More than fair comments by Alan. On Mon, Mar 28, 2016 at 3:43 PM, Alan E Brownstein <aebrownst...@ucdavis.edu > wrote:
> My post was descriptive, not normative. In addition to the two cases, > Michael mentions there have been several state RFRA cases decided since > 2000. Several of Christopher Lund’s articles describe these cases. I see no > pattern that provides a narrative to explain those cases. Chris doesn’t > either – although I think he believes, as I do, that these laws are useful > in ad hoc circumstances to protect religious liberty. > > > > Perhaps Michael is suggesting that there doesn’t need to be a narrative > identifying real world problems to justify new RFRA laws. I think the > narratives I described were very helpful before 2000. Certainly proponents > of state RFRA bills back then talked about these issues a lot. And > legislators at least acted as if they wanted to understand the problems > that needed to be addressed by the proposed law. > > > > Maybe a narrative isn’t necessary today and the utility of state RFRA > bills should be self-evident. I am struck, however, by the difficulty state > proponents of these laws seem to experience in explaining why these laws > are so important if their goal is not to permit discrimination against the > LGBT community. I have not heard anyone argue that the reason for a state > RFRA is that the state needs to replicate *O Centro* and *Hobby Lobby* at > the state level. > > > > I think state RFRA bills are defensible, although I would exclude civil > rights laws from their coverage and try to deal with possible exemptions > from such laws through separate legislation. I am far less confident that I > can provide a justification for my views that would be adopted by > legislators or persuasive to voters. To do that – particularly when > concerns about LGBT discrimination are so obvious and salient – may > require a real world narrative. > > > > Alan > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley > *Sent:* Monday, March 28, 2016 1:58 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Arizona, Indiana . . . and now Georgia > > > > Well, we've had two major RFRA cases-- *O Centro* and * Hobby Lobby*-- > since 2000; surely replicating those victories for state claimants does not > reflect a focus on LGBT issues. likewise, pre-2000 RFRA cases at the state > court level could likewise be used, even if it is true that no such cases > have emerged post-2000. > > I'm not suggesting every state RFRA should be designed to follow how past > RFRAs have been applied, but such broad and formerly almost universally > praised legislation should be defensible without discussing a relatively > narrow aspect of it as the bill's reason for being. > > > > On Mon, Mar 28, 2016 at 2:34 PM, Alan E Brownstein < > aebrownst...@ucdavis.edu> wrote: > > Based purely on anecdotal information, I think this issue is based more on > timing than on legislative history. I worked on the attempt to get a state > RFRA passed in California in 1998. The bill passed both houses of the > legislature -- controlled by the Democrats -- only to be vetoed by the > Republican governor. > > > > While proponents of the bill made the basic abstract arguments in favor of > the bill – explaining why free exercise rights should apply against neutral > laws of general applicability – the two narratives which were most salient > and which seemed most persuasive involved land use regulation problems and > the difficulties houses of worship experienced in the zoning process and > the problems experienced by inmates trying to practice their faith in > prison. > > > > With the passage of RLUIPA in 2000, both of these narratives have been > taken off the table. As far as I know there is no pattern of state RFRA > cases or religious liberty disputes supporting an alternative narrative to > justify new state RFRA laws since 2000 other than those involving > discrimination against the LGBT community. That is why proponents of new > RFRA bills see, e.g. the Governor of Indiana, seem so befuddled when they > are asked to explain the problems the law is supposed to solve – if it > isn’t designed to accommodate religious objectors to same-sex marriage or > other LGBT rights. > > > > Alan Brownstein > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Michael Worley > *Sent:* Monday, March 28, 2016 12:26 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Arizona, Indiana . . . and now Georgia > > > > Question for list members: > > > > What language and/or legislative history would you look for in a bill that > has in order to consider it having the same intent as the original RFRA, > and other state RFRAs that were passed absent the LGBT controversy now > present? > > > > On Mon, Mar 28, 2016 at 1:18 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > > https://gov.georgia.gov/press-releases/2016-03-28/transcript-deal-hb-757-remarks-0 > > > > The bill: > > > > http://www.legis.ga.gov/Legislation/20152016/161054.pdf > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > > -- > > Michael Worley > > J.D., Brigham Young University > > > _______________________________________________ > 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. > > > > > > -- > > Michael Worley > > J.D., Brigham Young University > > _______________________________________________ > 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. > -- Michael Worley J.D., Brigham Young University
_______________________________________________ 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.
