In response to Ann's statement that she can't see how restricting marriage
to different sex couples is constitutional:
Statements about the sacredness of marriage need to be understood in the
same way that statements about the sacredness of life are understood. Many
people oppose capital
Title: Is UCLA violating the Establishment Clause?
This
isn't academic freedom, in my view. Rather, this is nearly the opposite
of academic freedom. The university is not just allowing teachers to teach what
they believe to be the best academic understanding of a subject. Instead the
: RE: Is UCLA violating the Establishment Clause?
On Tue, 27 Jan 2004, Scarberry, Mark wrote:
This isn't academic freedom, in my view. Rather, this is nearly the
opposite
of academic freedom. The university is not just allowing teachers to teach
what they believe to be the best academic
Bobby's post is not just an argument
against Intelligent Design theory, but against the truth of any religion that
posits the existence of a good and omnipotent God (which I will call "traditional
theistic religion"). I certainly understand that ID should not be taught
in science classes
I was surprised by Justice Thomas's statements suggesting that it is not
entirely clear that the Establishment Clause prohibits Congress from
establishing a national religion. See his opinion at p. 6 (saying only that
the Est. Clause probably does so as a textual matter) and p. 7 (But even
But note that the 14th amendment has a state action requirement...
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Newsom Michael [mailto:[EMAIL PROTECTED]
Sent: Tuesday, November 09, 2004 1:33 PM
To: Law Religion issues for Law Academics
Subject: RE:
The idea that the govt is responsible for
all that it does not prohibit must be treated with great care. It has the
potential of making govt responsible for all of life, and of eliminating the
sphere of private action. Taken far enough, it is totalitarian. Thus, for
example, the argument I
As I read the complaint, Williams is
arguing that the references to God and to religion in some of his supplemental
handouts (in only 5% of them according to the complaint) are consistent with
both state and school district curriculum guidelines on teaching history. He
claims the principal
Perhaps we should wait for confirmation that
the "Easter handout" is authentic before judging Mr. Williams based
on it. The source for it is a webpage that is very hostile to Mr. Williams and
to the Alliance Defense Fund.
Mark S. Scarberry
Pepperdine University School of Law
As I read Jim's post, he is not denying what Bobby says, that there is a
difference between objectively teaching about religion on the one hand, and
trying to persuade on the other. In fact, Jim's post says that he accepts
that distinction. Jim's point is that persuasion with which one agrees is
Yet it is also undoubtedly true -- is it not? -- that most of our American
law was carried over or adopted from British law. We did not have a clean
slate revolution; if I understand the matter correctly, most state law had
continuity from the pre-revolutionary time to the post-revolutionary time.
The Decalogue has certainly provided religious and
moral support for laws against murder, theft, fraud, and perjury (though such
laws probably would have existed in any event). It may also have had other substantial
indirect effects on our law. For example, the command to honor the
Bobby's view of the breadth of the possible meanings of the term God in
the Declaration is somewhat like my view of the breadth of the meaning of
the same term in the Pledge of Allegiance. The vast majority of Americans
can say the Pledge with integrity, I think, each giving the term his or her
On the general issue of charitable choice and hiring of co-religionists,
list members may be interested in a book just published by the Center for
Public Justice: Esbeck, Carlson-Thies and Sider, The Freedom of Faith-Based
Organizations To Staff on a Religious Basis. I have no connection with the
There is, of course, the reference in Article VII to the Year of our Lord.
Maybe such a reference was thought sufficient to eliminate any implication
that the new Constitution was anti-Christian without creating any basis for
anyone to infer that the federal government had any power over religion.
The values that are central to the faith
of many people cannot be taught in public schools, such as the importance of
praying, devotionally reading the Bible or other holy scriptures, attending
religious services, maintaining an attitude of thankfulness to God, loving
others because of
To follow up on Eugene's point:
Historically, most of the attempts to obtain public funding of religious
education have been by Catholics. A lot of people (not including me) have
seen such attempts as serious assaults on the religious liberty that is
maintained by strong non-Establishment norms.
Is anyone else slightly amused by the Justices'
references, with regard to the Supreme Court frieze, to Chief Justice Marshall
as a "law giver"? Cf. U.S. Const. Art. I, sec. 1.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Marty Lederman
Title: Message
One might ask, why should those who object
to the majority's views on religion alone be given across-the-board
exemptions from the majority's views taught to their children in public
schools? My third-grade daughter is subject to being taught about all sorts of
things that
I see a larger role than Marci does for constitutionally mandated and
judicially enforced free exercise exemptions, but there is a problem with
Brad's argument. A law that prohibited a certain kind of speech *as speech*
would not be neutral and generally applicable; it would target speech the
same
If so, the remedy should be to expand the accommodation to private
nonreligious schools. After all, for some young people, civil speech is a
foreign language, and all private schools have a constitutional right to
teach foreign languages. Meyer v. Nebraska. :-)
Seriously, if a student whose
Here are some preliminary thoughts on Eugene's question.
Though I think Locke v. Davey was incorrectly decided, it is at least
plausible to say that a government education grant that can be used for
clergy training involves government in supporting the training of clergy.
Because direct
Title: Message
I assume the limitation would also
prohibit donation of the money to an anti-religious organization, or the use of
it to study atheism?
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Volokh, Eugene
[mailto:[EMAIL PROTECTED]
Title: Message
And, to add to Eugene's clarification,
the issue also is whether it would be constitutional to ban payments for
religious studies courses or other religious services if payment for
nonreligious courses and services is permitted.
Mark S. Scarberry
Pepperdine
In response to Jean's question, my colleague, Barry McDonald, has written on
the topic of the right to acquire information. See
Barry P. McDonald, The First Amendment and the Free Flow of Information:
Towards a Realistic Right to Gather Information in the Information Age, 65
Ohio St. L. J. 249
The separation myth rejected by many of us is a myth of strict
separationism, in which religion is to be banished from the public square
and religious persons and organizations denied equal treatment with regard
to otherwise available public benefits.
I doubt there is anyone on the list who does
With regard to politicians attempting to gain favor with religious groups, I
was interested to learn that we may have a Bill of Rights only because a
particular politician did so.
Without Madison's efforts in the first House of Representatives, there might
not have been a Bill of Rights. Madison
According to an article on the LA Weekly web site, the City University of
New York co-sponsored a conference in May entitled Examining the Real
Agenda of the Christian Right. See
http://www.laweekly.com/ink/05/29/features-ireland.php. (This is the same
article that quotes the director of the
I'd think that when you question what someone's real agenda is, it is not
too unreasonable to think there may be hostility in the air. In any event,
my question was essentially the same one posed, perhaps rhetorically, by
Steve. [A]re public universities barred from tackling
controversial issues
My question, in the opening post of the thread that turned into this thread,
was the extent to which a state university could cosponsor a program that
was critical of, or hostile to, a religious movement. As I said in a later
post, the Establishment Clause has been understood to prohibit
Of course if it is the
federal government that is taking the property (not very likely in this cases,
I'll admit), then we would also need to consider RFRA. If I remember correctly,
every circuit to reach the issue has held that RFRA still binds the federal
government even after City of
Let me understand. If government action would not have been taken but for
the religious purpose of those who take the action, then, according to
Marty, the action violates the Establishment Clause under the first prong of
the Lemon test. Such a but for test as a general matter in Establishment
,
for the governmental action.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: Scarberry, Mark
Sent: Tuesday, July 12, 2005 12:55 PM
To: 'Law Religion issues for Law Academics'
Subject: RE: Government displaysprotestingagainsttheSupremeCourt's
Establishment
On the other hand, I don't suppose President Zachary Taylor would have
described his party as the Whiggish Party. Thus the name of a party need not
be an adjective.
And note that for Republicans, Socialists, Libertarians, etc. the same word
describes the party and a member of it (e.g., a member
The story, that Judge Roberts said he would
recuse himself from cases involving various issues, appears to be untrue. See http://www.nytimes.com/2005/07/26/politics/politicsspecial1/26roberts.html.
An excerpt:
"An opinion-page article in The Los Angeles
Times on Monday by Jonathan Turley,
I think it is not correct to say that the
no religious test provision of Article VI applies in any direct way to state
courts. Article VI requires an oath or affirmation of support for the
Constitution from all state and federal office holders. But the no religious
test provision refers
Warsoldier v. Woodford,
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CBC4AEEB13576BE38825704D0056
DA21/$file/0455879.pdf?openelement.
The first paragraph:
California prisoner Billy Soza Warsoldier appeals from the
district court's denial of his request for a preliminary injunction
in his
A one minute Google search (all I have
time for right now) turned up a 1995 Washington Post article that includes the
following paragraph:
"The survey [a 'poll of 1,524
randomly selected Americans'] found that affirmative action, like most
racial issues, sharply divides whites and
If the argument from
design was demolished in the 18th Century, as Sandy argues, then it must
have been on philosophical or religious grounds, rather than scientific ones. Darwin's On the Origin of
Species was not published until 1859. See, e.g.,
Unfortunately, it seems likely that many students who are religious have
been driven away from the sciences (in particular the biological sciences)
by the anti-religious attitudes of some scientists. See, e.g., some of the
statements quoted in today's NY Times at
the natural sciences.
-Original Message-
From: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Tuesday, August 23, 2005 4:41 PM
To: 'Law Religion issues for Law Academics'
Subject: RE: Findings on Hostility at Smithsonian Noted in NRO Article
Unfortunately, it seems likely that many
I think Paul is wrong. Theologically conservative Protestant Christians are
concerned about the abuses of religion. The ones who have set up schools are
mostly in the tradition of the dissenters (like Roger Williams) who were the
subject of religious persecution. It is an unfortunate stereotype to
With great appreciation for Eugene's moderation of this list, which is
essential to its value (and appreciation for his creating such a wonderful
venue for discussion in the first place):
I think there is a lower signal to noise ratio on this list than there used
to be. Perhaps all of us can be
AP is reporting (as a senator noted in the
Roberts hearing) that a federal district judge in San Francisco has ruled that the
recital of the Pledge of Allegiance in public schools violates the Establishment
Clause. See http://www.nytimes.com/aponline/national/AP-Pledge-of-Allegiance.html.
Judge Karlton reasons that there was Article III jurisdiction in the earlier
case, just not prudential standing. He then reasons that the prior Ninth
Circuit opinion remains good law except on the issue on which it was
reversed by the Supreme Court, namely prudential standing. He notes that the
Let me recommend Howard Bashman's post on the precedent issue at How
Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm
9/14/05 post.) He presents arguments for the following conclusion:
In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after
being
Here is a shorter version of a post I tried to send last Friday responding
to Marty's post that questioned whether the concept of binding authority
made sense. (Apparently my post was longer than permitted by the list
software.)
Sorry for the length of this post (much
The much better approach, I think, is to
point out that religious views are, for these student groups, the same as feminist
views for feminist student organizations, pro-Democratic party beliefs for
student Democratic organizations, and pro-gay rights beliefs for pro-gay rights
student
I've noticed that a couple of my
posts have been forwarded to other lists, or posted on someone's blog,
without my permission. (In particular, one of my recent posts [on the conlawprof
list] on Harriet Miers's church was forwarded to another list [not to the
religionlaw list].) I would
And doesn't the truthfulness of the site depend on what is meant by
evolution? If what is meant is a completely naturalistic process that
resulted in all that now exists with no guidance or intervention by God
(other than perhaps the setting of initial conditions), then evolution is
inconsistent
This issue comes up repeatedly on the
list. Viewpoint discrimination is the least permissible form of speech
regulation by the state. Campus groups are expressive associations. When the
state university says that groups that hold certain beliefs can form expressive
associations but that
I have to disagree with my friend Michael.
As I understand it, what the Christian Legal Society chapters generally want is
to be able to form a group of persons who have a common commitment, to be able
to reserve a place to meet, and to be able to put up posters advertising their
meetings,
At some point I may have time to respond in
detail to Michael's long post. For now, suffice it to say that what the
CLS chapters are asking for from the state universities is the ability to form
a group, to reserve a room, and to put up posters advertising their meetings.
None of that goes
I would like to know how solid Paul's
information is on this occurrence. I don't live in Oklahoma (though my father's
family left there during the Depression), but I'd think such blatant anti-Semitism
would be very unusual there.
I'd also be interested in Michael's
reaction to the
The Ninth Circuit has the impression that the Supreme Court's precedents
require discrimination against the religious speech of students. In Doe v.
Madison School District (for which I wrote an amicus brief), a panel of the
Ninth Circuit held that a school district could allow high school student
I appreciate Perry's thoughtful comments. Near the end he says, I
don't think that religious objectors to same-sex marriage are entitled to
any sort of veto in the contest over the meaning of marriage. If they
aren't entitled to a veto, are they nevertheless (anagrammatically speaking)
entitled
My Webster's New World Dictionary includes two non-obsolete meanings for
candor: 1. the quality of being open-minded or fair; impartiality. 2.
honesty in expressing oneself; sincerity; frankness.
The first definition surprised me. I do not use candor in that sense, nor
would I understand it in
It would be interesting to see statistics on how many Americans celebrate
Christmas as a religious (or partly religious) holiday, and how many
celebrate it as a completely secular holiday. My guess is that the second
group is fairly large (including a substantial number of adherents to
I don't react negatively to Xtian or Xmas, but some Christians do. As my
dictionary notes, Xmas is popularly pronounced as eksmas. (I can't
replicate the phonetic symbol in this e-mail, but the a is actually a
schwa, which is an e turned upside down. The sound of a shwa is an
uh like the e in
I haven't yet read the opinion, and
will reserve judgment about whether the judge's language shows bias. I do
think, however, that it is improper for a judge to accuse elected officials of "activism,"
as this judge did. There is nothing wrong with elected officials being
activists,
It's possible that trial counsel for the defense thought professor would
be more impressive and that trial counsel for the plaintiffs thought
doctor would be more impressive. That could result in uniform usage on
each side.
A quick point on ID and design defects:
My sense is that some (or
Below you will find an announcement with regard to the Law
Religion Section of the Association of American Law Schools. As many of you
will know, the AALS annual meeting will be held Jan. 3-7 in D.C. The Law
Religion Section is presenting two programs and cosponsoring a third, as
The four part requirement
is much too restrictive, especially the requirement that the group serve
primarily coreligionists. Thus, for example,a rescue mission or other kind
of skid row ministry mustdiscriminate against those who do not share its
faith in order to qualify. This is a
In response to Marty:
First, one might ask what interest of the state in providing for
contraceptive needs of employees, or what part of the merits of providing
the employer with an exemption, is implicated by the section of the Internal
Revenue Code chosen by the organization under which it
: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Sunday, January 15, 2006 8:48 PM
To: 'Law Religion issues for Law Academics '
Subject: RE: N.Y. Court Rejects Employers' Challenge to
ContraceptionLaw
In response to Marty:
First, one might ask what interest of the state in providing
?
-Original Message-
From: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Tuesday, January 17, 2006 8:44 PM
To: Law Religion issues for Law Academics
Subject: RE: N.Y. Court Rejects Employers' Challenge to
ContraceptionLaw
If the interest is so compelling, why does the statute allow an
employer
I think Mrs. Loretto would succeed to the rights of her transferor.
Depriving her of rights that her transferor held would effectively limit the
rights of the transferor, by eliminating his or her right to transfer title
free of the cable company's intrusion. True prospectivity would involve
Lisa Shaw Roy (of U. of Miss.) and I are putting
together a newsletter for the Law and Religion Section of the Ass'n of Am. Law
Schools. We're going to inaugurate a section that lists blogs that focus
onlaw and religion and would likely be of interest to law professors. We
are starting our
In a real sense this is *not* a case holding that "the
government may not ban" a religious practice (to use the language quoted
fromthe very valuable SCOTUS blog). Instead, it is a case in which the
government has, by enacting a statute (RFRA), *chosen not to ban*a
religious practice.
Judge Winter's majority opinion does not quite say that RFRA displaces a
Free Exercise-based ministerial exception. It does say that RFRA displaces
judge-made common law that would limit application of the ADEA, including
what the court calls a
ministerial exception that some courts had applied
I think the real problem with a holding that the ministerial exception is
not required by the Free Exercise clause would be that it would free state
and local government to interfere with hiring and retention of clergy (given
inapplicability of RFRA due to *City of Boerne*). State free exercise
I'm sure others have expressed this idea more clearly (and authoritatively),
but:
Isn't it possible that when government expenditures are such a large part of
the economy (and taxes take such a large part of personal income), a denial
to a person of an otherwise available subsidy because of the
A brief comment, my last for a few days at least due to press of other
matters:
If the government says that those churches with a certain kind of mix of
persons in their clergy are entitled to a tax-exempt charitable status
(given to churches without regard to any proof beyond proof that they are
Pardon the length and density (and resulting lack of clarity) in the
following paragraphs. I'm sorry that I don't have time now to flesh out
these points.
Autonomy in choice of clergy, and in manner of choosing clergy, is
understood and has been understood since the Founding to be constitutive of
I had not received this post by Eugene about the Bob Jones case when I sent
in my long post on this issue (even though his post is time-stamped 50
minutes before mine). I hope, nevertheless, that my long post provides
sufficient grounds to distinguish Bob Jones. Clergy issues are sui generis,
Mark Graber and Steve Jamar both seem to be arguing that certain activities,
including provision of adoption services, are secular activities that the
state should be free to regulate in any reasonable manner, even if the
regulation prevents a religious organization from providing the services.
for Law Academics
Sent: 3/13/2006 9:00 AM
Subject: Re: Catholic Charities Issue
On Mar 13, 2006, at 11:20 AM, Scarberry, Mark wrote:
Mark Graber and Steve Jamar both seem to be arguing that certain
activities,
including provision of adoption services, are secular activities that
the
state
In answer to Eugene's posts and to Bobby's question about whether an
originalist with my views (or Judge McConnell's) should seek a
constitutional amendment:
I'm not sure what the right rule is in terms of when religious groups should
be (or constitutionally must be) given access to government
Suppose the law prohibited an adoption agency from discriminating on the
basis of religion or political views, even if the parent(s) giving up the
children want the children to be raised by adoptive parents who share their
religious or political values. Would a religious adoption agency have the
I assume then that Michael would have no problem with the law requiring the
Catholic Church to ordain women.
Mark Scarberry
Pepperdine
-Original Message-
From: [EMAIL PROTECTED]
To: Law Religion issues for Law Academics
Sent: 3/21/2006 10:31 AM
Subject: RE: Catholic Charities Issue
For a story about a religious youth gathering (of 25,000 teens at a San
Francisco park), and an official City (and County) of San Francisco
condemnation of the gathering, see
http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/03/25/MNG6OHU6RR1.DTL.
The story includes a statement from a state
Message-
From: Scarberry, Mark
To: Law Religion issues for Law Academics
Sent: 3/27/2006 4:37 PM
Subject: Official City/County Condemnation of Religious Gathering
For a story about a religious youth gathering (of 25,000 teens at a San
Francisco park), and an official City (and County) of San
I'm not sure the board of supervisors has violated the
Establishment Clause, but it should at least give us pause to see
thegovernmentfomenting schism within a religion in the United
States, when of course it will be the government that will decide the property
(and many other) disputes
Correction: at the end of the first paragraph below, I
meant to write "especially where the property involved is held by an arm of the
church that may seem rather secular." Please ignore the "not" that crept in
while my brain was on hiatus.
Mark S. Scarberry
Pepperdine University School of
I usually agree with Eugene, but here I must disagree sharply.
All expressive groups discriminate in a sense in choice of leaders based
on consistency of the leaders' views with the groups' views. To say that
groups that discriminate on the basis of religion in choice of leaders
cannot use a
The music is a substantial part of the skating experience. No one would
doubt that a Christian music concert could be held (and advertised).
Does the combination of a physical activity (skating) with the playing
of music deprive the business owner of the free speech rights that a
concert promoter
I thought it might be worth letting religionlaw list members know that,
if they can't attend in person, they can watch the webcast. Participants
will include Akhil Amar, Erwin Chemerinsky, Elizabeth Garrett, Doug
Kmiec, Ken Starr, Marcia Coyle, Gina Holland, and David Savage.
Information is
In my view the interpretation of the Bankruptcy Code by the judge in the
Diagostino case is questionable. A better interpretation would continue to
allow charitable contributions to be included in the budget. (I could go into
details, but this is the religionlaw list, but not the bankruptcy
It seems there is a distinction between Divine/Religious Services and other
command functions. I don't suppose Marty is saying that a chaplain may not
pray in Jesus' name during Divine/Relgious Services. Paragraph 6(c) does not
require that Divine/Religious Services be non-sectarian but only
The hyperlink in Rick's last message somehow included the word Civil. The
link works if you delete that word. So here is the correct URL:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931257
Now to read the paper.
Mark Scarberry
Pepperdine
From:
I suppose that protecting the usefulness of one of the most important
scientific instruments in the world (the 200 inch Palomar telescope) would be
pretty high in my scale of interests. Protecting neighbors against glaring
lights that prevent them from enjoying their property and seeing the
If RLUIPA is interpreted so as to require that neighbors put up with what under
common law would be considered a nuisance, doesn't it potentially run afoul of
the Establishment Clause as applied in Estate of Thornton v. Caldor, Inc.? So
wouldn't it ordinarily be appropriate for courts to
I'm sympathetic theologically and as a matter of internal church process
with Rev. Moyer's complaints, but a secular court has no business
interfering with a church's choice of who is to be a minister.
Traditionalists (including Rev. Moyer) should realize that when they
invoke the power of the
I thought members of the conlawprof and religionlaw lists might want to
know about this conference, which will take place from Feb. 11 to Feb.
13, 2007 at the Simon Wiesenthal Center and the Pepperdine Univ. School
of Law. For more information, including a schedule of events and
information about
Perhaps this should be seen as a response to Wooley v. Maynard. The
state could not require motorists to display In God We Trust. Instead
of instituting an opt out scheme, it instituted an opt in scheme.
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From:
Forwarded to the list with Richard Winger's permission...
Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Richard
Winger
Sent: Monday, May 21, 2007 7:39 AM
To: [EMAIL PROTECTED]
Subject: Texas
I think the Court would distinguish Locke as a clergy-education case.
Mark S. Scarberry
Pepperdine University School of Law
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Christopher C.
Lund
Sent: Wednesday, July 25, 2007 1:29 PM
To: Law
The analyses in the various opinions puzzle me. Assuming the policy of
prohibiting mention of religious bereavement counseling options was set up by a
state actor, why doesn't that policy violate the Establishment Clause? It's
principal effect seems to be to inhibit religion. Here the client
facto message of most MSW programs I've ever heard of/rant would that be
ok?), isn't that a generally applicable neutral policy?
They would not be stopping a counselor from using religion in the counseling
session.
Steve
On Aug 19, 2007, at 12:25 PM, Scarberry, Mark wrote
it will allow the interpenetration
of religion and public programs.
sandy
From: [EMAIL PROTECTED] on behalf of Scarberry, Mark
Sent: Sun 8/19/2007 3:50 PM
To: Law Religion issues for Law Academics
Subject: RE: Church is not an option
The abortion gag rule did
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