services on the basis of sexual orientation, and such
   businesses would simply refer that person to a non-discriminating business.
   This rule, of course, would defeat the purpose of combating discrimination,
   and would allow discrimination in public accommodations based on all
   protected classes, and thereby defeat the rule of *Heart of Atlanta
   Motel* Because the Court is not to determine the reasonableness of
   religious beliefs, under Defendants' argument the 'Curse of Cannan'
   would stand as equal justification for racial discrimination as does
   Stultzman's adherence to the Resolutions of the SBC as a basis for refusing
   service to Ingersoll and Freed.


The court also rejected Stuzman's federal free exercise arguments
(citing *Smith
*and *Lee*) and her free speech argument (citing *Rumsfeld *and *Elane
Photography*).

Interestingly, there is another major case pending out of Washington
involving a free exercise claim by a business: the *Stormans v.
Wiesman *pharmacy
case (refusal to dispense emergency contraception) that was argued in the
Ninth Circuit in November. The arguments in that case have centered on the
federal Free Exercise Clause and the pharmacy's claim that the state's
stocking and dispensing rules are not neutral and generally applicable.

- Jim
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The racist prostitute hypothetical

[James Oleske]

Brad writes of free speech doctrine:

[T]he court isn't determining if a person's words are mistaken . . . when
they say that free speech doesn't cover slander or libel.

we have long held that actual malice requires material falsity

*Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed.
2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014)


http://ssrn.com/author=357864

On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net wrote:

 It's not about the Court saying that beliefs are mistaken, insubstantial,
 plausible, logical, or comprehensible.  It's about the Court determining
 what is covered by the free exercise clause and what is not.  Again, to
 parallel the free speech guarantees, the court isn't determining if a
 person's words are mistaken, insubstantial, plausible, logical, or
 comprehensible when they say that free speech doesn't cover slander or
 libel.



 That was the value of the Sherbert test because it established a way to
 determine what exercise of religion is protected and what exercise of
 religion is not, without making a determination on the merits of of the
 religious beliefs that are the basis of the exercise in question.  In my
 opinion, the reason why I think Employment Division v Smith ranks right up
 with Dred Scott v Sandford among the worst decisions the Supreme Court has
 ever issued.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Saturday, February 14, 2015 10:25 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad writes:

 [T]he fact that people have wrongly tried [to] make religious freedom
 claims doesn't mean we disregard all religious freedom claims.  We ought to
 be able to distinguish between the two.



 Although Brad thinks the law ought to be able to distinguish between
 wrong and correct religious freedom claims, we can all agree that this
 view is flatly inconsistent with Supreme Court precedent, correct?


 [I]t is not for us to say that their religious beliefs are mistaken or
 insubstantial. Instead, our 'narrow function . . . in this context is to
 determine' whether the line drawn reflects 'an honest conviction.'

 Repeatedly and in many different contexts, we have warned that courts
 must not presume to determine . . . the plausibility of a religious claim.

 [R]eligious beliefs need not be acceptable, logical, consistent, or
 comprehensible to others in order to merit First Amendment protection

 - Jim

 On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net
 wrote:

 I'ts not an all or nothing.  The fact that the freedom of speech does not
 protect slander and libel doesn't mean we disregard every other freedom of
 speech claim.  We are able to distinguish between the two.  Similarly, the
 fact that people have wrongly tried make religious freedom claims doesn't
 mean we disregard all religious freedom claims.  We ought to be able to
 distinguish between the two.  The difference between same sex relationships
 and interracial relationships seems like one of those distinctions.  The
 difference between people of different races is not the same between the
 difference between genders.  That's why, for instance, the Negro Leagues in
 baseball have gone by the wayside and yet nobody is saying that the players
 of the WNBA should just try to make the teams in the NBA.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Saturday, February 14, 2015 8:48 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad:



 The distinction you see between same-sex relationships and interracial
 relationships makes sense to *you*. It surely does not make sense to
 someone who opposes interracial marriages on religious grounds.




 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.



 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post

Re: The racist prostitute hypothetical

[James Oleske]

Sorry -- I hit send accidentally before finishing my message below.
Here's the omitted paragraph:

What is clear from comparing the Court's free speech and free exercise
doctrines is that government *can* regulate false speech (with limits);
it *cannot* regulate false religious beliefs. As a result, Brad's effort
to distinguish between what he believes to be a true religious objection
to same-sex marriage and a false religious objection to interracial
marriage is a non-starter under Supreme Court doctrine.

Does anyone other than Brad disagree with this?


On Sun, Feb 15, 2015 at 4:09 PM, James Oleske jole...@lclark.edu wrote:

 Brad writes of free speech doctrine:

 [T]he court isn't determining if a person's words are mistaken . . . when
 they say that free speech doesn't cover slander or libel.

 we have long held that actual malice requires material falsity

 *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed.
 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014)


 http://ssrn.com/author=357864

 On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net
 wrote:

 It's not about the Court saying that beliefs are mistaken, insubstantial,
 plausible, logical, or comprehensible.  It's about the Court determining
 what is covered by the free exercise clause and what is not.  Again, to
 parallel the free speech guarantees, the court isn't determining if a
 person's words are mistaken, insubstantial, plausible, logical, or
 comprehensible when they say that free speech doesn't cover slander or
 libel.



 That was the value of the Sherbert test because it established a way to
 determine what exercise of religion is protected and what exercise of
 religion is not, without making a determination on the merits of of the
 religious beliefs that are the basis of the exercise in question.  In my
 opinion, the reason why I think Employment Division v Smith ranks right up
 with Dred Scott v Sandford among the worst decisions the Supreme Court has
 ever issued.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Saturday, February 14, 2015 10:25 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad writes:

 [T]he fact that people have wrongly tried [to] make religious freedom
 claims doesn't mean we disregard all religious freedom claims.  We ought to
 be able to distinguish between the two.



 Although Brad thinks the law ought to be able to distinguish between
 wrong and correct religious freedom claims, we can all agree that this
 view is flatly inconsistent with Supreme Court precedent, correct?


 [I]t is not for us to say that their religious beliefs are mistaken or
 insubstantial. Instead, our 'narrow function . . . in this context is to
 determine' whether the line drawn reflects 'an honest conviction.'

 Repeatedly and in many different contexts, we have warned that courts
 must not presume to determine . . . the plausibility of a religious claim.

 [R]eligious beliefs need not be acceptable, logical, consistent, or
 comprehensible to others in order to merit First Amendment protection

 - Jim

 On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net
 wrote:

 I'ts not an all or nothing.  The fact that the freedom of speech does not
 protect slander and libel doesn't mean we disregard every other freedom of
 speech claim.  We are able to distinguish between the two.  Similarly, the
 fact that people have wrongly tried make religious freedom claims doesn't
 mean we disregard all religious freedom claims.  We ought to be able to
 distinguish between the two.  The difference between same sex relationships
 and interracial relationships seems like one of those distinctions.  The
 difference between people of different races is not the same between the
 difference between genders.  That's why, for instance, the Negro Leagues in
 baseball have gone by the wayside and yet nobody is saying that the players
 of the WNBA should just try to make the teams in the NBA.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Saturday, February 14, 2015 8:48 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad:



 The distinction you see between same-sex relationships and interracial
 relationships makes sense to *you*. It surely does not make sense to
 someone who opposes interracial marriages on religious grounds.




 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can

Re: The racist prostitute hypothetical

[James Oleske]

Got it -- you are making an argument that the state has a compelling
interest in prohibiting discrimination against interracial couples in the
commercial marketplace, but does not have a compelling interest in
prohibiting discrimination against same-sex couples in the commercial
marketplace. Although that is not an argument with which I'd agree on the
merits (I'd find a compelling interest in both cases), it is indeed an
argument that can be made in states that either follow Sherbert under their
state constitution or have a RFRA. And it is an argument that could be made
under the federal RFRA in the event that business owners seek exemptions
from a future federal LGBT rights law.

What confused me was the reference to people wrongly making religious
liberty claims and the attempted analogy to the treatment of libel and
slander under free speech law -- which involves judging the falsity of
speech, not the strength of government interests.

- Jim

On Sun, Feb 15, 2015 at 6:39 PM, Brad Pardee bp51...@windstream.net wrote:

 You are misunderstanding me.  I'm not saying saying that there ar e true
 religious objections and false religious objections.  I'm saying that, just
 as there is speech that is protected as free speech and there is speech
 that is not protected, there are religious objections that are (or once
 were) protected and there are religious objections that are not protected
 (think human sacrifice as an extreme example that I think we would all
 agree is not and never has been protected).  The Sherbert rule was useful
 in distinguishing between them.  After Employment Division v Smith
 dispensed with the Sherbert rule and any meaningful free exercise
 protection, we wind up in a situations such as where we have no idea what
 the Court will consider protected and what it will not.  Transforming a
 guarantee of free exercise into a mere anti-discrimination law undermines
 the very principle of religious freedom.  Instead, any time anyone says
 that a certain law, neutral on its face, places a significant burden on
 their free exercise, it can (and often is) dismissed with People supported
 slavery and opposed interracial marriage the same way.  That's not free
 exercise under any definition that has any meaning.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Sunday, February 15, 2015 6:20 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Sorry -- I hit send accidentally before finishing my message below.
 Here's the omitted paragraph:

 What is clear from comparing the Court's free speech and free exercise
 doctrines is that government *can* regulate false speech (with limits);
 it *cannot* regulate false religious beliefs. As a result, Brad's
 effort to distinguish between what he believes to be a true religious
 objection to same-sex marriage and a false religious objection to
 interracial marriage is a non-starter under Supreme Court doctrine.

 Does anyone other than Brad disagree with this?



 On Sun, Feb 15, 2015 at 4:09 PM, James Oleske jole...@lclark.edu wrote:

 Brad writes of free speech doctrine:

 [T]he court isn't determining if a person's words are mistaken . . . when
 they say that free speech doesn't cover slander or libel.

 we have long held that actual malice requires material falsity

 *Air Wisconsin Airlines Corp. v. Hoeper*, 134 S. Ct. 852, 861, 187 L. Ed.
 2d 744 *reh'g denied,* 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014)






 On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee bp51...@windstream.net
 wrote:

 It's not about the Court saying that beliefs are mistaken, insubstantial,
 plausible, logical, or comprehensible.  It's about the Court determining
 what is covered by the free exercise clause and what is not.  Again, to
 parallel the free speech guarantees, the court isn't determining if a
 person's words are mistaken, insubstantial, plausible, logical, or
 comprehensible when they say that free speech doesn't cover slander or
 libel.



 That was the value of the Sherbert test because it established a way to
 determine what exercise of religion is protected and what exercise of
 religion is not, without making a determination on the merits of of the
 religious beliefs that are the basis of the exercise in question.  In my
 opinion, the reason why I think Employment Division v Smith ranks right up
 with Dred Scott v Sandford among the worst decisions the Supreme Court has
 ever issued.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske
 *Sent:* Saturday, February 14, 2015 10:25 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad writes:

 [T]he fact that people have wrongly tried [to] make religious freedom
 claims doesn't mean we disregard all religious freedom claims.  We ought to
 be able to distinguish between

Re: The racist prostitute hypothetical

[James Oleske]

Brad writes:

[T]he fact that people have wrongly tried [to] make religious freedom
claims doesn't mean we disregard all religious freedom claims.  We ought to
be able to distinguish between the two.

Although Brad thinks the law ought to be able to distinguish between
wrong and correct religious freedom claims, we can all agree that this
view is flatly inconsistent with Supreme Court precedent, correct?

[I]t is not for us to say that their religious beliefs are mistaken or
insubstantial. Instead, our 'narrow function . . . in this context is to
determine' whether the line drawn reflects 'an honest conviction.'

Repeatedly and in many different contexts, we have warned that courts must
not presume to determine . . . the plausibility of a religious claim.

[R]eligious beliefs need not be acceptable, logical, consistent, or
comprehensible to others in order to merit First Amendment protection

- Jim

On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee bp51...@windstream.net wrote:

 I'ts not an all or nothing.  The fact that the freedom of speech does not
 protect slander and libel doesn't mean we disregard every other freedom of
 speech claim.  We are able to distinguish between the two.  Similarly, the
 fact that people have wrongly tried make religious freedom claims doesn't
 mean we disregard all religious freedom claims.  We ought to be able to
 distinguish between the two.  The difference between same sex relationships
 and interracial relationships seems like one of those distinctions.  The
 difference between people of different races is not the same between the
 difference between genders.  That's why, for instance, the Negro Leagues in
 baseball have gone by the wayside and yet nobody is saying that the players
 of the WNBA should just try to make the teams in the NBA.



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
 *Sent:* Saturday, February 14, 2015 8:48 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: The racist prostitute hypothetical



 Brad:



 The distinction you see between same-sex relationships and interracial
 relationships makes sense to *you*. It surely does not make sense to
 someone who opposes interracial marriages on religious grounds.



 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Oklahoma bill would protect clergy who won't perform gay marriages

[James Oleske]

One interesting question is whether situations like that in Coeur d'Alene
-- even assuming they are not adequately addressed by constitutional
protections for freedom of association and freedom of religion -- are best
addressed statutorily through (1) the definition of places of public
accommodation or (2) religious exemptions from antidiscrimination laws.

With respect to option #1, although statutory protections have long since
supplanted the common law as the primary vehicle for protection against
discrimination in places of public accommodation, it might be helpful to
consider the scope of the common law rule. Even under the broader of the
two leading understandings of the rule -- that it is triggered when a
business serves the public generally, regardless of the type of business
involved -- the rule would not apply to ministers who provide for-profit
wedding services unless those ministers serve the public generally. So, the
Las Vegas Elvis Chapel chaplain that generally takes all comers may be
covered, but a minister whose wedding business is inherently selective
would not necessarily be covered. It could be viewed as an analog to, or a
perhaps subset of, the public accommodation/private club distinction.
The law has long distinguished between public restaurants, which are
covered, and selective private clubs that may nonetheless charge members
for food and drink, which are not covered. It may be the case that some
current statutes and ordinances are written more broadly than even the
broad understanding of the common law -- and thus cover businesses even if
they don't hold themselves out to the public generally -- but that still
leaves the question of whether the better solution is a more careful
definition of public accommodation or separate exemptions.

Of course, the serving-the-public-generally/serving-select-individuals
distinction will not be sufficient if either (a) one feels that presiding
over a wedding is a unique service that -- even when performed for-profit
and generally offered to all comers -- it should not be covered by
antidiscrimination laws (though, consider the Elvis chaplain who does not
want to perform interracial marriages), or (b) one feels that presiding
over a wedding *as a religious minister *is such a unique service that --
even when performed for-profit and generally offered to all comers -- it
should not be covered by antidiscrimination laws (though, consider if two
members of the Restored Church of God in Ohio were to operate a business
akin to the Hitching Post business in Coeur d'Alene, marry over 35,000
couples like the Hitching Post ministers, but refuse to perform interracial
marriages pursuant to their longstanding and sincere religious belief that
God intended the races not to inter-marry).

- Jim


On Fri, Feb 13, 2015 at 2:50 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

 Any thoughts on the Coeur d’Alene, Idaho incident in which
 the City Attorney suggested that a wedding chapel run by two ministers
 would have to allow same-sex marriages, given a Coeur d’Alene public
 accommodations ordinance that banned sexual orientation discrimination?
 See
 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/22/couer-dalene-city-attorney-confirms-conservative-christian-ministers-wedding-chapel-business-must-provide-same-sex-marriage-ceremonies/
 .  The same rationale might well apply to a minister who gets paid for
 officiating just as a side business, even without having a chapel of his
 own.



 The city did apparently change its stance, in response to the public
 outcry,
 http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/24/couer-dalene-apparently-changes-stance-agrees-that-for-profit-chapel-need-not-perform-same-sex-weddings/.
 But perhaps the Oklahoma Legislature wants to prevent such local decisions
 from being made, rather than leaving protection against such decision to
 public pressure or court decision.



 As to predictions, I wouldn’t have predicted in 1996, when the Defense of
 Marriage Act was passed, that in 2015 the Court would be quite likely to
 recognize a constitutional right to same-sex marriage.  It might likewise
 be hard to tell for certain what some Oklahoma cities might do in the
 coming two decades.



 Eugene



 *From:* religionlaw-boun...@lists.ucla.edu [mailto:
 religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
 *Sent:* Friday, February 13, 2015 2:39 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Re: Oklahoma bill would protect clergy who won't perform gay
 marriages



 I think the odds are higher that the electorate of Oklahoma overwhelmingly
 votes for Elizabeth Warren for President than that both houses of the
 Oklahoma legislature would approve, and the Oklahoma governor would sign, a
 bill that requires all clergy in Oklahoma to perform religious weddings for
 gay and lesbian couples.  And the odds are about the same that a court in
 Oklahoma would construe its 

Combined Thread on Civil Rights Laws: Libertarian Definitional Limits or Religious Exemptions?

[James Oleske]

Given the overlap between Eugene's two most recent messages -- one on the
Oklahoma bill thread and the other offering the new racist prostitute
hypothetical -- I thought it might be helpful to put them both in one
thread.

Eugene's messages raise precisely the question I had been hoping to raise:
When we are debating the reach of public accommodations laws to service
providers that are perceived to be engaged in intimate services, should the
discussion be about (1) limiting the reach of civil rights laws to preserve
a sphere of personal privacy, regardless of the type of discrimination at
issue, or (2) religious exemptions designed to allow one particular type of
discrimination.

If I am reading him correctly, Eugene is making an argument under approach
#1. And although I might draw the privacy line in different places than
Eugene does in certain cases, I would also prefer to proceed under approach
#1. That is, we should decide what situations are sufficiently intimate and
private in nature that we are willing to recognize an absolute right to
discriminate on any basis she wants, whether it’s race, religion, marital
status, age, or whatever else, and we would then limit the reach of the
civil rights laws accordingly.

Some of these areas are already established, or assumed to be established,
by constitutional doctrine (clergy members performing wedding ceremonies,
people choosing their dinner guests). Others are established by statute
(Mrs. Murphy). And yet others could be added by statute.

But wherever we draw the line, proceeding under approach #1 rather than
approach #2 avoids the problem of statutes distinguishing between
reasonable religious discrimination and unreasonable religious
discrimination (for example, the proposal that would allow small for-profit
vendors, employers, and landlords to withhold marriage-related services and
benefits from same-sex couples, but not interracial couples). And it also
avoids the equal protection implications of approach #2.

One final note: Eugene writes that he sense[s] from the tone of Jim's
message that he thinks some antidiscrimination statutes *should *bar
discrimination by clergy in performing weddings.

I did not intend to convey that impression. I have always assumed that
clergy are protected by the First Amendment in choosing who to marry. But
that assumption was based on the fact that, prior to the Coeur d'Alene
case, I was not aware of religious ministers running for-profit, roadside
wedding-ceremony businesses, at least outside of Vegas. And I never really
gave the Vegas scenario (assuming some of the chaplains at some of the
roadside chapels there are sincere religious ministers) much thought.

Because the situation of religious ministers performing weddings for profit
is a new one for me, my hypotheticals using the example of interracial
couples were not intended to argue that antidiscrimination laws *should*
apply; they were intended to explore *whether and where *we are willing to
have them *not* apply by highlighting the consequences of that choice.
Because, like Eugene, I think the task is to identify areas where we will
preclude application of the civil rights laws altogether, not to identify
areas where we will selectively preclude application of the civil rights
laws with regard to discrimination against certain groups.

- Jim



*EUGENE'S EARLIER MESSAGES:*


*Message from Racist Prostitute Thread:*
I’ve been thinking about a little thought experiment, and I thought I’d run
it past this list to see whether people see it as helpful.



   Imagine a state in which prostitution is legalized.  A
prostitute offers her services to the general public (perhaps through a web
site, which as I understand it is not uncommon).  She is generally not very
selective, because it’s just business.  But she doesn’t like black people.
A black would-be customer feels understandably insulted by this, so he sues
her for discrimination in public accommodations.  And the state law does
cover all businesses, bricks and mortar or not, that provide goods or
services to the general public.  (That, after all, is the sort of law that
covers bakers, wedding photographers, and perhaps ministers who charge for
their services.)



   My inclination is that the prostitute should have an
absolute right to discriminate on any basis she wants, whether it’s race,
religion, marital status, age, or whatever else.  And that is true even
though she charges money, and generally provides her services to everyone.
(I say “she” and “he” in this example, but of course the same would apply
regardless of the sex or sexual orientation of the parties.)  The choice of
whom to have sex with is a personal choice, even when done commercially,
and no-one should have to have sex with someone they don’t want to have sex
with – on pain of either facing a fine or having to quit one’s chosen line
of business – no matter how many for-pay partners they might have.  Are
people on 

Re: Jim Oleske's new review of book by Robert George

[James Oleske]

Thanks much to Chip for initially bringing my piece to the attention of the
list, and to Ryan for flagging George's response. I would urge anyone who
read my review (ssrn.com/abstract=2554192) to also read Professor George's
response (thepublicdiscourse.com/2015/02/14430/) in full.

Professor George certainly pulls no punches (as you can see below, ad
hominem and intellectual dishonest hit piece appear in the opening
lines), and he argues at considerable length that -- contrary to my
contention that he has changed his view on religious exemption rights -- he
still believes Smith was correctly decided and that there is no
constitutional right (as opposed to a moral right) to religious exemptions.

For those who have a chance to read Professor George's response and are
interested in my thoughts, here's what initially strikes me as most
notable: (1) the response nowhere addresses Professor George's authorship
of the Manhattan Declaration, which decried the restrictions on free
exercise of religion imposed by case law, and which his co-author
explicitly said was written because Smith stands the First Amendment on
its head; (2) it conflates support for discretionary legislative
exemptions with support for a right to exemptions; support for the former
-- which Professor George has consistently shown -- is not the same as
support for the latter -- which my piece contends he has not consistently
shown; and (3) it assumes that one can routinely invoke Madison and the
Constitution when framing his discussions of religious exemptions, but then
claim to be making only a moral argument about exemptions so long as one
does not use the precise phrase, the Constitution requires an exemption.
I am confident that the vast majority of people who read George's book, his
related essays and interviews, and the Manhattan Declaration would be left
with the strong impression that George believes constitutional rights, not
just moral rights, are at stake in this struggle.

On a non-substantive note, I must confess amusement that, having written an
entire book framed around calling his intellectual opponents enemies of
conscience, Professor George begins his response by decrying *ad hominem *
attacks.

- Jim

http://ssrn.com/author=357864

On Wed, Feb 11, 2015 at 9:48 AM, Ryan T. Anderson 
ryantimothyander...@gmail.com wrote:

 Thanks for calling our attention to this review. The list might find
 George's response worth reading. Here's the opening:
 http://www.thepublicdiscourse.com/2015/02/14430/

 The Oldest Trick in the Book Reviewer’s Book: On Misreading *Conscience
 and Its Enemies*
 *by*  Robert P. George http://www.thepublicdiscourse.com/author/rgeorge/

 February 11th, 2015


 James M. Oleske’s “review” of my new book is no review at all. It’s an
 intellectually dishonest hit piece.

 The *ad hominem* attack is the oldest trick in the debater’s manual. When
 you can’t—or for whatever reason won’t—engage your opponent’s actual
 arguments, you try to discredit him personally. Perhaps you mock his
 accent, or point out that his pants are too short or that his socks don’t
 match. Or you try to smear him as a shady character or a hypocrite. Or you
 try to show that whatever he is saying, right or wrong, is
 ill-motivated—perhaps a matter of sheer political expediency. The shrewdest
 way to buttress an argument *ad hominem* is to create an appearance of
 engaging an opponent’s arguments while so distorting his view that a
 caricature takes the place of the original.

 Lewis and Clark University law professor James Oleske deploys the last of
 these stratagems in a review of my book
 http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/
  *Conscience and Its Enemies: Confronting the Dogmas of Liberal
 Secularism*. He suggests that I have quietly, and all too conveniently,
 changed my tune about whether we should provide conduct exemptions from
 general, neutral laws that burden religious activity. Professor Ira Lupu,
 whom Oleske thanks in a note for helping with the review, circulated a link
 to it, touting it as “rigorously argued.” But a review cannot be rigorously
 argued if it falsifies key positions of the author whose work is being
 reviewed.

 The falsifications in Oleske’s review don’t tarry in making an
 appearance—they begin in a summary headnote: “Robert George, once a skeptic
 of religious-exemption rights, now demands their unprecedented expansion.”
 This alleged switch, Oleske suggests, was unacknowledged and opportunistic:
 I supposedly started supporting conduct exemptions only when—and because—my
 fellow conservatives’ consciences were burdened by issues surrounding
 same-sex marriage and the implementation of the contraceptive mandate of
 the Affordable Care Act.

 But this little tale has the very considerable disadvantage of being
 demonstrably false. I made no switch. Oleske maintains the contrary
 illusion, across several pages of commentary on my work, only by
 conflating—egregiously

Re: letter re: proposed Georgia RFRA

[James Oleske]

Chip is absolutely correct. The letter recommends that the bill be amended
in two ways, and the change apparently being entertained by the sponsor
only addresses the first proposed amendment. I should have been more
careful in my earlier message not to conflate those issues, for unless the
second amendment is also made, I suspect most of those currently opposing
the bill will continue to oppose it.

That said, I'm still quite surprised -- especially in the post-*Hobby Lobby*
environment -- by the sponsor's stated willingness to exclude corporate
entities from coverage. Am I alone in that surprise?

Either way, this development does make me wonder if I have been wrong in
thinking that there is no political appetite in the current climate for
bipartisan state RFRAs targeted at the type of noncontroversial exemptions
discussed during the debates over the original RFRA.

- Jim

On Fri, Jan 23, 2015 at 6:13 PM, Ira Lupu icl...@law.gwu.edu wrote:

 Thanks, Jim.  I did not know that Bill co-sponsor Teasley had said that.
 I hope the Bill is so changed.
 But that will not solve the entire problem.  Individuals, especially
 public employees like marriage license clerks, will still rely on the Bill
 (if enacted) to discriminate. Likewise entrepreneurs, whose businesses are
 not held in the corporate form.

 Sent from my iPhone

 On Jan 23, 2015, at 9:01 PM, James Oleske jole...@lclark.edu wrote:

 Thanks for the links, Chip. Interestingly, the sponsor of the legislation
 told a reporter a couple of days ago that he was planning to change the
 bill to address concerns like those laid out in your letter. Here's the
 relevant passage from the news report:

 ***

 Mark Goldfeder, a law professor at Emory University who also is the senior
 fellow at the Center for the Study of Law and Religion, said there is an
 easy fix.

 The bill could be amended to define a person as only a natural person or
 religious organization, meaning only specific organizations, churches,
 temples and the like.

 Teasley plans to do just that. He told PolitiFact Georgia that he had
 heard of the claim about corporations being able to claim the exemption and
 put the question to legislative counsel.

 Like the outside scholars, the attorney for the Legislature agreed the
 measure would extend to businesses.

 Teasley said he plans to add the term natural person to the bill in a
 bid to achieve his original objective: Stop government overreach on an
 individual’s right to religious conscience. He said he plans that change in
 the next week.

 This should not be a controversial bill, Teasley said. This kind of
 thing used to bring Democrats and Republicans, conservatives and liberals
 together, and I hope it can again.


 http://www.politifact.com/georgia/statements/2015/jan/21/jeff-graham/are-corporations-able-claim-religious-exemptions-u/

 ***

 Question for those on the list who are following developments in Georgia
 more closely -- does this change really look like it might actually
 happen?  If so, and if the bill passes, it would seem to be a major
 development in the debate over state RFRAs (and a development that I, quite
 frankly, would not have anticipated in the current political environment).

 - Jim


 On Fri, Jan 23, 2015 at 3:03 PM, Ira Lupu icl...@law.gwu.edu wrote:

 The Georgia General Assembly is considering RFRA-type legislation.  The
 proposed Bill is here:
 http://www.legis.ga.gov/Legislation/en-US/display/20152016/HB/29.
 ​ A group of legal scholars, including myself and others who post on this
 list, have written a letter to Georgia political leaders, urging
 significant revisions in the Bill to prevent it from becoming a license to
 engage in invidious discrimination.  A copy of our letter is available
 here:

 http://www.georgiaunites.org/wp-content/uploads/2015/01/Georgia-Religious-Freedom-Letter.pdf
 .

 --


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: letter re: proposed Georgia RFRA

[James Oleske]

Thanks for the links, Chip. Interestingly, the sponsor of the legislation
told a reporter a couple of days ago that he was planning to change the
bill to address concerns like those laid out in your letter. Here's the
relevant passage from the news report:

***

Mark Goldfeder, a law professor at Emory University who also is the senior
fellow at the Center for the Study of Law and Religion, said there is an
easy fix.

The bill could be amended to define a person as only a natural person or
religious organization, meaning only specific organizations, churches,
temples and the like.

Teasley plans to do just that. He told PolitiFact Georgia that he had heard
of the claim about corporations being able to claim the exemption and put
the question to legislative counsel.

Like the outside scholars, the attorney for the Legislature agreed the
measure would extend to businesses.

Teasley said he plans to add the term natural person to the bill in a bid
to achieve his original objective: Stop government overreach on an
individual’s right to religious conscience. He said he plans that change in
the next week.

This should not be a controversial bill, Teasley said. This kind of
thing used to bring Democrats and Republicans, conservatives and liberals
together, and I hope it can again.

http://www.politifact.com/georgia/statements/2015/jan/21/jeff-graham/are-corporations-able-claim-religious-exemptions-u/

***

Question for those on the list who are following developments in Georgia
more closely -- does this change really look like it might actually
happen?  If so, and if the bill passes, it would seem to be a major
development in the debate over state RFRAs (and a development that I, quite
frankly, would not have anticipated in the current political environment).

- Jim


On Fri, Jan 23, 2015 at 3:03 PM, Ira Lupu icl...@law.gwu.edu wrote:

 The Georgia General Assembly is considering RFRA-type legislation.  The
 proposed Bill is here:
 http://www.legis.ga.gov/Legislation/en-US/display/20152016/HB/29.
 ​ A group of legal scholars, including myself and others who post on this
 list, have written a letter to Georgia political leaders, urging
 significant revisions in the Bill to prevent it from becoming a license to
 engage in invidious discrimination.  A copy of our letter is available
 here:

 http://www.georgiaunites.org/wp-content/uploads/2015/01/Georgia-Religious-Freedom-Letter.pdf
 .

 --
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law, Emeritus
 George Washington University Law School
 2000 H St., NW
 Washington, DC 20052
 (202)994-7053
 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
 People ( Wm. B. Eerdmans Pub. Co., 2014))
 My SSRN papers are here:
 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

 ___
 To post, send message to Religionlaw@lists.ucla.edu
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

 Please note that messages sent to this large list cannot be viewed as
 private.  Anyone can subscribe to the list and read messages that are
 posted; people can read the Web archives; and list members can (rightly or
 wrongly) forward the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

I would not have enacted this statute - Justice Scalia on RLUIPA

[James Oleske]

I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was
struck a moment ago by this comment from Justice Scalia while discussing
compelling state interest standard with the Assistant SG:

We’re talking here about a compelling State interest. *Bear in mind I
would not have enacted this statute, but there it is.* It says there has to
be a compelling State interest. And you’re ­­ you’re asking, well, let’s
balance things; let’s be reasonable. Compelling State interest is not a
reasonableness test at all.

A quick Google search indicates that one of the only places this comment
has gotten attention is over on Josh Blackmun's blog
http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/
:

Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he
did write Smith. If so, would he also not have voted for RFRA, as applied
to the federal government (put aside the federalism problems)? That makes
his [joining the Court's] opinion in Hobby Lobby so much more significant.

In answer to Josh's second question, I tend to think Justice Scalia would
not have voted for RFRA. Recall, he rejected application of the compelling
interest test in Smith in part because he viewed it as

horrible to contemplate that federal judges will regularly balance against
the importance of general laws the significance of religious practice

- Jim
http://ssrn.com/author=357864
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Is it possible that rights of both same-sex couples and vendors who object on religious grounds could be protected?

[James Oleske]

One caveat to the observations both Chip and Doug have made about the
situation in the 29 states that have not extended their public
accommodations laws to prohibit discrimination on the basis of sexual
orientation. While one would not expect claims against wedding vendors to
arise under state law in those jurisdictions, cases could be brought under
municipal ordinances in many cities within those states. As a result, with
same-sex marriage recognition now being required in several red states, it
is easy to imagine a renewed push for exemption legislation at the state
level that would insulate vendors from such municipal ordinances. I had not
accounted for this dynamic in the earlier version of my own
vendor-exemption piece, but I do in the current version (which is available
at http://ssrn.com/abstract=2400100, but which will now need to be further
updated to account for the events of the past week ...).

- Jim


On Thu, Oct 9, 2014 at 6:16 PM, Ira Lupu icl...@law.gwu.edu wrote:

 The federal law of nondiscrimination in public accommodations covers
 hotels and restaurants (which may be wedding vendors), but it does not
 outlaw discrimination based on LGBT status, or even discrimination based on
 sex (it is limited to race, color, religion, and national origin).

 I believe that only 21 states and DC have public accommodations laws that
 cover discrimination based on LGBT status.  So the questions raised in
 Michael Peabody's post will come up, at least in the short run, only under
 state law, and only in a minority of states.  Wedding vendors in the other
 29 states can lawfully discriminate against same sex weddings (unless their
 state courts hold this to be a form of sex discrimination -- possible, but
 not so likely in the short run), but they will invite boycotts and terrible
 publicity for themselves if they do so discriminate.  The market will have
 its own say on this claim of religious liberty.

 On Thu, Oct 9, 2014 at 8:12 PM, Steven Jamar stevenja...@gmail.com
 wrote:

 Don’t some public accomodations laws reach vendors — even though
 employment discrimination laws don’t?  I don’t know that the federal law
 does, but surely some states’ laws do.


 On Oct 9, 2014, at 6:01 PM, Michael Peabody peabody...@gmail.com wrote:

  Greetings,
 
  Please forgive me if this has been addressed before, but  I have been
  wondering if the Supreme Court could be working to protect both the
  emerging right of same-sex couples to marry and the rights of wedding
  vendors who oppose same-sex marriage on religious grounds.  On one
  hand, this week the SCOTUS decided not to hear the cases coming up
  from the Circuits (covering some 30 states or so), but on the other
  hand, earlier this year the Court ruled in Hobby Lobby that the rights
  of businesses who refuse to provide contraception on religious grounds
  could be protected under RFRA.
 
  Granted, RFRA is a federal statute, but many who oppose RFRA argue
  that it is duplicative of existing state and federal rights anyway. So
  for the sake of argument, I'm going to assume that a Federal right to
  same-sex marriage is established and that discrimination against
  same-sex couples is actionable under something like Title VII.  Now
  let's say that a wedding vendor (somebody who takes pictures or sings
  songs at weddings) believes that same-sex marriage is against his or
  her beliefs.  Under the Hobby Lobby rationale, I think we could argue
  that the vendor that refuses to participate in the ceremony (i.e.
  making the day special) might be protected.  Certainly direct
  participation in a ceremony (or direct support service) is much less
  attenuated than a woman's right to
 
 government-mandated-company-paid-insurance-policy's-coverage-of-contraceptives-the-knowledge-of-use-of-which-is-confidential-per-HIPAA.
 
  1.  Could it be that the right to marry is protected, as is the right
  of businesses refrain from participation in such ceremonies on
  religious grounds under RFRA (or its state analogues)?
 
  2.  Could it also be that the imposition of the government into a
  dispute regarding a vendor's refusal to participate in a wedding (a
  religious sacrament to the vendor regardless of the profit motive or
  intent of the couple), and where the government requires a business to
  perform the service or be forced to close, constitutes a violation of
  the Establishment Clause?
 
  I'd be very interested in knowing your thoughts on this.
 
  Sincerely,
 
  Michael D. Peabody, Esq.
  http://www.religiousliberty.tv


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or 

Re: Extent of Wheaton College's Objection

[James Oleske]

If that were Wheaton's position, why would it be celebrating a decision
that explicitly says [n]othing in this order precludes the Government from
relying on this notice, *to the extent it considers it necessary*, to
facilitate the provision of full contraceptive coverage under the Act?

Whether or not Form 700 actually served as a legal trigger to facilitate
coverage, the written notice approved by the Court is clearly a trigger to
facilitate coverage, and Wheaton has raised no objections to that written
notice. That would seem to indicate that Wheaton's objection has less to do
with the triggering effect of notice and more to do with the details of the
notice. Cf. Wheaton Reply Brief at 9 (Whatever the right answer—trigger or
no trigger, facilitating or not facilitating—the undisputed fact is that
Wheaton has a sincere religious objection to executing the Form [700].).

I agree that many people would struggle to see a difference between Form
700 and the written notification scheme crafted by the Court and embraced
by Wheaton College, but I presume the difference has to do with degrees of
separation. Wheaton College apparently believes signing and sending Form
700 directly to insurance issuers is more directly connected to the
ultimate provision of contraceptive coverage than signing and sending a
notice to the government, which in turn notifies the issuers of their
obligations.

Update: I just saw Mark's post, and he captures the position I assumes
Wheaton holds as follows:  [W]hy should I have to tell a private person
that the govt is restricting my religious liberty, where the result will be
that the private person must then take an action that I consider to be
evil? In a sense I would be inviting that private person to sin, with
resulting damage to that person. (Cf. 1 Corinthians 8, and Matthew 18:6.)
The connection is closer than if I simply send a notice to the govt.

Again, other nonprofits may draw different lines -- including the line
Marty posits of conditional objection to notifying the government, and the
line of objecting to any written notice whatsoever -- and one question is
when the prospect of so many different lines renders it impracticable for
the government to administer numerous alternative notice schemes and allows
it to instead adopt a uniform scheme that may not be equally satisfactory
to all.

- Jim

On Sat, Jul 5, 2014 at 10:35 AM, Marty Lederman lederman.ma...@gmail.com
wrote:

 My understanding is that Wheaton is ok with that solution *on the
 assumption that its notification to HHS* *will not and cannot be deemed a
 designation of Blue Cross as a plan administrator* -- in which case, if
 we consider only ERISA, the government would not have the authority to
 require BC/BS to provide contraception coverage, and Wheaton's employees
 will not get coverage.

 If, instead, as Tom Goldstein suggests, the government treats the
 notification just as it is treating Form 700 -- as a designation of BC/BS
 as a plan administrator, thus creating the conditions for the government to
 require BC/BS to provide coverage -- then I *assume *
 Wheaton would raise a RFRA objection.  After all, that would simply be
 replacing one form with a wholly equivalent other form -- how could the
 burden be different in that case?


 On Sat, Jul 5, 2014 at 1:27 PM, James Oleske jole...@lclark.edu wrote:

 Marty -- In your message below, and in your post over at Balkinization,
 you posit that Wheaton College might still allege a RFRA violation if
 employees do get the coverage under the Court's current solution of
 written notification to the government without using the challenged form
 and without the obligation that the College notify its insurance issuers
 and administrators. But in it's reply brief to the Court on Wednesday,
 Wheaton College represented its position as follows:

 [E]ligible organizations should be permitted to opt out of the
 contraceptive mandate by providing written notification of their objections
 to the Secretary of HHS, rather than to their insurance issuers or
 third-party administrators. That is precisely the relief Wheaton seeks 
 Wheaton has no difficulty complying with—and indeed has already complied
 with—the terms prescribed by this Court in Little Sisters

 Wheaton asks for the same relief that this Court granted to the Little
 Sisters of the Poor. Little Sisters, 134 S. Ct. 1022. There, the Court
 freed the Sisters from using the Form and allowed them to merely inform the
 government (not their TPA) of their religious objection.

 And after the Court issued its order -- which emphasizes (as you note in
 your Balkinization post) that [n]othing in this interim order affects
 the ability of the applicant’s employees and students to obtain, without
 cost, the full range of FDA approved contraceptives and that [n]othing
 in this order precludes the Government from relying on [Wheaton's] notice
 [of its religious objection], to the extent it considers it necessary

Re: Simple Hobby Lobby question

[James Oleske]

Got it -- I see the distinction. To put it in the imposition terms the
Court used in Lee, one could say it's the difference between an employer
imposing his religious faith on his employees (e.g., by requiring them to
participate in prayer meetings contrary to their own beliefs) and an
employer imposing some of *the costs* of his religious faith on his
employees (e.g., denying them an employee benefit because of the
employer's religious opposition to the benefit). Even though Lee used the
former phrase, it clearly was relying on the latter concept when it
explained the burden that granting an employer exemption would impose on
the employee. Nonetheless, since that's the same burden on employees at
issue in Hobby Lobby, it would seem like Lee should still control. Alas, I
suspect a majority of the Court is not going to agree with my view on that
...

- Jim


On Thu, Jun 12, 2014 at 8:37 AM, Douglas Laycock dlayc...@virginia.edu
wrote:

 One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept
 Marty’s argument that Hobby Lobby has a viable option to just discontinue
 its health insurance plan.



 I was addressing a different issue. Any burden on the employees is
 economic. They are not forced to adopt Hobby Lobby’s religious views, live
 by Hobby Lobby’s religious rules, or violate the rules of their own
 religions. But if Hobby Lobby is forced to pay for contraception coverage,
 the burden is religious. Only Hobby Lobby and the Greens are at risk of
 being forced to live by some other religion’s view of the matter and to
 violate the rules of their own religion.



 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



 *From:* James Oleske [mailto:jole...@lclark.edu jole...@lclark.edu]
 *Sent:* Thursday, June 12, 2014 12:02 AM
 *To:* Law  Religion issues for Law Academics
 *Cc:* Daniel J. Greenwood; Douglas Laycock
 *Subject:* Re: Simple Hobby Lobby question



 Without attempting to address the various corporate law issues being
 debated in this thread, I did want to ask a more intuitive question about
 this argument:

 [An exemption for Hobby Lobby] is not an imposition of the Greens'
 religion on the employees. No employee is forced to live by Hobby Lobby's
 religious values; they are entirely free to buy emergency contraception
 with their own money. The only people at risk of being forced to live by
 other people's religious values in this case are the Greens.



 Given that Hobby Lobby is entirely free to pay the opt-out tax with its
 own money, doesn't this argument depend on finding that the relative cost
 to Hobby Lobby of paying the tax is so much higher than the relative cost
 to employees of purchasing the disputed contraception that only the former
 can be deemed to constitute force or an imposition? And, at least with
 respect to the most effective and costly of the contraceptive methods at
 issue (IUDs), is it really so obvious that such a finding would be
 warranted?

 Moreover, regardless of how we might decide the imposition on employees
 question in the first instance, didn't the Supreme Court already address
 the issue explicitly in its pre-Smith jurisprudence when it said that
 granting the Amish employer's request for an exemption in Lee would operate
 to impose the employer's religious faith on the employees?

 Of course, if Smith had never been decided, and if the Court today was
 refining its own constitutional free-exercise exemption jurisprudence
 instead of applying a statute designed to restore the Court's pre-Smith
 jurisprudence, one could certainly argue that the Court should revisit the
 characterization of employer exemptions in Lee. But that's not where we
 would seem to be given the Smith decision and RFRA.

 - Jim



 On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock dlayc...@virginia.edu
 wrote:

 Sorry, but now you have shifted to a completely different argument. The
 alleged imposition on employees has nothing to do with corporate law; that
 argument would be exactly the same if Hobby Lobby were a sole
 proprietorship.

 If Hobby Lobby wins, the employees will not receive a particular benefit
 from Hobby Lobby, and that benefit has some economic value to those
 employees who would use it. The relevance of that fact is a genuine issue.

 But it is not an imposition of the Greens' religion on the employees. No
 employee is forced to live by Hobby Lobby's religious values; they are
 entirely free to buy emergency contraception with their own money. The only
 people at risk of being forced to live by other people's religious values
 in this case are the Greens.

 On Wed, 11 Jun 2014 22:27:34 +
  Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote:
 Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens
 and they are forbidden by law from acting as if they owned them.  This is
 true in each of their corporate roles

Re: RFRA and Corporations

[James Oleske]

Based on the briefs and oral argument in Hobby Lobby, one thing is already
clear: Professor Laycock's contention that the public meaning of RFRA can
be discerned by examining the congressional debates over RLPA has had a
notable impact. Not only did Paul Clement invoke the argument in Hobby
Lobby's merits brief, he then explicitly directed the Court to Professor
Laycock's amicus brief during oral argument for the proposition that it
could not be clearer that [Members of Congress] understood that
for-­profit corporations would be covered.

Prior to oral argument, I offered an initial critique the RFRA/RLPA
legislative-history argument in an essay for Vanderbilt's Hobby Lobby
roundtable, and Professor Laycock addressed that critique in his piece
below. Given the potential importance of the RFRA/RLPA argument to the
disposition of the case, my second-round contribution to the roundtable
continues to explore the issue:


*The Public Meaning of RFRA Versus Legislators' Understanding of RLPA*
http://www.vanderbiltlawreview.org/content/articles/2014/05/Oleske-Response.pdf

More broadly, I recommend to folks all of the essays in the Vanderbilt
roundtable, which include excellent contributions from Rick Garnett, Fred
Gedicks, Andy Koppelman, and Greg Magarian:

http://www.vanderbiltlawreview.org/enbanc/roundtable/sebelius-v-hobby-lobby-stores-inc/

- Jim


On Wed, Apr 2, 2014 at 6:38 AM, Douglas Laycock dlayc...@virginia.eduwrote:

 I filed an amicus brief in *Hobby Lobby* and *Conestoga Wood* on the
 public meaning of RFRA with respect to coverage of corporations and their
 owners, as reflected in congressional debates when Congress belatedly
 focused on the issue. There has been some suggestion that that brief was
 inconsistent with testimony I gave at the time. Just in case anyone cares,
 I have responded to the claim of inconsistency here:




 http://www.vanderbiltlawreview.org/content/articles/2014/03/Laycock_Response.pdf





 Douglas Laycock

 Robert E. Scott Distinguished Professor of Law

 University of Virginia Law School

 580 Massie Road

 Charlottesville, VA  22903

  434-243-8546



___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Size Limits on Businesses That Can Obtain Religious Exemptions (was Oregon Ballot Title: Religious Exemptions Same-Sex Couples)

[James Oleske]

I agree that the lack of a size limit in the (now-abandoned) Oregon
initiative would have made the measure a tough sell politically, but I'm
not sure I agree that including a size limit would be irrelevant in
practice.

The size limit in the current version of the academic proposal for
marriage-facilitation exemptions is 5 employees (or 5 units for landlords).
Including that limit in exemption legislation would appear to exclude one
of the wedding vendors most frequently invoked by exemption proponents,
Arlene's Flowers in Washington State, which had grown to 10 employees by
2010. That same size limit might also preclude an exemption for another
frequently discussed vendor, the Gortz Haus in Iowa, which according to at
least one business database is classified as having between 10-19
employees. Can a size limit that would exclude businesses like Arlene's
Flowers and the Gortz Haus (or bakeries that grow to 6 employees, or
landlords that rent 6 units, or employers ranging from 6 employees to the
size of Hobby Lobby that don't want to provide spousal health benefits to
same-sex couples) really be deemed irrelevant in practice given the live
cases involving such businesses?

As for whether the lack of a size limit in the Oregon initiative represents
overreaching in principle, it's worth noting that (1) the original version
of the academic proposal did not include a size limit on businesses
eligible for exemptions, (2) the currently proposed federal Marriage and
Religious Freedom Act -- which is supported by the Catholic Bishops and
the Southern Baptists, and has over 100 co-sponsors, including former
Senate Judiciary Committee Chairman Orrin Hatch -- does not include a size
limit on businesses eligible for exemptions, and (3) academic supporters of
Hobby Lobby have argued that size limits on exemptions for businesses are
akin to historic religious persecution.

Of course, one could conclude (as do I) that all of these proposals and
arguments represent overreaching by seeking a novel extension of religious
exemptions into the for-profit commercial realm. Or one could conclude (as
do others) that all of these proposals and arguments represent reasonable
efforts to protect religious liberty in the commercial realm without
arbitrary size limits. But it's not clear to me how the lack of size limits
in the Oregon proposal can be distinguished on principle from the other
proposals and arguments against size limits.

- Jim


On Fri, May 9, 2014 at 3:12 PM, Douglas Laycock dlayc...@virginia.eduwrote:

 No size limit on the businesses to be exempted, and no exception for local
 monopolies, is stupid politics, and I think, wrong in principle. The lack
 of a size limit is also irrelevant in practice, because large businesses
 wouldn’t be claiming these exemptions even if they were available. But lack
 of a size limit is likely to be devastating on the political front. This
 would probably be a tough sell in Oregon even if it were more sensibly
 drafted. As it is, I can’t believe it has much of a chance.



 It’s not always clear whether the worst enemies of religious liberty are
 the secular activists  who oppose it and minimize it, or the religious
 activists who are forever over reaching and making fat targets of
 themselves.







 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 *James Oleske
 *Sent:* Friday, May 09, 2014 5:51 PM
 *To:* Law  Religion issues for Law Academics
 *Subject:* Oregon Ballot Title: Religious Exemptions  Same-Sex Couples



 Yesterday, the Oregon Supreme Court certified the ballot title for a
 proposed citizen initiative that would provide religious exemptions from
 anti-discrimination laws to business owners who decline to provide certain
 services to same-sex couples. The title that will appear on the November
 ballot if proponents of the initiative gather the requisite number of
 signatures by early July is as follows:

 ***

 Religious belief exceptions to anti-discrimination laws for refusing
 services, other, for same-sex ceremonies, arrangements

 Result of Yes Vote: Yes vote creates religious belief exceptions to
 anti discrimination laws for refusals to provide services/facilities/goods
 for same-sex marriage/partnership ceremonies, and their arrangements

 Result of No Vote: No vote rejects religious belief exceptions to
 anti discrimination laws for refusals regarding same-sex ceremonies,
 arrangements; retains exemptions for churches/religious institutions,
 constitutional protections.

 Summary: Current laws prohibit discrimination based on sexual orientation
 in public accommodations (businesses offering services/facilities/goods),
 employment, housing; contain certain exemptions for churches/religious
 institutions. State/federal constitutions protect

Re: bigotry and sincere religious belief

[James Oleske]

As Chip notes, there are profound difficulties in trying to use law as a
instrument to sort the sincere objectors from the bigots and phobes. And
until recently, our consistent approach to antidiscrimination laws and
religious accommodations implicitly recognized what Chip ultimately
concludes below -- we can't possibly make those distinctions.

Instead, our traditional approach was to allow or refuse religious
accommodations from antidiscrimination laws based on the sphere in which
that discrimination occurred, not the relative merits of particular
instances of discrimination within a particular sphere. The two paradigm
spheres were (1) the internal operations of religious institutions, where
we shielded from legal consequences all discrimination against otherwise
protected classes, and (2) the for-profit commercial sphere, where we
shielded from legal consequences no discrimination against protected
classes except pursuant to across-the-board size exemptions. In neither
sphere did we charge the legal system with the seemingly impossible task of
trying to distinguish between invidious and non-invidious instances of the
same discrimination.

Today, the first half of the paradigm is alive and well (see Hosanna
Tabor), but the second half is being vigorously challenged.

In addition to the practical challenges of abandoning the second half of
the paradigm, it strikes some of us as particularly troubling that
proposals for legislative carve-outs in the commercial context only gained
widespread currency when the focus turned to the rights of same-sex
couples. As I write toward the end of my article:

[A]lthough the Bible quotes Jesus Christ explicitly condemning divorce and
remarriage as adultery, and although such remarriages violate the current
teachings of the largest Christian denomination in America, state laws
prohibiting discrimination based on marital status do not contain
exemptions allowing commercial businesses to refuse to facilitate the
remarriages of divorced people. Only after same-sex couples were allowed to
marry was there an effort to allow business owners to discriminate for
religious reasons  The fact [is] that no state has ever exempted
commercial business owners from the obligation to provide equal services
for interracial marriages, interfaith marriages, or marriages involving
divorced individuals--even though major religious traditions in America have
opposed each type of marriage 


As for religious opposition to interracial marriage in particular, it was
not confined to the South in the 1960s, and it is not so confined today.
The Restored Church of God -- whose leader has harshly criticized other
Churches of God for abandoning the teaching that interracial marriage is a
sin -- is based in Ohio. And it is not a tiny obscure church -- the U.S.
Congressman representing the church's district attended the 2012
ribbon-cutting ceremony for its 40,000-foot facility.

If members of the Restored Church of God operate inns, run bakeries, and
rent non-owner-occupied apartments in Ohio, should they be allowed to
refuse to host interracial weddings, provide cakes for such weddings,
extend family health benefits to employees in interracial marriages, and
refuse to rent apartments to married interracial couples? Should members of
the Catholic Church who adhere to the church's teachings on divorce be
allowed to do likewise with respect to weddings and marriages involving
divorced people? How about members of churches that oppose interfaith
marriages? Should the line be drawn between those who religiously oppose
interracial marriage and those who religiously oppose the other three types
of marriage? Between the first two categories and the second two
categories? Between same-sex marriage and the other three?

Are we comfortable with the law attempting to draw any of these lines
between different religious beliefs? If not, our traditional approach of
focusing instead on covered and non-covered spheres for the operation of
antidiscrimination laws would seem to have a great deal to recommend it.

- Jim

On Thu, Feb 27, 2014 at 6:45 AM, Ira Lupu icl...@law.gwu.edu wrote:

 I think that the politics of the moment, and the conversations we have
 been having (including the reference to Jim Oleske's provocative article
 about religious objections to inter-racial marriage compared to religious
 objections to same sex marriage, *Interracial and Same-Sex Marriages:
 Similar Religious Objections, Very Different Responses*
 http://ssrn.com/abstract=2400100,
 call for a burrowing into the question of what constitutes anti-gay
 bigotry and how it can be distinguished from sincere religious objections
 to same sex intimacy.   The history of racial prejudice in the U.S.
 suggests, and Jim's article shows, a deep structure of religious support
 and justification for segregation (and for slavery before that).  Of
 course, many racial bigots did NOT rely on religious justifications (I grew
 up in upstate NY, 

Same-Sex Marriage and Proposed Religious Exemptions for Businesses

[James Oleske]

In light of the recent discussions of this issue on the list, and in light
the various proposals percolating in the states, I've got a question for
the group and a shameless plug.

First, the shameless plug -- I've just posted a new piece on the issue to
SSRN (it won't be in print until next year, so comments and suggestions
would be very welcome):

*Interracial and Same-Sex Marriages: Similar Religious Objections, Very
Different Responses*
http://ssrn.com/abstract=2400100

The article addresses two major questions that have gone largely unexamined
in the literature to date: First, why has the legal academy been so
solicitous of religious objections to same-sex marriage when it was never
receptive to similar objections to interracial marriage? Second, if a state
were to adopt the leading academic proposal for religious exemptions--a
proposal that would allow for-profit businesses to discriminate against
same-sex couples--would the exemptions be vulnerable to an equal protection
challenge?


The leading academic proposal I discuss is the
Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal
discussion of that proposal begins on page 35 of the draft. A more general
discussion of exemptions for commercial businesses starts on page 27 of the
draft.


Second, the question for the group: What explains the recent pivot from the
marriage specific proposals (e.g., proposed amendment to Minnesota's 2012
marriage recognition legislation; proposed amendment to Washington's 2012
marriage recognition legislation; proposed 2014 ballot initiative in
Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to
the expansion of RFRA rights proposals (Arizona, Missouri)? Is it an
effort to tie into what is expected to be a victory for Hobby Lobby under
the federal RFRA?


- Jim

P.S. My understanding is the same as Chip's -- no state has yet adopted
marriage exemptions that extend to commercial vendors. Speaking of Chip,
his article with Bob on this topic is essential reading (
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp
).

On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu icl...@law.gwu.edu wrote:

 That is my understanding, Hillel.  If Doug, Rick, Tom, or others know of
 counterexamples, I'm sure they will bring them forward to the list.


 On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin 
 hillelle...@gmail.comwrote:

 Chip:

 Thanks for the cite! I will take a look.

 And just so I understand: are you asserting that *none* have adopted the
 broader exceptions (wedding vendors, etc)?


 On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu icl...@law.gwu.edu wrote:

 Hillel:

 The same sex marriage laws to which you refer do have exceptions, for
 clergy, houses of worship, and (sometimes) for religious charities and
 social services.  Bob Tuttle and I analyze and collect some of that here:
 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp.
  There is plenty of other literature on the subject.

 What has happened in other states since we wrote that piece is quite
 consistent with the pattern we described.  These laws do NOT contain
 exceptions for wedding vendors (bakers, caterers, etc.) or public employees
 like marriage license clerks.  Those are the efforts that have failed, over
 and over.

 Chip (not Ira, please)


 On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin hillelle...@gmail.com
  wrote:

 Ira:

 You say that these bills have failed over and over again. If I'm not
 mistaken, several states that recognize same-sex marriage and/or have
 non-discrimination laws protecting gays and lesbians *do* have
 religious exceptions (as does the ENDA that passed the senate not long ago,
 only to die in the House). Am I mistaken? Do you (or anyone else here!)
 know of any literature that canvasses the laws in this context?

 Many thanks.


 On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu icl...@law.gwu.edu wrote:

 The Kansas bill is very sex/gender specific, and it is not limited to
 weddings in any way.  The rights it creates appear absolute -- no interest
 balancing.  It would authorize all sincere religious objectors (persons 
 and
 entities, including businesses) to treat same sex marriages/domestic
 partnerships, etc. as invalid, even if the 14th A required states to
 license and respect such weddings.  It would authorize those objectors to
 refuse to provide goods and services to anyone celebrating such a wedding
 or commitment, and to deny employee spousal benefits to same sex spouses.

 The Arizona bill protects religious freedom generally, and the
 amendment extends the coverage explicitly to corporations.The same
 religious objections to same sex weddings, marriages, etc. could be made
 under the Arizona bill.  The AZ bill permits a compelling interest defense
 (therefore more moderate?), but it also is far more sweeping because it
 might be invoked to justify religious discrimination against customers for
 

Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses

[James Oleske]

Hillel writes: I think that some religious traditionalists/conservatives
view themselves as under attack from secularist forces.

I think that is absolutely correct, and one of the major differences
between the 1960s and today is that this perspective now has a voice in the
legal academy. I think that development, along with other increases in
ideological diversity in the academy, is a good thing, even though I tend
to disagree with the arguments that are made from the
traditionalist/conservative perspective, including the
religious-exemptions-for-business arguments being offered in both the
marriage and contraception contexts. (Note: As I point out in my article,
the exemptions-for-business position is by no means exclusive to
traditionalists and conservatives, and there are several other explanations
for the position's currency in the academy).

As for political strategy, I think Hillel nails it, and I suspect a number
of traditionalists/conservatives in the policy realm are going to regret
having not listened to some of the legal academics who were urging them to
pivot sooner from outright opposition to same-sex marriage to broad
religious exemptions. Planting the broad-religious-exemptions flag in
purple and red states looked viable just a few months ago, but the tide
seems to be rapidly shifting (when FOX News hosts Megyn Kelly and Brit Hume
are talking about how the proposed bills might be overreactions, the window
may indeed be rapidly closing).

On Wed, Feb 26, 2014 at 9:03 AM, Hillel Y. Levin hillelle...@gmail.comwrote:

 Jim is too humble to say so, but his article is required reading for
 anyone interested in the Hobby Lobby, Notre Dame, and related cases.

 Jim, this is necessarily speculative, but I think that some religious
 traditionalists/conservatives view themselves as under attack from
 secularist forces. These forces are at play in the same-sex marriage
 context, but also GLBT non-discrimination laws, the contraception mandate,
 and others to boot. In the face of this (real or perceived) broad-based
 attack, as well as perhaps the sense that public sentiment is moving
 towards secularism in general (and GLBT rights in particular), they may be
 trying to plant their flag right here in places that they still have a
 majority.

 This could be called cynical, but it could also be called wise. After all,
 it is extremely difficult to repeal a religious accommodation clause once
 it is enacted, even if the majority comes to regret having enacted it.

 On Wed, Feb 26, 2014 at 11:46 AM, James Oleske jole...@lclark.edu wrote:

 In light of the recent discussions of this issue on the list, and in
 light the various proposals percolating in the states, I've got a question
 for the group and a shameless plug.

 First, the shameless plug -- I've just posted a new piece on the issue to
 SSRN (it won't be in print until next year, so comments and suggestions
 would be very welcome):

 *Interracial and Same-Sex Marriages: Similar Religious Objections, Very
 Different Responses*
 http://ssrn.com/abstract=2400100

 The article addresses two major questions that have gone largely
 unexamined in the literature to date: First, why has the legal academy been
 so solicitous of religious objections to same-sex marriage when it was
 never receptive to similar objections to interracial marriage? Second, if a
 state were to adopt the leading academic proposal for religious
 exemptions--a proposal that would allow for-profit businesses to
 discriminate against same-sex couples--would the exemptions be vulnerable to
 an equal protection challenge?


 The leading academic proposal I discuss is the
 Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal
 discussion of that proposal begins on page 35 of the draft. A more general
 discussion of exemptions for commercial businesses starts on page 27 of the
 draft.


 Second, the question for the group: What explains the recent pivot from
 the marriage specific proposals (e.g., proposed amendment to Minnesota's
 2012 marriage recognition legislation; proposed amendment to Washington's
 2012 marriage recognition legislation; proposed 2014 ballot initiative in
 Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to
 the expansion of RFRA rights proposals (Arizona, Missouri)? Is it an
 effort to tie into what is expected to be a victory for Hobby Lobby under
 the federal RFRA?


 - Jim

 P.S. My understanding is the same as Chip's -- no state has yet adopted
 marriage exemptions that extend to commercial vendors. Speaking of Chip,
 his article with Bob on this topic is essential reading (
 http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055context=njlsp
 ).


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages