Sandy: Why your hesitancy in speaking of the Messiah? How would you distinguish that from requiring Inherit the Wind? Richard Dougherty
Levinson wrote: > I'm much relieved--and not really surprised--by Marty's reassurance as to what the > opinion reads. (Quite typically, he's actually read it!) Recall, though, that I > wasn't asking so much whether courts would in fact recognize a claim in the > hypotheticals that I presented as whether anyone on this list would wish to > recognize a claim. I'm trying to determine whether there is indeed some element of > a consensus in this wonderfully diverse group of people on the list. It's no small > matter if, for example, committed secularists recognize the legitimacy of a > university chorus choosing to sing the Messiah (and requiring a Jewish student to > sing with gusto about Jesus as the Messiah) or if Rick Duncan would agree that I can > decide to put on Glengarry Glen Ross or, say, Inherit the Wind, and require a > Christian student to read the lines as written). (As I write these lines, I realize > that I'm ambivalent about the (state) university choosing the Messiah....) > > sandy > > sandy > > -----Original Message----- > From: "Marty Lederman" <[EMAIL PROTECTED]> > To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> > Date: Wed, 4 Feb 2004 17:21:01 -0500 > Subject: Re: Axson-Flynn > > Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim > -- to the contrary. The court's opinion explains in great detail why a school has > the authority to require students to fullfill curricular requirements, and why that > does not make out a "compelled speech" or free exercise violation. The only reason > the court of appeals reversed the summary judgment on the free speech claim was > because there was a smidgen of evidence in the record that defendants' reason for > requiring strict "script adherence" was hostility to plaintiff's Mormonism, rather > than a genuine, consistently applied pedagogical rule. Similarly, the court allows > the free exercise claim to go forward for trial because there is some evidence that > defendants selectively singled out the plaintiff for more stringent treatment, and > that the defendants had a policy of "individualized exemptions" that they applied to > permit other students to "opt out" of certain curricular assignments, but which > they refused to apply to permit the plaintiff to "opt out." > > ----- Original Message ----- > From: "Levinson" <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Sent: Wednesday, February 04, 2004 4:49 PM > Subject: Re: Re: Axson-Flynn > > I haven't read the opinion. But let me ask this: Let's assume that the play chosen > for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, > which, to put it mildly, includes tons of profanity. A student presents herself at > an audition, saying, "you realize, of course, that I cannot use those words, so I > expect you to rewrite my part if I am chosen." Is there anyone on this list who > believes that this "states a claim," so to speak, or can the audition be conditioned > on the willingness to read the lines as written by the playwright? Does anyone on > this list believe that the director has a duty to select a play that everyone in the > class would be comfortable with? (Recall Butler v. Michigan, where the Court struck > down a requirement that all literature sold in bookstores had to be acceptable for > an audience that included children. Surely that was correct.) So is this case > (which, recall, I haven't yet read) simply fact-specific or does it state a > generalizable principle that would affect my hypothetical. (Or, with regard to the > Jewish student), does she have a right that the play not be performed on Yom Kippur? > Surely not. So, in the alternative, does the director have the duty to train an > understudy who can perform on Yom Kippur rather than impose a duty on anyone > selected to perform in the play to show up at all performances unless sick?) > > sandy > > -----Original Message----- > From: David Cruz <[EMAIL PROTECTED]> > To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]> > Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time) > Subject: Re: Axson-Flynn > > On Wed, 4 Feb 2004, Rick Duncan wrote: > > > The 10th Circuit finally came down in Axson-Flynn (the > > case involving the LDS drama student who refused to > > say the "F" word or to curse in God's name as part of > > class exercises at the U of Utah). The Court ruled in > > her favor and reversed and remanded. > > [snip] > > The court held that since the drama faculty had > > exempted a Jewish student from a required > > improvisational exercise on Yom Kippur but refused to > > grant Ms. Axson-Flynn an exemption from saying the > > forbidden words when performing required exercises, > > there was at least a genuine issue of material fact as > > to whether the University maintained an individualized > > exemption process which would trigger strict scrutiny > > under Smith-Lukumi-Sherbert. It seems right to me. > > [snip] > > Thanks to Rick for bringing this to our attention. I think that as long > as "individualized exemptions" remain a legally viable distinction from > Smith, the disputed issue here does seem genuine and material. > > David B. Cruz > Professor of Law > University of Southern California Law School > Los Angeles, CA 90089-0071 > U.S.A. > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
