Re: Re-upping: Sterling: A helpful test case on RFRA burdens
For those interested in this issue, the Illinois Law Review Online put together a symposium of short articles on the substantial burden question, including short essays from: Liz Sepper ( https://illinoislawreview.org/online/2016/substantial-burdens/substantiating-the-burdens-of-compliance/ ) Amy Sepinwall ( https://illinoislawreview.org/online/2016/substantial-burdens/burdening-substantial-burdens/ ) Abner Greene ( https://illinoislawreview.org/online/2016/substantial-burdens/a-secular-test-for-a-secular-statute/ ) Chad Flanders ( https://illinoislawreview.org/online/2016/substantial-burdens/substantial-confusion-about-substantial-burdens/ ) Marc Degirolami ( https://illinoislawreview.org/online/2016/substantial-burdens/substantial-burdens-imply-central-beliefs/ ) Caroline Mala Corbin ( https://illinoislawreview.org/online/2016/substantial-burdens/deference-to-claims-of-substantial-religious-burden/ ) Me ( https://illinoislawreview.org/online/2016/substantial-burdens/the-substantial-burden-puzzle/ ) Michael A. Helfand Associate Professor, Pepperdine University School of Law Associate Director, Pepperdine University Glazer Institute for Jewish Studies 24255 Pacific Coast Highway Malibu, CA 90263 (310) 506-7694 SSRN: http://ssrn.com/author=760898 Twitter: http://twitter.com/mahelfand On Mon, Feb 20, 2017 at 12:37 PM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > This case may well be a trial lawyer’s failure to put on the evidence. > Lawyers too often think the burden on religious practice is obvious, and > fail to elicit the testimony that would clearly explain how and why the > practice is religious and important and the challenged rule is a > substantial burden. I suspect that more could have been offered here, but > we don’t know that, and the record is what it is. > > > > Passages in the Court’s opinion in *Hobby Lobby* invite the kind of > argument that Paul is making. But reading those passages for their maximum > possible reach would be wholly unworkable, which is why seven of eight > circuits refused to read it that way in the litigation that led to *Zubik*. > The cryptic order in *Zubik* implies a four-four split, which in turn > implies that four Justices were prepared to find a substantial burden > there. I think that would have been a mistake, but the claimed burden > there, however attenuated, at least connected to an important religious > teaching. Far more implausible and attenuated claims will follow, in which > religious claimants seek to govern the world by insisting that the way the > world is currently being run burdens their religion, and no one can > question their claim of burden. These kinds of claims will discredit the > whole enterprise, which faces enough hostility already. > > > > > > > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 <(434)%20243-8546> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@ > lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Monday, February 20, 2017 3:07 PM > *To:* Marty Lederman <lederman.ma...@gmail.com> > *Cc:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re-upping: Sterling: A helpful test case on RFRA burdens > > > > Now that Paul Clement has filed a cert. petition > <http://www.scotusblog.com/wp-content/uploads/2017/01/16-814-cert-petition.pdf> > in this case, I thought I might revive the thread, which didn't inspire any > reactions last time around! Perhaps I'm alone, but it strikes me that the > case raises a very interesting and important question about how to assess > whether a burden on religious exercise is "substantial" for RFRA purposes. > To recap the very straightforward facts: > > > > 1. Marine Corps Lance Corporal Monfia Sterling posted three identical > signs in her workspace, each containing only the words “No weapon formed > against me shall prosper”--two of them in large (28-point) font. The > statement derives from Isaiah 54:17. She posted one sign on the side of > her computer tower, one above her computer screen, and one above her desk > mailbox. The signs were large enough for those walking by her desk, and > Marines seated at her workspace, to read. > > > > 2. Her superior officer insisted that she take the signs down; indeed, > that officer threw her signs in the trash, and she continued to repost > them. Therefore Sterling was court-martialed for insubordination, and > sentenced to a bad-conduct discharge and a reduction in pay grade--no small > thing in terms of sanctions. As far as the record shows, h
Re: Important Follow-Up to Hosanna-Tabor v. EEOC
Chris, This is a very interesting case. Thanks for sharing it. I've assumed that the way for the decisions of church courts to be enforceable is for the parties to execute an arbitration agreement in advance of the proceedings--and there are some small indications that more institutions are doing that. Without it, it seemed to me that there was no mechanism for the church court decision to be enforceable--the church autonomy/religious question doctrine simply required civil courts from intervening in the dispute. I put some more thoughts on this down on paper here: http://www.bu.edu/bulawreview/files/2013/04/HELFAND.pdf (pages 509-513). Best, Michael Michael A. Helfand Associate Professor, Pepperdine University School of Law Associate Director, Pepperdine University Glazer Institute for Jewish Studies 24255 Pacific Coast Highway Malibu, CA 90263 (310) 506-7694 SSRN: http://ssrn.com/author=760898 Twitter: http://twitter.com/mahelfand On Wed, Aug 17, 2016 at 7:16 AM, Christopher Lund <l...@wayne.edu> wrote: > I wanted to send around a recent follow-up case to *Hosanna-Tabor* that I > think is difficult, important, and interesting. So I figured I’d pass it > on to the listserv to see what folks think. > > > > > > > Let me start this way. The Supreme Court in *Hosanna-Tabor* says that > Cheryl Perich has no legal remedy for her claims. She can go to the church > courts if she wants, but she can’t go to the secular courts for relief. > One question this raises is, well, could she really get anything from a > church court? And how exactly would that happen? Say Perich got a > judgment against her congregation from the church courts of her > denomination (the Lutheran Church-Missouri Synod or LCMS). What then? > Maybe the congregation simply pays it. But what if the congregation > refuses? What could the denomination do? Perhaps the denomination expels > the congregation for refusing to pay. That would be significant. But > would that be the end of it? That would still leave the minister with > nothing. So now the big question: Could the minister go into a legal court > to enforce the church court’s judgment against the congregation? > > > > Well, that’s the issue before the Michigan Court of Appeals in *Hillenbrand > v. Christ Lutheran Church of Birch Run*, http://www.michbar.org/file/ > opinions/appeals/2015/091515/60794.pdf. Richard Hillenbrand was a pastor > at an LCMS church. He was removed from his position by his congregation. > He then brought the matter before an LCMS church court. The church court > ruled in his favor, and ordered the congregation to pay $70,000 a year > (salary + benefits) until he found a call at another church. But actually > before the church court ruled in Hillenbrand’s favor, the congregation > (Christ Lutheran of Birch Run) withdrew from the LCMS. The question before > the Michigan Court of Appeals is whether Hillenbrand can enforce the church > court’s judgment against the congregation anyway. > > > > > This is unfamiliar terrain to me, but I’m not entirely sure about > everything in the Court’s analysis. The Court spends a lot of time talking > about whether the LCMS is congregational or hierarchical, which I don’t > think is the exact right thing to do. (I could say more about why I think > it’s not the right move precisely, but I don’t want to bore people.) > Anyway, I think the Court does eventually move into asking what I think is > the really right question, which is whether the parties here initially > intended—intentions measured objectively, of course, and not > subjectively—these church court judgments to be legally enforceable. Now > answering that question necessarily requires a court to engage in intense > examination of bylaws and other church documents, and that is exactly what > the Michigan Court of Appeals proceeds to do. Looking at those things, the > Court concludes that these church court decisions were never intended to > have legal effect—in the Court’s lingo, they are merely “advisory”—and the > Court therefore dismisses Hillenbrand’s claims. I don’t know if that’s the > right answer, but I do think the Court was asking some of the right kinds > of questions. > > > > I think this case is important. It’s important in itself. But it’s also > important because of its prospective effect: religious denominations will > need to respond to it. Lots of religious denominations have courts, and > those denominations will want to think about whether they want to make > their judgments legally enforceable, and they will have to think about how > to structure things so as to effectuate those intentions. This case is > like *Jones v. Wolf* that way. > > > > Best, > > Chris > >
Call for Nominations: Harold Berman Prize for Excellence in Law & Religion
Dear Listmates, Below please find a Call for Nominations for the AALS Law & Religion Section's newly established Harold Berman Prize for Excellence in Law & Religion Scholarship. The details are below, but please note that nominations must be in by 5pm PST on August 15th, 2016. Hope you're all enjoying the summer. Best, Michael Michael A. Helfand Associate Professor, Pepperdine University School of Law Associate Director, Pepperdine University Glazer Institute for Jewish Studies 24255 Pacific Coast Highway Malibu, CA 90263 (310) 506-7694 SSRN: http://ssrn.com/author=760898 Twitter: http://twitter.com/mahelfand *Call for Nominations: Harold Berman Prize for Excellence in Law & Religion Scholarship* Starting this year, the AALS Section on Law & Religion will award the "Harold Berman Prize" to recognize scholarly excellence by an untenured professor at an AALS Member School. The Prize will be given to the author of an article, published between July 15, 2015 and July 15, 2016, which has made an outstanding scholarly contribution to the field of law and religion. The recipient must be a tenure-track faculty member at an AALS Member School and must have served no more than 6 years as a faculty member as of the date of the awarding of the Prize. The Prize will be awarded at the 2017 AALS Annual Meeting, scheduled for January 4-7, 2017. Nominations should be sent by email to Professor Michael Helfand ( michael.helf...@pepperdine.edu) and must be received by 5pm PST on August 15th, 2016. Nominations should include the full name, title and contact information for the nominated scholar, in addition to a PDF version of the published version of the article to be considered for the Prize. There is a limit of three nominations per nominator.Self-nominations are welcomed. Questions about the Prize should be addressed to Professor Richard Albert ( richard.alb...@bc.edu), Chair of the Section on Law & Religion. Prize Committee: Zak Calo (Hamad Bin Khalifa / Valparaiso) Rick Garnett (Notre Dame) Michael Helfand (Pepperdine) Lisa Roy Shaw (Mississippi) ** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
