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

[Marc Stern]

There have been fights over parochial school teachers " living in sin, " 
announcing support for abortion, having an abortion; schools wishing to hire 
only believers for secular positions. Lately, there are challenges to abortion 
conscience clauses. LGBT rights certainly figure prominently, but they are not 
unique or even first in time. The old timers amongst us remember the efforts in 
the 1980s to require Christian schools  not getting  government money to mimic 
in all respects the curriculum of the public schools including value laden 
issues such as evolution and women's roles.

And none of this is to discuss the expanded role of government funding ( and 
levels of taxes) since the founding, at the federal level at least premised on 
a reconsidered view of delegated powers such as the spending clause.

Marc Stern
General Counsel
AJC
212  891 1480
646 287 2606(cell)




On Apr 26, 2017, at 7:23 PM, Ira Lupu 
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:

So is it correct to conclude that the struggle over LGBT rights explains 100% 
of any change in public attitudes -- left and right-- about funding and 
regulation of houses of worship? If not, what else explains the change? The end 
of the fight between Protestants and Catholics about public funding of 
religious schools?
On Wed, Apr 26, 2017 at 6:24 PM Laycock, H Douglas (hdl5c) 
<hd...@virginia.edu<mailto:hd...@virginia.edu>> wrote:
I think people are aware that funding may bring more regulation. Judges tend to 
defer to government conditions attached to money, even though some of those 
conditions raise serious questions of unconstitutional conditions.

The fear has lost much of its force in part because of Smith and the 
underenforcement or nonenforcement of state RFRAs. If these institutions are 
going to be regulated anyway, they have less to lose by taking the money. And 
if you look at the history of evangelical schools, where many of these claims 
are coming from, first they fought out the regulatory issues, in mostly 
unsuccessful litigation and in state legislatures and before state boards of 
education. Only after most of those issues were resolved one way or the other 
did they begin to push for equal access to government money.

I’m less certain about this second point, but I think that many of them feel 
that the risk of extra conditions attached to money is smaller than the risk of 
fighting a culture war where the other side is government funded.



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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Eric J Segall

Sent: Wednesday, April 26, 2017 5:17 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
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


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Please note that messag

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

[Marc Stern]

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
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

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

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

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

Chip is right that it is remarkable that not only has this longstanding 
Establishment Clause 

Re: Religious objections to deportation policies

[Marc Stern]

I should add that the obvious basis of a challenge in the third scenario is the 
fourth amendment, unless the agents have a warrant in which the RFRA challenge 
would be based on an objection to any deportation of a person not guilty of 
some crime. Hard to imagine such a challenge succeeding.

Marc Stern
General Counsel
AJC
212  891 1480
646 287 2606(cell)




On Mar 28, 2017, at 8:07 AM, Saperstein, David 
<dsaperst...@rac.org<mailto:dsaperst...@rac.org>> wrote:

I presume there would have to be actual government  action against the 
congregation  first and then a RFRA defense would be appropriate..like the wash 
D.C. case where it worked to maintain a feeding program.

Sent from my iPhone

On Mar 28, 2017, at 7:54 AM, 
"jeremy.mall...@gmail.com<mailto:jeremy.mall...@gmail.com>" 
<jeremy.mall...@gmail.com<mailto:jeremy.mall...@gmail.com>> wrote:

I am in contact with a coalition of congregations in Cambridge, Mass., that is 
planning to offer sanctuary in line with the third scenario. I am unaware of 
any examples yet, but I will be sure to drop a note here in case it does arise.

Jeremy Mallory


On Mar 28, 2017 at 5:31 AM, mailto:martin.leder...@law.georgetown.edu>> wrote:

Alan:  The first two issues won't (yet) arise because, as far as I know, the 
law does not require any private persons -- or cities, for that matter -- to 
assist DHS with its removal proceedings.  There are no "obligations to 
disclose" information about immigration status, in particular.  (All that 8 USC 
1373(a) does is to prohibit cities from prohibiting their own employees from 
providing such info to the feds if they so choose.)

I'm also not aware of any cases involving your third scenario, in which (as I 
understand it) a church harbors a removable alien and refuses to allow 
immigration officials to enter the facilities to arrest the individual.

On Mon, Mar 27, 2017 at 11:50 PM, Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote:

Has anyone written anything about (or given some thought to) the possibility of 
RFRA being employed to challenge the federal government's deportation policies.


For example, might a professor or registrar at a private school be permitted to 
assert RFRA as a defense to a federal law requiring her to seek and disclose 
the immigration status of students?


Could a "sanctuary city" assert that it is relieving any of its employees from 
any obligation to disclose information about the immigration status of persons 
within the jurisdiction to federal immigration authorities if it would violate 
their religious beliefs to do so? Might the city argue that such an order 
complies with federal law because it is mandated by RFRA?


May a church provide sanctuary to an undocumented refugee at risk of 
deportation and assert a RFRA claim to avoid prosecution for doing so? The 
church would assert it is prohibited by its beliefs from denying sanctuary in 
these circumstances.


I recognize, of course, that successfully asserting a substantial burden on 
religious exercise only shifts the burden to the government to justify its 
actions under strict scrutiny.


Alan Brownstein

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Re: Religious objections to deportation policies

[Marc Stern]

Before RFRA, the issue was litigated under Sher Bert in the ninth circuit-
I believe a presbyterian church in Tucson. I will dig up the cite when I get to 
the office. As I recall, the church lost.

Marc Stern
General Counsel
AJC
212  891 1480
646 287 2606(cell)




On Mar 28, 2017, at 8:07 AM, Saperstein, David 
<dsaperst...@rac.org<mailto:dsaperst...@rac.org>> wrote:

I presume there would have to be actual government  action against the 
congregation  first and then a RFRA defense would be appropriate..like the wash 
D.C. case where it worked to maintain a feeding program.

Sent from my iPhone

On Mar 28, 2017, at 7:54 AM, 
"jeremy.mall...@gmail.com<mailto:jeremy.mall...@gmail.com>" 
<jeremy.mall...@gmail.com<mailto:jeremy.mall...@gmail.com>> wrote:

I am in contact with a coalition of congregations in Cambridge, Mass., that is 
planning to offer sanctuary in line with the third scenario. I am unaware of 
any examples yet, but I will be sure to drop a note here in case it does arise.

Jeremy Mallory


On Mar 28, 2017 at 5:31 AM, mailto:martin.leder...@law.georgetown.edu>> wrote:

Alan:  The first two issues won't (yet) arise because, as far as I know, the 
law does not require any private persons -- or cities, for that matter -- to 
assist DHS with its removal proceedings.  There are no "obligations to 
disclose" information about immigration status, in particular.  (All that 8 USC 
1373(a) does is to prohibit cities from prohibiting their own employees from 
providing such info to the feds if they so choose.)

I'm also not aware of any cases involving your third scenario, in which (as I 
understand it) a church harbors a removable alien and refuses to allow 
immigration officials to enter the facilities to arrest the individual.

On Mon, Mar 27, 2017 at 11:50 PM, Alan E Brownstein 
<aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote:

Has anyone written anything about (or given some thought to) the possibility of 
RFRA being employed to challenge the federal government's deportation policies.


For example, might a professor or registrar at a private school be permitted to 
assert RFRA as a defense to a federal law requiring her to seek and disclose 
the immigration status of students?


Could a "sanctuary city" assert that it is relieving any of its employees from 
any obligation to disclose information about the immigration status of persons 
within the jurisdiction to federal immigration authorities if it would violate 
their religious beliefs to do so? Might the city argue that such an order 
complies with federal law because it is mandated by RFRA?


May a church provide sanctuary to an undocumented refugee at risk of 
deportation and assert a RFRA claim to avoid prosecution for doing so? The 
church would assert it is prohibited by its beliefs from denying sanctuary in 
these circumstances.


I recognize, of course, that successfully asserting a substantial burden on 
religious exercise only shifts the burden to the government to justify its 
actions under strict scrutiny.


Alan Brownstein

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Re: Federal RFRA in Davis-Like Situation?

[Marc Stern]

But the court decisions refusing to recognize RFRA claims in suits between 
private parties even where the suit arises under federal statute point the 
other way-although by analogy to Shelly and NY TImes v Sullivan,a court 
decision is no less action of government than an enforcement action by a 
government agency.
Marc

Sent from my iPhone

On Sep 16, 2015, at 5:39 PM, Doug Laycock 
> wrote:

I do not think RFRA is off the table, for the reasons you point out. But apart 
from compelling interest, it is also clear that a statute cannot prevent 
enforcement of the Constitution, and that a statute that tries to do so is 
unconstitutional as applied. So it would be essential to devise a RFRA remedy 
that did not prevent full and effective enforcement of the constitutional right 
on the other side. That is not what Kim Davis appears to be interested in, but 
it might matter in some other case with a more reasonable litigant and legal 
team.

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 Conkle, Daniel O.
Sent: Wednesday, September 16, 2015 5:22 PM
To: conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics
Subject: Federal RFRA in Davis-Like Situation?

I have a conceptual question that I’ve been trying to get my mind around.

Could the *federal* RFRA be invoked by someone like Kim Davis (whether or not 
the state has its own RFRA), arguing that a federal court order—that is, an 
order that is designed to enforce the 14th Amendment—is action of the 
“government,” which is defined under 42 U.S.C. Sec. 2000bb–2 to “include[] a 
branch, department, agency, instrumentality, and official (or other person 
acting under color of law) of the United States.”  In other words, is the 
judicial enforcement of the Constitution subject to RFRA?  Cf. 42 U.S.C. Sec. 
2000bb–3:  “This chapter applies to all Federal law, and the implementation of 
that law, whether statutory or otherwise . . . .”

On the face of it, it would seem that the federal RFRA would indeed apply, but 
maybe I’m missing something.  (It’s happened before!)

I’m not suggesting that a federal RFRA objection could or should prevail.  I’m 
simply wondering whether the federal RFRA might apply.

Needless to say, enforcing the requirements of the 14th Amendment is a 
compelling governmental interest.  But, as the long thread of Kim Davis 
postings has indicated, there might be various ways of serving that compelling 
interest.  E.g., assuming a class action, perhaps the surest and simplest way 
to enforce the 14th Amendment in this setting would be to require, by 
injunction,  that each and every official and employee in every relevant 
government office provide marriage licenses upon request, including for 
same-sex couples.  Putting aside Title VII’s “reasonable accommodation” 
provision, would a federal court be free to issue that type of categorical 
order without taking account of the federal RFRA, assuming it were properly 
raised by one or more state government officials or employees?

Again, I’m not trying to make any point here, either way, on the merits of 
Davis’s objection or about how similar objections ought to be resolved.  I’m 
simply wondering if the federal RFRA is off the table and, if so, why.

Dan Conkle

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: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 15, 2015 10:53 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion 
issues for Law Academics; Michael Dorf; Samuel Bagenstos
Subject: CTA6 rejects Davis's KY RFRA claim on sovereign immunity grounds

In an order today the Sixth Circuit rejected Kim Davis's state RFRA claim 
which, realistically, was the only one in play.  "We need not address the 
merits of her claims under Kentucky law because the Eleventh Amendment of the 
U.S. Constitution precludes the federal courts from compelling state officials 
to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 
89, 105–06 (1984)."  As for her federal constitutional claims, they remain 
alive, but only by a thread:  The court held that "Davis has not demonstrated a 
substantial likelihood of success on her federal constitutional claims."

RE: Colorado Cakeshop decision

[Marc Stern]

Many years ago , a German style restaurant in California was sued under the 
Unruh Act(California's public accommodation law) for
excluding a neo-Nazi group which was seeking to trade on the ethnic cuisine to 
enhance its own legitimacy. The restaurant lost at the trial  court. I offered 
to carry the appeal pro bono (on a forced speech theory)  but the  restaurant's 
 insurance company balked at being responsible for additional attorney's fees 
for the plaintiff and the case settled in favor of the neo-Nazis.

Someday someone will write a great article on the influence of insurance 
companies on the course of constitutional law.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.orgmailto:ste...@ajc.org
www.ajc.orghttp://www.ajc.org/
Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal
Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal
[cid:image001.jpg@01D0D66C.3EA30EF0]

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Friday, August 14, 2015 6:21 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

A famous example of this many years ago involved the issue of whether Dow 
Chemical should stop selling napalm to the U.S. government for use in the Viet 
Nam War because of the terrible injuries it caused.  Some shareholders 
attempted to stop the company from continuing to manufacture the product. Dow 
argued that it had a moral and political responsibility to continue to furnish 
it in furtherance of government policy, even though the sales were not 
particularly profitable.  This got litigated in the context of an SEC 
shareholder proposal: Medical Committee for Human Rights v SEC 
http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Jean Dudley 
[jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:30 AM
To: Law  Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision
There are moral/ethical dilemmas, and then there are legal ones;  In the case 
of the KKK and selling sheets, it could be argued that a shop owner could 
refuse to sell sheets and pillow cases because a legal argument could be made 
that the act would be complicit (not sure of the terminology here) in illegal 
activity, namely domestic terrorism.  (Yeah, yeah, peaceful protest, heritage 
not hate, blah, blah, blah.  I call BS.  The mere sight of a hooded and robed 
KKK member is terrifying to a significant section of American citizens. It's 
domestic terrorism, whether it is prosecuted or not. If it makes you feel 
better, how about calling it disturbing the peace?)

In the case of pharmaceutical companies refusing to sell drugs for execution, 
it could be argued that they would be abetting in an act that is illegal where 
the drugs are made;  if those drugs are being shipped across state lines for 
use in an execution of a prisoner that would not be facing the death penalty in 
the drug manufacturers' home state, isn't that illegal, too?  This one I'll 
admit is a bit blurry.

Then there's the restaurant that refused to provide a public service to a 
clinic that provides safe, legal abortions.  This one is pretty clear cut to 
me; if they can't provide that service to all, they shouldn't be in that 
business.

As a photographer, I've watched stock photographs being used for all sorts of 
things that I find morally repugnant, but alas, are legal;  one case in 
particular sticks in my mind.  A mother brought her daughter in for modeling 
photographs, signed a release.  To her horror, her daughter's image was used by 
a pro-life group on a poster that read The most dangerous place for African 
American women is in the womb.  Mother sued and lost.  She'd signed the 
release. The photographer had sold the image to a stock photography business, 
who in turn told it to the Pro-life group.

I've seen images of Yosemite in pseudo-scientific text books on intelligent 
design.  Again, bought and paid for through stock agencies.  That is why I 
donate my Yosemite images to public school teachers who promise not to use them 
to teach creationism or intelligent design.

These are indeed legal uses of images.  That is why I am not a stock 
photographer.


On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, 

Re: The Remarkable Disappearance of State Justifications in Obergefell

[Marc Stern]

Isn't it also true that certainly Scalia as well as others have been reluctant 
to engage in balancing- as in the scout master case where no justice, as I 
recall, discussed the state's interest in non- discrimination? And Smith is in 
part premised on the danger  in balancing.

Marc Stern


Sent from my iPhone

On Jul 3, 2015, at 1:25 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:

My understanding is Roberts did articulate the state's procreation argument:


The premises supporting this concept of marriage are so fundamental that they 
rarely require articulation. The human race must procreate to survive. 
Procreation occurs through sexual relations between a man and a woman. When 
sexual relations result in the conception of a child, that child’s prospects 
are generally better if the mother and father stay together rather than going 
their separate ways. Therefore, for the good of children and society, sexual 
relations that can lead to procreation should occur only between a man and a 
woman committed to a lasting bond.

On Fri, Jul 3, 2015 at 10:22 AM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I have other commitments today and over the next several days, have only been 
able to skim the first part of Marty's post, and will likely not be able to 
participate further for several days.

With that caveat, let me point out that the view of several justices is that a 
new substantive due process right should be declared only when history and 
tradition strongly support it at a fairly specific level. That is all that 
needs to be said, under their view; our history and traditions don't support 
the Court's decision.

Let me also point out that Marty is arguing that state law is underinclusive, 
which isn't a strong argument unless a constitutional right is involved (which 
is the point at issue and would beg the question) or some form of heightened 
scrutiny is required, which gets us back to an equal protection argument that 
the majority only obliquely relied on.

Because Marty's post is long (and near the size limit for posts), I'll truncate 
it severely and ask readers to refer back to his original post for the content 
of it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 3, 2015, at 8:56 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Some of you might find this of interest.  Reactions and critiques encouraged, 
as always.

http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html


The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman

Over at the Slate Breakfast Table, I have a 
posthttp://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html
 describing the handful of biggest surprises in what was in fact (or so I 
argue) a Supreme Court Term in which the Justices generally acted according to 
predictable form.

[snip]

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--
Michael Worley
J.D., Brigham Young University
ATT1.c
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[no subject]

[Marc Stern]

In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday by 
the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out that 
We do not grant monetary damages for violations of the Establishment Clause. 
No authority is cited for that proposition ,other than  a remark that EC relief 
is equitable in nature.  I know that other courts have awarded such damages, 
although with the exception of one 10th Circuit case, I  don't know of any 
published opinions. Is Judge Batchelder right about this claim? I understand it 
will often be difficult to prove or quantify such damages, but I don't see a 
blanket rule against them.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.orgmailto:ste...@ajc.org
www.ajc.orghttp://www.ajc.org/
Facebook.com/AJCGlobalhttp://www.facebook.com/AJCGlobal
Twitter.com/AJCGlobalhttp://www.twitter.com/AJCGlobal
[cid:image001.jpg@01D0A4F4.5C4ADD10]

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RE: For-Profit Corporations and the Section 702 Exemption

[Marc Stern]

As I recall, the leading case in EEOC v Townley Mining and Manufacturing, a 
Ninth Circuit case.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org 
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, March 10, 2015 2:59 PM
To: 'Law  Religion issues for Law Academics'
Subject: For-Profit Corporations and the Section 702 Exemption

Does anyone have any cases addressing the applicability of the Section 702 
exemption to for-profit employers?  The Section 702 exemption, remember, is 
what exempts religious groups from the federal ban on religious discrimination 
in hiring.  

I have the 9th Circuit decision in Townley Engineering (1988).  But I didn't 
know if there were other lower court cases, and figured the listserv might be a 
good resource.

Thanks!

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)
(313) 577-9016 (fax)
Website-http://law.wayne.edu/profile/christopher.lund/
Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402


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Re: Bishop John Hughes, Protestant Public Schools in New York, and Political Activity by Clergy

[Marc Stern]

The story is well told in Diane ravitch's The Great School Wars

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
  Original Message
From: Graber, Mark
Sent: Thursday, December 25, 2014 7:51 AM
To: Law  Religion issues for Law Academics
Reply To: Law  Religion issues for Law Academics
Subject: RE: Bishop John Hughes, Protestant Public Schools in New York, and 
Political Activity by Clergy


For those interested in the actual debates, the sacred Gillman, Graber, 
Whittington, Volume II has excerpts from John Hughes call for public support 
for Catholic Schools and the Episcopal response.  Pages 230-34.  I probably can 
send people a word version if interested.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Saperstein, David [dsaperst...@rac.org]
Sent: Thursday, December 25, 2014 7:27 AM
To: Law  Religion issues for Law Academics
Subject: Re: Bishop John Hughes, Protestant Public Schools in New York, and 
Political Activity by Clergy

Paul and Mark's posts raise fascinating historical insights. As some of you 
know, I have been working on a book for a while on the use of religion in 
American elections, so any interesting historical examples you come across like 
this, I would greatly appreciate being sent .

But as to the debate over clergy involvement on political issues , the posts 
appear to conflate religious institutional involvement in partisan electoral 
political activity (which according to the IRS/FEC rules cannot be done at 
all --except in a purely personal capacity by clergy--and no tax exempt money 
could be used for) and Paul's reference to speak out on public issues type 
political activity, which, as Paul and everyone on the list knows, can be 
done with tax exempt money, with the obvious substantiality or 501h limitations 
as to lobbying.

Since these rules did not exist in Archbishop Hughes' day, I would think , Mark 
, that his model, or that of the political practices of other religious groups 
at that time, is of great historical public policy interest but (with few or 
any on point court decisions from that era), not really relevant to the debates 
we face today on e.g. candidate endorsements from the pulpit with no IRS/FEC 
restrictions.

As to Marty Lederman's query to Mark (who opposes clergy political 
activity?), that this latter example is the kind of political activity some 
(many?) on this list oppose to which Mark's challenge is addressed. But Mark 
can certainly clarify for himself.

Best wishes for a joyful and meaningful Christmas to all who celebrate it.

David

Sent from my iPhone

Sent from my iPhone

 On Dec 24, 2014, at 7:19 PM, Finkelman, Paul paul.finkel...@albanylaw.edu 
 wrote:

 I have written a bit about this in my biography of Millard Fillmore --who was 
 totally insensitive to issues involving Catholics, Jews, and blacks -- a sort 
 of equal opportunity bigot.

 If was state wide, not just NYC.   Fillmore lost the NY Gov. race in 1844 in 
 part over this issue -- to the extent that he alienated almost all Catholic 
 voters in the state.  The issue may have affected the presidential race as 
 well, since Clay lots NY State to Polk by about 5,000 votes.

 The issue is in part that the school day began with a prayer and a Bible 
 reading, and the prayer was Protestant (usually the Protestant Lord's Prayer, 
 not to be confused with the Catholic Lord's Prayer), followed by Bible 
 reading from the King James Bible -- which was also both Protestant and in 
 places translated to be anti-Catholic.

 Almost all of the teachers were Protestant in a pre-Civil Service world.

 I am not sure what the curriculum was, but there was certainly a sense among 
 Catholics that the schools were hostile to their faith.  It was doubtless 
 tied up up in British vs. Irish ethnic hostility as well (although were there 
 a minority of German Catholics as well, but most of the political conflict 
 was over the Irish).  It helped set the stage for various anti-Catholic and 
 anti-Immigrant parties, most famously the Know Nothings, but there were 
 others before that one.  (For what it is worth, Millard Fillmore ran for 
 president in 1856 on the Know Nothing ticket, with a party platform provision 
 against Catholics ever holding office in the US).

 While the Irish generally voted for Democrats, some Whigs -- like William 
 Henry Seward -- supported their position,, not merely to get Catholic votes 
 but because he saw the bigotry in the issue.

 Mark, I am not sure what you mean by oppose clergy political activity.  I 
 oppose religious bodies using their tax exempt status for political purposes. 
  I think that is wrong and probably illegal.

 I think all Americans should be politically active, and that includes the 
 Clergy.  I think members of the Clergy should speak out -- as citizens -- on 
 public issues, as long as they are not doing it on tax exempt 

Re: I would not have enacted this statute - Justice Scalia on RLUIPA

[Marc Stern]

I would add that, from a practitioner's point of view, pre- Smith compelling 
interest was a large club to swing. It is less than clear to me that the 
correct metric for judging a rule of law is  a small handful of Supreme Court ( 
or even published circuit court )opinions which are typically the very hardest 
cases.
Marc


Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Douglas Laycock
Sent: Sunday, October 19, 2014 5:49 PM
To: 'Law  Religion issues for Law Academics'
Reply To: Law  Religion issues for Law Academics
Subject: RE: I would not have enacted this statute - Justice Scalia on RLUIPA


For the record, the compelling interest test in pre-Smith free exercise cases 
was not so toothless as the conventional wisdom would have it. The Court had 
found a compelling interest in only three contexts in free-exercise cases:  
Gillette (raising an army), Lee and Hernandez (collecting taxes), and Bob Jones 
(racial equality in education). In each, reasons of self-interest or widespread 
prejudice threatened unmanageable numbers of claims, putting the broader 
interest at stake and not just a few exceptions at the margins of that interest.

Goldman and O’Lone refused to apply the compelling interest test to military or 
prisons. Lyng and Roy found no burden on religious exercise. Whatever one 
thinks of these cases (I disagree with Goldman and O’Lone but find Lyng and Roy 
hard to argue with), they do not water down the compelling interest test. They 
never reach that issue.

And then RFRA’s text  says that the statute’s purpose is to restore the 
compelling interest test as set forth in Sherbert and Yoder, and no one claims 
it was watered down there.


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 Ira Lupu
Sent: Sunday, October 19, 2014 5:21 PM
To: Law  Religion issues for Law Academics
Subject: Re: I would not have enacted this statute - Justice Scalia on RLUIPA

I appreciate the comments of others to the effect of I would not have enacted 
. .  = stupid or silly.  Note that the Supreme Court must take state law 
as the Court finds it, silly, stupid, or otherwise.  But the Court has 
authority to interpret federal law.  So perhaps we need a new maxim of 
statutory construction -- should it be stupid laws should be narrowly 
construed, to minimize their harm; i.e., compelling means something much less 
than it seems, as in pre-Smith law?  Or should it be stupid laws should be 
broadly construed, to show Congress just how stupid its law really is; i.e., 
compelling means what some shallow law students might think it means, even if 
that overly empowers individuals against the state?

--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053tel:%28202%29994-7053
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
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Re: Holt v. Hobbs Oral Argument

[Marc Stern]

A simple fact of prison litigation is that prison officials lie-or simply care 
little for the facts-when asserting concerns about security. When I was a law 
clerk, the states routinely filed canned briefs asserting grave and unavoidable 
security concerns , no matter what the reality was-and in one memorable case in 
defense of a practice( labeling prisoners by race) that the Supreme Court had 
even then long since condemned. One state commissioner of corrections once told 
a group of us that he was aware that prison security officials could not be 
relied on to fairly assess risks and the deputy commissioner of another flatly 
told me she know prison administrators routinely lied. That sort of paying fast 
and loose occurred in this case,but was caught by counsel with the skill, time, 
commitment and knowledge to discover the fraud on the court- luxuries pro se 
litigants often don't have. And even when they do, some judges will still 
invoke deference.

Prisons are not like other places, and things that seem innocent and harmless 
can be deadly weapons. Deference to prison officials therefore makes much 
sense- but only if prison officials can be counted on to tell the truth and 
deliver fair and honest assessments of risk.   Too many don't and courts should 
not ratify those malign  ‎practices by blindly deferring to prison officials. 
How to apply deference without judicial abdication is the hard question in this 
case, not the question of how long
‎Is too long.
Marc‎ Stern
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Friedman, Howard M.
Sent: Tuesday, October 7, 2014 9:03 PM
To: Law  Religion issues for Law Academics
Reply To: Law  Religion issues for Law Academics
Subject: RE: Holt v. Hobbs Oral Argument


I think this case on its facts is likely to be easy for the Court because so 
many other states have found ways to accommodate beards.  That being the case, 
I fear that the Court may not be as careful as it should in formulating the 
strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward 
two kinds of justifications for refusals to accomodate religious beliefs-- 
security concerns (as in this case) and budgetary issues (e.g. in claims for 
kosher or Halal diets).  It seems to me that courts are fairly able to assess 
budgetary justifications. However I fear that they are less able to assess 
security concerns as they exist on the ground.  If the court imposes truly 
strict scrutiny when security is at issue, I fear that prisons may be unable to 
adequately deal with Racist, neo-Nazi, and similar groups that assert they are 
religious organizations.  Currently a number of prisons are facing the question 
of whether Nations of Gods and Earths should be recognized as a religion or 
classified as a security threat group.  How much deference should be given to 
prison officials there?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Failinger, Marie [mfailin...@hamline.edu]
Sent: Tuesday, October 07, 2014 6:38 PM
To: Law  Religion issues for Law Academics
Subject: Re: Holt v. Hobbs Oral Argument

I haven't read all of the background materials, but it seems to me a little 
bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch beard 
given what one could hide in a typical prison uniform.  If uniforms are 
searched for contraband, why not beards?  Seems like it would be much easier 
and safer than a uniform search, unless there is some religious ban against 
someone touching one's beard.

And what about the value encouraging state to expend a little effort and 
creativity in meeting believers half-way by putting the state to its burden of 
proof on its interests? In Hennepin County, the jail created an inmate 
hijab for Muslim women that doesn't have any folds or places where contraband 
can be hidden.   To use the argument example, why couldn't a Sikh be issued a 
transparent turban designed to minimize the ability to hide contraband?

Could Doug or someone could explain the state's argument in the lower court 
that someone could drastically change his appearance by shaving his beard as a 
reason for denial?  I presume that implies that he could escape.  I am trying 
to imagine a case in which a guy walking around in prison with a jumpsuit (or 
less) would be allowed to leave prison because he wasn't recognized as prisoner 
X.  In the movies, at least the prisoners have to steal a guard's uniform to 
get out:)

I also wonder what everybody thinks about Scalia's statement that religious 
beliefs are categorical, it's [what] God tells you, implying that there is 
no such thing as ethical partial compliance and that there has to be a 
specific oral or written command from God for a RLIUPA claim to be viable?I 
guess I would have to be a complete pacifist, observe glatt kosher (and no 
elevators on Shabbat) or go to church 

[no subject]

[Marc Stern]

Today's NY Times Review section has an article by a professor of evolutionary 
biology at a public university describing a lecture he gives annually 
explaining how that body of science ‎ has undermined central claims of 
religious traditions.

Is it constitutional for him to give this lecture? Would it be constitutional 
for a professor of theology at the same university to offer a rebuttal in 
religious terms?

Marc
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Rick Garnett
Sent: Friday, September 26, 2014 10:43 AM
To: Law  Religion issues for Law Academics
Reply To: Law  Religion issues for Law Academics
Subject: Re: GW National Religious Freedom Moot Court Competition


Dear Chip,

Thanks for this.  I'm hoping that Notre Dame will send a team again.  All the 
best,

Rick


Richard W. Garnett

Professor of Law and Concurrent Professor of Political Science

Director, Program on Church, State  Society

Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556-0780

574-631-6981 (w)

574-276-2252 (cell)

rgarn...@nd.edumailto:rgarn...@nd.edu



To download my scholarly papers, please visit my SSRN 
pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawghttp://prawfsblawg.blogs.com/

Mirror of Justicehttp://mirrorofjustice.blogs.com/



Twitter:  @RickGarnetthttps://twitter.com/RickGarnett

On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
George Washington University will once again host the National Religious 
Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. 
The registration period is open from now until Nov. 15, 2014.  The problem will 
be released on Nov. 17, 2014.  The competition will be held at GW on 
Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of conscience 
raised by teachers against a hypothetical law in Washington, D.C. that requires 
teachers and administrators to carry firearms on public school property during 
school hours.  More information here: http://www.religionmootcourt.org/  
(Ignore the Feb, 2014 dates at the top of the website).

--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053tel:%28202%29994-7053
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

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Re: Is Discussion of Justices' Religion Off Limits?

[Marc Stern]

Justice SotamayOr ‎has.

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Paul Finkelman
Sent: Friday, July 11, 2014 3:19 PM
To: Law  Religion issues for Law Academics
Reply To: Paul Finkelman
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion Off Limits?


Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?


From: Levinson, Sanford V slevin...@law.utexas.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Cc: CONLAWPROF conlawp...@lists.ucla.edu
Sent: Friday, July 11, 2014 3:02 PM
Subject: Re: Is Discussion of Justices' Religion Off Limits?


Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an  ordinary criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone



On Jul 11, 2014, at 1:33 PM, Finkelman, Paul 
paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was representative body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com/
*


From: 
conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu] 
on behalf of Richard Friedman [rdfrd...@umich.edumailto:rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law  Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion Off Limits?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Re: Hobby Lobby transcript

[Marc Stern]

One of the blue law cases did involve a kosher butcher - I think it was named Crown Kosher  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Levinson, Sanford VSent: Tuesday, March 25, 2014 6:12 PMTo: 'Law  Religion issues for Law Academics'Reply To: Law  Religion issues for Law AcademicsSubject: RE: Hobby Lobby transcript






I stand thoroughly corrected! And, of course, there is no general category called “kosher clothes.� This is a good demonstration that it’s always a good idea
 to go back and read the cases before opining, because I also would have sworn that the case arose in Massachusetts. I’m glad I’m taking an exam in Chip’s course
J

sandy

From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]
On Behalf Of Ira Lupu
Sent: Tuesday, March 25, 2014 5:00 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript


Braunfeld did not sell meat. From the opinion: "Appellants are merchants in Philadelphia who engage in the retail sale of clothing and home furnishings within the proscription
 of the statute in issue."




On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote:
With regard to Braunfield, given that the customers are a distinct subset of people who want Kosher meat, isn't the argument more that they are decidedly inconvenienced by being unable to shop on Sunday (which is just another day to them),
 but NOT that they will refrain from buying kosher meat from Braunfield. After all, no other kosher meat market will be open on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is (was) the argument that non-Sabbath observant Jews would
 no longer buy general grocery products from Braunfield that were easily available from Stop and Shop on Saturday? In the former case, then Braunfield's overall income should be roughly the same even with the forced Sunday closing. Is this even a relevant
 way of approaching the case, instead of being upset, as I was almost fifty years ago when I read it, at the simple inegalitarian aspects of Jewish butchers being forced to close two days a week (one day by the state, one day by their !
religious duty) while (mainstream) Christians could remain open six days a week. But, to repeat, this would be a competitive advantage only if Jewish shoppers really didn't care that much about where they brought their meat and other grocery products. It
 would be a different case, presumably, if we were talking about, say, paint stores, where there's no category called "kosher paint."

sandy


-Original Message-
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law  Religion issues for Law Academics



Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December:

 Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes
 work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden.

 Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the "no employer mandate" argument turns on an empirical claim, at least if the cost differentials are not so significant
 as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements.

Here's Justice Kagan (transcript p. 24):

 15 JUSTICE KAGAN: Well, let's say that that's
 16 right. Let's say that they have to increase the wages a
 17 little bit. I mean, still we are talking about pretty
 18 equivalent numbers. Maybe it's a little bit less; maybe
 19 it's a little bit more. But this is not the kind of
 20 thing that's going to drive a person out of business.
 21 It's not prohibitive.
 22 It's like the thing that we talked about in
 23 Braunfeld where we said, you know, maybe if the store
 24 can't stay open 7 days a week, it makes a little bit
 25 less money. But so be it, is what we said.

Re: letter opposing Mississippi RFRA

[Marc Stern]

  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Steven JamarSent: Wednesday, March 12, 2014 12:05 PMTo: Law Religion  Law ListReply To: Law  Religion issues for Law AcademicsSubject: Re: letter opposing Mississippi RFRAI appreciate Kevin Chen’s clarification that he does not consider equality foreign to U.S. consitutional jurisprudence. I agree with him that equality is not easy to corral and that equality is context dependent, like every other aspect of law.There are procedural aspects of equality and substantive aspects of equality and both matter and neither can be achieved perfectly, if that is even a meaningful concept. The same is true for liberty. Anytime someone is restricted from doing something, that is a restriction on “perfect� liberty — hence the constitution creates a system of ordered liberty.There is no “pure equalty� that demands anything, either as legal concept or a political concept.As to the way equality is used — it may be used too often with a substantive goal to homogenize, though I’ve never seen it used that way in any constitutional argument, political argument, or school setting, but maybe it actually is used that way — though how often is “too much� is perhaps interesting.As to "equality is best sought for those similarly situated� — sort of begs the question, doesn’t it? If they are already “similarly situated�, are they not already “equal� for at least some values of “equal� and “similarly situated�? But, as we are straying far from the topic, I will leave it there. As to whether “religious believers are not similarly situated,� that is surely true insofar as the constitution provides special protection for them and RFRAs do as well. The questions seem to be what subtantive benefits should religious believers get; when should they be able to opt out of something; when should their liberty interest be limited by equality interests or the interests in general welfare or the liberty interests of others?Steve
--Prof. Steven D. Jamar   vox:202-806-8017Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.orgHoward University School of Law   fax:202-806-8567http://iipsj.com/SDJ/Nothing worth doing is completed in our lifetime,Therefore, we are saved by hope.Nothing true or beautiful or good makes complete sense in any immediate context of history;Therefore, we are saved by faith.Nothing we do, however virtuous, can be accomplished alone.Therefore, we are saved by love.No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own;Therefore, we are saved by the final form of love which is forgiveness.Reinhold Neibuhr

On Mar 12, 2014, at 10:29 AM, K Chen tzn...@gmail.com wrote:[snip]Pure equality demands that the terrible scores of all of these children stand without help. [snip]The way that the word "equality" is too often used is as a way to homogenize, and it makes the world more equal in only the worst ways, and less equal in all the others. Equality is best sought for those similarly situated, and religious believers are not similarly situated.[snip]
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Re: bigotry and sincere religious belief

[Marc Stern]

  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Paul FinkelmanSent: Thursday, February 27, 2014 4:35 PMTo: Law  Religion issues for Law AcademicsReply To: Paul FinkelmanSubject: Re: bigotry and sincere religious beliefProfessor Chen's response seems a bit over the top. The government is not, after all, interested in closing businesses. It is interested in making sure that businesses which are licensed by the government and are open to the public serve the entire public and that business owners do not act on their personal bigotries (or beliefs) when offering their goods and services to the public.Put another way, the government cannot force people to change their 
views about others; it can only (and properly) compel them to treat 
others with dignity, respect, and equality. I am surprised anyone on 
this list would object to this.Of course anti-gay bigotry may be closeted. That is far better than having it out in the open to harm people on a day-to-day basis. Idaho is considering a law that would allow doctors and dentists (among others) to refuse to treat gay patients. This is not about opposition to marriage but hostility to gay people per se. That the hostility is religiously motivated is hardly relevant. The KKK lynched Jews and Catholics (not as often as blacks) because they KKK members were religiously motivated to do so.If I were a gay man in Idaho with a broken arm, I would probably not care if the doctor was a closeted bigot who hated gays; or had anti-gay religious beliefs (clearly not along the line of doing unto others or loving thy neighbor). All I would want is that the professional with the MD set my arm properly and give me a cast and send me on my way to healing.
 After my arm was set (or after I bought flowers for my wedding) I would not be too concerned about the doctor or florist crawling back into his or her closet to be bigoted.Indeed, I would argue that civil rights laws are designed precisely to force the bigots into the closet (or the privacy of their home, private club, or even their church) where they can exercise their right to despise people for religious reasons or any other reasons. But, when the go outside engage in businesses and professions, they cannot let those prejudices (or deeply held religious convictions) prevent them from accepting all comers in their businesses. 

Professor Paul Finkelman

Justice Pike Hall, Jr. Visiting
Professor

Paul M. Hebert Law Center

Louisiana State University

1 East Campus Drive

Baton Rouge, LA 70803-0106225-578-0894225-578-0894 (of)518-605-0296518-605-0296 (m)From: tznkai tzn...@gmail.com To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu  Sent: Thursday, February 27, 2014 9:39 AM Subject: Re: bigotry and sincere religious belief   I'm not sure how easily it could be done, but we ought to try on some level to protect the sincere religious
 beliefsBecause attempts to enforce by legal sanctions, acts obnoxious to go great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the Government, on its general authority?


Of course, the government may very well succeed in closing businesses and closeting anti-gay bigotry, but that may also be problematic. The sword of the state creates quite a mess when attempting to spread small-l liberal goals into illiberal communities of conviction, and illiberal factions often grow stronger, not weaker as a result. When that community is, say, an Amish community living mostly separate from wider society, the costs fall only within that insular community. When that community is a living, breathing part of our polity, the costs to us, as a whole are great.

Separating religion from culture is a difficult, if not foolish errand, and likewise we should not read "genuine and free of conflating factors" into "sincere". Sincerity of belief is as simple as not lying, substantive burden is measured by the willingness of believers to pay the price of their beliefs. Pursuing comity in service of a just and stable society suggests we not ask believers to make the price of their conscience participation in our economy.

On the whole the current trends in protecting religious liberty are a cure 

Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses

[Marc Stern]

Assume neither bill becomes law. A wedding photographer hangs a sign in his 
shop saying SSM is immoral but state civil rights require us to photograph SSM 
ceremonies. A complaint of discrimination is filed. What result?
Marc Stern

From: Richard Dougherty [mailto:dou...@udallas.edu]
Sent: Wednesday, February 26, 2014 06:51 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

The ship that has clearly sailed on this list is respect.  That scholars and 
professional educators cannot refrain from calling their colleagues bigots 
for holding a position that the President of the United States himself held 
publicly (until being politically forced into evolving) less than two years 
ago is frankly insulting.  The more one shouts bigot, though, the more one 
thinks there is no argument there.

And of course innocent people are being harmed; ask the children who have gone 
unadopted because their prospective parents have been told they aren't worthy 
as parents because they are bigots.

Richard Dougherty
University of Dallas


On Wed, Feb 26, 2014 at 3:00 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
“They need to adjust [which here clearly means give up their religious 
commitments] or move on.”  As I said.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com
Sent: Wednesday, February 26, 2014 3:43 PM

To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Subject: Re: Kansas/Arizona statutes protecting for-profit 
businesses

I don't have any desire for them to go out of business, but if they are going 
to be in business, they need to operate in the marketplace without
discrimination.   If the business they have chosen does not fit their belief, 
they need to adjust, or move on.   No one is barring religious minorities from 
professions.
What is being suggested is that believers cannot shape the business world and 
customers to fit their prejudices.  The insidious notion that believers have a 
right
not to adjust to the law is the most damaging element of the RFRA movement, not 
just to those harmed by it, but by the believers who are permitted to avoid 
dealing
with the changes that increase human rights, and demand their consideration and 
accommodation.   Believers have enthusiastically supported the subjugation of 
blacks, women, children,
and homosexuals.Not requiring them to adjust when what they are doing is a 
violation of human rights is a disservice to all.   It is an understanding of 
religion removed from history, which
is false.

The ship has sailed on distinguishing homophobic discrimination and race 
discrimination.

Even if the compelling interest test can be overcome (assuming we are dealing 
with balancing and not an absolute right), the least restrictive means test 
remains, and that
is the element that drives cases in favor of the religious actor and against 
those they burden and harm.


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RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[Marc Stern]

The point of this exercise may not be a legal one, but a PR one. And if that is 
the case, Summum is more or less irrelevant. Of course,  it is also possible 
that the Satanists may have retained an incompetent lawyer.
Marc 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Sunday, December 08, 2013 10:36 PM
To: Law Religion  Law List
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature

A county can surely do that - but the constitutional issue is clear.

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/
Lay not up for yourselves treasures upon earth, where moth and rust doth 
corrupt, and where thieves break through and steal; but lay up for yourselves 
treasures in heaven, where neither moth nor rust doth corrupt, and where 
thieves do not break through nor steal. For where your treasure is, there will 
your heart be also. 

Matthew 6:19-21





On Dec 8, 2013, at 10:19 PM, Marc Stern ste...@ajc.org wrote:

 True enough: but American Humanist Society recently persuaded a 
 Florida county to put up theirmonument as a counter to a Ten 
 Commandments display. Marc
 
 - Original Message -
 From: Douglas Laycock [mailto:dlayc...@virginia.edu]
 Sent: Sunday, December 08, 2013 09:47 PM
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; 
 Joel Sogol jlsa...@wwisp.com
 Subject: Re: Satanists want statue beside Ten Commandments monument at
 OklahomaLegislature
 
 Doesn't sound like anyone involved has read Summum -- not the Satanists, not 
 the legislator, and not the ACLU.
 
 On Sun, 8 Dec 2013 20:22:14 -0600
 Joel Sogol jlsa...@wwisp.com wrote:
 Satanists want statue beside Ten Commandments monument at Oklahoma 
 Legislature
 
 
 
 http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-st
 atue-be side-ten-commandments-monument-at-oklahoma-legislature?lite
 
 
 
 
 
 Joel L. Sogol
 
 Attorney at Law
 
 811 21st Ave.
 
 Tuscaloosa, Alabama 35401
 
 ph (205) 345-0966
 
 fx (205) 345-0971
 
 email: jlsa...@wwisp.com
 
 website: www.joelsogol.com
 
 
 
 Ben Franklin observed that truth wins a fair fight - which is why we 
 have evidence rules in U.S. courts.
 
 
 
 
 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, 
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 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) 
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 people can read the Web archives; and list members can (rightly or wrongly) 
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Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[Marc Stern]

True enough: but American Humanist Society recently persuaded a Florida county 
to put up theirmonument as a counter to a Ten Commandments display. Marc

- Original Message -
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Sunday, December 08, 2013 09:47 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; Joel 
Sogol jlsa...@wwisp.com
Subject: Re: Satanists want statue beside Ten Commandments monument at  
OklahomaLegislature

Doesn't sound like anyone involved has read Summum -- not the Satanists, not 
the legislator, and not the ACLU.

On Sun, 8 Dec 2013 20:22:14 -0600
 Joel Sogol jlsa...@wwisp.com wrote:
Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature

 

http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-be
side-ten-commandments-monument-at-oklahoma-legislature?lite

 

 

Joel L. Sogol

Attorney at Law

811 21st Ave.

Tuscaloosa, Alabama 35401

ph (205) 345-0966

fx (205) 345-0971

email: jlsa...@wwisp.com

website: www.joelsogol.com

 

Ben Franklin observed that truth wins a fair fight - which is why we have
evidence rules in U.S. courts.

 


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Marc Stern]

There was also an exemption for divinity students.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, December 02, 2013 4:01 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The Establishment Clause, burden on others, the employer mandate, 
and the draft

Of course it's possible I am wrong.

When they went to the lottery in 1969, that was certainly understood to be 
national - but I suppose the actual selections could have been by state. Before 
that, they were supposed to be taking the oldest men first (up through age 26, 
at which point you aged out), and I certainly thought at the time that it was 
on a national basis, but maybe not.  If the answer is not in the Imus opinion 
or a source cited there, it might be deep in regulations from the 60s, or 
perhaps in a statute from the 60s.

Of course the number of student deferments dwarfed the number of conscientious 
objectors and Mormon missionaries. Only the latter could be attacked with 
Establishment Clause arguments.

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 Michael Worley
Sent: Monday, December 02, 2013 3:46 PM
To: Law  Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate, 
and the draft

Some at the time of Vietnam thought otherwise:

In Imus v. United States 447 F.2d 1008 (10th Cir. 1971), drafted Utahns where 
LDS Missionaries got an exemption claimed The appellees assert in effect that 
the classification of the missionaries as ministers during the period of their 
service served to reduce the number of men eligible for service and thus made 
appellees' induction more likely.  The Court reversed an injunction, relying 
upon a Supreme Court summary affirmance in another case, Boyd v. Clark 393 U.S. 
316 (1969), where The plaintiffs asserted that by reason of the number of men 
student deferments they were more likely to be inducted. Imus, 474 F.2d at 
1009.  The classification in Imus was on behalf of all Selective Service 
Registrants in this State of Utah-- so Imus thought Utahns were harmed more.


Were the Plaintiffs just wrong in Imus?  It would seem odd for a case to be 
appealed if everyone knew it was over n+1 instead of b.

(I realize this is a question of fact; If the Plaintiffs in Imus were wrong, I 
withdraw my line of reasoning here.)

Michael

On Mon, Dec 2, 2013 at 1:27 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
The draft pool was effectively local, as you envision it, through the Civil 
War. Each county was given a quota to fill. I think it was nationalized for 
World War I, but I don't really know.

It was certainly nationalized by the time of Vietnam. Local boards administered 
the classification system, but all those classified I-A went into a national 
pool from which draftees were selected. It was called the Selective Service 
System, and your draft letter began, Greetings! You have been selected . . .

So for every person granted conscientious objector status, your odds of being 
drafted went from n over however many million in the denominator to n + 1 over 
that denominator. Considered at that stage, the increase was infinitesimal. 
Somewhere there was a guy who got drafted who otherwise would not have been, 
but it was impossible to identify that person.


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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Michael Worley
Sent: Monday, December 02, 2013 12:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate, 
and the draft


Maybe I misunderstand how the draft worked (I am quite young), but it would 
seem to me that a local draft board would not be much bigger than an insurance 
plan in size (indeed, for Hobby Lobby, the draft board would seem smaller), and 
thus, Gedicks' and Van Tassel's claim that a person's decision making 
calculus, would not be affected seems incorrect in the sense that 
identifiability of who is burdened (and thus, the ability of a person to make 
such changes in response to a objector)is just as strong in the draft case, if 
not stronger.

On Mon, Dec 2, 2013 at 10:18 AM, Micah Schwartzman 
mj...@virginia.edumailto:mj...@virginia.edu wrote:
Eugene's suggestion that the religious exemption from the contraception mandate 
be analogized to the draft protester cases is anticipated by Gedicks and Van 
Tassell in their article, RFRA 

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

[Marc Stern]

I know from personal experience.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Saperstein, David
Sent: Monday, December 02, 2013 4:19 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate, 
and the draft

And you'll be relieved to know that it was only a coincidence that seminary 
applications sky-rocketed beginning around 67.

Sent from my iPhone

On Dec 2, 2013, at 4:04 PM, Marc Stern 
ste...@ajc.orgmailto:ste...@ajc.org wrote:
There was also an exemption for divinity students.

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, December 02, 2013 4:01 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The Establishment Clause, burden on others, the employer mandate, 
and the draft

Of course it's possible I am wrong.

When they went to the lottery in 1969, that was certainly understood to be 
national - but I suppose the actual selections could have been by state. Before 
that, they were supposed to be taking the oldest men first (up through age 26, 
at which point you aged out), and I certainly thought at the time that it was 
on a national basis, but maybe not.  If the answer is not in the Imus opinion 
or a source cited there, it might be deep in regulations from the 60s, or 
perhaps in a statute from the 60s.

Of course the number of student deferments dwarfed the number of conscientious 
objectors and Mormon missionaries. Only the latter could be attacked with 
Establishment Clause arguments.

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.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Monday, December 02, 2013 3:46 PM
To: Law  Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate, 
and the draft

Some at the time of Vietnam thought otherwise:

In Imus v. United States 447 F.2d 1008 (10th Cir. 1971), drafted Utahns where 
LDS Missionaries got an exemption claimed The appellees assert in effect that 
the classification of the missionaries as ministers during the period of their 
service served to reduce the number of men eligible for service and thus made 
appellees' induction more likely.  The Court reversed an injunction, relying 
upon a Supreme Court summary affirmance in another case, Boyd v. Clark 393 U.S. 
316 (1969), where The plaintiffs asserted that by reason of the number of men 
student deferments they were more likely to be inducted. Imus, 474 F.2d at 
1009.  The classification in Imus was on behalf of all Selective Service 
Registrants in this State of Utah-- so Imus thought Utahns were harmed more.


Were the Plaintiffs just wrong in Imus?  It would seem odd for a case to be 
appealed if everyone knew it was over n+1 instead of b.

(I realize this is a question of fact; If the Plaintiffs in Imus were wrong, I 
withdraw my line of reasoning here.)

Michael

On Mon, Dec 2, 2013 at 1:27 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
The draft pool was effectively local, as you envision it, through the Civil 
War. Each county was given a quota to fill. I think it was nationalized for 
World War I, but I don't really know.

It was certainly nationalized by the time of Vietnam. Local boards administered 
the classification system, but all those classified I-A went into a national 
pool from which draftees were selected. It was called the Selective Service 
System, and your draft letter began, Greetings! You have been selected . . .

So for every person granted conscientious objector status, your odds of being 
drafted went from n over however many million in the denominator to n + 1 over 
that denominator. Considered at that stage, the increase was infinitesimal. 
Somewhere there was a guy who got drafted who otherwise would not have been, 
but it was impossible to identify that person.


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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Michael Worley
Sent: Monday, December 02, 2013 12:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: The Establishment Clause, burden on others, the employer mandate, 
and the draft


Maybe I misunderstand how the draft worked (I am quite young), but it would 
seem to me that a local draft board would not be much bigger than an insurance 
plan

RE: Rights of corporations and RFRAs

[Marc Stern]

Does anyone know who is going to brief first(upside),and who is going to brief 
second (downside in the contraception cases? Or is each case going to brief on 
the normal schedule? The docket sheet said nothing late yesterday on this 
subject. 
Marc
-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 27, 2013 12:35 AM
To: Law  Religion issues for Law Academics
Subject: RE: Rights of corporations and RFRAs

I think that's right, partly because the burden on stockholders of 
selling shares in a publicly traded corporation is much less than the burden of 
selling shares in a closely held corporation.

Eugene

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Tuesday, November 26, 2013 3:50 PM
To: Law  Religion issues for Law Academics
Subject: RE: Rights of corporations and RFRAs

I think there is considerable force to Eugene's argument about closely held 
corporations (although I'm not sure if the size of the enterprise needs to be 
taken into account too -- I'm still thinking about that.) Do I take it from 
your argument that you believe a publicly traded corporation would not be a 
useful stand-n for people?

Alan 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 3:31 PM
To: Law  Religion issues for Law Academics
Subject: Rights of corporations and RFRAs

I've long thought that corporate rights make sense only to the extent 
that they are useful for stand-ins for the rights of people.  (I support 
Citizens United precisely because of that.)

And when it comes to closely held corporations, whose owners claim an 
objection to participating in some activity, including by paying for it or 
allowing it on their property, there are indeed rights of people involved.  

A simple hypothetical:  A law requires that all retail stores sell 
lottery tickets.  A store is owned by a corporation, which is in turn owned by 
(say) two brothers; they believe that gambling is a sin, and that facilitating 
gambling is a sin.  (In that respect they are like Thomas in Thomas v. Review 
Bd., who believed not only that he shouldn't go to war, but also that he 
shouldn't help in warmaking.)  The requirement, it seems to me, burdens their 
religious practice, even though they own their business through a corporate 
form.  

The corporate form is indeed a legal fiction, which is why I think 
corporate rights should only be recognized a stand-ins for the rights of 
people.  But for the same reason burdens on people's religious practice 
shouldn't be ignored by the law by invoking the fiction that the gas station 
isn't really owned by the brothers but is instead owned by the corporation.

The only question, I think, should be whether the brothers would have 
to sue under the relevant state RFRA in their own names, pointing to the burden 
that the lottery sales mandate imposes on them, or whether they could have the 
lawsuit be filed in the name of the corporation.  But the bottom-line result 
should be that the owners of the closely held corporation could indeed assert a 
RFRA claim, whichever way it's done.

Eugene


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RE: The ability to practice one's religion

[Marc Stern]

The UK supreme court today rejected  acclaim by owners of  a bed and breakfast 
that they should have  religious liberty right not to host a same sex couple. 
Here is  link: 
http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0065_Judgment.pdf
Marc
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RE: Contraception mandate

[Marc Stern]

IS it possible that the search for legislative history on the question of 
whether in 1997 Congress thought corporations could benefit from religious 
liberty provisions is anachronistic .Today, that question is colored by one’ s 
feelings towards Citizens United; in 1997 ( and especially when arguing to a 
political body like Congress and in an effort to muster public opinion) the 
issue was cast in less  abstract terms.
Marc  Stern


0From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Thursday, August 01, 2013 10:02 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Contraception mandate

I know I'm not the listmod, but could we please keep the posts on topic for the 
listserv?
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Aug 1, 2013, at 6:32 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
No, Marci.  You personalized this.

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
___
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Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.comhttp://Justia.com column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 2:35 PM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the Growing Hostility section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden.

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a vital proposition in the conception of religious liberty is 
that believers have at least a presumptive right to live out the commitments

Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.comhttp://Justia.com column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 2:35 PM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the Growing Hostility section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden.

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a vital proposition in the conception of religious liberty is 
that believers have at least a presumptive right to live out the commitments

Re: Contraception mandate

[Marc Stern]

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 5:39 PM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:

Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that business corporations 
would be categorically excluded from RPLA protection.

But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably no. The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
yes for race, usually yes for sex, and TBD for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Contraception mandate

Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.

Supporters did not say that for-profit businesses would not have a RLPA 
defense. This whole issue with respect to RLPA was triggered by a series of 
cases about for-profit landlords and unmarried opposite-sex couples, especially 
Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was 
later vacated on other grounds, but the opinion is still on Westlaw.

If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.

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

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law  Religion issues for Law Academics
Subject: Re: Contraception mandate

[snip]

One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA as evidence that RFRA covers 
for-profits, writing:
Both sides in that debate believed that if enacted, RLPA would protect 
for-profit businesses from civil rights claims that substantially burdened the 
owner’s free exercise of religion. RLPA was in pari materia 

Re: Contraception mandate

[Marc Stern]

An additional fact: the civil rights issue came into public view after the ACLU 
wrote a letter to Congress-whether to the whole house or the judiciary 
committee I don't recall- spelling out in detail the cases in which civil 
liberties and religious liberty claims clashed. It was that letter that sparked 
the nadler amendment and the breakup of the coalition that had earlier  
supported RFRA.
Marc

- Original Message -
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Thursday, August 01, 2013 09:30 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; 
hamilto...@aol.com hamilto...@aol.com
Subject: Re: Contraception mandate

RLUIPA does not apply to fair housing laws because it applies only to land use 
regulation and institutionalized persons, and it exprssly defines land use 
regulation as zoning and landmarking. Period. No mystery to explain. 

My recollection is that that definition was added late in the process. I have 
not checked that. 

Before that amendment, neither I nor any other supporter assured opponents that 
RLPA would not apply to fair housing laws. The whole fight was fueled by fair 
housing laws.

There were negotiations about exempting large landlords and protecting small 
landlords. But these negotiations quickly broke down because the two sides were 
too far apart on what the size limit should be.

RLPA had other opponents, but the civil rights issue is what killed it. It is 
not true that it was doomed by its overbreadth. It was not even obvious at the 
time that it was doomed by the civil rights fight.

The Nadler Amendment to exclude civil rights claims was defeated in the House 
234-190. The unamended bill then passed the House 306-118. That lopsided yes 
vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. 
Rec. H5607-08. The bill then died in the Senate without a vote. 

Both sides in the debate over the Nadler Amendment, and in the earlier debates 
in committee, were fighting about a live issue. No one thought they were making 
post-enactment legislative history for RFRA. They were all acting on a common 
understanding about what the language copied from RFRA meant.

On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
 hamilto...@aol.com wrote:

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.


Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.  
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.   
What is the missing piece that explains how Doug and Marc have explained the 
history?




Marci







Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com





-Original Message-
From: Volokh, Eugene vol...@law.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate



Indeed, Marci didn’t say Doug was “lying,” but when one says 
 of a first-hand witness that the “history, as I knew it, was distinctive from 
 his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
 current statements,” the implicit accusation seems to me to be pretty clear.
 
But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current 
statements, that would be very interesting.  But until any such quotes are 
produced, I’m inclined to trust Doug.
 
And I agree that we should discuss facts on the listserv without stooping to 
namecalling.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

 
Marc-  I didn't say Doug was lying.  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts 

on the listserv without having to stoop to such namecalling.

 

Marci

 

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com



 

-Original Message-
From: Marc Stern ste...@ajc.org
To: religionlaw religionlaw@lists.ucla.edu
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

RE: RLUIPA prison cases

[Marc Stern]

Becket does a fair amount of this; so does the Aleph Institute in Miami 
Florida. I'd go with Becket.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, April 22, 2013 4:31 PM
To: 'Law  Religion issues for Law Academics'
Subject: RLUIPA prison cases

The Federal Judicial Center is looking for someone to talk about prison cases 
under RLUIPA, in New Orleans in September. Someone told them I was a RLUIPA 
expert, but I have worked only on land use, and anyway, I have a schedule 
conflict.  Somebody must be doing work on the prison cases. I told them I would 
ask around.

Nominations invited; self nominations included.

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

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Re: High School Student's Religious Objection to Wearing RFID Chip Badge for Student Locator Program

[Marc Stern]

Why is this not the pedestrian version of the warrantless GPS?
Marc

- Original Message -
From: Volokh, Eugene [mailto:vol...@law.ucla.edu]
Sent: Thursday, November 22, 2012 01:16 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: High School Student's Religious Objection to Wearing RFID Chip 
Badge for Student Locator Program

I appreciate Sandy's point, but I wonder whether the matter might be 
more complex than that.  We don't want docile citizens, but we do want 
citizens who comply with legally enacted rules; and we certainly want minor 
students who so comply.  We expect citizens to display their lack of docility 
by acting to change the law, not by disregarding the law.

Moreover, we insist as a matter of law -- including tort law -- that 
schools protect the minors who are left in their care.  Truancy isn't just bad 
for school funding; it's also bad for the students' education, it poses risks 
for children who are unsupervised when they are truant, and it might also in 
some neighborhoods increase street crime by some of the truants.  Some degree 
of surveillance, it seems to me, is reasonable under the circumstances.

Finally, this raises an insight that I owe to Sandy himself, though I 
forget the exact context in which he raised it.  Adapting it to this context, 
let me ask this:  Parents who can afford private schooling can send their 
children to schools that closely monitor their children's whereabouts, and make 
sure that the children don't cut class.  I would think that many -- perhaps 
most, or even nearly all -- parents who had this choice would indeed prefer 
(all else being equal) a private school that engages in such monitoring.  If 
I'm right, then why shouldn't parents who send their children to government-run 
schools also be able to take advantage of this feature (though realizing that 
there has to be a one-size fits-all solution at the level of the school or even 
the school district)?  One answer, of course, is that the Bill of Rights 
applies to government-run schools but not private schools.  But that doesn't 
really settle the question when it's not clear that there's any Bill !
 of Rights violation.

Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
 Sent: Thursday, November 22, 2012 10:00 AM
 To: 'religionlaw@lists.ucla.edu'
 Subject: Re: High School Student's Religious Objection to Wearing RFID Chip
 Badge for Student Locator Program
 
 I must say that this seems to be an easy case for any civil libertarian to 
 support
 even (or perhaps especially) in the absence of a free exercise claim.  The RI 
 is
 absolutely correct that this is socializing students to be docile citizens 
 within a
 surveillance society.
 
 Sandy
 
 
 
 - Original Message -
 From: religionlaw-boun...@lists.ucla.edu religionlaw-
 boun...@lists.ucla.edu
 To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
 Sent: Thu Nov 22 11:41:41 2012
 Subject: RE: High School Student's Religious Objection to Wearing RFID Chip
   Badge for Student Locator Program
 
 Yes. I did not mean to imply otherwise. The school's website says that it has 
 a
 high rate of absences. I gather the school thinks that if it monitors all 
 students it
 will somehow be able to claim a higher attendance rate and get more state
 funds (which I suppose are based on daily attendance, as they are in 
 California).
 The school was willing to accommodate her by removing the chip from her
 badge, but apparently that would not affect the appearance of the badge.
 
 Happy Thanksgiving to everyone on the list!
 
 Mark
 
 Mark S. Scarberry
 Professor of Law
 Pepperdine Univ. School of Law
 
 -Original Message-
 From: Douglas Laycock [mailto:dlayc...@virginia.edu]
 Sent: Thursday, November 22, 2012 8:30 AM
 To: Law  Religion issues for Law Academics; Scarberry, Mark
 Subject: Re: High School Student's Religious Objection to Wearing RFID Chip
 Badge for Student Locator Program
 
 The complaint alleges that all students were required to wear the badge -- not
 just those in disciplinary trouble or with a history of truancy. Nothing
 individualized about this.
 
 On Wed, 21 Nov 2012 20:47:56 -0800
  Scarberry, Mark mark.scarbe...@pepperdine.edu wrote:
 The Rutherford Institute says that it has obtained a TRO protecting a student
 who refused to wear a badge with an RFID (radio frequency identification) chip
 that would allow the school to determine her location at all times on school
 grounds. See
 https://www.rutherford.org/publications_resources/on_the_front_lines/victory
 _court_grants_rutherford_institute_request_to_stop_texas_school_from. The
 application for a TRO is here:
 https://www.rutherford.org/files_images/general/11-21-2012_TRO-
 Petition_Hernandez.pdf.
 
 Apparently the student considers the wearing of the badge to be 

FW: Fouche V. NJ Transit

[Marc Stern]

The District Court missed an obvious possible accommodation:  swapping shifts 
voluntarily with other employees. in fact, cases very similar to this one get 
resolved by such swaps. See, eg, Myer v NYCTA, 674 NE2d 305 (1996). So  not 
only did the courts ignore this possibility, but they added the charge of bad 
faith-which essentially means that Sababth observers are unwelcome in seven day 
a week, 24 hour a day job-an exclusion noticeably absent from the statute. It 
aslo suggests that, unlike for example, the handicapped, all  job applicants 
requiring religious accommodation would have to disclose that fact up front. In 
practical terms, no employer with any choice at all will hire such a  person. 
Proving that sort of employment  discrimination is almost always impossible in 
individual cases
Marc Stern.  
-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Friday, July 20, 2012 11:56
To: religionlaw@lists.ucla.edu
Subject: Re: Fouche V. NJ Transit

The district court order in Fouche, reported at 2011 WL 2792450, seems 
unremarkable; the CBA was straightforward; a more senior driver returned to 
work, exercised his seniority rights not to work on Sunday, bumping Fouche into 
a Sunday assignment, and Fouche responded by not coming to work on Sunday 
rather than by working out, or even offering evidence that he could have worked 
out, a voluntary job swap with a more senior employee.  The employer discharged 
him for nonattendance, he exercised his CBA rights and grieved his discharge; 
the employer first offered him reinstatement to part time work that would 
exempt him from Sunday driving as a reasonable accommodation, and he refused; 
it then reinstated him contingent upon passing a physical exam required of 
returning employees, and he refused to show up for his physical.

Under Hardison, what plausible argument does Fouche have that 1) there was a 
reasonable accommodation other than part time work and that 2) the employer 
failed to offer it to him?  And if the offer of part time work was a reasonable 
accommodation, isn't that offer sufficient, in and of itself, to discharge the 
obligation to offer a reasonable accommodation even if it is not the employee's 
preferred obligation?

I agree that the panel should have omitted its gratuitous and improper comment 
about the employee's good faith, but its judgment -- affirming the district 
court -- seems correct.  And given that unpublished non-precedential opinions 
don't establish circuit law, I don't think the court has created a new 
exemption from Title VII protection for religiously observant employees; 
rather, it has just reminded applicants for seven day a week jobs governed by a 
CBA that Hardison still controls.

Mike

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Marc Stern ste...@ajc.org:


 An unpublished opinion of the Third Circuit in Fouche v.NJ Transit   
 (11-3031) portends excluding large classes of jobs from the   
 protection of Title VII.A full time  driver sought to be   
 accommodated in not driving on Sunday. The  employer claimed its   
 labor contract precluded accommodation; whether this is so, depends   
 on whether, for example, swaps were possible and from the bare bones  
 description of the facts given by the Court one cannot tell. But the  
 court went on to say that it doubted the good faith of the claimant  
 who applied for a job in a seven day a week employment situation  when 
 he knew or should have known in advance of the conflict with  his 
 religious requirements.  Given the number of accommodations  worked 
 out in such cases there is in any event no factual basis for  this 
 doubt. Worse, the court's off-hand comment suggests that all  
 employers in need of seven day a week services
 (e.g. police   ,hospitals  etc.) have a new , non-statutory,  
 unprecedented, defense  in Title VII religious accommodation cases.
 Marc Stern




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Fouche V. NJ Transit

[Marc Stern]

An unpublished opinion of the Third Circuit in Fouche v.NJ Transit (11-3031) 
portends excluding large classes of jobs from the protection of Title VII.A 
full time  driver sought to be accommodated in not driving on Sunday. The  
employer claimed its labor contract precluded accommodation; whether this is 
so, depends on whether, for example, swaps were possible and from the bare 
bones description of the facts given by the Court one cannot tell. But the 
court went on to say that it doubted the good faith of the claimant who applied 
for a job in a seven day a week employment situation when he knew or should 
have known in advance of the conflict with his religious requirements.  Given 
the number of accommodations worked out in such cases there is in any event no 
factual basis for this doubt. Worse, the court's off-hand comment suggests that 
all employers in need of seven day a week services (e.g. police  ,hospitals  
etc.) have a new , non-statutory, unprecedented, defense in Title VII religious 
accommodation cases.
Marc Stern
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Re: German circumcision decision

[Marc Stern]

U

From: Finkelman, Paul paul.finkel...@albanylaw.edu 
[mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, July 01, 2012 12:43 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: German circumcision decision

there is mixed evidence on circumcision.  Some suggesting it helps prevent 
cervical cancer in female partners; some that lowers the spread of STDs. The 
research is mixed and politicized (like lots of research) but there is evidence 
it has medical value.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Vance R. Koven [vrko...@gmail.com]
Sent: Sunday, July 01, 2012 12:37 PM
To: Law  Religion issues for Law Academics
Subject: Re: German circumcision decision

Isn't there still a substantial body of medical opinion--perhaps not as 
prevalent as in decades past--that recommends circumcision as a preventive 
health measure? If the issue is the lack of consent from the subject of the 
operation, this certainly affects more than just religious observance, and more 
than just this particular operation. And if the decision hinges specifically on 
the fact that the motivation (if that can ever be clear) is primarily 
religious, that certainly smacks of religio-cultural insensitivity, to put it 
mildly.

Vance

On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman 
paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com wrote:
Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.

The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386tel:518-445-3386 (p)
518-445-3363tel:518-445-3363 (f)


paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu


www.paulfinkelman.comhttp://www.paulfinkelman.com

From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu

To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision

Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.

Eugene

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--
Vance R. Koven
Boston, MA USA
vrko...@world.std.commailto:vrko...@world.std.com

Re: Religious exemptions in ND

[Marc Stern]

Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage.
Marc

From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Friday, June 15, 2012 07:30 AM
To: lawyer2...@aol.com lawyer2...@aol.com; religionlaw@lists.ucla.edu 
religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.


So do a lot of secular and individuals, but they are not capable of wrapping 
themselves
in the mantle of claims for religious liberty or freedom.


Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.commailto:hamilto...@aol.com


-Original Message-
From: lawyer2974 lawyer2...@aol.com
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


Giving religious groups more power to endanger children

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com
Sender: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48
To: Law  Religion issues for Law 
Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Cc: Law  Religion issues for Law 
Academicsreligionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND

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Re: Religious exemptions in ND

[Marc Stern]

In short,any accommodation of religion is a violation of the equal protection 
clause. This would certainly be a rather sharp departure from the best of the 
American tradition. And I guess I have been misinformed all these years in 
thinking religious freedom was a basic american value.
Bob's message does illustrate the sharp divide between an egalitarian 
understanding of the constitution and a liberty based one-a divide highlighted 
today when the aclu sent the senate a letter calling for a very narrow 
religious exemption from ENDA. There was a time the aclu valued religious 
liberty.
Apparently no longer for conservative faiths.
Marc

From: b...@jmcenter.org [mailto:b...@jmcenter.org]
Sent: Thursday, June 14, 2012 09:12 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND


Eugene,


Just to follow up on your point that some discrimination in the name of 
religion would possibly be tolerated under Measure 3 such as . . .

 1.  A pharmacist refusing to dispense Plan B.
 2.  A taxi cab driver refusing to transport a person with the smell of alcohol 
on his breath.
 3.  A professional photographer refusing to photograph an LGBT civil ceremony.
 4.  A landlord refusing to rent to an atheist.

Seems to me this is precisely why Measure 3 was defeated and RFRAs should be 
repealed -- because equality is a core American value.



Bob Ritter

On June 14, 2012 at 7:29 PM Volokh, Eugene vol...@law.ucla.edu wrote:


Thanks for the pointer.  Out of this list at the ndagainst3.com site, the only 
item that seems at all plausible is that “people could break” certain “laws on 
non-discrimination,” though almost certainly not employment discrimination 
laws.  The other claims would either be almost certainly rejected under strict 
scrutiny, or (in some circumstances) would prevail even without a RFRA, for 
instance if a church employer is firing an unmarried pregnant minister or 
teacher of religion.



A man could be allowed to marry girls, as young as 12, in the name of religion.1

An employer could fire an unmarried pregnant woman simply because of the 
employer’s religious beliefs.2

A man could claim domestic violence laws don’t apply to him because his 
religion teaches that a husband has the right to discipline his family, 
including his wife and children as he sees fit.3

A parent who believes in faith healing could to deny critical medical treatment 
to a seriously ill child.4

Simply put, people could break our laws in the name of religious freedom, 
including laws on non-discrimination, domestic violence and child abuse.5



Eugene



 -Original Message-

 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

 boun...@lists.ucla.edu] On Behalf Of Eric Rassbach

 Sent: Thursday, June 14, 2012 1:42 PM

 To: Law  Religion issues for Law Academics

 Subject: RE: Religious exemptions in ND





 These appear to be some of the main arguments against passing the RFRA:



 http://ndagainst3.com/get-the-facts/



 As an example, this TV ad said that the RFRA would allow men to marry girls

 aged 12 and to beat their spouses:



 http://www.youtube.com/watch?v=14ngnqGR6e8



 There was also quite a bit of blog chatter about sharia law being enforced in

 North Dakota as a result of passing the RFRA.



 I did not see anything about Native Americans.


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RE: Court upholds prison no-pork policy against EstablishmentClause challenge

[Marc Stern]

Except that PETA itself has in the past  referred to the way commercial  farm 
animals are raised as rep[licating  conditions in concentration camps.
Marc

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, April 12, 2012 01:25
To: religionlaw@lists.ucla.edu
Subject: Re: Court upholds prison no-pork policy against EstablishmentClause 
challenge

Chip is right, of course.

But Eric's point requires a response.
I don't I don't think PETA folks would appreciate having their sincere concerns 
about the humane treatment of
animals traced to the Nazis.  To say that humane treatment concerns are more 
often than
not pretext and then to have as your example something out of the 1930s is 
singularly unpersuasive.


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.commailto:hamilto...@aol.com

-Original Message-
From: Eric Rassbach erassb...@becketfund.org
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu, Apr 12, 2012 1:14 pm
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause 
challenge





Chip is right that the supposedly inhumane methods of kosher/halal slaughter

(something US law defines as humane, btw) is one of the main public

justifications for banning the practice. But as our brief in the New Zealand

kosher slaughter ban case pointed out -- 
http://www.becketfund.org/wp-content/uploads/2011/04/NZ-kosher-brief-FINAL.pdf

-- more often than not this is pretext. For example, this was the same

justification the anti-Semites of the 1930s used for banning the practice in

several European countries. As we point out in our brief, one of the first

things the Nazis did upon taking power was to pass a law banning kosher

slaughter, supposedly in order to awaken and strengthen compassion as one of

the highest moral values of the German people.  I don't think it's too much of

a stretch to guess that anti-Muslim sentiment may be a subterranean motivation

for the humane practices argument in the Netherlands, France and elsewhere.



The ironic part for me of the Mohr case was that my main experience of

stand-alone prison pork bans is as a proposed compromise to settle kosher

accommodation lawsuits. Of course pork bans don't work as a method of kosher

accommodation, though prison administrators keep hoping that they do. In our now

6-year-old lawsuit against the Texas prison system (now on a return trip to the

5th Circuit), Texas at one point floated a pork ban as a solution, which only

served to show that they didn't understand how kashrus works.



Eric



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] 
On

Behalf Of Ira Lupu [icl...@law.gwu.edumailto:icl...@law.gwu.edu]

Sent: Thursday, April 12, 2012 10:39 AM

To: Law  Religion issues for Law Academics

Subject: Re: Court upholds prison no-pork policy against EstablishmentClause

challenge



I think that at least part of the objections in Europe to serving only halal

meat in some restaurants involves objections to methods of halal animal

slaughter which (like kosher slaughter) may not be consistent with European

standards for humane treatment of animals in their use as food.  Halal only

means all diners are complicit in the that particular  slaughtering process.



On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu?

wrote:



It is interesting to compare reactions in Europe to similar situations. In 2010,

French politicians strongly criticized a restaurant chain that decided to serve

only halal meat in 8 of its restaurants with a large Muslim clientele.

Agriculture Minister Bruno Le Maire said: When they remove all the pork from a

restaurant open to the public, I think they fall into communalism, which is

against the principles and the spirit of the French republic.

See: 
http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html



In 2007 in Britain, a primary school in Kingsgate attempted to accommodate

religious needs of its growing Muslim student body by serving only Halal meat in

its lunch menus. A number of parents objected, arguing that the school was

forcing their children to to conform to someone else's culture.

See 
http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html





Howard Friedman



messages to others.
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Re: Discrimination against people with religious motivations for their actions

[Marc Stern]

Might I suggest another way of looking at this debate: race. Not the race of 
the drivers and that of their passengers. instead i take it as common ground 
that no one would tolerate taxi drivers turning down passengers on the basis of 
race. Does it follow that we should treat all prohibited grounds of 
discrimination with the same rigor, both as a matter of primary law-all 
forbidden categories are treated equal-or because once the prohibition on 
discrimination is weakened, even in good cause, the pressure for other 
exemptions will grow and will weaken the non discrimination norm in regard to 
race. The latter argument was raised after Boerne when the question was whether 
to include civil rights claims in a statute protecting religious liberty..
Marc

From: Steven Jamar [mailto:stevenja...@gmail.com]
Sent: Wednesday, March 07, 2012 09:45 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Discrimination against people with religious motivations for their 
actions



I hope it comes as no surprise to anyone on this list that there are 
irreconcilable doctrinal problems with religious liberty no matter how one 
looks at it.  Religious motivation matters.  Particular facts matter.  Details 
matter.  Eugene's hypothetical restaurant is not analogous to the cabbies in 
Minneapolis or in general.

I am not at all sure that Lukumi extends to private conduct and general 
anti-discrimination laws.  In that case the state singled out a particular 
religion by ordinance -- not the application of an anti-discrimination law.  
There is also a world of difference between actions by private parties that 
discriminate on the basis of religion and ordinances by states (or cities) that 
ban particular religious practices.

If the past decades of religious jurisprudence have taught us anything it 
should be to by chary of expanding any decision by the court much beyond its 
peculiar facts.  Witness the recent distinguishing of Smith.  Who knew?

I do not contend that these cases are easy or that they are or can be decided 
with great consistency -- indeed, I contend exactly the opposite.  Motivation 
matters and I cannot transmute a religious motivated action against someone 
into a neutral action without any religious motivation.

The response to the accommodation in Minneapolis shows a societal anti-Islam 
animus.  Who is surprised?

But the claim of a person who has been denied a ride on a common carrier for no 
reason other than doing something he has an absolutely legal right to do and is 
denied the ride because of a religious belief by the driver is sure going to 
feel like religious discrimination whatever niceties one might want to draw.  
And in fact IS religiously-motivated action excluding someone.  It is.  Should 
it be permitted?  Should it be accommodated?  Probably, in the absence of 
showing hardship to riders.  But if it s the last cab of the night?  No way.

I generally think we should accommodate religious exercise rights of employers 
and service providers and everyone to the extent practicable.  But that is a 
long way from finding a constitutional or statutory right to engage in such 
conduct when engaged in the provision of such public services.

There is no constitutional principle or statutory provision that would or 
should require that.  The situations are too nuanced for hard-edged application 
of generally applicable rules in this area.  Minneapolis Airport Authority 
approached it sensibly and if the solution had been implemented and if it had 
worked as planned (I have doubts, but maybe it would have), then that is what 
should be done.  We are not a secular universalist society -- not by a long 
shot.  Nor should we be -- it is not within our traditions and experience and 
our polyglot amalgam of people -- but nor should it be heavy-handed 
rights-based regime with what becomes a unit veto.

Steve






--
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice 
http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/


Never doubt that the work of a small group of thoughtful, committed citizens 
can change the world. Indeed, it’s the only thing that ever has.


Margaret Meade




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RE: Point of Information -- not quite on topic

[Marc Stern]

I had an odler (jewsih) colleague who told me that one of the high points of 
his life was playing  at Wriggley Field in the Catholic League championship 
game. This was in the late 30's or 40's.
Marc

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Tuesday, March 06, 2012 05:23
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Point of Information -- not quite on topic

Marty--Are nonJews, non Israelis included?   That would be a surprise to me.  I 
know kids recruited and only Jews were

We were talking about leagues, not individual players.   The Catholic leagues 
are not open to my knowledge to non Catholic schools.

Marci



On Mar 6, 2012, at 12:42 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
 the Maccabiah Games feature only Jewish athletes.

Nope.  See http://www.ynetnews.com/articles/0,7340,L-332,00.html

It's open to all Israeli citizens without regard to religion, and to Jews who 
are not citizens (presumably because they have an automatic right of 
citizenship, although I don't know that for a fact).

I'd also be very, very surprised if many Catholic Leagues exclude 
participants based on religion; perhaps they're confined to certain church 
teams, or students from Catholic schools, etc. -- but an actual personal 
religious test for individuals?

On Mon, Mar 5, 2012 at 10:06 AM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
There is significant precedent for one-religion sporting events, which I assume 
everyone agrees is fine.Catholic Leagues exist in numerous cities   And  
the Maccabiah Games feature only Jewish athletes.

TAPPs' first mistake appears to have been opening itself up to religious 
organizations with different religious needs and demands.

Marci

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Re: Basketball tournaments on the Sabbath

[Marc Stern]

I don't have access to the cite, but some time in the 1980's the Jersey Supreme 
Court decided a case called playcrafters upholding against an establishment 
clause challenge a school rule banning non sport extra curricular activities 
from(as I recall)Friday night through Sunday noon. the rationale was to allow 
students to avoid religious conflicts.
Marc Stern.
. 

- Original Message -
From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Saturday, March 03, 2012 12:25 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Basketball tournaments on the Sabbath

Here is a general question to take us back to the bigger picture.  

 What should the rule for sports associations be in the future?   Schedule 
tournaments and finals only Mon through Sunday with attention to the religious 
schedule?

How can you schedule such a tournament in light of the apparently shared 
assumptions on this listserv that sporting events should be rearranged for the 
religious practices of particular teams?   

This is a serious question.  I would be interested in serious answers that do 
not assume discrimination.

Thanks---Marci

On Mar 3, 2012, at 11:49 AM, Douglas Laycock dlayc...@virginia.edu wrote:

 Well, I thought the e-mail below was going only to one person. So let me
 provide more context for the comment.
 
 Of course there are many tolerant people in the evangelical movement,
 including lawyers who do great work on behalf of religious liberty for all.
 They understand that religious liberty is not safe for anyone unless it
 protects everyone. But there are many others, whose work is dedicated to
 issues other than religious liberty, who have not thought about these issues
 and have not gotten that message. In my 25 years in Texas, I met and worked
 with and read reports of the comments of many evangelicals who were
 comfortable with diversity and tolerant of Jews and Muslims, and of many
 others who were not. And all I meant to say was that folks from the second
 group seem to be in control of the Texas Association of Private and
 Parochial Schools.
 
 Douglas Laycock
 Robert E. Scott Distinguished Professor of Law
 University of Virginia Law School
 580 Massie Road
 Charlottesville, VA  22903
 434-243-8546
 
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
 Sent: Saturday, March 03, 2012 11:26 AM
 To: 'Law  Religion issues for Law Academics'
 Subject: RE: Basketball tournaments on the Sabbath
 
 This morning's story in the Times confirms the unreconstructed Texans
 theory. It looks like the conservative evangelical schools have taken
 control of this organization, and tolerance of diversity has never been one
 of their strengths. 
 
 Douglas Laycock
 Robert E. Scott Distinguished Professor of Law University of Virginia Law
 School
 580 Massie Road
 Charlottesville, VA  22903
 434-243-8546
 
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard D. Friedman
 Sent: Saturday, March 03, 2012 12:19 AM
 To: Law  Religion issues for Law Academics
 Subject: Re: Basketball tournaments on the Sabbath
 
 The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
 Beren play when presented with the papers, before they were actually filed.
 But the lawyer who signed the complaint -- which included the application
 for the TRO -- confirmed to me that the papers were indeed filed.  I get the
 impression that TAPPS, while saying adamantly that they were going to adhere
 to their schedule, decided they would fold quickly if sued; I think someone
 there finally realized that they were not casting themselves in a favorable
 light.
 
 Rich Friedman
 
 At 07:19 PM 3/2/2012, you wrote:
 It would look less like a discrimination claim and more like an 
 exemption claim. Judges tend to naively assume that the calendar is a 
 neutral set of rules, and the sharply different treatment of Sunday and 
 Saturday here would make it more obvious than usual that that just 
 isn't true.
 
 By the way, I was confused about chronology. The complaint was filed, 
 and TAPPS caved, yesterday. There was another story in the Times this 
 morning. Haven't heard the score of the game.
 
 On Fri, 2 Mar 2012 23:11:44 +
 Finkelman, Paul 
 paul.finkel...@albanylaw.edu   paul.finkel...@albanylaw.edu
 wrote:
 I am guessing that the leaders of this organization never dreamed
 of a Jewish basketball team going to the finals.  They never heard of 
 Dolph Shayes or Nancy Lieberman.
 
 
 
 More seriously:  If the organization (which includes many
 Christian schools) played games on Sundays, would the Hebrew high 
 school be in a weaker position?
 
 
 
 
 
 *
 Paul Finkelman, Ph.D.
 President William

Re: Selective Support of Religious Liberty

[Marc Stern]

Marty is right. but the problem is not limited to the right. The left is 
completely unsympathetic to religious liberty claims in equality cases or 
reproductive rights cases. Look at hosanna tabor or christian legal 
society-the-latter struck me as an easy case the court got all wrong. but look 
at the line-up of amici. almost no crossing of lines.
Among the causes are the difficulties in raising funds and rallying the troops 
from the middle-as well as a fundamental divide between those who prefer 
liberty rights to equality and those who think equality always trumps.
Marc

From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Sunday, March 04, 2012 07:16 AM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Selective Support of Religious Liberty

Perhaps a topic worthy of its own dedicated thread:  The phenomenon is hardly 
unique to the evangelical movement.  Doug is of course correct that there are 
many lawyers and others, evangelical or otherwise, who do great work on behalf 
of religious liberty for all.  I am increasingly concerned, however, that the 
majority of self-professed religious liberty allies, who worked so well and 
sensitively together on matters such as RFRA and RLUIPA, are distressingly 
selective when it comes to their solicitude for the religious liberty (and 
equality) of nonmajoritarian religious observers.  I am thinking, in 
particular, of the rather deafening lack of objection (on this list and in 
public), resources, amicus support, etc., in high-profile cases such as Simpson 
v. Chesterfield County (as clear a case of unjustifiable religious 
discrimination as one can imagine -- and one in which it was impossible to 
round up any support for amicus participation); Summum; Hernandez; most 
conspicuously and egregiously, the Park51/Cordoba House controversy; and, I 
would add, Newdow.  The list could go on.

There are, of course, exceptions -- very important exceptions.  (See, e.g., 
Doug's own superlative brief in Newdow; AJC's amicus support in Hernandez)  And 
I realize that every case has its own idiosyncracies and contested predicates.  
Still, I find myself increasingly dubious about whether the religious liberty 
coalition includes many who are truly dedicated to religious liberty, broadly 
speaking.

I realize this is a sensitive and complex topic.  And if it results primarily 
in acrimony here, I offer my apology in advance.  But it seems to have been 
lurking beneath the surface of many cases discussed on this list over the past 
few years, and therefore I thought perhaps it warrants its own discussion, not 
least because I would love to be persuaded that my suspicions and 
disappointments are unwarranted.

On Sat, Mar 3, 2012 at 11:49 AM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Well, I thought the e-mail below was going only to one person. So let me
provide more context for the comment.

Of course there are many tolerant people in the evangelical movement,
including lawyers who do great work on behalf of religious liberty for all.
They understand that religious liberty is not safe for anyone unless it
protects everyone. But there are many others, whose work is dedicated to
issues other than religious liberty, who have not thought about these issues
and have not gotten that message. In my 25 years in Texas, I met and worked
with and read reports of the comments of many evangelicals who were
comfortable with diversity and tolerant of Jews and Muslims, and of many
others who were not. And all I meant to say was that folks from the second
group seem to be in control of the Texas Association of Private and
Parochial Schools.

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


-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Douglas Laycock
Sent: Saturday, March 03, 2012 11:26 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Basketball tournaments on the Sabbath

This morning's story in the Times confirms the unreconstructed Texans
theory. It looks like the conservative evangelical schools have taken
control of this organization, and tolerance of diversity has never been one
of their strengths.

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


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Re: Interesting late 1800s Arkansas law related to government and religion

[Marc Stern]

Presumably a political party could do the same and probably lots of other 
ideological organizations could too given the Boy scout decision resting on 
freedom of ideological non- association.
Marc

From: Finkelman, Paul paul.finkel...@albanylaw.edu 
[mailto:paul.finkel...@albanylaw.edu]
Sent: Tuesday, January 24, 2012 09:09 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Interesting late 1800s Arkansas law related to government and 
religion

Marci:

Presumably there is a free exercise right to expel people from your church for 
having the wrong political ideas.  So, I suppose if the church leaders say you 
must support candidate x and a member does not, and openly supports y then 
it is a free exercise right for the Church to expel the member.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marci Hamilton [hamilto...@aol.com]
Sent: Tuesday, January 24, 2012 8:51 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Interesting late 1800s Arkansas law related to government and 
religion

Ok, I'll bite.   Why is an anti-coercion statute obviously unconstitutional?

Marci


On Jan 24, 2012, at 4:45 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

An Arkansas 1891 statute:  “No person shall coerce, intimidate or unduly 
influence, any elector to vote for or against the nominee of any political 
party, or for or against any particular question or candidate, by any threat or 
warning of personal violence or injury, or by any threat or warning of 
ejectment from rented or leased premises, or by the foreclosure of any mortgage 
or deed of trust, or of any action at law or equity, or of discharge from 
employment, or of expulsion from membership in any church, lodge, secret order 
or benevolent society, or by any oath, or affirmation or secret written 
pledge.”  I assume such a statute, as applied to churches, would be 
unconstitutional today, and might even have generally been seen as 
unconstitutional back then, though I have seen no cases interpreting it.

Interestingly, a North Carolina statute that didn’t mention churches -- “Any 
person who shall discharge from employment, withdraw patronage from, or 
otherwise injure, threaten, oppress or attempt to intimidate any qualified 
voter of the state, because of the vote such voter may or may not have cast in 
any election, shall be guilty of a misdemeanor” -- was held in 1901 to not be 
able applicable to expulsion from churches based on a person’s vote.  See State 
v. Rogers, 38 S.E. 34 (N.C. 1901), 
http://volokh.com/2012/01/23/interesting-old-prosecution-for-expelling-someone-from-a-church-based-on-how-he-voted/
 .

Eugene

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Re: Go to Church or Go to Jail?

[Marc Stern]

Sixty five years ago, the Virginia Supreme Court threw out a juvenile sentence 
of this type. One can only wonder why this prosecutor and judge can't see what 
was long ago obvious.
Marc

From: Steve Sanders [mailto:steve...@umich.edu]
Sent: Monday, September 26, 2011 09:05 PM
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu; 
conlawp...@lists.ucla.edu conlawp...@lists.ucla.edu
Subject: RE: Go to Church or Go to Jail?

I suspect the response from the Alabama legislators would actually be more 
truculent!


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, September 26, 2011 3:58 PM
To: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu
Subject: Re: Go to Church or Go to Jail?

First, this is hilarious.  Second, it reminds me of my cousin, who is a 
principal at a public high school in Kentucky.  When we were visiting several 
years ago, he left dinner early to draft the school prayer to be read over the 
PA for the next day.  When I joked that that might be a problem for the Supreme 
Court, he just smiled.  I would imagine that would be the response from the 
Alabama lawmakers on this issue.

[cid:887100401@27092011-0C7E]
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
215-353-8984

In a message dated 9/26/2011 5:41:16 P.M. Eastern Daylight Time, 
ma...@law.villanova.edu writes:
That’s what it appears to be (sorry for cross-posting but this should be useful 
to subscribers on both lists looking for an exam question, to say nothing of 
the expected discussion).

http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2

Headline and first paragraph:

Jesus or jail? Alabama town offers options for serving 
timehttp://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/

If you're charged with a nonviolent crime in one Alabama town, you might just 
have the chance to pray it all away.
Starting this week, under a new program called Operation ROC (Restore Our 
Community), local judges in Bay Minette, Alabama, will give those found guilty 
of misdemeanors the choice of serving out their time in jail, paying a fine or 
attending church each Sunday for a year.


James Edward Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule


=

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Re: Teacher suspended for anti-same-sex-marraige Facebook post

[Marc Stern]

Some years ago,the second circuit decided a case involving a teacher at an 
elite nyc public school who was a member in the North American Man Boy Love 
Society. The teacher said nothing about his membership in school;naturally the 
students found out. The second circuit affirmed his dismissal. I don't have 
access to the cite.
Marc
Marc

From: Brownstein, Alan [mailto:aebrownst...@ucdavis.edu]
Sent: Friday, August 19, 2011 05:24 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

I agree that the substance of what the KKK says and stands for makes my example 
striking and sui generis. But my hypothetical had two elements. The second part 
is that the teacher was the recruitment officer of the local chapter.

How would you evaluate this situation, Eugene. The teacher is the recruitment 
officer of the “Gays are Abominations  Society” which expresses horribly 
negative views about gays and lesbians. He teaches Seventh graders, 12 years 
olds. He uses his social networking pages as a recruitment tool and accepts 
past and present students as “friends.”  (But he doesn’t recruit on school 
grounds or invite his students to be his “friends” while on school grounds.)

Are there we lines we can draw that allow restrictions on this kind of 
expressive conduct without creating a foundation for punishing anything a 
teacher says on his face book page that the principal, school board or local 
community does not like? Just as all speech expressed with passion incites 
(Brandeis and Holmes), all speech expressed with passion invites and recruits 
in some sense.

Alan






From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 1:33 PM
To: Law  Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

The KKK example is interesting, but I think it works because 
it’s so striking:  Our initial reaction is that surely the KKK teacher can be 
fired, but I think that reaction is partly driven by the judgment that the KKK 
teacher is so sui generis.  Shouldn’t we sacrifice this little bit of teacher 
freedom, in order to prevent racial tension at the school?

Now perhaps the answer is yes, but that answer is especially 
appealing only to the extent that this is indeed a sui generis scenario.  Once 
this decision becomes used as a precedent for punishing teachers for saying 
that they’re disgusted by same-sex marriage, then we’re talking about a 
considerably broader speech restriction.  And if this extension of the KKK hypo 
by analogy works, where will it stop?  What if the teacher didn’t say “I almost 
threw up” and “cesspool,” but simply said that same-sex marriages were sinful 
(which he did say) or evil?

The danger, it seems to me, is that the emerging rule – certainly as 
practically understood and internalized by speakers, but also as applied by 
government employers – would end up being that all criticism of same-sex 
marriage or of homosexuality could lead to government discipline.  (After all, 
the analogy between such criticism and the Buell statement is closer than the 
analogy between the KKK organizer hypo and the Buell statement.)  And that 
brings up the question I asked:  How should we then consider the value of the 
restricted speech to speakers and to society, in applying the Pickering 
balance, if indeed the speech restriction tends to deter government employee 
speech on one side of such a topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law  Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

Re: Widmar v. Vincent redux, though in a traditional public forum?

[Marc Stern]

Similar issues were raised-albeit before public forum doctrine was very 
developed-and both the Third and DC Circuits held there was no violation of the 
EC in allowing a papal mass in a public park. And the cert grant in Fowler v 
RI(1952) was to answer the question of whether a religious event in a public 
park established religion. Because of selective application of the rule,the 
court never reached the question.
Marc

From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Monday, August 15, 2011 08:07 AM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

I can imagine at least two grounds on which the use of the park for the baptism 
could be prohibited without raising serious legal question:

1.  I suspect that the river or stream or pond in the park is not generally 
open to the public for immersion or swimming -- and if so, prohibiting the 
baptism would be application of a generally applicable conduct restriction that 
doesn't single out speech.

2.  Moreover, far from using a traditional public forum -- e.g., a speaker's 
corner, offering expression to the general public -- the group here wished to 
engage in a private event that would not be open to the public.  Unless the 
State generally allows use of the park for not open to the public events -- 
which would presumably create a designated or limited, not traditional, public 
forum -- that might be another ground for denial here.

The problem here is that the State (apparently) did not invoke either of these 
reasons, but instead cited the state constitutional prohibition on the 
expenditure of funds for any religious worship.

Whether the Widmar/Good News line of cases does or should extend protection 
beyond religious instruction or discussion to religious worship services, as 
such, is actually an unresolved question, as Souter's Good News dissent 
suggests (although I don't think it's difficult to predict how the current 
Court would come out).  A divided Second Circuit panel recently held that a 
school could exclude religious worship services from a school on Sundays -- at 
least where that was the predominant use of the school on those days, virtually 
turning it into a church one day a week:  http://tinyurl.com/436mas4.

An en banc petition has been filed in that case.  If the full court of appeals 
doesn't reverse, I think the SCOTUS will do so on free speech grounds -- 
although in my view, FWIW, it should be treated more as a Lukumi free exercise 
case than a Widmar/Good News free speech case.


On Mon, Aug 15, 2011 at 12:20 AM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
  Any thoughts on this incident?  It sounds to me like the church 
should win in Widmar v. Vincent – if a university can’t exclude religious 
worship from a designated public forum, it surely can’t exclude it from a 
traditional public forum, no?  Indeed, the baptism would presumably involve not 
just speech but also the immersion of a person in water (if that’s the kind of 
baptism that’s involved); but I take it that this is expressive conduct, and 
expressive conduct that isn’t being limited because of some harms that 
supposedly flow from its physical properties (such as the risk of drowning or 
some such).  Or am I missing something here?

  Eugene

Feed: Religion Clause
Posted on: Sunday, August 14, 2011 10:46 AM
Author: Howard Friedman
Subject: Washington State Denies Permit For Baptism Ceremony At State Capitol 
Park

In Olympia, Washington, Heritage 
Parkhttp://www.ga.wa.gov/visitor/Parks/HP.htm is a 24-acre state-owned park 
next to the state capitol campus.  The state will issue permits for events to 
be held at the park.  Today's Bellingham (WA) 
Heraldhttp://www.bellinghamherald.com/2011/08/13/2141468/state-rejects-olympia-churchs.html
 reports that the state's Department of General Administration has given 
Reality Church of Olympia a permit for a barbecue and picnic to be held today, 
but has denied its request to conduct a baptism along with the event.  The 
Department, deciding an appeal of an initial denial, said that the state 
constitution bars the use of public property for religious worship. The church 
had argued that its free speech and free exercise rights were infringed by the 
denial.


View 
article...http://religionclause.blogspot.com/2011/08/washington-state-denies-permit-for.html

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Re: Widmar v. Vincent redux, though in a traditional public forum?

[Marc Stern]

Isn't the kids will get the wrong impression defense explicitly rejected in 
Good News -though(I don't have access to the decision)perhaps only by a 
plurality.
Marc

From: Volokh, Eugene [mailto:vol...@law.ucla.edu]
Sent: Monday, August 15, 2011 12:43 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?

Well, the state constitutional defense for the exclusion was 
raised in Widmar as well and rejected; and the worship-nonworship line was 
rejected, too.  So I don’t think the play-in-the-joints argument is consistent 
with Widmar.

Davey’s response to Rosenberger was simply that, “The purpose 
of the Promise Scholarship Program is to assist students from low- and 
middle-income families with the cost of postsecondary education, not to 
‘encourage a diversity of views from private speakers.’  Our cases dealing with 
speech forums are simply inapplicable.”  I’m skeptical about this analysis; but 
even accepting it, as we must, this case is on the Rosenberger/Widmar side, not 
the Davey side, because according to traditional public forum analysis one 
purpose of parks is precisely to “encourage a diversity of views from private 
speakers.”

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 8:32 AM
To: Law  Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?


You are quite right about Locke, Eugene, but I'm not sure that that settles the 
matter.  Washington justified its exclusion of those studying for the ministry 
on grounds of its own constitutional guarantee of separation of church and 
state, and the Court accepted that this fell within the State's power via the 
religion clauses' room in the joints.  Logically, that seems analogous.  I 
remember in the old days when I was serving as counsel and then VP at the U of 
Iowa, that our position was that rooms for religious groups to gather were 
fine, but holding church services wasn't because it crossed the EC line.  I 
also realize that that was over 30 years ago and much water has gone over the 
dam, maybe enough to make my old view nothing but a quaint relic.



I didn't look specifically at Widmar when I offered the room in the joints 
thought, so perhaps I'm just tilting at windmills.  Yet the logic via Locke 
seems apt.



Randy


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, August 15, 2011 9:45 AM
To: Law  Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?
I’m not forgetting that, but my sense is that Locke treated a 
financial subsidy for the benefit of listeners as quite different from the 
Widmar et al. scenario of access to government property for speakers and 
listeners.  It certainly didn’t say anything to suggest that it was cutting 
back on Widmar.  Or am I missing something there?  (Widmar et al. after all 
also involved “old-time separationist view[s],” whether “respectable” or not; 
but the Court rejected that view there, and even many “old-time 
separationist[s]” signed on to the rejection.)

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 3:51 AM
To: Law  Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edu
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, 
also a Washington case, by the way.  Te state's position seems like a perfectly 
respectable old-time separationist view.

Randy Bezanson
U Iowa

Sent from my iPad

On Aug 14, 2011, at 11:24 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
  Any thoughts on this incident?  It sounds to me like the church 
should win in Widmar v. Vincent – if a university can’t exclude religious 
worship from a designated public forum, it surely can’t exclude it from a 
traditional public forum, no?  Indeed, the baptism would presumably involve not 
just speech but also the immersion of a person in water (if that’s the kind of 
baptism that’s involved); but I take it that this is expressive conduct, and 
expressive conduct that isn’t being limited because of some harms that 
supposedly flow from its physical properties (such as the risk of drowning or 
some such).  Or am I missing something here?

  Eugene

Feed: Religion Clause
Posted on: Sunday, August 14, 2011 10:46 AM
Author: Howard Friedman
Subject: Washington State Denies Permit For Baptism Ceremony At State Capitol 
Park

In Olympia, Washington, Heritage 

Re: Widmar v. Vincent redux, though in a traditional public forum?

[Marc Stern]

The rule in bronx household is that schools can be rented whenever not in use. 
They are less frequently in use on sundays, but lots of schools can be rented 
on Saturday or Friday nights.
Marc

From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Monday, August 15, 2011 12:54 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

What if, as is likely the case, New York's purpose in opening its schools for 
private uses on Sundays is not to encourage a diversity of views from private 
speakers, but instead simply to generate income, whether the uses are for 
speech or otherwise?

On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
Well, the state constitutional defense for the exclusion was 
raised in Widmar as well and rejected; and the worship-nonworship line was 
rejected, too.  So I don’t think the play-in-the-joints argument is consistent 
with Widmar.

Davey’s response to Rosenberger was simply that, “The purpose 
of the Promise Scholarship Program is to assist students from low- and 
middle-income families with the cost of postsecondary education, not to 
‘encourage a diversity of views from private speakers.’  Our cases dealing with 
speech forums are simply inapplicable.”  I’m skeptical about this analysis; but 
even accepting it, as we must, this case is on the Rosenberger/Widmar side, not 
the Davey side, because according to traditional public forum analysis one 
purpose of parks is precisely to “encourage a diversity of views from private 
speakers.”

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 8:32 AM

To: Law  Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?


You are quite right about Locke, Eugene, but I'm not sure that that settles the 
matter.  Washington justified its exclusion of those studying for the ministry 
on grounds of its own constitutional guarantee of separation of church and 
state, and the Court accepted that this fell within the State's power via the 
religion clauses' room in the joints.  Logically, that seems analogous.  I 
remember in the old days when I was serving as counsel and then VP at the U of 
Iowa, that our position was that rooms for religious groups to gather were 
fine, but holding church services wasn't because it crossed the EC line.  I 
also realize that that was over 30 years ago and much water has gone over the 
dam, maybe enough to make my old view nothing but a quaint relic.



I didn't look specifically at Widmar when I offered the room in the joints 
thought, so perhaps I'm just tilting at windmills.  Yet the logic via Locke 
seems apt.



Randy


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu]
Sent: Monday, August 15, 2011 9:45 AM
To: Law  Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?
I’m not forgetting that, but my sense is that Locke treated a 
financial subsidy for the benefit of listeners as quite different from the 
Widmar et al. scenario of access to government property for speakers and 
listeners.  It certainly didn’t say anything to suggest that it was cutting 
back on Widmar.  Or am I missing something there?  (Widmar et al. after all 
also involved “old-time separationist view[s],” whether “respectable” or not; 
but the Court rejected that view there, and even many “old-time 
separationist[s]” signed on to the rejection.)

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 3:51 AM
To: Law  Religion issues for Law Academics
Cc: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, 
also a Washington case, by the way.  Te state's position seems like a perfectly 
respectable old-time separationist view.

Randy Bezanson
U Iowa

Sent from my iPad

On Aug 14, 2011, at 11:24 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
  Any thoughts on this incident?  It sounds to me like the church 
should win in Widmar v. Vincent – if a university can’t exclude religious 
worship from a designated public forum, it 

Re: Establishment Clause, equal access, and confusion

[Marc Stern]

The two decisions in which possible erroneous endorsements play a role are 
Pinette and Good News(and maybe the ten commandment cases).In Lee,the problem 
was not about a mistake about the existence of endorsement, but what the 
meaning of the school's action in including a prayer at graduation.

From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Monday, August 15, 2011 01:38 PM
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Subject: Re: Establishment Clause, equal access, and confusion

I could have sworn Lee was about endorsement (characterized by J. Kennedy as 
coercion) and whether the listener felt disenfranchised by the govt's apparent 
endorsement of religion (whether the government intended to endorse it or not).

Marci

In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, 
dlayc...@virginia.edu writes:
Lee v. Weisman was not about confusion. It was about actual government 
sponsorship.

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

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RE: The End of NY's Kosher Inspectors

[Marc Stern]

The first permanent Kosher law was enacted in NY in 1917 to combat what was
then rampant an open fraud in the sale of kosher meat( Its constitutionality
against a due process vagueness challenge was upheld by the US Supreme
Court.). I summarized this history in an article I wrote in the journal
Judaism about 15 years ago ,but it is not available on line.(Kent Greenawalt
wrote something subsequently.) There is also a good but hard to get book on
the subject whose name   I would have to dig out. More recently, the New
York, New Jersey, Maryland (Baltimore) and Georgia laws were invalidated
because they allowed the state to decide a religious question-was the food
kosher. Now all states work on the basis of mandatory disclosure statements
and the inspectors simply police the presence and accuracy of those
statements.

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
transmission is prohibited, improper and may be unlawful.  If you have
received this email in error, you must destroy this email and kindly notify
the sender by reply email.  If this email contains the word CONFIDENTIAL in
its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
paul.finkel...@albanylaw.edu
Sent: Wednesday, January 05, 2011 05:21
To: Law  Religion issues for Law Academics
Subject: RE: The End of NY's Kosher Inspectors

 

I once knew a lot about this; but that was years ago; I am at the  AALS
meeting now and can't access information. There is an essay on Kosher
inspection laws in Religion and American Law:  An Encyclopedia (Routledge
[formerly Garland] 1999), which I edited. The laws date from the early 19th
century, I believe

 

 

--

 

Paul Finkelman

President William McKinley Distinguished Professor of Law and Public  Policy

Albany Law School

80 New Scotland Avenue

Albany, NY  12208-3494

 

518-445-3386 (o)

518-445-3363 (f)

 

www.paulfinkelman.com

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Wednesday, January 05, 2011 4:00 PM
To: Law  Religion issues for Law Academics
Subject: The End of NY's Kosher Inspectors

 

According to the story below, NY has decided to nix its Kosher inspectors as
a way of spending money.  Does anyone know the details (and citation) for
the 2004 case mentioned in the article?  Also, I am wondering what precisely
the inspectors after the decision.  Finally, does anyone know why the
inspectors were set up in the first place?  Why wasn't the issue simply
solved by having private kosher audits by reputable bodies?  The idea of a
state Kosher inspector just seems perverse and unnecessary to me.  What am I
missing?

 

http://online.wsj.com/article/SB10001424052748704735304576058100916662270.ht
ml?mod=WSJ_hps_sections_newyork

Nathan B. Oman
Associate Professor
William  Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919

I beseech you, in the bowels of Christ, think it possible you may be
mistaken. -Oliver Cromwell

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RE: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement?

[Marc Stern]

 Why isn't Shelley v. Kramer at least relevant, even if it can be
distinguished, and even if it's most extreme implications-that all judicial
enforcement of private activity is state action- would be problematic to
many albeit not always in the same cases?

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
transmission is prohibited, improper and may be unlawful.  If you have
received this email in error, you must destroy this email and kindly notify
the sender by reply email.  If this email contains the word CONFIDENTIAL in
its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Monday, January 03, 2011 10:28
To: Law  Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators, pursuant
toan arbitration agreement?

 

It seems difficult to find an equal protection violation if the Court is
merely enforcing the contract.  It seems to me that a more likely
constitutional objection would be that the contract cannot be enforced
without running afoul of the neutral principles doctrine.  Can a court make
a decision about who is or is not a Muslim without making theological
choices?  Would a shia muslim be acceptable?  A member of the nation of
Islam?


Nathan B. Oman
Associate Professor
William  Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919

I beseech you, in the bowels of Christ, think it possible you may be
mistaken. -Oliver Cromwell



On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene vol...@law.ucla.edu wrote:

That's the issue lurking in
http://scholar.google.com/scholar_case?case=11521915190435651264 In re
Aramco Servs. Co., now on appeal to the Texas Supreme Court. DynCorp and
Aramco Services (both of which were at the time Delaware corporations
headquartered in Houston, though Aramco Services is a subsidiary of Saudi
Aramco https://www.aramcoservices.com/about/ , the Saudi government's oil
company) signed an agreement under which DynCorp was to create a computer
system (in the U.S.) and install it at Aramco's Saudi facilities. The
contract provided that it was to be interpreted under Saudi law, and
arbitrated under Saudi arbitration rules and regulations. Those rules and
regulations apparently call for the arbitrators to be Muslim Saudi citizens.
The trial court, however, appointed a three-arbitrator panel consisting of a
Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed,
arguing that (1) under the contract the arbitrators were not supposed to be
appointed by a court, and, (2) in the alternative, that the court erred in
appointing non-Muslim non-Saudis.

 

The Texas Court of Appeals agreed with Aramco on item 1, and therefore
didn't reach item 2. But there is an interesting constitutional issue
lurking in the background: If a contract does call for a court to appoint
arbitrators, and provides that the arbitrators must be Muslims (or Jews or
Catholics or what have you), may a court implement that provision, or does
the First Amendment or the Equal Protection Clause bar the court - a
government entity - from discriminating based on religion this way, even
pursuant to a party agreement?  Any thoughts on this?

 

Eugene

 


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RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[Marc Stern]

But would this agreement be enforceable in Oklahoma ,with its ban on courts
applying sharia law?

Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022

ste...@ajc.org
212.891.1480
646.287.2606 (cell)
 




 
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, January 03, 2011 02:33
To: Law  Religion issues for Law Academics; Eric Rassbach
Subject: Re: May American court appoint only Muslim arbitrators,pursuant to
an arbitration agreement?

The court could apparently comply with the contract, and avoid all
entanglement iwth religion, by appointing three Saudis.  Does anybody see a
problem with that?

I assume that all Saudis are Muslim, or at least that the percentage is so
high that the odds of appointing a non-Muslim Saudi are negligible. 



On Mon, 3 Jan 2011 12:34:05 -0500
 Eric Rassbach erassb...@becketfund.org wrote:

Here is the relevant provision (in translation) from the case-link Eugene
sent around:

The Arbitrator must be a Saudi national or a Moslem foreigner chosen
amongst the members of the liberal professions or other persons. He may also
be chosen amongst state officials after agreement of the authority on which
he depends. Should there be several arbitrators, the Chairman must know the
Shari'a, commercial laws and the customs in force in the Kingdom.





From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Monday, January 03, 2011 11:46 AM
To: Law  Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators, pursuant
toan arbitration agreement?

   I agree with Nate's neutral principles / entanglement
argument.  But I wonder whether one can so easily dismiss the equal
protection argument from the enforcement of the contract.  The court, after
all, would have to decide who gets to perform an important and lucrative
task based on that person's religion, whether or not it's merely enforcing a
private contract.  Of course the judge won't be acting based on religious
animus, but he will be deliberately treating people differently based on
religion.

   Also, is the Batson / J.E.B. line of cases relevant here,
assuming that it can be expanded to peremptories based on religion and not
just race or sex?  (As I recall, most lower court cases that have considered
the issue have indeed expanded Batson and J.E.B. to religion.)  If a court
may not allow a private party to challenge a juror based on religion, even
when the judge wouldn't himself be discriminating based on religion, may a
court allow private party agreement to provide for selection - by the judge
- of an arbitrator based on religion?

   Eugene

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Monday, January 03, 2011 7:28 AM
To: Law  Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators, pursuant
to an arbitration agreement?

It seems difficult to find an equal protection violation if the Court is
merely enforcing the contract.  It seems to me that a more likely
constitutional objection would be that the contract cannot be enforced
without running afoul of the neutral principles doctrine.  Can a court make
a decision about who is or is not a Muslim without making theological
choices?  Would a shia muslim be acceptable?  A member of the nation of
Islam?

Nathan B. Oman
Associate Professor
William  Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919

I beseech you, in the bowels of Christ, think it possible you may be
mistaken. -Oliver Cromwell

On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
That's the issue lurking in In re Aramco Servs.
Co.http://scholar.google.com/scholar_case?case=11521915190435651264, now
on appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of
which were at the time Delaware corporations headquartered in Houston,
though Aramco Services is a subsidiary of Saudi
Aramcohttps://www.aramcoservices.com/about/, the Saudi government's oil
company) signed an agreement under which DynCorp was to create a computer
system (in the U.S.) and install it at Aramco's Saudi facilities. The
contract provided that it was to be interpreted under Saudi law, and
arbitrated under Saudi arbitration rules and regulations. Those rules and
regulations apparently call for the arbitrators to be Muslim Saudi citizens.
The trial court, however, appointed a three-arbitrator panel consisting of a
Muslim (apparently a Saudi) and two non-Muslim non-Saudis. Aramco appealed,
arguing that (1) under the contract the arbitrators were not supposed to be
appoi
 nted by a
court, and, (2) in the alternative, that the court 

RE: No religious advertisements on municipal buses

[Marc Stern]

The lower  federal courts in controversies over transit ads still treat
Lehman as good law, See e.g., Entertainment Software v. CTA, 696 F.Supp.2d
934(N.D. Illinois 2010); Ridley v. MBTA, 390 F.3d 65 ( 1st Cir. 2004). I am
unaware of any subsequent Supreme Court case questioning Lehman's continued
viability and at least in 1998 Justice White sitting on the 9th Circuit
denied any erosion of the decisions'' authority. Children of Rosary v. City
of Phoenix, 154 F.3d 972 (9th Circuit 1998)

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
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received this email in error, you must destroy this email and kindly notify
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its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, December 20, 2010 05:14
To: Law  Religion issues for Law Academics
Subject: Re: No religious advertisements on municipal buses

 

Perhaps Lehman is not such good law anymore -- only a plurality opinion, and
it says the buses are not a public forum (more like a commercial enterprise,
with discretion about the genres of ads it takes, though not with discretion
to engage in viewpoint discrimination within 
a genre).

On Mon, Dec 20, 2010 at 4:59 PM, Marty Lederman lederman.ma...@gmail.com
wrote:

If the city allows commercial ads but no political or religious ads, I
think the policy is constitutionally OK.

 

Maybe.  To be sure, that forum (limited to commercial speech) would be
distinguishable from the broader forum in Rosenberger . . . but such a
favoring of commercial over noncommercial speech would be suspect under the
rationale of City of Cincinnati v. Discovery Network, wouldn't it?

 

Nor is it obvious that an exclusion of speech about religion is ok just
because religion and politics are treated equally.  After all, that was
effectively UVa's policy in Rosenberger.  One of the oddities of that
decision is that (especially when viewed in the Shadow of Lehman v. Shaker
Heights and Greer v. Spock) the Court appears to have concluded that whereas
all electioneering speech can be disfavored in a public forum -- even
though such speech presumably is at the core of most any concept of what
the First Amendment protects, cf. Citizens United -- speech about religious
matters may not be.  

On Mon, Dec 20, 2010 at 3:59 PM, Ira Lupu icl...@law.gwu.edu wrote:

It would be good to know the exact policy.  If the city allows commercial
ads but no political or religious ads, I think the policy is
constitutionally OK.  If the city allows political ads but not religious
ads, the policy is indeed highly questionable under Rosenberger, etc. 

 

On Mon, Dec 20, 2010 at 3:53 PM, Brownstein, Alan aebrownst...@ucdavis.edu
wrote:

I don't know if Michael's equation of political ads and religious ads
necessarily works. I'm pretty confident that there are lower court cases
where the exclusion of political speech was considered to be content
discrimination, not viewpoint discrimination (but I would have to look to
find them.). There is also commentary questioning whether the exclusion of
political speech from a nonpublic forum or limited public forum would
receive the same rigorous standard of review applied to the exclusion of
religious speech from such locations.

Alan


-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Monday, December 20, 2010 12:13 PM
To: religionlaw@lists.ucla.edu
Subject: RE: No religious advertisements on municipal buses

The problematic case is Lehman v. City of Shaker Heights; if a city can ban
political ads from a bus, presumably it can also ban religious ads, though
it may matter whether the ads are inside or outside the bus (inside in
Lehman).  But I would have joined the Lehman dissenters, and I am not
confident that either the views of Justice Blackmun for the plurality or
Justice Douglas would prevail today.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Corcos, Christine 

RE: Federal regulators apparently force bank to take downreligioussymbols

[Marc Stern]

In Dixon v. Hallmark Companies,  10-10047,decided last week by the 11th
Circuit, the Court held that an employee fired for protesting a company
decision ordering him (and her) to take down a religious poster in the
office had nor retaliation claim because no objective person would think
there was a right to display religious art in one’s office. The
company-which managed government subsidized housing- stated that it was
afraid that allowing the poster to stand would open it to a claim that it
had violated the fair housing act. 

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
transmission is prohibited, improper and may be unlawful.  If you have
received this email in error, you must destroy this email and kindly notify
the sender by reply email.  If this email contains the word CONFIDENTIAL in
its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, December 17, 2010 07:36
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take
downreligioussymbols

 

Do you think there is a discrimination issue as well as an accommodation
issue in cases like this, Eugene. Suppose a bank in a southern state insists
that all employees have confederate flags on their desks or work stations?
Does an African-American employee have a claim under Title VII? What about
displays that proclaim the superiority or virtue of the “white” race?

 

Alan

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 4:19 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

 

It’s possible that the question has not arisen, and that if
a non-Christian employee objected to having an item displayed on his
workstation, the bank would accommodate him.  

 

It’s not clear to me, by the way, that a non-Christian employee would find
such a display objectionable, if it appears to be part of the overall décor,
and is thus likely to be seen by patrons as the bank’s message and not the
employee’s.  After all, what is in one sense “the employee’s” desk or
workstation is also in another sense “the bank’s” desk or workstation.  (I
take it, though, that for Title VII religious accommodation purposes the
threshold question would be whether the employee sincerely believes that it
is religiously improper for him to work at a workstation that has a
particular religious symbol attached to it.)

 

Incidentally, for a similar issue that arose as to free speech, rather than
religious accommodation, see Cotto v. United Technologies Corp., 251 Conn. 1
(1999), holding that an employee had no “freedom from compelled speech”
right to refuse to have an American flag on his workstation.  (Connecticut
by statute extends First Amendment restrictions to private employers.)

 

Eugene

 

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, December 17, 2010 4:10 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

 

The Bank President’s message is also confusing. He is quoted as stating that
“The bank publishes a Bible verse on its website and tellers display crosses
and other Christian-themed items in their workplace.” Does that mean that
non-Christian employees are required to display crosses and other Christian
symbols and messages from their desks  and workstations? 

 


Alan Brownstein

 

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 3:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

 

Very interesting, thanks!  But I’m a bit confused by the Kansas
City Fed chairman’s statement,
http://www.kansascityfed.org/publicat/newsroom/2010pdf/press.release.12.17.p
df .  It suggests that the regulation “does not apply to jewelry or other
personal items displayed in the workplace”; but the materials, especially on
the Web site, don’t seem like “personal items” – they seem like 

RE: Federal regulators apparently force bank to takedown religioussymbols

[Marc Stern]

The Eleventh Circuit says nothing on that score, though the question is
obvious. I think the reason it did not-aside from the obvious possibility
that appellants may not have raised it-is that the court is so hell bent on
limiting retaliation claims that if a claim is not meritorious on its face
-as accommodation claims are often not-there is no retaliation claim. 
Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022

ste...@ajc.org
212.891.1480
646.287.2606 (cell)
 




 
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, December 20, 2010 02:04
To: Law  Religion issues for Law Academics; Michael Masinter
Subject: Re: Federal regulators apparently force bank to takedown
religioussymbols

Thanks Michael.  I obviously have not read the opinion.

But if the employee has a claim for the employer's refusal to accomodate
her, why doesn't she have a retaliation claim for opposing its refusal to
accommodate her?

On Mon, 20 Dec 2010 13:34:16 -0500
 Michael Masinter masin...@nova.edu wrote:
The Eleventh Circuit's recent religious discrimination, religious
accommodation, and retaliation decision, Dixon v. The Hallmark  Services,
http://www.ca11.uscourts.gov/opinions/ops/201010047.pdf does  not foreclose
a reasonable accommodation claim or a disparate  treatment claim by an
employee forced to remove religious objects from  her workspace; to the
contrary, it held that the statement allegedly  made in conjunction with her
discharge that she was too religious was  direct evidence of discriminatory
intent, and that because management  was on notice of the conflict between
her religious belief that she  must display religious objects in her
workspace and its contrary  policy, it was obliged to consider a reasonable
accommodation unless  granting one would cause undue hardship.  The court
reversed summary  judgment for the employer on both grounds, reasoning that
the former  turned on the contested question of whether the statement that
the  employee was too religious
  was
actually made, and the latter on the  case by case and as yet undeveloped
factual specifics of what is a  reasonable accommodation or an undue
hardship.

Dixon did hold that neither Title VII nor the Fair Housing Act forbids  a
private employer from establishing a no religious symbols policy,  and
that an objection to such a policy therefore could not support an
opposition clause claim even though its application to an individual
employee with contrary religiously motivated practices could support a
reasonable accommodation claim.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting Douglas Laycock dlayc...@virginia.edu:

 It doesn't make sense to call religious truth claims offensive
(although that is common parlance), but it does make sense to say   that an
employee who doesn't believe such a claim should not have to   display the
claim or its symbols. The employee has a legitimate   interest in not
appearing to promote what he considers to be a false   belief. And this
interest should be well within the religious   accommodation protections of
Title VII.

 Except, apparently, in the Eleventh Circuit.

 On Mon, 20 Dec 2010 11:47:20 -0500
  Eric Rassbach erassb...@becketfund.org wrote:

 I took Alan's example re re Confederate flags etc. to be raising   the
issue of hostile work environment discrimination claims. Of   course for
such a claim to be successful, a lone requirement that   employees display
something offensive would not be enough; you'd   have to show some other
pattern of discrimination on the basis of   the protected class at issue.
(Wrt the Confederate flag example, it   is certainly the case that a lot of
businesses in the South  display  Confederate battle flags and require their
employees to do  so;  though it is probably bars more than banks.)

 I think a religious discrimination hostile work environment claim
would be really hard to make out based on the display of one   religion's
symbol. Competing truth claims are a feature, not a bug,   of religious
life, so it doesn't make sense to call one group's   truth claims or the
symbols representing those truth claims   offensive or discriminatory per
se.


 
 From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
[vol...@law.ucla.edu]
 Sent: Monday, December 20, 2010 10:33 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Federal regulators apparently force bank to take down
religioussymbols

   Alan:  Can you flesh out the discrimination theory  more?
I take it that the claim is that requiring everyone to  display something
would constitute 

RE: Why We Have Standing Rules

[Marc Stern]

There have been efforts from within Islam to invoke law to silence all
criticism of Islam-witness the persistent efforts at the UN (in various
organs including UNESCO) to ban defamation of religion. In early versions,
the language read especially Islam. But whatever the merits or demerits of
allowing private acceptance of religious law- see the debate in Ontario over
family law a couple of years ago- it is hard to see any justification in law
for singling out Islam. A challenge to that is hardly an effort at a veto of
all criticism of Islam, or religion generally, which is a horse of a very
different color.

Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022

ste...@ajc.org
212.891.1480
646.287.2606 (cell)
 




 
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Thursday, November 11, 2010 11:56 AM
To: religionlaw@lists.ucla.edu
Subject: Why We Have Standing Rules

The column below is from an online religion series edited by Martin Marty at
the University of Chicago. I assume the author is a religion scholar and not
a lawyer. But he has a very interesting description, short and nontechnical,
of what sound like citizen suit provisions in Islamic law. 

I am confident that no list member who is frustrated with the lack of
standing in Oklahoma is proposing anything remotely like this. But this is a
reminder of the dangers of the other extreme. And maybe some hint of what
CAIR was thinking when it rushed into the Oklahoma lawsuit.


- Forwarded message from divsighti...@gmail.com -
Date: Thu, 11 Nov 2010 07:53:42 -0600
From: Sightings divsighti...@gmail.com
Subject: *Sightings* 11/11/2010 - Religion vs. Fiction in Egypt
  To: sighti...@lists.uchicago.edu

*Sightings*  11/11/2010





*Religion vs. Fiction in Egypt*

- M. Lynx Qualey





Two years ago, a relatively unknown Egyptian professor of Arabic and Islamic
studies took home the second annual International Prize for Arabic
Fiction-or Arabic Booker-for his novel *Azazel*.



It was only while in his forties that Dr. Youssef Ziedan, who has written
50-some books about Sufism, Islamic philosophy, and Arabic medicine, turned
his attention to fiction. He published his second novel, *Azazel* (sometimes
translated as *Beelzebub*), at the age of 50. Ziedan's prize-winning book
purports to be the memoirs of a passionate fifth-century monk named Hypa,
whose scrolls are unearthed by a twentieth-century translator.



In writing *Azazel, *Ziedan became one of a few contemporary Egyptian
novelists to tackle religion in his literary work. After all, writing about
religion has had its dangers: The newspaper *Al-**Youm Al-Saba'a's *website
was hacked because of their reported intention to publish Anis Deghreidi's
fictional *Trials of the Prophet Muhammad **earlier this year*. Authors have
had their books preemptively censored by publishers, such as Mohamed Mansi
Qandil's lovely *Moon over Samarqand, *which has since been printed in full.
Others have been dragged to court by fellow citizens such as author Nawal
El-Saadawi.



It is thus not surprising that Ziedan and *Azazel* have caused controversy.
Members of Egypt's Coptic Christian community, including the outspoken
Bishop Bishoy, have written extensive rebuttals to the 2008 fictional work.
Coptic Christians make up most of Egypt's Christian population, the largest
in the region. The word Copt once simply meant Egyptian, and the current
Copts remained Christian during Egypt's shift to Arab-Muslim rule. Exact
population figures are not known, but the most commonly given figure is six
to eight million Copts among a total population of 80 million Egyptians.



It was late this spring when a group of Coptic Christian lawyers filed a *
hesba* lawsuit against Ziedan demanding a five-year prison sentence. They
claim that, in statements made during a symposium, the author defamed
Christianity. A group of Islamist lawyers also filed suit, because of
Ziedan's statements about religion.



Such *hesba* cases, through which citizens can file suit against other
citizens, have become increasingly popular in Egypt. The attorney Nabih
El-Wahsh-according to a suit filed against *him*-has filed more than a
thousand such cases. Most of these have reportedly been against TV
producers, filmmakers, and authors.



It was El-Wahsh who dragged prominent novelist Nawal El-Saadawi and her
husband, Sherif Hetata, to court in 2001, seeking to divorce the
couple-against their will-on the grounds that El-Saadawi had expressed views
that made her an apostate. El-Wahsh filed suit against El-Saadawi a second
time in 2007, seeking to have her Egyptian citizenship annulled because of
her views on religion. Fortunately, these cases, like nearly all those filed
by El-Wahsh, were dismissed.



*Hesba* is a long-established principle in Islamic jurisprudence. *Guardian
*reporter Brian Whitaker quotes Egyptian scholar 

RE: TRO against Oklahoma no use of Sharia Law

[Marc Stern]

The five judges who dissented on the standing issue stated explicitly that
while the Catholic League did not have standing, the Catholic Church would
have. Why isn’t that caveat controlling here?

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
transmission is prohibited, improper and may be unlawful.  If you have
received this email in error, you must destroy this email and kindly notify
the sender by reply email.  If this email contains the word CONFIDENTIAL in
its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 10, 2010 1:56 PM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

 

   I should note that, after I sent my original post, I was
alerted to the Kleinfeld en banc 6-to-5 majority opinion in Catholic League
v. San Francisco (which I had read when it came out, but didn’t remember
when I was writing).  On further research it seems to me that the opinion is
an outlier, and that its attempt to distinguish the other precedents –
apparently on the grounds that the resolution in Catholic League was
unambiguous condemnation of a religion “in one’s own community” – is
unsatisfying.  (See
http://volokh.com/2010/11/10/standing-to-challenge-laws-that-allegedly-endor
se-or-disapprove-of-religion/#more-39151 .)  But I thought I’d note it in
any event.

 

   Eugene

 

 

From: Volokh, Eugene 
Sent: Tuesday, November 09, 2010 2:41 PM
To: Law  Religion issues for Law Academics
Subject: RE: TRO against Oklahoma no use of Sharia Law

 

   Perhaps I’m missing something here, but I thought that Flast
was limited to taxpayer lawsuits based on the spending of money pursuant to
a legislative authorization.  See especially Hein, but also Valley Forge.
Does it really stand for the broader proposition that any citizen of a state
has standing to sue based on the very existence of a statute that endorses
or disapproves of religion?  I would have thought not, but I’d love to hear
what others have to say – again, about what standing law currently is, not
what it should be.

 

   Eugene

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, November 09, 2010 2:32 PM
To: Law  Religion issues for Law Academics
Subject: Re: TRO against Oklahoma no use of Sharia Law

 

Flast v Cohen.

State taxpayer standing is different from federal--broader.  Crampton v
Zabriskie

This law is the epitome of one where broad standing should be allowed
because of the obvious establishment issues raised and the clear
discrimination against some law on a religious basis.  It is not merely in
god we trust on money.

 

But perhaps I was a bit flippant in my response.  It should be the simplest
standing case for injury by someone in the state.  But, since it is not
taxing and spending, it might not be so simple for this court.

 

It is not a monument case.  Nor is it like money cases and so on.  It is
targeting a specific religion for negative treatment.  But, as I noted in my
prior post, their is a possibility of someone actually having standing in
the more traditional sense of particularized individual injury by
application of the law, and the court could (to its discredit) allow the
state to enact and have on its books such a law unchallenged and
unchallengeable for decades until exactly the right case comes along.

 

Steve

 

 

On Nov 9, 2010, at 5:11 PM, Volokh, Eugene wrote:

 

   I’m not sure whether Prof. Jamar is making a point about what
standing law should be, or what it is now.  But as to the latter, as best I
can tell, the Court has never held that anyone has standing to challenge a
law just because the law itself endorses or disapproves of a religion.  And
Newdow v. Levefre (9th Cir. 2010),
http://scholar.google.com/scholar_case?case=753698042392989497, seems to
hold that there is no standing in such cases:

 

Newdow lacks standing to challenge 36 U.S.C. § 302, which merely recognizes
“In God We Trust” is the national motto. Unlike §§ 5112(d)(1) and 5114(b)
[which provide for the placement of the motto on currency], § 302 does not
authorize or require the inscription of the motto on any object. Without §§
5112 and 5114, the 

RE: TRO against Oklahoma no use of Sharia Law

[Marc Stern]

Oklahoma has enacted a state RFRA. The new constitutional provision would
seem to forbid Muslims –and Muslims only- from invoking that law in a case
involving sharia law, i.e., any claim of religious liberty advanced by a
Muslim. (it would also bar, I assume, any claim in the Oklahoma courts by  a
Muslim inmate under RLUIPA).Why is not the rendering of Muslims outlaws with
regard to religious liberty sufficient  harm to create standing?



Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

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others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Wednesday, November 10, 2010 2:22 PM
To: Law  Religion issues for Law Academics
Subject: Re: TRO against Oklahoma no use of Sharia Law

 

As I suggested in my previous post, which I sent before I'd read Eugene's
latest, it should not be too difficult to interpret the Oklahoma law as
permitting application of foreign and international law when these are
plainly controlling under contractual and conflicts rules and insofar as
they are already incorporated into domestic law. Of course, that would
require a judiciary that would feel itself embarrassed to allow the parade
of horribles that Eugene adumbrates (I certainly would).

Vance

On Wed, Nov 10, 2010 at 2:09 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

   (1)  Yes, there's a 1982 case finding no standing with regard to that
Arkansas law.

   (2)  The Oklahoma law is indeed awful, not just because of the
prohibition on the use of Sharia law but chiefly because of the prohibition
on the use of foreign law.  See
http://volokh.com/2010/03/19/oklahoma-house-of-representatives-proposes-ban-
on-use-of-foreign-law-in-oklahoma-courts/, where I describe the various
contract, tort, and family law controversies that would be completely
screwed up by this amendment.  (I don't think there'll be a problem with
enforcing arbitral awards, but there would be a problem in the other
contexts.)


 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

 boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
 Sent: Wednesday, November 10, 2010 10:42 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: TRO against Oklahoma no use of Sharia Law

 One interesting parallel are blasphemy laws still on the books in several
 states but unenforceable under Torcaso v. Watkins.  For example, the
 Arkansas Constitution disqualifies atheists from serving in certain public
 capacities:

 http://www.becketfund.org/index.php/article/958.html

 Presumably these provisions create harms identical to the ones created by
 the OK provision, and suffer from the same standing/ripeness issues that
the
 Oklahoma law does, precisely because they are so clearly unenforceable.

 However, one interesting question that arises from the text of the
Oklahoma
 provision (set out below) is that it says that Oklahoma state courts
shall not
 consider international or Sharia Law. Would the word consider prevent
an
 Oklahoma state court from enforcing an arbitral award conducted in
 accordance with Sharia?  What about an arbitration conducted in
 accordance with English law?  (Many international agreements provide for
 arbitration under English law.) What about interpreting a contract with a
 choice of law provision specifying English, Canadian, or French law?


 The Courts provided for in subsection A of this section, when exercising
their
 judicial authority, shall uphold and adhere to the law as provided in the
 United States Constitution, the Oklahoma
 Constitution/wiki/index.php/Oklahoma_Constitution, the United States
 Code, federal regulations promulgated pursuant thereto, established
 common law, the Oklahoma Statutes and rules promulgated pursuant
 thereto, and if necessary the law of another state of the United States
 provided the law of the other state does not include Sharia Law, in making
 judicial decisions. The courts shall not look to the legal precepts of
other
 nations or cultures. Specifically, the courts shall not consider
international or
 Sharia Law. The provisions of this subsection 

RE: TRO against Oklahoma no use of Sharia Law

[Marc Stern]

But the resolution was  non-binding and unenforceable; how then,  on your
view of standing are they harmed?

 

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy


ste...@ajc.org
212.891.1480

646.287.2606 (cell)

 

 http://www.ajc.org/ 

 

 

NOTICE

This email may contain confidential and/or privileged material and is
intended for the sole use of the intended recipient(s). If you are not the
intended recipient, please be advised that you have received this email in
error and that any use, disclosure, copying, distribution or other
transmission is prohibited, improper and may be unlawful.  If you have
received this email in error, you must destroy this email and kindly notify
the sender by reply email.  If this email contains the word CONFIDENTIAL in
its Subject line, then even a valid recipient must hold it in confidence and
not distribute or disclose it. In such case ONLY the author of the email has
permission to forward or otherwise distribute it or disclose its contents to
others.

 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, November 10, 2010 3:20 PM
To: Law  Religion issues for Law Academics
Subject: FW: TRO against Oklahoma no use of Sharia Law

 

   Well, the Catholic League minority reasoned that the parties
who are personally the subjects of the resolution, such as Cardinal Levada,
Archbishop Niederauer, and Catholic Charities, could demonstrate cognizable
harm, because they were singled out by name in the resolution; but that
people who are simply offended by the condemnation of Catholicism do not
have standing.  I would think that the plaintiff in the Oklahoma case falls
more in the latter category than in the former.

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Wednesday, November 10, 2010 11:36 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: TRO against Oklahoma no use of Sharia Law

 

The five judges who dissented on the standing issue stated explicitly that
while the Catholic League did not have standing, the Catholic Church would
have. Why isn't that caveat controlling here?

 

Marc D. Stern

Associate General Counsel

for Legal Advocacy

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Re: 10th Circuit Finds Church Immune From Workplace DiscriminationSuit

[Marc Stern]

Employees whose employers employ less than 15 people also have no protection 
under federal law
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Mon Jul 19 10:45:09 2010
Subject: Re: 10th Circuit Finds Church Immune From Workplace DiscriminationSuit

Rick is casting a larger net than my post suggested.  The relevant universe 
here is the universe of employees.  As in the speech cases (and in particular 
the defamation cases since we're dealing with employment), there should be some 
weighing of interests here.  Right now, in my view, the balance is out of whack 
in this universe.  (If there are other harms arising from other First Amendment 
rights that require redressing, I'm all in favor of exploring those as well.)
 
 Employees assume that they cannot be discriminated against on the basis of 
gender (including a right not to be a victim of sexual harassment).  It turns 
out in most states that they are UNLESS the employer is religious. (Don't 
forget the Supreme Court has not yet ruled on the ministerial exception so 
whether it is a robust or less robust or not a constitutional right still 
remains in limbo.) So a bishop who creates a hostile working environment or who 
persistently engages in sexual innuendo typically is immune or who arbitrarily 
decides a man is a better choice than a better qualified woman is immune.  
 
Employees are doubly disabled in these scenarios.  First, as Americans the 
culture encourages them to trust religious leaders (though surely that is 
declining in light of the steady investigative reporting suggesting folks do 
that at their peril).  More importantly, because of the ministerial exception, 
few cases are ever filed, let alone litigated, and, therefore, the incidence of 
gender discrimination is not publicized.  So women are going into these jobs 
with expectations of fairness that are not borne out, because of a First 
Amendment doctrine.  
 
One option is to carve back on the right so that no employer who fails to 
advise an employee of this issue can claim it.  Bob objected to that, because 
the ministerial exception is jurisdictional.  But if this is the result, why 
should it be?  Why isn't it a right, like the freedom of speech in defamation 
cases, which carries with it some obligations and weighing, depending on the 
scenario?
 
One option is to have the government inform applicants through public 
education, as in add language to the tax forms.  Another is to have anyone 
who is taking government funds for mission have to agree as a condition of 
receiving the funds to inform employees about the risks they are taking by 
taking the employment.
 
Is Rick saying none of these options are constitutional and/or desirable?
 
Marci
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
 
 
In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time, 
rgarn...@nd.edu writes:

I agree, for what it’s worth, that it makes good sense for attorneys 
representing churches and religious institutions to advise their clients to 
inform those in ministerial positions (that is, in any position that the church 
regards as ministerial) about their (the institutions’) religious liberty.  But 
I’m wondering if Marci’s proposed warning requirement applies only to religious 
employers (and if so, why?  Because they are employers?  Because they are 
religious?) or to all whose rights-exercise might cause “harm”?

 
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RE: Is Bob Jones v. U.S. limited to government funding programs?

[Marc Stern]

Justice Ginsburg also cited Norwood v.Harrison 413 US 455 for the
proposition that there is a distinction between allowing private
discrimination and subsidizing it.Indeed,the Court so held in
Norwood,but it did so in the context of racial discrimination.What she
omits is that in Norwood the Court rejected the notion-at the heart of
the State's argument in Norwood- that the ban on racial discrimination
was to be equated with the ban on state subsidies for religious
instruction,While the Constitution prohibited all government aid to
racial discrimination,it said that the preferred place of religion in
the Constitutional scheme allowed for some aid to religion-a holding in
considerable tension with the CLS holding that religion is  entitled to
no special treatment.Of course,Norwood predates Smith-.
Marc Stern 



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 29, 2010 4:03 PM
To: 'Law  Religion issues for Law Academics'
Subject: Is Bob Jones v. U.S. limited to government funding programs?



   I've often seen Bob Jones cited for the proposition that
the government has a compelling government interest in banning
discrimination (at least race discrimination, and at least in
education).  And the text does say that the Government has a
fundamental, overriding interest in eradicating racial discrimination in
education.  But the accompanying footnote suggests the holding may be
limited to government benefits, such as tax exemptions:  [H]ere, the
governmental interest is in denying public support to racial
discrimination in education.

 

   The Christian Legal Society v. Martinez majority seems to
have characterized Bob Jones as limited to benefits:  In explaining why
strict scrutiny doesn't apply to the Christian Legal Society's challenge
to a take-all-comers condition attached to a funding program, the
majority says, In diverse contexts, our decisions have distinguished
between policies that require action and those that withhold benefits.
See, e.g., Grove City College v. Bell, 465 U.S. 555, 575-576, 104 S.Ct.
1211, 79 L.Ed.2d 516 (1984)
https://web2.westlaw.com/find/default.wl?tf=-1rs=WLW10.06serialnum=19
8411fn=_topsv=Splittc=-1findtype=Yordoc=2022394585mt=LawSchool
db=708utid=1vr=2.0rp=%2ffind%2fdefault.wlpbc=ED9A2971 ; Bob Jones
Univ. v. United States, 461 U.S. 574, 602-604, 103 S.Ct. 2017, 76
L.Ed.2d 157 (1983)
https://web2.westlaw.com/find/default.wl?tf=-1rs=WLW10.06serialnum=19
83124276fn=_topsv=Splittc=-1findtype=Yordoc=2022394585mt=LawSchool
db=708utid=1vr=2.0rp=%2ffind%2fdefault.wlpbc=ED9A2971 .
Application of the less-restrictive limited-public-forum analysis better
accounts for the fact that Hastings, through its RSO program, is
dangling the carrot of subsidy, not wielding the stick of prohibition.
Given this, should Bob Jones now be seen as a precedent limited to
conditions on government benefits, and as not binding precedent for the
proposition that there is a compelling government interest in
government-as-sovereign bans on discrimination?

 

   Eugene

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RE: A real-life on-campus example

[Marc Stern]

Nothing CLS has said challenges Hastings' duty to enforce rules against
its own discrimination on the basis of inter alia sexual orientation or
religion. As Gilmore v. City of Montgomery holds, however, a city's duty
not to engage itself in (there racial) discrimination ) does not
authorize it to deny non-exclusive access to public spaces to groups
that engage in such discrimination. The Court held there that to enforce
non-discrimination rules against such private groups (schools!) would
deny the segregation academies freedom of association. Why isn't Gilmore
controlling here?
Marc Stern 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Thursday, May 13, 2010 9:19 AM
To: Esenberg, Richard; Law  Religion issues for LawAcademics
Subject: Re: A real-life on-campus example

Of course the marketplace works as I described it especially in the US.
Groups thrive and shrivel and respond to and interact with the culture
and if they cannot adapt to broadbased moral and social changes by
changing their beliefs and practices, they become marginalized. Groups
spin off of other groups.
The many religions that supported slavery and the subjection of women
and children to state-sponsored patriarchal control have had to adjust
or choose the sidelines.  Hasn't CLS conceded that the school can
enforce race discrimination laws?  

Marci

Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Esenberg, Richard richard.esenb...@marquette.edu
Date: Thu, 13 May 2010 12:32:59
To: hamilto...@aol.comhamilto...@aol.com; Law  Religion issues for
LawAcademicsreligionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

The right of expressive association is not a demand for government
protection in the market place of ideas or a demand for government
support. It is, rather, a shield against government compulsion, i.e.,
the demand that an organization not define itself by adherance to any
particular creed or that it engage in practices inconsistent with its
expressive message or core beliefs. While in the public forum context,
it might involve access to a government benefit but that is a function
of the government's decision to establish a forum and the (quite
reasonble rule) that, if it chooses to do so, it may not discriminate on
the basis of viewpoint.

This doesn't immunize religious organizations from the market place of
ideas which, in any event, does not work as she thinks it does. Churches
regularly impose creedal requirements on clergy, leaders and members. If
congregants don't like it, they leave much as those who don't like CLS
policy could leave as well.

The problem with takeovers - whether effected through rules of a
public forum or antidiscrimination laws - is that they would undermine
the capacity of minority or, more specifically, unpopular groups to
associate for a particular expressive purpose because, as soon as they
choose to combine, they must be prepared, in this context, to permit
others to come in and not simply expose their creed to the market place
of ideas (that happens in all events) but to vote it out.


Professor Rick Esenberg
Marquette University Law School
Sensenbrenner Hall 321C
1103 W. Wisconsin Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975



From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com
[hamilto...@aol.com]
Sent: Thursday, May 13, 2010 7:09 AM
To: Law  Religion issues for Law Academics
Subject: Re: A real-life on-campus example

It is not majoritarian but rather the marketplace. Expressive
association is a new right with little justification in history and I am
beginning to think a large step toward government sponsored
Balkanization Does the government have an obligation to make sure
dwindling religions remain viable. I would say absolutely not. But
apparently Mark would disagree?

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Scarberry, Mark mark.scarbe...@pepperdine.edu
Date: Wed, 12 May 2010 19:11:04
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

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RE: A real-life on-campus example

[Marc Stern]

The lower courts in Gilmore had enjoined the city from allowing
segregation academies-established to sidestep a public school
integration order-any use of city facilities, including parks and zoos
for field trips. The Court set aside this last part of the order on the
grounds,inter alia,that it trenched on those schools associational
rights,ie their right to associate with whites only. Why am I
exaggerating when I ask whether Gilmore thus controls Hastings?
It is true, as Ira notes, that much of Gilmore deals with a state action
problem, especially with regard to exclusive uses of public property by
private schools. But that was not the only holding of the case.
Marc 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Thursday, May 13, 2010 12:27 PM
To: Law  Religion issues for Law Academics
Subject: RE: A real-life on-campus example

Just to make sure I understand your argument, Chip. Is it your position
that reasonableness is the appropriate standard of review in this case
with regard to the CLS freedom of association claims because CLS
associational freedom will not be substantially burdened by the Hastings
policy? Or is there another reason why you believe a reasonableness
standard of review is appropriate in this case and your analysis of the
magnitude of the burden goes to the application of the standard. Are you
analogizing the review of freedom of association claims challenging a
broadly applicable policy to the review of content discrimination claims
in a designated limited public forum?

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Thursday, May 13, 2010 8:11 AM
To: Law  Religion issues for Law Academics; hamilto...@aol.com;
Esenberg, Richard
Subject: RE: A real-life on-campus example

Marc Stern is overstating the holding of Gilmore.  Most of the opinion
is about a state action question -- whether the city is complicit in the
segregation of certain facilities.  With respect to those private
entities or groups with which the city is not so complicit, Gilmore has
a brief passage at the end of the opinion recognizing their freedom of
private association, and concluding that they cannot be excluded by an
injunction from the right to participate in recreational activities in a
public park.

But Hastings is not running a park where children come to play.  It has
created a limited public forum, with access to various communications
facilities.  Its rules have to be non-discriminatory and reasonable in
light of the forum's purposes.  The all-comers policy is certainly
non-discriminatory. We're arguing about whether it's reasonable (there
might have been an argument about whether it was pretextual, but the
parties' stipulation seems to eliminate that argument completely.)  Some
of us on this list think the policy is quite reasonable; it is not
likely to disturb any group's message, because of the incentives of
mutual respect and forebearance, but it leaves open the possibility of
challenge to a group's message.  A law school might reasonably see that
openness to challenge -- and the imposition of a corresponding duty to
include all-comers -- as a healthy and necessary quality in a student
organization. The fact that students are only at the school for three
years m!
 ak!
es this even more reasonable; the next cohort of students may want a
different kind of CLS.  They can show up and challenge, or (more likely,
if the local CLS views are entrenched) form their own student
organization.  CLS wants the right to exclude, but it has real trouble
demonstrating a tangible harm (rather than a harm in principle) from
its inability to do so for  purposes of access to the forum.

One argument for unreasonableness that seems to me out of bounds is that
CLS national has an unwaivable statement of faith.  If Hastings CLS
can't comply with that, that's a problem between the national and the
local affiliate, but that's not a problem for Hastings LS.  Likewise if
the national ACLU, or any other national organization, does not like the
local Hastings chapter policy on some issue.

 
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law George Washington University
Law School 2000 H St., NW Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
Date: Thu, 13 May 2010 09:35:34 -0400
From: religionlaw-boun...@lists.ucla.edu (on behalf of Marc Stern
mst...@ajcongress.org)
Subject: RE: A real-life on-campus example  
To: hamilto...@aol.com,Law  Religion issues for Law Academics
religionlaw@lists.ucla.edu,Esenberg, Richard
richard.esenb...@marquette.edu

Nothing CLS has said challenges Hastings' duty to enforce rules against
its own discrimination on the basis of inter alia sexual orientation or
religion

RE: A real-life on-campus example

[Marc Stern]

It is common for a dismissal as improvidently granted to occur soon
after oral argument.  I think too much time has passed to make such a
disposition likely.
Marc

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford
Levinson
Sent: Tuesday, May 11, 2010 12:50 PM
To: Law  Religion issues for Law Academics
Subject: RE: A real-life on-campus example

I can't figure out exactly why religious groups deserve to be treated
differently from, say, the young Democrats or Republicans or the Sierra
Club.  The Constitution says not that we have to treat religion
differently, but, rather, that we have to keep engaging in an endless
conversation about the interplay of religion and state.  Sometimes that
might require different treatment, as in accommodating people who are
unwilling to work on Saturday.  Note, though, that the Court, rightly or
wrongly, refused to extend the conscientious objector accommodation to
a serious Catholic who was opposed only to the Vietnam War (on just
war grounds).  Nor, of course, was the Court generous to Native
Americans either in Lyng or Smith, both of which, I have to say, seemed
more appealing, on their facts, than the CLS case. But none of these
cases really involved the freedom of association arguments that are
really at the heart of the argument.  

Am I correct, incidentally, that the principle being advocated for would
allow any religious society to restrict its leadership to males if it
had a religious principle that only men were fit for such roles?  Judge
(now Professor) McConnell seemed to emphasize the belief-status
distinction in his argument, but I'm not sure I understand it when the
justification for status discrimination is a sincere (and quite
traditional, often) religious belief.  The argument that we, as a
society have decided that race and sex/gender are just different from
other categories of differentiation certainly can't hold, at least for
the latter, since I'm confident that McConnell (and, I suspect, almost
everybody on this list) would not allow a Title VII-like action against
the Catholic Church or Orthodox Judaism or even strip those religions of
their tax exemption because of their blatant sexism.   

Having read the oral argument, incidentally, I do wonder if there will
be an effort simply to dismiss it as improvidently granted, given that
most of the time seemed to have been spent on trying to figure out what
exactly were the facts and the relationship between various stipulations
and written policies of the Law School.  

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A.
Runquist
Sent: Tuesday, May 11, 2010 11:29 AM
To: religionlaw@lists.ucla.edu
Subject: Re: A real-life on-campus example


On 5/10/2010 8:21 PM, Steven Jamar wrote:
 Religion and religious organizations are different from other 
 organizations.  The constitution says we need to treat religion 
 differently.  Unless we decide that speech and association and equal 
 treatment principles trump the religion clauses, we need to give them 
 effect somehow -- both the free exercise and establishment clauses.

And the constitution does not say that religious organizations are to be
treated worse than all other groups.  The government cannot establish
religion, but it also cannot prohibit the free exercise of religion.  
Yet that, it seems to me, is exactly what the college is trying to do
here.

 What would be the result if the university made an exception for 
 religious organizations -- then it is not treating the religious 
 organization equally.
As long as all religious organizations are treated the same way, then
there is no violation.  If, for example, it allowed CLS to meet but
prohibited a Muslim group from meeting, then this would be not treating
the religious organizations equally.

Lisa

--
Lisa A. Runquist
Runquist  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com



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RE: A real-life on-campus example

[Marc Stern]

What is the relevance of Gilmore v. City of Montgomery,417 US 556 which
held that cities need not,indeed could not, exclude racially segregated
schools from non-exclusive use of public parks so long as there was no
lingering state action. .The Court seems to have held held that to do so
would violate the associational  rights of segregation academies.Some of
the examples cited by the court of impermissible exclusions from public
spaces,trenching on freedom of association,we would call public fora of
various kinds.
Marc



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, May 11, 2010 1:21 PM
To: Law  Religion issues for Law Academics
Subject: RE: A real-life on-campus example



Hastings' initial policy prevented CLS from discriminating on
religious grounds but did not prevent political groups from
discriminating on political grounds. (As Michael McConnell's brief
pointed out, with quotes from, if I remember correctly, Larry Tribe,
Justice Brennan, and Justice O'Connor, the ability to choose those who
determine an expressive association's message is integral to the freedom
of expressive association and constitutive of the expressive
associational group; considering it to be discrimination in the way we
ordinarily use that term is a category error.) Probably because it
realized that such a policy was indefensible, Hastings tried to switch
to an all-comers policy that supposedly would apply to all groups. That
all comers policy is the one Doug is referencing as being egregiously
unconst as to both political and religious groups. The record seems to
support the view that Hastings continued to apply its original policy
against CLS, along with the all-comers policy, though one could argue
that the latter encompasses the former. The record also shows no
enforcement of the all comers policy against groups, including Hastings
Outlaw, that had provisions in their constitutions requiring officers to
support the group's mission.

 

Mark Scarberry

Pepperdine

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford
Levinson
Sent: Tuesday, May 11, 2010 10:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: A real-life on-campus example

 

Doug may very well be right, but I must say that plowing through the
oral argument didn't highlight the difference between CLS and, say, the
Young Democrats.  If Hastings is indeed selecting out religious groups
for special all comers non-discrimination with regard to eligibility
for leadership positions, then I agree it's a no brainer.  

 

sandy

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, May 11, 2010 12:01 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

 

CLS does not claim that it should be treated differently from political
groups.  Hastings' written rule treated religious groups differently,
because it prohibited religious discrimination but did not prohibit
political discrimination. The only groups that could not organize around
a viewpoint were religious group.  It's all comers rule is egregiously
unconstitutional as to political groups as well as to religious groups.

Quoting Sanford Levinson slevin...@law.utexas.edu:

 I can't figure out exactly why religious groups deserve to be treated 
 differently from, say, the young Democrats or Republicans or the 
 Sierra Club.  The Constitution says not that we have to treat 
 religion differently, but, rather, that we have to keep engaging in 
 an endless conversation about the interplay of religion and state.  
 Sometimes that might require different treatment, as in 
 accommodating people who are unwilling to work on Saturday.  Note, 
 though, that the Court, rightly or wrongly, refused to extend the 
 conscientious objector accommodation to a serious Catholic who was 
 opposed only to the Vietnam War (on just war grounds).  Nor, of 
 course, was the Court generous to Native Americans either in Lyng or 
 Smith, both of which, I have to say, seemed more appealing, on their 
 facts, than the CLS case. But none of these cases really involved the 
 freedom of association arguments that are really at the heart of 
 the argument.

 Am I correct, incidentally, that the principle being advocated for 
 would allow any religious society to restrict its leadership to males 
 if it had a religious principle that only men were fit for such 
 roles?  Judge (now Professor) McConnell seemed to emphasize the 
 belief-status distinction in his argument, but I'm not sure I 
 understand it when the justification for status discrimination is a 
 sincere (and quite traditional, often) religious belief.  The 
 argument that we, as a society have decided that race and 
 sex/gender are just different from other categories of 
 differentiation certainly can't 

RE: Factual Clarification re CLS

[Marc Stern]

It is not true that it never happens. I think it was scientology in the
late 70's or early 80's  Scientology tried to take over an anti-cult
group,invokng the Unruh Act. The California courts saw through the
effort.
Marc

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Monday, May 10, 2010 4:41 PM
To: Law  Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

This concern about associations getting taken over by hostile forces is
completely ungrounded -- it never happens, and for an obvious reason.
These kinds of fora are cooperation games -- no group is ever a majority
(even the Democratic law students at a liberal law school have a
relatively small number of active members), and every group is
vulnerable to takeover.  But takeover would invite tit-for-tat
counter-takeover.  CLS members could intrude on the GLBT group, and vice
versa.  Everyone knows this, so all of the incentives are lined up in
ways that make this extremely unlikely to occur.  (Yes, if the KKK had a
campus group, enraged others might try to invade and destroy the
association, but that example is sui generis, just like the Bob Jones
case.)

If CLS had not litigated this, and had filed by-laws with Hastings LS
that said CLS was open to all comers, there is no reason to expect that
those who reject orthodox Christianity would try to join.  Someone just
has to show forbearance -- either the school by allowing discrimination
based on beliefs (which could be a pretext for other kinds of
discrimination), or the groups by being open to all comers (confident
that the process of selecting and joining would bring them no hostile
members).   In a law school, there is certainly a rational basis for
coming down on the side of non-exclusivity as a condition of access to
the forum and its privileges  -- among other things, all-comers
increases the likelihood of dynamic exchange of views, something a law
school may legitimately value.  CLS is not a church, and neither is
Outlaw, and yet (if Hastings prevails) both will wind up with (only) the
members sympathetic to their respective purposes.

  
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law George Washington University
Law School 2000 H St., NW Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
Date: Mon, 10 May 2010 11:47:00 -0700 (PDT)
From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan
nebraskalawp...@yahoo.com)
Subject: RE: Factual Clarification re CLS  
To: Law  Religion issues for Law Academics
religionlaw@lists.ucla.edu

   Interestingly, Hastings takes the position that the  
   policy it is enforcing against the CLS is not a  
   sexual orientation policy, but an all comers   
   policy, a policy that forbids any group from 
   discriminating against any person who wishes to be a 
   member. Under this policy, an NAACP student group
   would have to admit racists as voting members and
   even leaders of the group, and the Young Republicans 
   would have to allow democrats to be voting members   
   and leaders. 

   I think the school took this tack to avoid the   
   viewpoint discrimination argument, but may have  
   substituted an even greater problem for the one it   
   seeks to avoid.  

   The school may even lose Justice Breyer, who in the  
   oral argument referred to the policy as  
   fantastical  and as creating a silly kind of forum 
   in which everyone gets together in a nice   
   discussion group and hugs each other.   

   That led Mike McConnell to conclude that the policy  
   does not even provide a rational basis for excluding 
   a student group from a forum with the stated purpose 
   of creating a diverse marketplace of ideas. As Mike  
   put it, the all comers policy does not even slightly 
   advance the stated purpose of the forum, and indeed  
   is destructive of that purpose by prohibiting groups 
   from having a membership policy based upon its   
   organizing principles and beliefs.   

   Rick Duncan  
   Welpton Professor of Law 
   University of Nebraska College of Law
   Lincoln, NE 68583-0902   

   And against the constitution I have never raised a  
   storm,It's the scoundrels who've corrupted it that I 
   want to reform --Dick Gaughan (from the song,   
  

[no subject]

[Marc Stern]

 

It is hard to believe Congress meant to allow the
defendant to deny the plaintiff employment because of her religiously
mandated dress reflecting her different religious beliefs, but meant to
allow a suit when the employer simply makes adverse comments about the
person's dress.
On the other hand ,i think the court is right about
retaliation cases not being preempted by the religious exemption.
Marc Stern



From: religionlaw-boun...@lists.ucla. d to  edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, May 04, 2010 4:36 PM
To: 'Law  Religion issues for Law Academics'
Subject: Religious harassment claim against a religious hospital?



*   
   Prof. Howard Friedman's excellent Religion Clause
blog pointed to Kennedy v. Villa St. Catherine's, Inc. (D. Md. Apr. 30),
http://www.mdd.uscourts.gov/Opinions/Opinions/Kennedymsjmo043010.pdf .
Plaintiff, a nursing assistant, was a member of the Church of the
Brethren and wore her denomination's religious garb; the Assistant
Director of Nursing Services at Villa St. Catherine's Nursing Center
allegedly told her - in front of the hospital's administrator/CEO - that
plaintiff's clothes were inappropriate in a Catholic institution ...
made the residents' family members uncomfortable, ... and that Plaintiff
should conform to a more traditional mode of dress.  Some time later -
it's not clear to me when - plaintiff was fired.  She sued, claiming in
part that the conduct was open his remarks.

It is hard to

   The defendant moved for summary judgment, apparently
based only on the Title VII exemption for religious discrimination by
religious institutions, and not (yet) based on the claim that the
behavior was not severe or pervasive enough to create a hostile or
abusive environment based on religion for the plaintiff and for a
reasonable person.  The claim that the defendant was a religious
institution was apparently undisputed.  The court, however, held that
religious harassment isn't covered by that exemption, largely because
Unlike decisions to employ or fire based on religious beliefs,
harassment is not a legitimate part of creation or maintenance of a
workforce composed of individuals of compatible religious beliefs.  Nor
could Congress have considered it a legitimate way to 'exercise a
preference,' and because the EEOC has taken the view that the
religious organization 'exemption only applies to hiring and discharge,
and does not apply to terms, conditions, or privileges of employment,
such as wages or benefits.'

 

   Any thoughts on whether this decision is sensible?  It
strikes me as unsound as a matter of statutory construction, because the
exemption applies to discrimination, and the premise of hostile
environment harassment law is that harassment is illegal precisely
because it constitutes discrimination in the terms and conditions of
employment.  (The EEOC's view about the exemption generally not applying
to terms, conditions, and privileges of employment thus strikes me as
unsound as well.)

 

   But beyond this, it strikes me as exacerbating the First
Amendment dangers posed by hostile environment harassment law.
Religious harassment claims might apply not just based on statements to
the particular person, but also based on religious proselytizing aimed
at the employees at large, based on religious claims that offend other
religious belief systems, and so on - the sort of behavior that I would
think religious institutions should be free to engage in.  Or am I
missing something here?

 

   Eugene

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Re: Cert. granted in Snyder v. Phelps.

[Marc Stern]

So , Marci, you would allow this church to picket same sex weddings? And you 
would bar pickets from a funeral at which cheney spoke about the importance of 
the iraq war?
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Wed Mar 10 18:12:40 2010
Subject: Re: Cert. granted in Snyder v. Phelps.

Steve has said much more eloquently what I was trying to say to Eugene.  I 
agree with Steve that the categories drawn by Eugene are not as hard and fast 
as he has depicted them.   
 
This case is teed up to be one of those cases where law professors are 
shocked by the reasoning, but only because of unjustified assumptions about 
the rigidity and portent of previous precedents.  The bigger picture here is 
that tort law typically protects the vulnerable and funerals are a paradigmatic 
situation where the one being targeted by the speaker is in a vulnerable 
position deserving societal solicitude and protection.  (To Marc's point that 
there is too slippery of a slope here because if you include funerals you have 
to include marriages --  it seems to me that the reasoning assumes funerals are 
special because of their religious content. From the standpoint of tort law, I 
disagree.  Every person has to face funerals and death regardless of creed and 
it is uniformly a trying time; in contrast, celebrations do not put the 
individual in the position of vulnerability that facing death does).
 
Marci
 
 
 
 
In a message dated 3/10/2010 4:31:47 P.M. Eastern Standard Time, 
stevenja...@gmail.com writes:

Under international law, freedom of speech can be limited when it 
impinges the rights of others provided the limitations are part of the law of 
the country.  Surely that is sound principle that is in fact at least at part 
at work in many 1st Amendment speech cases that would otherwise be even more 
incoherent. 

There are interests other than defamation and triggers other than 
falsity, regardless of Eugene's fondness for staying so close to certain 
precedents and certain key factors or rules.

As we step into uncharted territory, I think the court has time and 
again demonstrated a willingness to find a new principle to justify its 
decision.  So even if Eugene's reading of prior cases is correct (I think it is 
correct as far as it goes, though a bit too cramped), I don't think that 
determines the case.  Nor should it.

I think hate speech impinges on the rights of others in much the same 
way as defamation does and furthermore has societal dimensions beyond the 
individual.  That is, the speech of some is limited by the rights of others and 
the interests of society.  We may treat hate speech as protected speech, but it 
is not so protected that we cannot recognize that a hate motivation proven by 
hate speech can enhance a criminal penalty.

Here, the disruption is invasive and the content of the speech is not 
the target of the tort -- the target of the tort is the right of privacy of the 
people attending the funeral.  That is an established, protected right.  The 
content of the words, as in the hate speech category, affect the result, but 
are not the essence of the invasion.

If we look at what is at stake for first amendment speech principles, 
and the other interests at stake, I think it plausible that the court will see 
this as not bound by Eugene's reading of precedent, but rather as yet another 
case of a different stripe with a different calculus applied.

As Eugene has repeatedly opined, the current free speech jurisprudence 
is largely based on categorizing the speech -- but that is not all there is to 
it.  One need not create another type of speech that is excluded from 
protection here -- or at least not in the categorical way I usually think of 
such exclusions -- but rather all that is needed is a recognition that in fact 
speech is not an absolute right and it may be restricted by a wide range of 
factors.  Thinking of the tort of invasion of privacy as a TPM restriction 
seems to make much more sense than treating it as strictly analogous to the 
defamation cases.

Steve

 
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RE: Religious exemptions and preferences for the religious overthe nonreligious

[Marc Stern]

Doug's position was enunciated by courts grappling under sherbet with
claims for sacred marijuana use
marc



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, March 02, 2010 4:30 PM
To: Law  Religion issues for Law Academics; Volokh, Eugene
Cc: 'Law  Religion issues for Law Academics'
Subject: Re: Religious exemptions and preferences for the religious
overthe nonreligious


I have always said that if your religious claim aligns too closely with
self interest, you will lose, and that is the right result even if it is
sometimes an unfortunate result.  My standard classroom example has been
conscientious objection to paying taxes, but this may become the new
standard example.

The court may write the opinion in a variety of ways.  It find the claim
insincere, or it may find that the claim invites many similar claims
that will be insincere, or it may find a compelling interest in not
trying to adjudicate all thsoe claims, or it may say that allowing such
a claim discriminates against people of other faiths and nonbeleivers
who can't make the same claim, or it may even recognize that allowing
such a claim creates pressure to convert.  In terms of substantive
neutrality, the impact on secular self-interest changes incentives for
every married prisoner -- and in the tax example, for substantially the
whole adult population.  These incentive effects may collectively be
much greater than the burden on religious practice of those who would
genuinely qualify with a sincere claim.

Quoting Volokh, Eugene vol...@law.ucla.edu:

In Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal. 
 Feb. 18), a prison inmate claimed that the denial of conjugal visits 
 with his wife violated RLUIPA and the Free Exercise Clause because he 
 believes that as a Muslim, he is required to engage in sexual 
 relations with his wife.  Assume that his belief is sincere; I 
 suppose it might well be; and let's even set aside whether the 
 exception was justified under strict scrutiny.  (The court didn't 
 reach that, because it rejected the claim on statute of limitations 
 grounds.)

Instead, assume that a prison decided to grant this 
 exemption from the generally applicable ban on conjugal visits, on 
 its own judgment or as a matter of state law.  Would such an 
 exemption limited to religious objectors be constitutionally 
 permissible?  Or would it be an undue preference for the religious 
 over the nonreligious, and on top of that one that pressures people 
 into claiming religious beliefs and participating in religious 
 practices in order to do that?  (I assume that the incentive to claim 
 religious beliefs posed in this case is much greater than the 
 incentive to sit through a graduation prayer present in Lee v. 
 Weisman.)

Eugene



 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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RE: Federal Appeals Court Goes With 'God'

[Marc Stern]

yes but there is no guarantee that future inaugurations will be the same
as past ones.
Marc Stern



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman,
Howard M.
Sent: Thursday, December 10, 2009 3:03 PM
To: Law  Religion issues for Law Academics
Subject: RE: Federal Appeals Court Goes With 'God'


The original complaint asked for a declaratory judgment that adding so
help me God to the oath, and having clergy as part of the inaugural
ceremony are unconstitutional. That would presumably apply to future
inaugurations as well.  Here is a link to the original complaint:
http://www.humanistlegalcenter.org/cases/Invocation/Newdow_v_Roberts_D_D
C_complaint_2008-12-29.pdf
 
Howard Friedman



From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Thu 12/10/2009 11:15 AM
To: Law  Religion issues for Law Academics
Subject: Re: Federal Appeals Court Goes With 'God'



Does anyone know why his case is not moot?

Quoting Joel Sogol jlsa...@wwisp.com:

  http://alm-editorial-us.msgfocus.com/c/1jdUyMEEiPtTMiYph Federal
Appeals
 Court Goes With 'God'
 The National Law Journal

 Before every oral argument in the D.C. Circuit, a court clerk tells
everyone
 to draw near and give their attention because the court is now
sitting. The
 opening cry ends with the line God save the United States and this
 honorable court. Atheist lawyer and physician Michael Newdow filed a
motion
 to block the clerk from referring to God next Tuesday when a panel
takes up
 his case challenging the custom of concluding the presidential oath of
 office with the line So help me God. A panel rejected that request
 Wednesday.





 Joel L. Sogol

 Attorney at Law

 811 21st Avenue

 Tuscaloosa, Alabama  35401

 ph (205) 345-0966

 fx  (205) 345-0971

  mailto:jlsa...@wwisp.com jlsa...@wwisp.com



 Ben Franklin observed that truth wins a fair fight -- which is why we
have
 evidence rules in U.S. courts.






Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713 

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RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass Cards'

[Marc Stern]

Does not US v Ballard (US 1944) state the applicable rule-which is 
(unsurprisingly) the rule Doug proposed?
Marc Stern



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, August 04, 2009 10:30 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Ireland Charities Act 2009: Regulating the Sale of Catholic'Mass 
Cards'



Both these and the kosher laws address a species of fraud.  But the fraud must 
be defined in a way that does not require a) government resolution of a 
religious question, or b) government designation of a preferred authority to 
resolve the religious question or act for the religion.  The fact that is 
mispresented must be a secular fact, verifiable as true or false in this world. 

Quoting Eric Rassbach erassb...@becketfund.org: 

 
 What if the law specified that the Holy Sacrifice of the Mass was 
 purported to be a Mass intended to be celebrated in the Church?  
 Would not then the offence simply be a species of fraud, i.e. the 
 shop claimed to be selling the right to have a Mass offered in the 
 Church but it was instead not to be offered in the Church?  And 
 would Irish law already ban such fraudulent activity, thereby 
 rendering the law superfluous? 
 
 None of this would affect Art's separate point about the 
 unconstitutionality of the apparent presumption of guilt. 
 
 I must say that there seems to be a bit of trend in Ireland right now 
 with legislation that purports to protect religious freedom but 
 actually harms it (cf. the recent blasphemy law, which surely 
 violates the ECHR). 
 
 Eric 
 
 PS  Máiréad -- as you can see, the members of this list will opine on 
 this sort of thing for fun -- and for free -- with very little 
 provocation! 
 
 
 
  
 From: religionlaw-boun...@lists.ucla.edu 
 [religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock 
 [layco...@umich.edu] 
 Sent: Tuesday, August 04, 2009 8:48 PM 
 To: religionlaw@lists.ucla.edu 
 Subject: Re: Ireland Charities Act 2009: Regulating the Sale of 
 Catholic'Mass Cards' 
 
 Unconstitutional.  There is an analogous line of US cases on the sale 
 of food labeled as kosher but not kosher in accordance with 
 government standards.  All struck down.  If there's a fraud problem, 
 the government can require the label to say who certified the food as 
 kosher.  That is a question that can be answered in this world.  But 
 government can't decide for itself what counts as kosher, or 
 designate a particular rabbi or association as the only approved 
 certifying agent. 
 
 The sale of Mass cards sounds like the same problem.  The state could 
 require disclosure of who authorized the Mass card.  Or a disclosure 
 of whether and how the priest who signed the Mass card will be 
 informed of the sale and of who purchased the card.  Those are 
 verifiable facts.  But the state can't decide that only a bishop or a 
 head of an order can authorize the sale of Mass cards.  That's a 
 matter of internal church governance. 
 
 Quoting Mairead Enright maireadenri...@gmail.com: 
 
 Dear All, 
 A colleague and I hoping to write a short article on s. 99 of the Irish 
 Charities Act, 2009  ( 
 http://www.oireachtas.ie/documents/bills28/acts/2009/a0609.pdf).  The 
 section regulates the sale of Catholic Mass cards. A Mass card is a greeting 
 card given to someone to let them know that they, or a deceased loved-one, 
 will be remembered and prayed for by a priest during a Catholic Mass. The 
 person who purchases the card makes a donation to the church in exchange for 
 the Mass and Mass cards are a significant source of revenue to Irish 
 churches. Ordinarily, the card is signed by the priest who will say the 
 Mass, at the time that the Mass is requested. However, in recent years, 
 controversy has arisen regarding the sale of pre-signed Mass cards in 
 ordinary shops ( 
 http://www.irishtimes.com/newspaper/weekend/2009/0307/1224242428583.html). 
 Section 99 of the new Charities Act provides that a person who sells a Mass 
 card ?other than pursuant to arrangement with a recognised person? is guilty 
 of a criminal offence. A ?recognised person? is defined as a bishop of the 
 church, or the head of an order recognised by it. In any proceedings it will 
 be presumed, unless proved to the contrary, that an offence has been 
 committed. 
 
 We were wondering whether one of the subscribers to this list might be 
 willing - for fun - to venture an opinion on what the position of this 
 section might be under U.S. constitutional law. Information on analogous 
 U.S. cases would also be useful. A former Irish Attorney General has 
 suggested that the legislation falls foul of the Irish constitution because 
 (1) it is disproportionate to the aim sought to be achieved and (2) it 
 represents 
 a serious interference with the religious practice of some priests and 
 others

RE: Francis Collins and Acceptable Criticisms

[Marc Stern]

As a legal matter, the claim that someone's religious views are
disqualifying comes close to, if not actually constituting a prohibited
religious test for public office especially as the NIH to which Collins
was nominated is a federal institution subject to the tests clause
directly.However there are cases in which the federal courts ahve upheld
the discharge of political appointees who have made (hostile) religious
statements about homosexuality. 
Marc  Stern 


From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Anthony
Decinque
Sent: Thursday, August 06, 2009 4:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: Francis Collins and Acceptable Criticisms


I think that begs the question, in a sense.  You say, If he has said
anything about science that is antithetical to sound science, that would
be a fair ground of criticism.  Mr. Collins states that he believes in
the virgin birth.  Is that antithetical to sound science?
 
I don't really want to get into a religious debate or comment on the
validity of Mr. Collins's specific beleifs.  I want to know when
someone's advocacy of ideas that are antithetical to a profession can be
used to disqualify that person (legally).  You can change the
hypothetical if you want.  A faith-healer that is applying to be Surgeon
General?
 
A


On Thu, Aug 6, 2009 at 4:41 PM, Douglas Laycock layco...@umich.edu
wrote:


The alleged ideas that are antithetical to the values
underlying the job are simply his religion.  Some consider his religion
antithetical; he does not.  It is not antithetical unless you accept
certain other assumptions about the relation between religion and
science -- assumptions that his critics adopt but that he rejects.

If he has said anything about science that is antithetical to
sound science, that would be a fair ground of criticism.  But if he is
sound when he talks about science, and the only evidence against him is
the inferences people draw when he talks about religion, that is simply
a religious disqualification.

 

 


Quoting Anthony Decinque anthony.decin...@gmail.com:

 Francis Collins has been selected to be the head of NIH, where
he will have
 substantial authority to allocate the nation?s scientific
research funding.
 There are a few criticisms of Mr. Collins being made regarding
his religion..


 For this list, I wanted to set aside a specific criticism.
Specifically,
 let?s ignore criticisms based on Mr. Collins using his
government position
 to promote religion.  (For example, if Mr. Collins were to
give a speech, as
 head of the Human Genome Project, claiming that DNA is
evidence for God.)

 Instead, I wanted to get the list?s opinion on a different
criticism.  This
 criticism goes like this: (1) science is a product of another,
deeper, more
 important feature ? skeptical thinking; (2) Mr. Collins does
not practice
 skeptical thinking; (3) in fact, Mr. Collins has made many
statements
 undermining and contradicting skeptical thinking.  Therefore,
the criticism
 goes, Mr. Collins should not be the head of NIH because he
undermines what
 science is all about.

 To get a flavor of the criticism, you can read this


piecehttp://www.reasonproject.org/archive/item/the_strange_case_of_fran
cis_collins2/by
http://www.reasonproject.org/archive/item/the_strange_case_of_francis_c
ollins2/%3Eby  

 Sam Harris.
 It is an elaboration of a NY Times editorial Mr. Harris
recently 
 authored.  In
 response, biologist Kenneth Miller wrote in the NY Times that
Mr. Harris has
 ?deeply held prejudices against religion? and opposes Mr.
Collins merely
 because ?he is a Christian.?

 What does the list think?  Should it be acceptable for an
employer to
 discriminate against a job candidate on the grounds that the
candidate
 believes, practices, and advocates for ideas that are
antithetical to the
 values underlying the job?  (Again, assuming that the
candidate would not
 otherwise abuse the post and would generally do a fine
administrative job.)



 Thanks,

 Anthony DeCinque





 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713


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Re: Illinois RFRA

[Marc Stern]

The second circuit held in a split decision somehow dissenting that FRA 
displaced the ministerial  exCeption. Somehow would have held it did not but in 
the course of so arguing unnecessarily argued FRA did not apply in private 
lawsuits brought under federal statutes. I do not remember the name of the case
Marc stern

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Cc: lawyer2...@aol.com lawyer2...@aol.com
Sent: Tue Jun 09 19:14:20 2009
Subject: Re: Illinois RFRA

 
Doug:
 
Wondering if there is any word on the Michigan rule regarding witness/party 
attire (veiled muslim incident)?
 
Also, do you have readily available a cite to Illinois' RFRA and a thought on 
whether it is properly invoked as a defense in a civil lawsuit which asks the 
court to find and employment or other supervisory relationship between a 
minister and a religious judicatory (in effect, declaring what the faith's 
polity or governance structure is as opposed to what the faith says it is) and 
thereby awarding monetary damages to plaintiff from the judicatory for wrongful 
acts by the minister?
 
I have the same question as far as Texas RFRA is concerned
 
--Don Clark
 



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Re: Illinois RFRA

[Marc Stern]

That's right
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Tue Jun 09 19:57:17 2009
Subject: RE: Illinois RFRA

Probably was Lyght v Hankins
 
 
s...@queenschurches.org
 
Rev. N. J. L'Heureux, Jr.
Executive Director
Queens Federation of Churches
86-17 105th Street
Richmond Hill, New York 11418-1597
Voice (718) 847-6764
FAX (718) 847-7392
 
Visit our Web site at http://www.QueensChurches.org/
 
 



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Tuesday, June 09, 2009 7:26 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Illinois RFRA



The second circuit held in a split decision somehow dissenting that FRA 
displaced the ministerial  exCeption. Somehow would have held it did not but in 
the course of so arguing unnecessarily argued FRA did not apply in private 
lawsuits brought under federal statutes. I do not remember the name of the case
Marc stern

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Cc: lawyer2...@aol.com lawyer2...@aol.com
Sent: Tue Jun 09 19:14:20 2009
Subject: Re: Illinois RFRA


Doug:

Wondering if there is any word on the Michigan rule regarding witness/party 
attire (veiled muslim incident)?

Also, do you have readily available a cite to Illinois' RFRA and a thought on 
whether it is properly invoked as a defense in a civil lawsuit which asks the 
court to find and employment or other supervisory relationship between a 
minister and a religious judicatory (in effect, declaring what the faith's 
polity or governance structure is as opposed to what the faith says it is) and 
thereby awarding monetary damages to plaintiff from the judicatory for wrongful 
acts by the minister?

I have the same question as far as Texas RFRA is concerned

--Don Clark




Download the AOL Classifieds Toolbar 
http://toolbar.aol.com/aolclassifieds/download.html?ncid=emlcntusdown0004 
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Re:

[Marc Stern]

Thanks
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu; Law  
Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Fri Jun 05 15:44:33 2009
Subject: RE: 

Marc:

The Sacramento Bee published this exit poll for Prop. 8. Religious groups are 
on pages 5-6.

http://media.sacbee.com/smedia/2008/11/05/18/prop8.source.prod_affiliate.4.pdf

I hope this helps.

David Masci

Senior Research Fellow
Pew Forum on Religion  Public Life
www.pewforum.org


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Marc Stern
Sent: Fri 6/5/2009 3:32 PM
To: Law  Religion issues for Law Academics
Subject:









 Ha anyone seen statistics on the religious breakdown of pro-and anti-
Proposition 8 voters in California.I am working on a piece on the voting
patterns of American Jews (4/5's of whom opposed Proposition 8) .I am
looking for comparative data

Marc Stern




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Re: marc stern's question re: Prop 8

[Marc Stern]

Thanks
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Fri Jun 05 17:54:17 2009
Subject: RE: marc stern's question re: Prop 8

Check with Ken Sherrill (Hunter College pol sci) or Patrick Eagan (NYU pol
sci), collaborators who have done extensive analysis of public opinion and
exit poll data on Prop 8.

Steve Sanders

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira 
 (Chip) Lupu
 Sent: Friday, June 05, 2009 12:41 PM
 To: Law  Religion issues for Law Academics
 Subject: marc stern's question re: Prop 8
 
 Please reply to the list if you have any of the data that 
 Marc Stern is seeking (see below).  Thanks.
 
  Original message 
 Date: Fri, 5 Jun 2009 15:32:51 -0400
 From: Marc Stern mst...@ajcongress.org
 To: Law  Religion issues for Law Academics 
 religionlaw@lists.ucla.edu
 
 
 
  
 
 
 
 
 
 Ha anyone seen statistics on the religious
breakdown of pro-and anti- Proposition 8 voters in
California.I am working on a piece on the voting
patterns of American Jews (4/5's of whom opposed
Proposition 8) .I am looking for comparative data
 
Marc Stern
 
 ___
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 viewed as private.  Anyone can subscribe to the list and read 
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 messages to others.
 Ira C. Lupu
 F. Elwood  Eleanor Davis Professor of Law George Washington 
 University Law School 2000 H St., NW Washington, DC 20052
 (202)994-7053
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RE: Iqbal and the Free Exercise Clause

[Marc Stern]

if the standard is the that legislature knows what it is doing, nothing
will ever  be  unconstitutional.
Marc



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Wednesday, May 27, 2009 1:51 PM
To: Law  Religion issues for Law Academics
Subject: RE: Iqbal and the Free Exercise Clause



Good question. There is certainly some range of opinions on whether a
law that requires a lot of individualized applications or exceptions is
sufficiently general for Smith purposes.  Also, legislative
accommodations of religion that do not reach all faiths may not be
intentionally discriminatory.  I also think it is possible to be
perceived as creating a religious gerrymander without deliberately
intending to do so. 

 

Alan Brownstein 

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
artspit...@aol.com
Sent: Wednesday, May 27, 2009 10:33 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Iqbal and the Free Exercise Clause

 

When would a law that's not neutral or not generally applicable not also
be intentionally discriminatory?  Can a legislature negligently or
unknowingly enact a law that's not neutral or not generally applicable?

Art Spitzer


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RE: ACLJ's Jay Sekulow Slams Judge Sonia Sotomayor on church stateseparation

[Marc Stern]

The unanimous 10 commandments case Sekulow refers to is obviously
Summum--and that case by its very terms decided no Establishment Clause
issue. Nothing like honest reporting. As to her opinions,is he possibly
referring the Bronx Household of Prayer case (in either the Court of
Appeals or the District Court) ?.I don't think she sat in the 2nd
Circuits foray into Christmas observances in the public schools.
Marc Stern


From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of aa...@aol.com
Sent: Thursday, May 07, 2009 3:50 PM
To: religionlaw@lists.ucla.edu
Subject: ACLJ's Jay Sekulow Slams Judge Sonia Sotomayor on church
stateseparation


I thought members of this list might be interested in an interview of
the ACLJ's Jay Sekulow that ran on Fox News last Friday discussing
possible replacements for Justice Souter with much of the time spent
discussing Judge Sonia Sotomayor. Although Sekulow never mentioned any
specific opinion or statement from Judge Sotomayor, he claimed that she
is much further to the left than Justice Ginsburg or Justice Souter.
Sekulow also referred to winning a recent ten commandments case before
the US Supreme Court with a 9-0 vote and said he thinks the vote would
have been 8-1 if Judge Sotomayor were on the Court because she has a
very, very strict view of church state separation.
 
You can find the full 7 minute interview on the Fox News website at:
http://tinyurl/JudgeSlam
 
Or, if you forgive the self-promotion, you can see the relevant clips
interspersed with critical commentary in my 4 minute 20 second YouTube
video titled Fox News Slams Judge Sonia Sotomayor for Supreme Court?
at http://www.youtube.com/watch?v=qZXZAjtXJ5s
 
I thought it particularly appropriate to post my video to this list
because I actually provide a link to one of my previous posts to this
list in the video. See http://tinyurl.com/DishonestJay 
 
My question for the members of this list:
 
Are there any specific opinions or statement from Judge Sotomayor that
back up Jay Sekulow's characterization of her as much further to the
left than Justice Ginsburg or Justice Souter or of her having a very,
very strict view of church state separation?
 
Allen Asch



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RE: Religion and suicide determinations

[Marc Stern]

State insurance departments must approve all insurance polices. Does
that make a difference? And is not a refusal ot issue policies to people
who won' accept autopsies, amount to a declaration that certain faith
groups (Jews, Hmong and others) are not eligible for insurance?
 
Marc Stern 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Wednesday, May 06, 2009 1:02 PM
To: Law  Religion issues for Law Academics
Subject: Re: Religion and suicide determinations

This is easy enough to take care of in the private context, right?
Insurers refuse to cover suicide and to cover any claim where an autopsy
would reveal cause of death and the insured refuses the autopsy.  That
then opens a market for insurance policies for those whose beliefs
preclude autopsies.  Actuarial tables kick in, etc, etc

Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Volokh, Eugene vol...@law.ucla.edu

Date: Wed, 6 May 2009 09:03:28
To: Law  Religion issues for Law Academicsreligionlaw@lists.ucla.edu
Subject: Religion and suicide determinations


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RE: Bowman v. U.S.

[Marc Stern]

Would the result be the same if a school required community service, but
prohibited students from fulfilling that obligation in a religious
setting, or excluding say Sunday school teaching from the list of
permissible placements?
Marc Stern

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Monday, May 04, 2009 7:51 PM
To: Law  Religion issues for Law Academics
Subject: Re: Bowman v. U.S.

While speech is involved in the classroom, career preparation is more
involved than just speech.  The state is not simply handing out funds
for the sheer joy of learning or enriching discourse. The state funding
of ministers or rabbis for that matter is a direct and knowing benefit
to  religious institutions. That is different from the abstract
treatment of learning as nothing but a discourse of speech.
Marci 

--Original Message--
From: Volokh, Eugene
Sender: religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics
ReplyTo: Law  Religion issues for Law Academics
Sent: May 4, 2009 7:41 PM
Subject: RE: Bowman v. U.S.

What exactly is it about government-funded education directed at
future careers that keeps it from being pure speech?  It presumably
wouldn't just be the government funding, since that was at issue in
Rosenberger as well.  I take it the theory must be that education is
somehow more than just pure speech, in constitutionally significant
ways.  But why, especially when we're talking about education that
basically just involves talking, rather than science labs, football
games, and the like?

Marci Hamilton writes:

 In any event, this is not pure speech -- it is government funding
education directed
 at future careers.

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Sent from my Verizon Wireless BlackBerry
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Re: Religious attitudes towards self-defense, deadly and otherwise

[Marc Stern]

There are elaborate rules of jewish law on the subject of self defense. 
Basically unlike American. Law they put a premium on the life of the person 
attacked with doubts resolved in his or her favor even at the expense of the 
attacker's life. There are obviously different rules when a lesser response 
will suffice. .this hard line attitude helps explain why many israelis reject 
ihl insistence that doubts about the availability of a self defense claim be 
resolved against the claim. I will try to find a written summary
Marc stern

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Fri Mar 20 18:10:46 2009
Subject: RE: Religious attitudes towards self-defense, deadly and otherwise

Very interesting, thanks very much!

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Perry Dane
 Sent: Friday, March 20, 2009 2:18 PM
 To: religionlaw@lists.ucla.edu
 Subject: Religious attitudes towards self-defense, deadly and
otherwise
 
 Eugene,
 
  I can't, offhand, help you with precise theological sources,
 but you might be interested in an internal debate that occurred at
 Calvin College, the very intellectually and religiously serious Dutch
 Reformed college in Michigan, when the school administration decided
 (after the Virginia Tech tragedy) to issue guns to some members of
 the college security force.  A group of students got very upset over
 the decision, claiming it was unchristian, and the administration
 produced a Theological Explanation for the Use of Force Policy.
 
  For some account, see, e.g.
 
 http://www.calvin.edu/news/2007-08/use-of-force.htm
 
 http://www.crcna.org/news.cfm?newsid=530
 
 http://clubs.calvin.edu/chimes/article.php?id=3713
 

http://blog.mlive.com/grpress/2008/05/calvin_board_oks_gun_policy_fo.htm
l
 
 I haven't been able to find the explanation theological document that
 the college administration drafted in defense of its policy.
 
  Hope this helps.
 
  Perry
 
 
 Eugene Volokh wrote:
  I'm looking for good sources that discuss religious attitudes
 towards self-defense or defense of others, deadly and otherwise; in
 particular, I'm looking to see whether there are religious groups
that
 (1) take the view that deadly force is always bad, even in
self-defense
 or defense of others, but nondeadly force (including pepper spray,
stun
 guns, and other devices that are extremely unlikely to kill) is
 permissible, or (2) take the view that given the choice between
 nondeadly force and deadly force, one should always use nondeadly
force,
 unless the nondeadly force is very likely to fail (e.g., all one has
for
 nondeadly force is fists vs. an attacker's knife).
 
 ***
 Perry Dane
 Professor of Law
 
 Rutgers University
 School of Law  -- Camden
 217 North Fifth Street
 Camden, NJ 08102
 
 d...@crab.rutgers.edu
 Bio: www.camlaw.rutgers.edu/bio/925/
 SSRN Author page: www.ssrn.com/author=48596
 
 Work:   (856) 225-6004
 Fax:   (856) 969-7924
 Home:   (610) 896-5702
 ***
 
 
 
 ***
 Perry Dane
 Professor of Law
 
 Rutgers University
 School of Law  -- Camden
 217 North Fifth Street
 Camden, NJ 08102
 
 d...@crab.rutgers.edu
 Bio: www.camlaw.rutgers.edu/bio/925/
 SSRN Author page: www.ssrn.com/author=48596
 
 Work:   (856) 225-6004
 Fax:   (856) 969-7924
 Home:   (610) 896-5702
 ***
 
 
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Re: NY Religious Corporations Law

[Marc Stern]

Generally the not for profit corporation leaves so much room to create a 
corporate form amenable to one's needs that this should not be a problem
Marc stern

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu Mar 12 11:55:39 2009
Subject: Re: NY Religious Corporations Law

Having statutes with apparently mandatory organizational provisions directed at 
religious organizations is problematic for the reasons Doug and the other 
signatories of the Connecticut letter mention. There are subtler but none the 
less troubling issues if a state says that a religious organization can, if it 
wishes to incorporate, use the generic nonprofit corporation law, without 
providing ample opt-out provisions for those aspects of the normal corporate 
structure that conflict with the religion's tenets. By and large, this isn't an 
issue when the statute allows the charter or bylaws to override statutory 
defaults, since an individual church can implement any changes in organization 
later mandated by the church's denomination without resort to any public body. 
Where such opt-out is lacking, though, there might be a problem of 
unconstitutional conditions, since the benefits of limited liability and 
perpetual existence have long since ceased to be discretionary with the state 
just by virtue of its issuing a corporate charter. When Madison vetoed the 
Arlington church's charter, that wasn't the case--corporations had to be 
chartered by special act of the legislature.

It seems to me that income tax exemption, whether federal or state, is a 
different issue entirely. Exemptions, at least at the federal level (many 
states simply rubber-stamp the federal exemption), are not entirely ministerial 
for the general run of nonprofit organizations (and there's no requirement that 
the organization be incorporated). It seems that the only mandatory provisions 
noted on Form 1023 regarding organizational structure require a statement of 
exempt purpose and a commitment to using the organization's assets solely for 
exempt purposes on dissolution. I'm not aware of cases where these requirements 
have been challenged by anyone on religious grounds. I'm also not sure whether 
the organization would have to satisfy the same non-inurement tests that, 
say, an educational or civic organization would; if so, these might provide 
grounds for religious objection. 


On Thu, Mar 12, 2009 at 10:56 AM, Friedman, Howard M. 
hfri...@utnet.utoledo.edu wrote:


Probably the earliest development of the corporate form in Roman law 
and English law was the corporation sole that permitted property to pass from 
one bishop to the next when the bishop died. This avoided the inheritance 
problems that would be present if title were held in the personal name of the 
bishop.  Some of the same issues would likely arise if religious entities today 
tried to operate in non-corporate form. Beyond this, do we really want clergy 
holding property, often purchased with funds from their congregants, in their 
own names with the potential for abuse that this could pose? Also, to the 
extent that religious corporation statutes impose greater restrictions on 
incorporated churches than are imposed on other incorporated non-profits and 
charities, isn't there an equal protection problem?
 
Howard Friedman



From: religionlaw-boun...@lists.ucla.edu on behalf of hamilto...@aol.com
Sent: Wed 3/11/2009 3:57 PM
To: religionlaw@lists.ucla.edu
Subject: Re: NY Religious Corporations Law



The question here is whether you can satisfy the rule against judicial
oversight of ecclesiology and permit the states to serve their
legitimate interest in overseeing those that obtain corporation status.
Religious entities need and/or want to be able to operate with the
benefits of a corporation, including property ownership by an entity
that surpasses the lives of any particular individuals and limited
liability. Incorporation is voluntary, so why isn't there an argument
that if they choose incorporation and its benefits, they have to
agree to certain state oversight? While it is relatively easy to point
to potential constituitonal difficulties in the laws as written, there
are difficult issues getting the balance correct.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003




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Re: Connecticut bill

[Marc Stern]

The american jewish congress also filed a statement opposing the bill. 
Unfortunately we were not paid for our efforts either_and we could use the money
Marc stern

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Thu Mar 12 14:51:09 2009
Subject: Connecticut bill

The bishops have their own lawyers.  They did not commission the law 
professor's letter, and no one but the signers had any input into its content.  
Marci, even you agree that this bill was plainly unconstitutional, so it did 
not take a conspiracy of bishops to get me to say so.

If the real  question is whether anyone was paid to write that letter, the 
answer is no.  Not a penny.  I had no client that I could have billed, and even 
if I did, I do not bill commercial rates to clients on public interest matters. 
  Usually, I do not bill public interest clients at all.

Many people who saw the bill thought it was obviously unconstitutional, and 
they began turning for help in all directions.  I heard about it from Catholic 
lawyers, Protestant lawyers, two different list serves, and a Professor at at 
the Yale Law School.  No doubt the Connecticut bishops were encouraging their 
representatives to spread the word and seek help, and there may well be a chain 
of communications that leads back to the bishops.  But I cannot reconstruct 
that chain, they did not contact me directly, and no one in Connecticut 
answered my e-mail when I tried to ask a question about one of the details in 
the bill.  As far as I know, they had never heard of me and had other 
communications that seemed more important to attend to.  

The idea to circulate a draft for additional signatures was my own.  Many of 
the people I sent it to already knew about it; some heard about it from me.

 

 

Quoting hamilto...@aol.com:

 I would like to ask a point of information on the law profs letter to 
 Conn legis.  I am wondering if it was formally or informally 
 commissioned by the bishops.
 Marci
 Sent from my Verizon Wireless BlackBerry

 -Original Message-
 From: Marc Stern mst...@ajcongress.org

 Date: Thu, 12 Mar 2009 12:21:28
 To: religionlaw@lists.ucla.edu
 Subject: Re: NY Religious Corporations Law


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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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RE: Connecticut bill

[Marc Stern]

In New York, a religious institution is generally permitted to register under 
the secular not for profit corporation law.



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, March 11, 2009 2:54 PM
To: Law  Religion issues for Law Academics
Subject: RE: Connecticut bill



To the extent that the entire NY Religious Corporations Law is mandatory, as 
opposed to merely default provisions that apply in the absence of contrary 
rules in the organization's charter or bylaws, I think there are serious 
constitutional issues with very many of the internal governance provisions.

 

*
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: howard.fried...@utoledo.edu 
* 



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. KRIEGER
Sent: Wednesday, March 11, 2009 1:11 PM
To: Law  Religion issues for Law Academics
Subject: Re: Connecticut bill

 

Just for the sake of perspective  on the proposed Connecticut legislation, I 
would welcome any comments on  Section 200   of   the New York Religious 
Corporations Law (codified in Article 10  applicable to Other Denominations - 
including Jewish Congregations ) compared  to sub- sections (e) and (h) of the 
proposed Connecticut legislation.

 

--

 

§  200.  Control  of  trustees  by  corporate  meetings;  salaries  of
  ministers. 

 

  A  corporate  meeting  of  an  incorporated  church,  whose
  trustees  are  elective  as  such, may give directions, not inconsistent
  with law, as to the manner in which any of the temporal affairs  of  the
  church   shall  be  administered  by  the  trustees  thereof;  and  such
  directions shall be  followed  by  the  trustees.  The  trustees  of  an
  incorporated  church  to which this article is applicable, shall have no
  power to settle or remove or fix the salary of the minister, or  without
  the  consent  of  a  corporate  meeting,  to  incur debts beyond what is
  necessary for the care of the property of the corporation; or to fix  or
  charge the time, nature or order of the public or social worship of such
  church,  except  when  such  trustees are also the spiritual officers of
  such church.  (emphasis supplied) 


 

The provison  has been  in   NY law in some form since 1813 and was  last  
amended in 1909 .

 

 

SAMUEL M. KRIEGER,ESQ.
Krieger  Prager LLP
39 Broadway
New York, NY 10006

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RE: NY Religious Corporations Law

[Marc Stern]

Doug is right about the origins of NY's church incorporation law. There was a  
formal effort to change the whole structure about 20 years ago, but it  got 
hung up mostly, as I recall, by the problem of making the transition from old 
law on which there were substantial reliance interests to a new format.
Marc



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, March 11, 2009 3:19 PM
To: religionlaw@lists.ucla.edu
Subject: NY Religious Corporations Law



Perhaps these separate provisions were originally negotiated with leaders of 
each faith group, attempting to provide what each group wanted.  Even so, there 
is a high likelihood they got it wrong, or that orther institutions within the 
same faith group wanted, or now want, something different.  To the extent that 
these laws are imposing governance stuctures on religious organizations 
contrary to each organizations religious self-understanding, they are 
unconstitutional.

Even if they got it right, and one of these statutory sections is exactly what 
a religious organization wants, there remains the problem that the religious 
organization cannot amend its governance rules without going back to the 
legislature, which is surely also unconstitutional.

I take this to be the point of James Madison's Veto Message in 1811, vetoing a 
bill to incorporate the Episcopal Church in Alexandria (then part of DC).  The 
message is often cited for the proposition that Madison thought incorporation 
of churches is unconsistitutional, but that is not what he said.  He said:

The bill enacts into, and establishes by law, sundry rules and poceedings 
relative purely to the organization and polity of the church incorporated . . . 
so that no change could be made therein by the particular society, or by the 
gneral church of which it is a member, and whose authority it recognises.  This 
particular church, therefore, would so far be a religious establishment by law; 
a legal force and sanction being given to certain articles in its constitution 
and administration.  

He also objected that the bill gave the church authority to provide for the 
poor, which he said was superfluous if it referred to pious charity, and making 
the church a legal agent for performnig a public duty if it were anything more.

Quoting Friedman, Howard M. hfri...@utnet.utoledo.edu:

 To the extent that the entire NY Religious Corporations Law is 
 mandatory, as opposed to merely default provisions that apply in the 
 absence of contrary rules in the organization's charter or bylaws, I 
 think there are serious constitutional issues with very many of the 
 internal governance provisions.



 *
 Howard M. Friedman
 Disting. Univ. Professor Emeritus
 University of Toledo College of Law
 Toledo, OH 43606-3390
 Phone: (419) 530-2911, FAX (419) 530-4732
 E-mail: howard.fried...@utoledo.edu
 *

 

 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of SAMUEL M. 
 KRIEGER
 Sent: Wednesday, March 11, 2009 1:11 PM
 To: Law  Religion issues for Law Academics
 Subject: Re: Connecticut bill



 Just for the sake of perspective  on the proposed Connecticut 
 legislation, I would welcome any comments on  Section 200   of   the 
 New York Religious Corporations Law (codified in Article 10  
 applicable to Other Denominations - including Jewish Congregations 
 ) compared  to sub- sections (e) and (h) of the proposed Connecticut 
 legislation.



 --



 §  200.  Control  of  trustees  by  corporate  meetings;  salaries  of
   ministers.



   A  corporate  meeting  of  an  incorporated  church,  whose
   trustees  are  elective  as  such, may give directions, not inconsistent
   with law, as to the manner in which any of the temporal affairs  of  the
   church   shall  be  administered  by  the  trustees  thereof;  and  such
   directions shall be  followed  by  the  trustees.  The  trustees  of  an
   incorporated  church  to which this article is applicable, shall have no
   power to settle or remove or fix the salary of the minister, or  without
   the  consent  of  a  corporate  meeting,  to  incur debts beyond what is
   necessary for the care of the property of the corporation; or to fix  or
   charge the time, nature or order of the public or social worship of such
   church,  except  when  such  trustees are also the spiritual officers of
   such church.  (emphasis supplied)
 



 The provison  has been  in   NY law in some form since 1813 and was  
 last  amended in 1909 .





 SAMUEL M. KRIEGER,ESQ.
 Krieger  Prager LLP
 39 Broadway
 New York, NY 10006




 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Re: An Interesting Govt School Censorship Case

[Marc Stern]

Why is equality the test? What if school officials show that believe or go to 
hell is disruptive but not recycle or die? There is discussion of this problem 
in some of the school confederate paraphernalia cases
Marc

- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Wed Mar 04 18:16:29 2009
Subject: Re: An Interesting Govt School Censorship Case

Chip asks a good question about whether the school could censor the See You at 
the Pole group from saying All those who seek salvation through Jesus are 
welcome on their posters.

First, I doubt if this group would ever say this, because part of the group's 
evangelistic purpose is to attract nonbelievers to the event, in order to 
share the Gospel with them. But let's suppose the group wanted to say something 
like Jesus is the only way to salvation on their poster. Could the school 
censor these words because of the school's dislike of the message?

It depends on what the school allows other student or parent groups to do, 
doesn't it? If the school allows the Environmental Student Group to say being 
green is the right way to be or the GLBT group to say be tolerant not 
homophobic, then I think the Religious Group has the same right to include 
their slogan on its posters. If there is concern that student speech endorsing 
religion will be mistaken for that of the school, a general disclaimer 
requirement for all student groups requiring a statement that the speech is 
that of the private group and not that of the school should make clear that the 
school does not endorse the private speaker' message. No? 

Just apply the same access, the same equality of expression, for all student 
groups, both religious and secular, and you will be on the good side of the 1A.

Cheers, Rick Duncan




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RE: Cert granted in Sunrise Rock Cross case

[Marc Stern]

They are not a party to the pending case; they did join in an amicus
brief.
Marc Stern



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, February 24, 2009 3:45 PM
To: Law  Religion issues for Law Academics
Subject: RE: Cert granted in Sunrise Rock Cross case


Doesn't the VFW of California have rights pursuant to the contract that
the Ninth Circuit invalidated (for purchase of the land on which the
cross sits)? I'd think the VFW then would have to be a party to any
settlement, but I could be wrong.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, February 24, 2009 12:23 PM
To: Law  Religion issues for Law Academics
Subject: Re: Cert granted in Sunrise Rock Cross case



Too late for that.  But they could settle the case.

Quoting Lauren Smith smith...@umich.edu:


 How likely is it that the Obama Administration will withdraw the
petition?


 **
 Lauren Surguine Smith
 University of Michigan Law School
 J.D. candidate, Dec. 2010
 email: smith...@umich.edu


 On Tue, 24 Feb 2009 12:00:07 -0800, religionlaw-requ...@lists.ucla.edu
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 Today's Topics:

1. Cert graqnted in Sunrise Rock Cross case (Friedman, Howard M.)



--

 Message: 1
 Date: Mon, 23 Feb 2009 16:16:49 -0500
 From: Friedman, Howard M. hfri...@utnet.utoledo.edu
 Subject: Cert graqnted in Sunrise Rock Cross case
 To: religionlaw@lists.ucla.edu
 Message-ID:

08b22162f132e340b0982155e1388918318...@msg01cv01.utad.utoledo.edu
 Content-Type: text/plain; charset=iso-8859-1

 The Supreme Court today granted cert. in the Sunrise Rock Cross case
 involving an Establishment Clause challenge to Congress' transfer of
the
 Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW.
More
 at


http://religionclause.blogspot.com/2009/02/supreme-court-grants-cert-in-
sunrise.html

 Howard Friedman
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 End of Religionlaw Digest, Vol 60, Issue 3

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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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Re: Required religious accommodation?

[Marc Stern]

I don't have the citation handy but this was litigated a few years ago in if 
memory serves the 8th circuit. Plaintiff lost.. The employee is claiming a 
right to speak for the employer as the employee wants, not the employer
Marc Stern


- Original Message -
From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Tue Dec 23 20:51:19 2008
Subject: Required religious accommodation?

Liberty Counsel has filed an EEOC complaint on behalf of a woman in Florida who 
was instructed to answer the phone at her job by saying “happy holidays” but 
objected because her religion prevented her from contributing to the 
secularization of Christmas. She insisted that they accommodate her by allowing 
her to answer the phone by saying “Merry Christmas.” She was ultimately fired 
over it. See the press release here:

 

http://www.lc.org/index.cfm?PID=14100PRID=760

 

A legitimate case of legally required religious accommodation?

 

Ed Brayton

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RE: Sending Good News Club Fliers Home With Students

[Marc Stern]

The No Child Left Behind Act mandated a set of religion in school
guidelines which were prepared unilaterally by DOJ and DOE without any
outside input.(I had submitted  a FOIA request for outsiders'
comments.There were none.)The NCLB act is deficient, however, in that
guidelines are required only with regard to protected student
activity-not prohibited school activities. Federal funds are cut off
only for school violations of student rights of religious expression,not
for school support for religion.I have tried to interest Congress in an
amendment which better balanced the constitutional interests to no
avail.
Marc Stern   



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Saperstein,
David (RAC)
Sent: Wednesday, December 03, 2008 12:03 PM
To: Law  Religion issues for Law Academics
Subject: RE: Sending Good News Club Fliers Home With Students



Or folks can urge the Obama  Education Department to update and reissue
the religious guidelines that for several years the Clinton
administration sent out widely across the country - guidelines based on
the consensus views of a coalition representing a broad range of
viewpoints on church-state issues.  According to Gus S, it helped reduce
litigation.

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of James Maule
Sent: Wednesday, December 03, 2008 11:30 AM
To: Law  Religion issues for Law Academics
Subject: RE: Sending Good News Club Fliers Home With Stude

 

Yes, Doug, the full article mentions the Third Circuit case you cite. An
interesting aspect of this case, and many others raising First Amendment
issues in the school context, is how school officials and employees
don't seem to know what the law permits, requires, or prohibits. The
district official who was quoted refers to what happened as an
inadvertent error. How can state and local governments minimize these
inadvertent errors? Counsel tend not to be involved until after the
fact. I suggest that school districts need to arrange for education of
their employees on these matters, but I suppose there are funding and
time allocation constraints that might get in the way. Perhaps law
faculty could organize some sort of pro bono program for law students,
who surely are capable of presenting, with faculty guidance, First
Amendment principles for school districts in nearby schools.

 

Jim

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Wednesday, December 03, 2008 10:28 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Sending Good News Club Fliers Home With Students

 

I think this has already been litigated in the Third Circuit, and the
school district lost. Child Evangelism Fellowship v. Stafford Township
School District, 386 F.3d 514 (3d Cir. 2004) (Alito, J.).  It's only an
appeal from a preliminary injunction, but on a very quick skim, it looks
like Alito pretty much decides it as a matter of law; he doesn't seem to
restrict himself to probable sucess on the merits.

It has also been litigated in the Fourth Circuit, in the Montgomery
County Schools, with the same result on two appeals.  I saw Gus
Steinhilber at a conference a while ago; he used to be general counsel
to the National Association of School Boards and he represented
Montgomery County.  He told me that many of the Jewish teachers
absolutely refused to distribute the flyers no matter what the court
said.  The school board went to the union and negotiated a deal where,
for extra pay, Christian teachers would distribute the flyers in all the
classrooms.  He didn't say whether the Jewish teachesr were insisting on
their own view of the Establishmetn Clause, or making a claim of
conscience, but this sounds like a reasonable accomodation to me.

Quoting James Maule [EMAIL PROTECTED]:

 FYI, for what it's worth, perhaps of interest to someone writing 
 about this issue. (Haverford Township is in Delaware County, just to 
 the west of Philadelphia).

 Jim Maule
 Villanova University School of Law

 From http://www.philly.com/philly/news/local/35457869.html

 Selected portions:

 Evangelical group sues Haverford district over fliers

 Haverford Township school officials are trying to extricate the 
 district from a legal tussle with an evangelical Christian group that 
 wants to send informational fliers home with grade-school students. 
 Child Evangelism Fellowship (CEF) filed suit against the Haverford 
 Township School District in late October after the district refused 
 to distribute fliers promoting the group's after-school Good News 
 Club.

 * * *

 After CEF sued, the district relented and sent out between 750 and 
 800 fliers in students' Friday take-home folders the week before 
 Thanksgiving, said Mary Beth Lauer, the district's 
 community-relations director. The fliers, which were sent home with 
 students at Chatham Park and Chestnutwold Elementaries, contained a 
 disclaimer declaring that the school

RE: Mark of the beast lawsuit by Amish

[Marc Stern]

Plainly the use of id's on cattle is a mark of the beast.
I am  puzzled by Professor Masinter's s reference to Twombly-i don't see
the relevance of the reference.
Marc Stern



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Friday, November 14, 2008 2:03 PM
To: Law  Religion issues for Law Academics
Subject: Re: Mark of the beast lawsuit by Amish


Complaint:

http://blog.wired.com/27bstroke6/files/satanfiling.pdf

DOJ Brief:

http://blog.wired.com/27bstroke6/files/beast.pdf





On Fri, Nov 14, 2008 at 11:34 AM, Jean Dudley [EMAIL PROTECTED]
wrote:


http://blog.wired.com/27bstroke6/2008/11/bush-administra.html

 From the Wired article:  The Amish farmers claim  Michigan
regulations requiring them to use radio frequency identification
devices on their cattle constitutes some form of a 'mark of the
beast' and/or represents an infringement of their 'dominion over
cattle and all living things' in violation of their fundamental
religious beliefs, according to the farmers' lawsuit filed in
September in U.S. District Court for the District of Columbia.

Thoughts?

Jean
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RE: Statue of Jesus and the FHA

[Marc Stern]

A ban on religious symbols like a mezuzah will as a practical matter
often make a house unavailable for a potential buyer or renter.Banning
political signs-which I think is a terrible idea- does not do that. For
what it is worth, I had suggested that the proposed overruling of  Bloch
reach political signs to avoid the problem  raised in the prior post,
but I was unable to persuade the sponsors. And for what it is worth, the
ACLU opposed the bill on the ground that it might sanction religious
hate speech, making this the first time in  memory that the ACLU has
opposed protection for hate speech.  
For a more interesting problem relevant to Eugene's initial inquiry
about the claim that the display of a  statute of Jesus might violate
the FHA- I think a specious claim- see
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/24/AR200810
2401606.html, discussing whether real estate agents may display a
Christian symbol on their ads.
Marc Stern 
 
 From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Micah
Schwartzman
Sent: Thursday, November 06, 2008 12:56 PM
To: religionlaw@lists.ucla.edu
Subject: Statue of Jesus and the FHA


In response to Bloch v. Frischholz (7th Cir. 2008), which held that
residents were not entitled under the Fair Housing Act (FHA) to post
mezuzahs, Congress has been considering legislation to amend the FHA to
protect religious symbols. Here is the text of the proposed amendment,
titled the Freedom of Religious Expression in the Home Act of 2008 (H.R.
6932):

Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by
adding at the end the following:

(g) To establish a rule or policy that prevents a person from
displaying, on the basis of that person's religious belief, a religious
symbol , object, or sign on the door, doorpost, entrance, or otherwise
on the exterior of that person's dwelling, or that is visible from the
exterior of that dwelling, unless the rule or policy is reasonable and
is necessary to prevent significant damage to property, physical harm to
persons, a public nuisance, or similar undue hardship. 

Suppose this amendment to protect religious symbols is passed. What
would be the legal status of non-religious displays? If a homeowners'
association adopts a policy barring all forms of displays (as was the
case in Bloch), and if the FHA creates an accommodation for religious
expression, would someone who wants to post a non-religious display have
grounds to object? Suppose a resident posts a sign saying, God loves
McCain. Now another resident posts a sign that says Vote Obama. The
homeowners' association removes both signs. The McCain supporter makes a
claim under the amended FHA to protect his religious expression. What
about the Obama supporter?

Here are a couple possibilities:  (1) The Obama supporter might have an
Establishment Clause challenge to the FHA amendment. The claim would be
that the amendment is an accommodation that burdens non-beneficiaries.
Citizens whose political views are religiously informed gain an
advantage over citizens who aren't religious (or whose political views
aren't religiously informed). (2) Perhaps the Obama supporter could also
claim that the amendment in effect creates a public forum by restricting
homeowners' associations from 
preventing certain forms of speech. But if that's the case, the
amendment is viewpoint discriminatory, because it only protects
religious speech.

Any thoughts about those possible challenges?
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Re: Proposed Health and Human Services regs protecting health careworkers religiously opposed to providing certain medical services

[Marc Stern]

I have them on my desk in the office and will get them to whoever asks on 
monday assuming ny is not under water
Marc stern

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Fri Sep 05 17:53:56 2008
Subject: RE: Proposed Health and Human Services regs protecting health 
careworkers religiously opposed to providing certain medical services


The Department of Health and Human Services has proposed regulations that will 
protect health care workers who are religiously opposed to performing or 
assisting in performing certain medical procedures from being required to do 
so. 45 CFR part 88. The regulations seem to apply to any medical entity that 
receives government grants or contracts. Does anyone know the full scope of 
these regs?

More specifically, if an employer believes that a particular medical procedure 
is morally justified and therapeutically necessary, are they prohibited from 
discriminating against staff members who refuse to perform or assist in the 
performance of the procedure on religious grounds? Are they prohibited from 
requiring staff to perform or assist in the performance of such procedures?

Thanks.

Feel free to respond on or off list.

Alan Brownstein


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RE: Yet one more example of discrimination against the irreligious inchild custody cases:

[Marc Stern]

 
Before concluding that this was a case of discrimination (which it may
yet well be,I would need to know certain facts. How old is the child?
Did she express soem view on the matter of religious practice? Did
religion play a large role in her pre-divorce life? Was the child taken
to church regularly during the marriage, such that a grant of custody to
the mother might be disorienting to the child?
Marc Stern



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 03, 2008 5:00 PM
To: Law  Religion issues for Law Academics
Subject: Yet one more example of discrimination against the irreligious
inchild custody cases:


From Buck v. Buck, 4 Pa. D.  C. 5th 238 (Pa. Com. Pl. 2008).  Given Lee
v. Weisman's conclusion that simply having a prayer at a not formally
mandatory graduation is unacceptable coercion of religious practice,
wouldn't counting a parent's not engaging in religious/spiritual
activities [with] the child against the parent in a child custody
decision -- and counting the other parent's plac[ing] a high-level
emphasis on religion in that other parent's favor -- be even more
clearly unacceptable coercion of religious behavior?
 
Eugene
 
 
D. Spiritual Well-Being

Father is religious and takes the child to church. Father currently
places a high-level emphasis on religion. The child appears to be
enjoying her religious activities.

Mother did not testify as to any particular religious/spiritual
activities in which she seeks to involve the child, or any
religious/spiritual activities which she seeks to instill in the child.

The child's spiritual well-being is better served by being in Father's
custody.
 
 
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Re: Kid misrecites the Pledge of Allegiance - can he be gradeddown for that?

[Marc Stern]

To the extent that the assignment is to explicate the text as enacted by 
congress' I think the student must comply although he is free to indicate his 
views about the unconstitutionality of the phrase
I agree with doug about the decoration,although few teachers can be expected to 
understand -if it were my client_who is objecting not to the whole pledge as in 
barnette
 but only the phrase under god - I would probably advise to devise a decoration 
that pointedly left out religious references.
Marc stern

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Fri Aug 29 09:48:57 2008
Subject: Re: Kid misrecites the Pledge of Allegiance - can he be gradeddown for 
that?

I would argue that the requirement to decorate the assignment indicates that 
this is celebrating or honoring the text, and thus more like an affirmation 
than like a mere requirement that he prove that he knows the official text.  
And therefore, covered by West Virginia v. Barnette, 324 U.S 629 (1943).  He 
doesn't have to do it. 

Quoting Ed Darrell [EMAIL PROTECTED]:

 Here's a not hypothetical hypothetical for you.  A family calls you 
 late on a Thursday night for advice on an odd point -- their son 
 thinks the Pledge of Allegiance is too religious, and has arrived at 
 an odd compromise that works for him in school.  But now he has to 
 write out what it is he says.

 How would you advise the family in this case below?

 I've become aware of a family who has a child who recites the pledge
 of allegiance by saying under law instead of under God.
 Apparently no one has ever noticed.

 But tonight he has homework to write the pledge of allegiance on paper
 and to decorate it.  This family is asking what legal ramifications
 there might be should a teacher take issue with the child writing
 under law instead of under God.

 The homework is due tomorrow, Friday.  Can anyone provide anything
 helpful that I can convey to the family?  Thanks!


 Not my case, I'm grateful to say.  Not my homework, either.

 What should the parents do?

 Ed Darrell
 Dallas



 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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RE: Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli

[Marc Stern]

1.Because no legislative body has the time to focus on all the peculiar
circumstances in which an arguable  accommodation claim  surfaces.
2. Because referring everything to legislatures is a prescription for
favored and politically connected groups getting accommodated and others
being left unhelped.(Had this happened in NY,where the speaker of one
house is an orthodox Jew it would eb failry easy to get a legislateive
fix;not so in Nevada.And exactly which legsilature woud intervene to
ehlp Wiccans?) And that is a constitutional problem in its own right, as
Grumet suggests, or at least some Justices suggested in Grumet.
Marc Stern 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Wednesday, August 13, 2008 1:04 PM
To: Law  Religion issues for Law Academics
Subject: Re: Nevada district court applies Fraternal Order of Police
v.Newark(3d Cir.), holds no-beard poli

I think the policy debate on this case illustrates why the First
Amendment and the courts have no business determining accommodation.
The ease w which those outside of government can judge that govt policy
is necessarily wanting because it may burden religious practice is
impressive. 
But the more interesting question is why the courts are better at
drawing these lines than the political process.
Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Christopher Lund [EMAIL PROTECTED]

Date: Wed, 13 Aug 2008 10:33:17
To: religionlaw@lists.ucla.edu
Subject: Re: Nevada district court applies Fraternal Order of Police v.
Newark (3d Cir.), holds no-beard poli


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Colorado Christian

[Marc Stern]

 The State has announced it will not be appealing the decision of the
10th Circuit invalidating its restriction on aiding students attending
pervasively sectarian universities.
Marc Stern

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Monday, August 04, 2008 1:09 PM
To: Law  Religion issues for Law Academics; Law  Religion issues for
Law Academics
Cc: Volokh, Eugene
Subject: Re: Conflicts between religious exefcise and gay rights and
cudgels

Well, I'm surely not trying to pooh-pooh the religious concerns --
merely to try to probe what, exactly, they are, and how much these
conflicts differ from those we saw several decades ago.

Eugene helpfully identifies two sorts of cases:

1.  Businesses and property owners being required to treat gays and
straights alike.  OK, I suppose I must concede that I'm not very moved
by these cases, nor do I see how those requirements impose much of a
burden on religious exercise.  Do they require some business owners (and
employees) to do things they find distasteful -- often due to
religiously inspired moral beliefs?  Surely.  And that's something to be
regretted.  But that's true of race-discrimination laws, as well -- and
of basic laws prohibiting discrimination against unmarried couples, and
on the basis of sexual orientation in the provision of commercial
services.  There are many, many shopkeepers, landlords, employers,
restaurants, etc., that would rather not deal with gays and lesbians,
often because of moral objections.   (I doubt, in other words, that such
discrimination is as relatively infrequent as Eugene assumes in many
places in the United States.)  Yet if legislatures conclude, as I do,
that gays an!
 d lesbi
ans should not be treated as second-class citizens in the commercial
marketplace, then is there any really compelling reason to provide
religious exemptions here that are not provided for analogous race and
sex discrimination?

On this one, by the way, I would respectfully dissent from Eugene's
suggestion that gays and lesbians are seeking such equal treatment as a
cudgel against religious objectors -- that we should question whether
gays and lesbians really suffer much harm by being denied services or
jobs or housing on the basis of their sexual orientation because they
could get such services -- often at a higher quality -- just fine from
lots of other providers, suggesting that they are insisting upon equal
treatment merely in order to commandeer objectors to act in ways that
offend their sincere beliefs.  With all respect, I think this sort of
standard libertarian skepticism about the need for antidiscrimination
laws significantly trivializes very serious harms.  But that's obviously
a much broader topic, somewhat far afield from what's germane to this
list.

2.  Loss of tax benefits.  Is this a real concern?  I assume that
sexual-orientation-discrimination  rules in this context will be treated
more or less like sex-discrimination rules -- i.e., there will be
reasonable exemptions for religious institutions, roughly in line with
the ministerial exemption and the title IX exemptions.  I can't see much
of a prospect for a Bob-Jones-like, across-the-board,
no-religious-exemptions denial of tax benefits here unless and until we
see the day when discrimination against gays and lesbians is as
categorically viewed as immoral as race discrimination is today.  That
is to say, not likely in my lifetime.

In any event, I'm grateful to Eugene for making the potential conflicts
a bit more concrete. 


 -- Original message --
From: Volokh, Eugene [EMAIL PROTECTED]
   I wonder which way the cudgel is being exploited (or maybe
both).  
 It seems to me, for instance, that religiously motivated 
 discrimination in public accommodations against gays is likely also a 
 relatively infrequent phenomenon, partly because it's financially 
 costly to the discriminators, and one that is not terribly tangibly 
 harmful (setting aside symbolic offense, which cuts both ways) to the
target.
 Yet we see cases in which businesses and property owners that provide 
 services are being forced to provide such services to same-sex 
 commitment ceremonies (or being punished by the law for failure to 
 provide such services), even though I suspect that the same-sex 
 couples could get such services -- often at a higher quality -- just 
 fine from lots of other providers.  Couldn't one equally say that 
 equal rights law is here being exploited as a cudgel against religious
objectors?
 
   Moreover, the very analogy to race discrimination, it seems to
me, 
 shows why the practical concerns of religious groups that have 
 religious objections to homosexuality are reasonable.  Consider how 
 the law has treated even religious groups that engage in race 
 discrimination, for instance in cases such as Bob Jones.  If the law 
 adopts the proposed analogy between sexual orientation

Re: Judicial enforcement of Islamic dowry-on-divorce agreements

[Marc Stern]

I am travelling and don,t have the citation but the new york court of appeals 
held the ketubah is enforceable. The ketubah is the jewish eqiuvalent of the 
islamic mahr(indeed the word mahr has a hebrew equivalent mohar_a word used in 
the bible in exodus 21
Marc stern

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu Jul 17 17:20:05 2008
Subject: RE: Judicial enforcement of Islamic dowry-on-divorce agreements

I should note, by the way, that a similar First Amendment
argument has been raised against the enforceability of mahrs in some
other cases.  I've only seen it squarely confronted in one other case,
Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002), which held
that a mahr may be enforced so long as it can be enforced based upon
'neutral principles of law' and not on religious policy or theories,
for instance if it simply and expressly calls for a money payment.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED] 
 [mailto:[EMAIL PROTECTED] On Behalf Of 
 Volokh, Eugene
 Sent: Thursday, July 17, 2008 2:13 PM
 To: Law  Religion issues for Law Academics
 Subject: Judicial enforcement of Islamic dowry-on-divorce agreements
 
 Mohammed Zawahiri and Raghad Z. Alwattar were married, in an 
 arranged marriage.  The day of the wedding, Zawahiri signed a 
 mahr under which he promised to pay his wife $25,000 in the 
 event of divorce.  A few days ago, the Ohio Court of Appeals
 (http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-
 3473.pdf)
 held that the agreement was unenforceable under generally 
 applicable Ohio prenuptial agreement law (chiefly because it 
 was presented a very short time before the wedding ceremony 
 and postponement of the ceremony would cause significant 
 hardship, embarrassment, or emotional stress,
 and because Zawahiri did not have the opportunity to consult 
 with an attorney prior to signing the marriage contract); 
 this may well be right.  
  
 What particularly interests me, though, is the trial court's 
 alternative basis for its decision, on which the appellate 
 court didn't opine:  The First Amendment barred enforcement 
 of a mahr -- just as it would bar the enforcement of an 
 agreement to give a Jewish religious divorce (citing an 
 unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 
 2446 (Ohio. App.)).  Though the mahr requirement seems less 
 like a religious act than the participation in a religious 
 divorce ceremony, because the obligation to pay $25,000 is 
 rooted in a religious practice, it is similarly a religious 
 act and a court therefore can't order the husband to make 
 the payment.  I've put the trial court decision online at 
 http://volokh.com/files/zawahiri.pdf .
 
 Could that be right?  Is it even constitutionally permissible 
 to categorically refuse to enforce all contracts -- including 
 those that call for what would otherwise be seen as secular 
 behavior -- because they are rooted in a religious 
 practice?  Or would such a denial of civil court access to 
 people who seek enforcement of contracts, simply because the 
 contracts are rooted in a religious practice (and don't 
 require any determination of religious truth or religious 
 law, coercion of inherently religious conduct, or supervision 
 of religious institutions or rituals), itself violate the 
 Free Exercise Clause?
 
 Eugene
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Re: Judicial enforcement of Islamic dowry-on-divorce agreements

[Marc Stern]

I jusr remembered that the case I refered to is avitzur v avitzur
Marc

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Thu Jul 17 17:37:15 2008
Subject: Re: Judicial enforcement of Islamic dowry-on-divorce agreements

I am travelling and don,t have the citation but the new york court of appeals 
held the ketubah is enforceable. The ketubah is the jewish eqiuvalent of the 
islamic mahr(indeed the word mahr has a hebrew equivalent mohar_a word used in 
the bible in exodus 21
Marc stern

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Sent: Thu Jul 17 17:20:05 2008
Subject: RE: Judicial enforcement of Islamic dowry-on-divorce agreements

I should note, by the way, that a similar First Amendment
argument has been raised against the enforceability of mahrs in some
other cases.  I've only seen it squarely confronted in one other case,
Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002), which held
that a mahr may be enforced so long as it can be enforced based upon
'neutral principles of law' and not on religious policy or theories,
for instance if it simply and expressly calls for a money payment.

Eugene

 -Original Message-
 From: [EMAIL PROTECTED]
 [mailto:[EMAIL PROTECTED] On Behalf Of
 Volokh, Eugene
 Sent: Thursday, July 17, 2008 2:13 PM
 To: Law  Religion issues for Law Academics
 Subject: Judicial enforcement of Islamic dowry-on-divorce agreements

 Mohammed Zawahiri and Raghad Z. Alwattar were married, in an
 arranged marriage.  The day of the wedding, Zawahiri signed a
 mahr under which he promised to pay his wife $25,000 in the
 event of divorce.  A few days ago, the Ohio Court of Appeals
 (http://www.sconet.state.oh.us/rod/docs/pdf/10/2008/2008-ohio-
 3473.pdf)
 held that the agreement was unenforceable under generally
 applicable Ohio prenuptial agreement law (chiefly because it
 was presented a very short time before the wedding ceremony
 and postponement of the ceremony would cause significant
 hardship, embarrassment, or emotional stress,
 and because Zawahiri did not have the opportunity to consult
 with an attorney prior to signing the marriage contract);
 this may well be right. 
 
 What particularly interests me, though, is the trial court's
 alternative basis for its decision, on which the appellate
 court didn't opine:  The First Amendment barred enforcement
 of a mahr -- just as it would bar the enforcement of an
 agreement to give a Jewish religious divorce (citing an
 unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL
 2446 (Ohio. App.)).  Though the mahr requirement seems less
 like a religious act than the participation in a religious
 divorce ceremony, because the obligation to pay $25,000 is
 rooted in a religious practice, it is similarly a religious
 act and a court therefore can't order the husband to make
 the payment.  I've put the trial court decision online at
 http://volokh.com/files/zawahiri.pdf .

 Could that be right?  Is it even constitutionally permissible
 to categorically refuse to enforce all contracts -- including
 those that call for what would otherwise be seen as secular
 behavior -- because they are rooted in a religious
 practice?  Or would such a denial of civil court access to
 people who seek enforcement of contracts, simply because the
 contracts are rooted in a religious practice (and don't
 require any determination of religious truth or religious
 law, coercion of inherently religious conduct, or supervision
 of religious institutions or rituals), itself violate the
 Free Exercise Clause?

 Eugene
 ___
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RE: Justice Stevens

[Marc Stern]

Justice Stevens during oral argument was pretty clear that RLUIPA in the
prison context just assured equal treatment of all faiths,not just those
Ohio chose to accommodate though its chaplaincy program..Since Stevens
views accommodation largely through the prism of discrimination,it is no
surprise he thought prison RLUIPA  constitutional.
Marc



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Monday, June 23, 2008 1:06 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Justice Stevens



One possibility is that in Cutter and Gonzales, the equality protecting
function of religious exemptions was much more apparent.  Ohio openly
said that it accommodated good religions in its prisons, but not the bad
religions in which the plaintiffs participated; the state was pretty
explicitly arguing for its right to designate good and bad religions.
In Gonzales, the government never had a plausible explanation for why it
exempted peyote but not hoasca.  This sort of discrimination was not
developed in the record in Boerne, which was up basically on the
pleadings, and the city did not openly avow it the way Ohio did.

Another possibility is that he was just confused in Boerne, and, less
likely, that he eventually realized that.  He said that an art museum
owned by an atheist would not be protected by RFRA.  But of course, an
art museum owned by a Catholic almost certainly would not be protected
by RFRA either.  The relevant analogy to the church would be an atheist
meeting house, which should be protected by RFRA, although many judges
are reluctant to see it that way.

 

 

Quoting Kevin Pybas [EMAIL PROTECTED]:

 Can someone shed light on why Justice Stevens in Boerne viewed RFRA as
a
 violation of the Establishment Clause but raised no EC problem with
RLUIPA
 in Cutter or RFRA in Gonzales?  In Boerne he wrote that RFRA provided
the
 Church with a legal weapon that no atheist or agnostic can obtain.
This
 governmental preference for religion, as opposed to irreligion, is
forbidden
 by the First Amendment.   Shouldn't this understanding have led him
to also
 object in Cutter and Gonzales?  The answer's probably staring me in
the face
 but I don't see it.  Thanks.



 Kevin Pybas

 Missouri State University






 

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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RE: Drift of the Court on religion

[Marc Stern]

But based on those subsidies, the UK has forbidden religious schools
receiving government aid to tell students  that homosexual behavior is
sinful (although they can teach that the church is opposed to homosexual
behavior). And under its laws regarding sexual orientation equality, it
has forbidden a Catholic school to fire a headmaster (a lovely English
term)  who had a same sex partner. Moreover, the British have at least
proposed that religious schools be required to accept a portion of
students of differ faiths to avoid religious segregation.( I don't know
off hand whether the proposal was adopted.)Thus, the question of whether
the religious subsidies advance religious freedom is more complicated
than Alan's post suggests-even before we get to the questioned of
whether the nominal Christianity of  public schools in England is itself
any boon to religion.
Marc Stern


From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law  Religion issues for Law Academics
Subject: RE: Drift of the Court on religion



Sorry, Eugene. I can't help you on the question you asked about Justice
White. But on the question of whether Justice Scalia's arguments about
the Establishment clause are sound, I am somewhat perplexed by his
apparent belief that Europe is committed to the separation of church and
state and that religious expression is excluded from the public square
throughout the continent. I'm not an expert on comparative law - but, to
cite just one example,  it certainly seems to me that European countries
are far more likely to permit government subsidies of religious schools
and far more willing to permit religious teaching and prayer in the
public schools than the United States.

 

Alan Brownstein

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law  Religion issues for Law Academics
Subject: Drift of the Court on religion

 

I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.

 

Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?



Eugene

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad  Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law  Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion

I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.

 

Brad Pardee

- Original Message - 

From: Joel Sogol mailto:[EMAIL PROTECTED]  

To: Religionlaw mailto:religionlaw@lists.ucla.edu  

Sent: Monday, June 02, 2008 6:44 PM

Subject: Scalia Decreis Drift of Court On Religion

 

Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion
/79084/  

 

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Re: Cert Grant in Summum

[Marc Stern]

[EMAIL PROTECTED]

- Original Message -
From: [EMAIL PROTECTED] [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu
Sent: Mon Mar 31 16:39:52 2008
Subject: Cert Grant in Summum

The Supreme Court today granted cert in an unusual Ten Commandments case, 
Summum v. Pleasant Grove City.  The case was brought by a religious 
organization that wanted to put up its own religious monument in a city park, 
given that there was already a Ten Commandments display there.  The Tenth 
Circuit found for the plaintiffs, agreeing with them that the park was a 
traditional public forum from which the plaintiffs could only be excluded upon 
the showing of a compelling interest.  The panel's decision seems pretty 
dubious - I imagine the Supreme Court will reverse, with a logic along the 
lines of Judge McConnell's dissent from denial of rehearing en banc.
 
Best,
Chris
 
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
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