Re: Religious exemptions and discrimination

[b...@jmcenter.org]

Eugene, it's interesting to me that you don't find religious discrimination in
particularly in #1 (pharmacist/Plan B) and #2 (Muslim taxi cab driver/passenger
with alcohol). I understand your view and obviously it is the prevailing view.

If I may say, tho, both the pharmacist's and the taxi cab driver's (religious)
worldviews prohibit them from dispensing Plan B and transporting a passenger
with alcohol, respectively. Thus, there discriminatory acts are religious based.
On the other side, the customer and passenger's worldviews permit purchasing
Plan B and possession of alcohol, respectively. My analysis is, I admit, not the
traditional legal analysis such as yours and so I offer it as an alternative
legal theory.

The balance of interests in the photographer/LGBT case probably favors the
photographer because he/she is performing a personal service where a positive
relationship between the photographer and the wedding party is necessary for
optimal results. However, I should point out (rather assume) that the
photographer advertised to the public as a wedding photographer. Refusing to
take pictures of an LGBT ceremony may run afoul of some local nondiscrimination
ordinances.

I didn't include in my list a situation within the past year where an
atheist/humanist organization sought to run a video ad in a movie theater and
was turned down altho the theater ran a church's ad. I have also been told of a
number of situations where land owners and/or media companies refused to put up
atheist/humanist billboard ads. I'm aware that there isn't much that can be done
to remedy these invidious acts of discrimination -- and so only offer them as
evidence of the "war" going on in America in the name of religion.

Bob Ritter


On June 15, 2012 at 3:50 PM "Volokh, Eugene"  wrote:


> I think this is combining under the rubric of “discrimination”
> many different things.  First, item 2 doesn’t involve discrimination based on
> the passenger’s race, religion, sex, and so on which is why businesses
> generally are free to discriminate against patrons with wine, or employees who
> drink wine.  The relevant law here is a sort of “common carrier” rule that
> imposes on a few businesses (and only a few) the obligation to do business
> with pretty much everyone, an obligation that is much broader than that
> imposed by antidiscrimination law.  Relatedly, item 1 doesn’t involve
> discrimination in the antidiscrimination law sense (except insofar as one can
> argue that such a refusal is sex discrimination because only women take Plan
> B, which I doubt will succeed).  Indeed, I take it that all of us would agree
> that a supermarket could choose to refuse to stock condoms (male or female) or
> over-the-counter contraceptives.  Rather, the relevant law is a professional
> obligation imposed on pharmacies to stock either all in-demand
> pharmaceuticals, or at least to stock this particular pharmaceutical.
> 
> 
> 
>  Second, even true discrimination rules have historically been
> applied more narrowly in some areas than in others, and this reflects (in
> addition to federalism concerns) real differences in the way discrimination
> affects people.  Title II of the Civil Rights Act, for instance, does not
> constrain pharmacies, cab drivers, or professional photographers; indeed, it
> applies to only a narrow range of places of public accommodation.  It does,
> however, affect all businesses with more than a threshold number of employees.
>  And this makes sense, because as to many places of public accommodation, the
> chief harm with discrimination is only dignitary:  If Elaine Huguenin refuses
> to photograph a same-sex commitment ceremony, the couple might be annoyed by
> the refusal, but they can probably find another photographer at little cost,
> at least in most places.  (Indeed, the couple may prefer to hire a
> photographer who they feel will see their ceremony as beautiful, and thus be
> inspired to photograph it that way, rather than a photographer who is being
> forced by law to photograph something she disapproves of.)  On the other hand,
> employment discrimination can dramatically affect people’s livelihoods,
> especially since employment is often much less fungible than most commercially
> available services.
> 
> 
> 
>  Third, different sorts of discrimination rules relate
> differently to other constitutional rights, and liberty rights more generally.
>  Requiring a photographer to photograph something she doesn’t want to
> photograph affects her  First Amendment right not to create expressive works
> that she disapproves of.  (Even those who think wedding photography isn’t
> expressive enough to qualify for that purposes might, I think, agree that a
> commercial press release writer should have the right to refuse to write press
> releases for Scientology – though that’s discriminating based on religion – or
> to write a glowing account of a same-sex ceremony.)  Like

Religious exemptions and discrimination

[Volokh, Eugene]

I think this is combining under the rubric of “discrimination” 
many different things.  First, item 2 doesn’t involve discrimination based on 
the passenger’s race, religion, sex, and so on which is why businesses 
generally are free to discriminate against patrons with wine, or employees who 
drink wine.  The relevant law here is a sort of “common carrier” rule that 
imposes on a few businesses (and only a few) the obligation to do business with 
pretty much everyone, an obligation that is much broader than that imposed by 
antidiscrimination law.  Relatedly, item 1 doesn’t involve discrimination in 
the antidiscrimination law sense (except insofar as one can argue that such a 
refusal is sex discrimination because only women take Plan B, which I doubt 
will succeed).  Indeed, I take it that all of us would agree that a supermarket 
could choose to refuse to stock condoms (male or female) or over-the-counter 
contraceptives.  Rather, the relevant law is a professional obligation imposed 
on pharmacies to stock either all in-demand pharmaceuticals, or at least to 
stock this particular pharmaceutical.

Second, even true discrimination rules have historically been 
applied more narrowly in some areas than in others, and this reflects (in 
addition to federalism concerns) real differences in the way discrimination 
affects people.  Title II of the Civil Rights Act, for instance, does not 
constrain pharmacies, cab drivers, or professional photographers; indeed, it 
applies to only a narrow range of places of public accommodation.  It does, 
however, affect all businesses with more than a threshold number of employees.  
And this makes sense, because as to many places of public accommodation, the 
chief harm with discrimination is only dignitary:  If Elaine Huguenin refuses 
to photograph a same-sex commitment ceremony, the couple might be annoyed by 
the refusal, but they can probably find another photographer at little cost, at 
least in most places.  (Indeed, the couple may prefer to hire a photographer 
who they feel will see their ceremony as beautiful, and thus be inspired to 
photograph it that way, rather than a photographer who is being forced by law 
to photograph something she disapproves of.)  On the other hand, employment 
discrimination can dramatically affect people’s livelihoods, especially since 
employment is often much less fungible than most commercially available 
services.

Third, different sorts of discrimination rules relate 
differently to other constitutional rights, and liberty rights more generally.  
Requiring a photographer to photograph something she doesn’t want to photograph 
affects her  First Amendment right not to create expressive works that she 
disapproves of.  (Even those who think wedding photography isn’t expressive 
enough to qualify for that purposes might, I think, agree that a commercial 
press release writer should have the right to refuse to write press releases 
for Scientology – though that’s discriminating based on religion – or to write 
a glowing account of a same-sex ceremony.)  Likewise, constraining a landlord’s 
choice about who lives in the other half of a duplex in which she lives may 
burden her privacy rights, constitutional or otherwise.  Not so for a landlord 
who owns a large apartment building.  This doesn’t directly affect the 
religious exemption claim, of course, but it does highlight why the wedding 
photographer example may need to be treated differently.

Given these differences, it seems to me quite unsurprising that 
the caselaw rejecting religious exemptions to employment discrimination claims 
wouldn’t necessarily fully extend to claims of housing  discrimination based on 
marital status (to give an example of a religious exemption claim that some 
courts have accepted), and wouldn’t be particularly helpful as to claimed 
exemptions from common carrier obligations or professional regulations.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Friday, June 15, 2012 12:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND


Chris,



While you would be willing to grant a child safety exception to appease Marci, 
I presume that in your view (and correct me if I'm wrong) that "burden" type 
RFRAs (like the North Dakota proposal) would permit the following examples of 
discrimination?

 1.  A pharmacist refusing to dispense Plan B.
 2.  A Muslim taxi cab driver refusing to transport a person with a bottle of 
wine in a grocery bag.
 3.  A professional photographer refusing to photograph an LGBT civil ceremony.
 4.  A landlord refusing to rent to an atheist.

If yes, are these acts of discrimination less a "compelling governmental 
interest" than anti-discrimination provisions of the Civil Rights Act?



Bob Ritter

On June 15, 2012 at 10:31 AM Chr

RE: Religious exemptions in ND

[b...@jmcenter.org]

Chris,

While you would be willing to grant a child safety exception to appease Marci, I
presume that in your view (and correct me if I'm wrong) that "burden" type RFRAs
(like the North Dakota proposal) would permit the following examples of
discrimination?
1. A pharmacist refusing to dispense Plan B.
2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine
in a grocery bag.
3. A professional photographer refusing to photograph an LGBT civil ceremony.
4. A landlord refusing to rent to an atheist.
If yes, are these acts of discrimination less a "compelling governmental
interest" than anti-discrimination provisions of the Civil Rights Act?

Bob Ritter


On June 15, 2012 at 10:31 AM Christopher Lund  wrote:


> 
>  Obviously the sexual abuse of children is tragic and criminal.  But I still
> am not getting how state RFRAs have protected it or encouraged it.
> 
> 
> 
>  State RFRA cases are more boring than those opposed to Measure 3 might think.
>  Plaintiffs generally lose their claims; they sometimes win, but they have not
> won anything remotely like what NARAL was fearing.  (In that South Dakota
> piece—which is a bit dated now—I slog through the cases and provide citations,
> to the extent people are interested.)
> 
> 
> 
>  I counted somewhere around 25 Florida state RFRA cases, for example.  Of
> those 25, plaintiffs won 1 on state RFRA grounds.  That case involved a church
> that wanted to feed the homeless in a public park, despite a city rule saying
> that parks could not be used for social-service purposes.  The church didn’t
> win the right to use the park of its choosing, but the trial judge enjoined
> the city to let them use some park at some time.  The case is Abbott v. City
> of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001).
> 
> 
> 
>  Of course, plaintiffs sometimes ask for things they can’t possibly get under
> state RFRAs—the right to use marijuana while driving, for example, keeps
> coming up.  But that’s a frivolous claim by a desperate criminal defendant,
> and it simply loses.  State RFRAs have been asserted as defenses in some of
> the sex abuse cases.  But usually such claims don’t even get separate
> analysis, and they certainly don’t win.
> 
> 
> 
>  If people like Marci will be more comfortable with a state RFRA with a child
> safety exception, I’d gladly do it.  Not because I think it’s necessary, but
> because I think it isn’t: A state RFRA with a child safety exception will be
> treated exactly like a state RFRA without one.  Children will be protected in
> any event.
> 
> 
> 
>  It’s also important to keep in mind that the protection of state RFRAs can
> always be legislatively narrowed—and that has happened.  Concerned with a
> pending suit by a Muslim to claim a drivers’ license without having to take
> off her headscarf, Florida statutorily (and retroactively) removed such claims
> from the protection of Florida’s RFRA.  Judging by Florida’s reaction to it,
> that apparently is the most threatening state RFRA claim that has ever been
> brought.  I leave it to the listserv to evaluate how bad it really is, but it
> is certainly less scary than what Measure 3 opponents feared.
> 
> 
> 
>  Best, Chris
> 
> 
>___
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Balancing free exercise and equality

[b...@jmcenter.org]

I think that the divisions caused by religion that Madison foresaw are glowing
or perhaps just louder since the "nones" are growing.



As Marc noted, there is substantial tension between two basic values -- free
exercise of religion and equality -- WHEN religion enters the public sphere. In
our system of governance, when basic rights conflict the courts are called upon
to balance the interests. Various tests are used and the analysis used may seem
to be subjective or biased.


I submit that on continuum with churches, synagogues and temples on one end and
the public sphere on the other, free exercise of religion is favored closer to
the houses of worship end and equality is favored closer to the public sphere
end. Thus in my four examples which appear (below) [and I should have used a
Muslim taxi cab driver refusing to transport a sober person with a new bottle of
wine in a grocery bag] in my response to Eugene, the balance favors equality
(antidiscrimination) because the discriminators are participating in the public
sphere.

Some are apparently shocked at the ACLU's Enlightenment. I was pleasantly
surprised (and I've been a card carrying member for 43 years).

It is not only religionists who are concerned about the free exercise of
religion. Nontheists are too.  For example, when Mike Newdow and I challenged
the religious practices of the 2009 presidential inaugural ceremony as being
pro-monotheistic, the district and appellate courts held that our 250+
plaintiffs lacked standing because they were not harmed by the government
sponsored religion of Chief Justice Roberts adding "so help me god" to the oath
prescribed by the Constitutional or the invocation and benediction. Day in and
day out atheists free exercise rights are bombarded (or smothered) by government
sponsorships of religion or preferences given to religious exercise. (To be sure
these infringements are primarily framed as Establishment Clause and Equal
Protection Clause violations.] And earlier this month, a Massachusetts Superior
Court held that "under God" in the Pledge is patriotic (mimicking Newdow's Elk
Grove cases.

So for all those who are serious about free exercise of religion, I'm sure the
American Humanist Association could use your help in the Massachusetts case and
Mike Newdow and I if we decide to challenge the 2013 presidential inaugural.

Last, Mike and I had an appendix in one of our filings listing of 35 or so
Supreme Court cases in which the majority decision cited "neutrality" as essence
of the Establishment Clause. I mention this because "neutrality" and "equality"
(discussed in numerous emails of the last few days) are synonyms and the basis
of Employment Division v. Smith's neutral law/regulation of general
applicability. While I can here Justice Scalia screaming in the background "But
the Free Exercise Clause must mean something," in the context of Smith and the
Affordable Health Care Act (for example), the more religiously affiliated
organizations or individuals "mix" with the public (e.g., a Catholic hospital
with a majority of nonCatholic employees and patients) (and greater distance
from ministering to congregants), the more free exercise rights are attenuated
tilting the balance towards nondiscrimination.

Bob Ritter


>From one of my previous eamils on North Dakota Measure 3

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.___
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Re: Religious exemptions in ND

[Lisa A. Runquist]

I think that public schools should be held to, if anything, a HIGHER 
standard than the church.  After all, children are REQUIRED to attend 
public school; attending church is optional.  But I also  think that I 
should be rich and famous.  Still waiting for it to happen.


Lisa

On 6/15/2012 10:29 AM, Marci Hamilton wrote:
Public schools should also be held to the same standard as any private 
institution and it should be child-protective


Marci

On Jun 15, 2012, at 11:04 AM, "Douglas Laycock" > wrote:


It is not just other constitutional interests that limit liability 
for harm to children. It is also other public policies.


For example, in Missouri, where Gibson v. Brewer limits the church's 
liability to cases where they knew about abuse and failed to act, 
public schools have no state-law liability at all in sex abuse cases. 
See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 
1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 
1986). And they would have no federal liability unless an official 
with authority to act had "actual knowledge" and made "an official 
decision" not to do anything. Gebser v. Lago Vista Independent School 
District, 524 U.S. 274, 290 (1998).


The should-have-known liability now imposed on churches in many 
states, and the should-have-known-there-was-an-elevated-risk 
liability that is often alleged and sometimes imposed, goes far 
beyond the liability rules applicable to most public schools.


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 *Graber, Mark

*Sent:* Friday, June 15, 2012 9:46 AM
*To:* Law & Religion issues for Law Academics
*Subject:* RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights 
increase to some degree the possibility that child abuse will occur, 
not be detected and not be adequately punished.  Consider in this 
respect the Fourth and Fifth Amendments, at least as presently 
interpreted (and I suspect most of us would not agree with an 
interpretive rule that said government does not violate the Fourth 
and Fifth Amendment whenever doing so might increase to any degree 
the possibility that a crime will not be committed, not be detected, 
and not be punished.  So we might assume that a) protections for 
religious freedom will have some negative consequences, including 
some severe negative consequences but b) that this is true for pretty 
much all constitutional rights.


So the issue is how much do we risk because we value religious 
freedom (remembering that a strategy of risk nothing will have other 
severe bad consequences.


In this vein, may I suggest that the present alternatives are not 
helpful.  SMITH seems to suggest a rational basis test that would 
allow government to severely burden religious practice whenever doing 
so has any appreciable tendency to prevent, detect, or punish crime.  
Many RFRAs suggest a compelling interest test that probably puts too 
high a burden on government to do a variety of acts (not just in the 
area of criminal justice---so even if you think, as I do, that 
preventing child abuse is obviously a compelling government interest, 
you might still think the compelling interest standard too strong in 
other cases).


Strikes me that one thing we might discuss is what that in-between 
standard looks like.


Mark A. Graber

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




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Re: Religious exemptions in ND

[Marci Hamilton]

That is an inaccurate analysis of my last post -- The attempts to treat these 
issues as de minimis are wrong.  Read my cert petition and the Redwing case out 
of Tennessee

I don't in any way back off of my statement that rfras open the door to more 
child sex abuse and less deterrence.   They don't stand alone but they do.   
Child safety should be excluded from all such laws.

Safe to say they are unlikely to be passed anyway at this point because gay 
rights and women's rights groups have come to understand they are adverse to 
their interests as well.  The danger of the RFRA as I have stated before is its 
blanket blind approach.   It hides the actual agendas of those who seek them.  
Far better for the vulnerable that exemptions be publicly debated.   

Marci

On Jun 15, 2012, at 1:57 PM, lawyer2...@aol.com wrote:

> Agreed.
>  
> But in order for there to be a "cost of immunity from tort law" there first 
> has to be "immunity from tort law" and, particular to this discussion, 
> immunity from tort law in child sex abuse cases.
>  
> This discussion started with the assertion that RFRA's "open the door" to 
> child sex abuse, "lessen deterrence" of it, and that RFRA arguments to this 
> end were being made by "churches" and "their lawyers" "all the time"
>  
> When that was questioned, the limitless  assertions devolved to RFRA's 
> "adding a layer of argument" during the course of litigation
>  
> --Don Clark
>   Nationwide Special Counsel
>   United Church of Christ
>  
>  
>  
> In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, 
> vol...@law.ucla.edu writes:
> No, actually I think the quote was an unnecessarily pugnacious 
> attempt to capture an important point.  Some religious groups have apparently 
> failed to reasonably investigate and monitor people whom they put in 
> positions of influence over children, and some of those people have used that 
> influence to molest children.  It's at least plausible that holding religious 
> groups liable for negligent hiring, retention, and supervision would provide 
> an extra incentive for such monitoring and investigation in the future.  
> Conversely, it's at least plausible that immunizing those groups from such 
> employer liability would make it easy for them to endanger children -- not 
> through deliberate attempts to harm children, of course, but through failure 
> to protect the children.
> 
>  
> 
> As I've mentioned, I'm skeptical that RFRAs will provide such 
> immunity.  But some states have indeed interpreted the First Amendment as 
> providing such immunity – and even if that is nonetheless the correct result, 
> for non-entanglement reasons or other reasons – it does seem to facilitate 
> religious groups’ failure to take proper care to protect children.  As I 
> said, I think both sides of the discussion have at times put things more 
> pugnaciously than is helpful.  But the basic point of the cost of immunity 
> from tort law is one that should be taken seriously.
> 
>  
> 
> Eugene
> 
>  
> 
> > -Original Message-
> 
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> 
> > boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
> 
> > Sent: Friday, June 15, 2012 3:42 AM
> 
> > To: Law & Religion issues for Law Academics
> 
> > 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 
> 
> > Sender: religionlaw-boun...@lists.ucla.edu
> 
> > Date: Fri, 15 Jun 2012 03:08:48
> 
> > To: Law & Religion issues for Law Academics
> 
> > Reply-To: Law & Religion issues for Law Academics
> 
> > 
> 
> > Cc: Law & Religion issues for Law Academics
> 
> > Subject: Re: Religious exemptions in ND
> 
> >
> 
> > ___
> 
> > 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.
> 
> > ___
> 
> > 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 view

Re: Religious exemptions in ND

[Lawyer2974]

Agreed
 
--Don Clark
 
 
In a message dated 6/15/2012 1:03:29 P.M. Central Daylight Time,  
vol...@law.ucla.edu writes:

In  any case, it seems to me that these concrete discussions of what the 
law does  and does not authorize, and which law does so, are more helpful than 
snippy  one-liners from either side. 
Eugene
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Re: Religious exemptions in ND

[Steven Jamar]

I think Mr. Clark's statement and apparent inability to see the potential for 
mischief of RFRA is troubling and supportive of Prof. Hamilton's point.  As a 
former litigator, I get the sense that some on this list are too dismissive of 
the impact of making claims that ultimately may fail, but which increase delays 
and costs in litigation -- sometimes substantially -- a problem particularly 
where child abuse is possible.

We are deep in an accommodationist model now where the religious liberty of 
adherents is generally being given greater attention and solicitude than the 
equality interests and other interests (including health and safety) of other 
affected people.

As Prof. Volokh and others have said, we are not dealing with just abstract 
issues nor are we dealing with just one constitutional value.

Ignoring the existence of abusive sects and their attempts to use free exercise 
and RFRA as a shield does not advance the discussion.  These cases exist.  The 
existence of RFRA and free exercise does embolden some.  Few.  But some.

My judgment is different from Prof. Hamilton's but I don't dispute her data and 
respect her making the contrary judgment on the same facts.

Steve

>  
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
> > Sent: Friday, June 15, 2012 3:42 AM
> > To: Law & Religion issues for Law Academics
> > 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
> >
> >

-- 
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/

"Sometimes you have to play a long time to be able to play like yourself."
Miles Davis

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RE: Religious exemptions in ND

[Volokh, Eugene]

But as I understand it, some states – though a minority – do 
indeed protect churches from negligent supervision/retention/hiring liability; 
and since generally speaking respondeat superior is usually unavailable in such 
cases, the effect is indeed an immunity of churches from liability for this 
particular sort of abuse.  (I agree that this is hard to lay at the door of 
RFRAs, since the immunity has generally been recognized under the 
non-entanglement doctrine.)

In any case, it seems to me that these concrete discussions of 
what the law does and does not authorize, and which law does so, are more 
helpful than snippy one-liners from either side.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
Sent: Friday, June 15, 2012 10:57 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND

Agreed.

But in order for there to be a "cost of immunity from tort law" there first has 
to be "immunity from tort law" and, particular to this discussion, immunity 
from tort law in child sex abuse cases.

This discussion started with the assertion that RFRA's "open the door" to child 
sex abuse, "lessen deterrence" of it, and that RFRA arguments to this end were 
being made by "churches" and "their lawyers" "all the time"

When that was questioned, the limitless assertions devolved to RFRA's "adding a 
layer of argument" during the course of litigation

--Don Clark
  Nationwide Special Counsel
  United Church of Christ



In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, 
vol...@law.ucla.edu writes:

No, actually I think the quote was an unnecessarily pugnacious 
attempt to capture an important point.  Some religious groups have apparently 
failed to reasonably investigate and monitor people whom they put in positions 
of influence over children, and some of those people have used that influence 
to molest children.  It's at least plausible that holding religious groups 
liable for negligent hiring, retention, and supervision would provide an extra 
incentive for such monitoring and investigation in the future.  Conversely, 
it's at least plausible that immunizing those groups from such employer 
liability would make it easy for them to endanger children -- not through 
deliberate attempts to harm children, of course, but through failure to protect 
the children.



As I've mentioned, I'm skeptical that RFRAs will provide such 
immunity.  But some states have indeed interpreted the First Amendment as 
providing such immunity – and even if that is nonetheless the correct result, 
for non-entanglement reasons or other reasons – it does seem to facilitate 
religious groups’ failure to take proper care to protect children.  As I said, 
I think both sides of the discussion have at times put things more pugnaciously 
than is helpful.  But the basic point of the cost of immunity from tort law is 
one that should be taken seriously.



Eugene



> -Original Message-

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

> boun...@lists.ucla.edu] On Behalf Of 
> lawyer2...@aol.com

> Sent: Friday, June 15, 2012 3:42 AM

> To: Law & Religion issues for Law Academics

> 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 mailto:hamilto...@aol.com>>

> Sender: 
> religionlaw-boun...@lists.ucla.edu

> Date: Fri, 15 Jun 2012 03:08:48

> To: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Reply-To: Law & Religion issues for Law Academics

> mailto:religionlaw@lists.ucla.edu>>

> Cc: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Subject: Re: Religious exemptions in ND

>

> ___

> To post, send message to 
> Religionlaw@lists.ucla.edu To subscribe,

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> the messages to others.

>

Re: Religious exemptions in ND

[Lawyer2974]

Agreed.
 
But in order for there to be a "cost of immunity from tort law"  there 
first has to be "immunity from tort law" and, particular to this  discussion, 
immunity from tort law in child sex abuse cases.
 
This discussion started with the assertion that RFRA's "open the  door" to 
child sex abuse, "lessen deterrence" of it, and that RFRA arguments to  this 
end were being made by "churches" and "their lawyers" "all the  time"
 
When that was questioned, the limitless  assertions devolved to RFRA's 
"adding a layer of argument" during the  course of litigation
 
--Don Clark
  Nationwide Special Counsel
  United Church of Christ
 
 
 
 
In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time,  
vol...@law.ucla.edu writes:

 
No, actually I think the quote was an unnecessarily pugnacious attempt to  
capture an important point.  Some religious groups have apparently failed  
to reasonably investigate and monitor people whom they put in positions of  
influence over children, and some of those people have used that influence to 
 molest children.  It's at least plausible that holding religious groups  
liable for negligent hiring, retention, and supervision would provide an 
extra  incentive for such monitoring and investigation in the future.   
Conversely, it's at least plausible that immunizing those groups from such  
employer 
liability would make it easy for them to endanger children -- not  through 
deliberate attempts to harm children, of course, but through failure  to 
protect the children. 
As I've mentioned, I'm skeptical that RFRAs will provide such  immunity.  
But some states have indeed interpreted the First Amendment as  providing 
such immunity – and even if that is nonetheless the correct result,  for 
non-entanglement reasons or other reasons – it does seem to facilitate  
religious 
groups’ failure to take proper care to protect children.  As I  said, I 
think both sides of the discussion have at times put things more  pugnaciously 
than is helpful.  But the basic point of the cost of  immunity from tort law 
is one that should be taken seriously. 
Eugene 
> -Original Message- 
> From: religionlaw-boun...@lists.ucla.edu  [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of  lawyer2...@aol.com 
> Sent: Friday, June 15, 2012 3:42 AM 
> To: Law & Religion issues for Law Academics 
> 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 <_hamilton02@aol.com_ (mailto:hamilto...@aol.com) > 
> Sender: _religionlaw-boun...@lists.ucla.edu_ 
(mailto:religionlaw-boun...@lists.ucla.edu)  
> Date: Fri, 15 Jun 2012 03:08:48 
> To: Law & Religion issues for Law  Academics<_religion...@lists.ucla.edu_ 
(mailto:religionlaw@lists.ucla.edu) > 
> Reply-To: Law & Religion issues for Law  Academics 
> <_religion...@lists.ucla.edu_ (mailto:religionlaw@lists.ucla.edu) > 
> Cc: Law & Religion issues for Law  Academics<_religion...@lists.ucla.edu_ 
(mailto:religionlaw@lists.ucla.edu) > 
> Subject: Re: Religious exemptions in ND 
>  
> ___ 
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Please note  that me

Strict scrutiny, from Sherbert/Yoder to RFRA

[Volokh, Eugene]

From: Volokh, Eugene
Sent: Friday, June 15, 2012 10:44 AM
To: Law & Religion issues for Law Academics
Subject: Strict scrutiny, from Sherbert/Yoder to RFRA

I disagree on very much with Marci, and I’m not sure that the 
Sherbert/Yoder test would have been inapplicable to the things that NARAL and 
CHILD fears.

But Marci’s more general point strikes me as quite correct:  At least if read 
literally, RFRA enacts an across-the-board strict scrutiny test, which the 
Court in the Sherbert/Yoder era never did.  For instance, when the government 
was acting as prison administrator or as commander of military personnel, the 
religious exemption test--like the Free Speech Clause test--was close to the 
rational basis framework. Lower courts adopted a similarly deferential test for 
probation conditions that incidentally interfered with religious practices.  
When the government was acting as employer, some lower courts likewise adopted 
fairly (but not entirely) deferential tests borrowed from the Pickering test 
applied in government employee free speech cases. There was no agreed-on test 
for the government acting as educator in kindergarten through high school, but 
courts at least had the option of concluding that the free exercise test--like 
the free speech test--should be relatively deferential in these cases, too.

When the government was acting as sovereign, the test was usually strict 
scrutiny, but not always.  For claimants requesting exemptions from generally 
applicable speech restrictions, the free exercise test was the same as the free 
speech test, which might differ from strict scrutiny.  Content-neutral 
restrictions on the time, place, or manner of speech, for instance, are only 
subject to a form of intermediate scrutiny under the Free Speech Clause, and 
Heffron v. ISKCON held that this same quasi-intermediate scrutiny was 
applicable to requests for religious exemptions from such restrictions.   
Similarly, some lower court cases suggested that zoning restrictions were 
subject to a lower standard of scrutiny.

Now perhaps the same results could be reached by applying strict scrutiny with 
an eye towards the special circumstances present in those cases – but that, 
even more than the Court’s “feeble in fact” version of strict scrutiny applied 
in cases such as Lee, Bob Jones, and the like, would in practice be a way of 
avoiding strict scrutiny rather than a way of honestly applying it.

Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, June 15, 2012 12:09 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

The Sherbert/Yoder test was never treated by the
Supreme Court as a test available across the
board.   So NARAL's concerns and CHILD 's
Issues would not have been controlled by it

The concern is not over enforcement but rather enforcement
Giving religious groups more power to endanger children is
not a good idea.

Marci
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RE: Religious exemptions in ND

[Volokh, Eugene]

No, actually I think the quote was an unnecessarily pugnacious 
attempt to capture an important point.  Some religious groups have apparently 
failed to reasonably investigate and monitor people whom they put in positions 
of influence over children, and some of those people have used that influence 
to molest children.  It's at least plausible that holding religious groups 
liable for negligent hiring, retention, and supervision would provide an extra 
incentive for such monitoring and investigation in the future.  Conversely, 
it's at least plausible that immunizing those groups from such employer 
liability would make it easy for them to endanger children -- not through 
deliberate attempts to harm children, of course, but through failure to protect 
the children.



As I've mentioned, I'm skeptical that RFRAs will provide such 
immunity.  But some states have indeed interpreted the First Amendment as 
providing such immunity - and even if that is nonetheless the correct result, 
for non-entanglement reasons or other reasons - it does seem to facilitate 
religious groups' failure to take proper care to protect children.  As I said, 
I think both sides of the discussion have at times put things more pugnaciously 
than is helpful.  But the basic point of the cost of immunity from tort law is 
one that should be taken seriously.



Eugene



> -Original Message-

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

> boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com

> Sent: Friday, June 15, 2012 3:42 AM

> To: Law & Religion issues for Law Academics

> 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 mailto:hamilto...@aol.com>>

> Sender: 
> religionlaw-boun...@lists.ucla.edu

> Date: Fri, 15 Jun 2012 03:08:48

> To: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Reply-To: Law & Religion issues for Law Academics

> mailto:religionlaw@lists.ucla.edu>>

> Cc: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Subject: Re: Religious exemptions in ND

>

> ___

> 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

>

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RE: Religious exemptions in ND

[Graber, Mark]

Ouch.  This was obviously just meant for EV.  On Friday afternoons, one should 
hesitate before hitting the send button.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Thanks.  Seems like we are arguing BIG principles that, actually everyone 
agrees with, when the work that needs to be done is in the details.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
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RE: Religious exemptions in ND

[Graber, Mark]

Thanks.  Seems like we are arguing BIG principles that, actually everyone 
agrees with, when the work that needs to be done is in the details.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
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RE: Religious exemptions in ND

[Volokh, Eugene]

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
___
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Re: Religious exemptions in ND

[Marci Hamilton]

Public schools should also be held to the same standard as any private 
institution and it should be child-protective

Marci

On Jun 15, 2012, at 11:04 AM, "Douglas Laycock"  wrote:

> It is not just other constitutional interests that limit liability for harm 
> to children. It is also other public policies.
>  
> For example, in Missouri, where Gibson v. Brewer limits the church’s 
> liability to cases where they knew about abuse and failed to act, public 
> schools have no state-law liability at all in sex abuse cases. See Mo. Stat. 
> §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special 
> School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no 
> federal liability unless an official with authority to act had “actual 
> knowledge” and made “an official decision” not to do anything. Gebser v. Lago 
> Vista Independent School District, 524 U.S. 274, 290 (1998).
>  
> The should-have-known liability now imposed on churches in many states, and 
> the should-have-known-there-was-an-elevated-risk liability that is often 
> alleged and sometimes imposed, goes far beyond the liability rules applicable 
> to most public schools.
>  
> 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 Graber, Mark
> Sent: Friday, June 15, 2012 9:46 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
>  
> May I suggest this is too strong.  A great many constitutional rights 
> increase to some degree the possibility that child abuse will occur, not be 
> detected and not be adequately punished.  Consider in this respect the Fourth 
> and Fifth Amendments, at least as presently interpreted (and I suspect most 
> of us would not agree with an interpretive rule that said government does not 
> violate the Fourth and Fifth Amendment whenever doing so might increase to 
> any degree the possibility that a crime will not be committed, not be 
> detected, and not be punished.  So we might assume that a) protections for 
> religious freedom will have some negative consequences, including some severe 
> negative consequences but b) that this is true for pretty much all 
> constitutional rights.
>  
> So the issue is how much do we risk because we value religious freedom 
> (remembering that a strategy of risk nothing will have other severe bad 
> consequences.
>  
> In this vein, may I suggest that the present alternatives are not helpful.  
> SMITH seems to suggest a rational basis test that would allow government to 
> severely burden religious practice whenever doing so has any appreciable 
> tendency to prevent, detect, or punish crime.  Many RFRAs suggest a 
> compelling interest test that probably puts too high a burden on government 
> to do a variety of acts (not just in the area of criminal justice—so even if 
> you think, as I do, that preventing child abuse is obviously a compelling 
> government interest, you might still think the compelling interest standard 
> too strong in other cases).
>  
> Strikes me that one thing we might discuss is what that in-between standard 
> looks like.
>  
> Mark A. Graber
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
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> 
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> private.  Anyone can subscribe to the list and read messages that are posted; 
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> forward the messages to others.
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RE: Religious exemptions in ND

[Volokh, Eugene]

Marc:  It seems to me that state RFRAs are aimed at protecting 
religious observers and religious institutions more than at least many other 
social interests.  Conversely, as I understand the church liability cases, 
plaintiffs usually aim to simply apply normal negligent 
hiring/supervision/retention law to churches, just as it would apply to (say) 
secular private schools, secular youth organizations, secular day care centers, 
and so on.  To be sure, as Doug pointed out, state and local governments often 
are treated better than all these private institutions, under 
sovereign-immunity-ish principles.  But whether that better treatment or not is 
right, it is justified by the sense that taxpayer money needs to be specially 
protected.  Why should religious institutions be given more protection against 
liability than other private organizations?

Eugene

Marc Stern writes:

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

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RE: Religious exemptions and child sexual abuse

[Douglas Laycock]

First of all, he goes by Martin, not Marty.

 

Marci, you have not yet offered a single example of substantial briefing of a 
state RFRA issue in a sexual abuse case. It does not have to be the dispositive 
issue to count. It does need to be an issue  that is seriously argued, and not 
a boilerplate pleading. 

 

We haven’t even seen an example of a boilerplate pleading of a state RFRA. 
There surely are some; lawyers will plead pretty much anything. But investing 
serious resources to develop the argument, devoting limited pages to the 
argument, and taking up the court’s time with the argument, is an altogether 
different decision. You have to do those things before the other side is forced 
to invest resources responding. Martin says it isn’t happening, and he’s 
checked with two other lawyers who do a lot of these cases, and they agree that 
it isn’t happening.

 

Neither your cert petition below nor the Tennessee opinion you cite even 
mentions a RFRA. The cert petition is from a Missouri case. Both Missouri and 
Tennessee have RFRAs. The cert petition offers a nationwide set of string 
cites. There is no mention of state RFRAs as part of the problem.

 

The church autonomy argument is no longer being offered much outside the states 
that have already recognized it, because it’s chances of success are no longer 
very good. It is being offered some, including in the Tennessee case, and of 
course it is offered in states that recognize it. We have no dispute about 
that. 

 

State RFRA arguments are not being seriously pressed in sexual abuse cases, 
probably because no one believes that such an argument would have the slightest 
chance of success. Sexual abuse cases as an argument against state RFRAs is 
just mudslinging.

 

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 Marci Hamilton
Sent: Friday, June 15, 2012 12:27 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse

 

To be sure church autonomy arguments outpace RFRA arguments, but less than half 
the states have rfras

I don't actually get Doug's point -- a RFRA is irrelevant if it is not the 
dispositive issue in most cases?  It adds a layer of argument in these cases.   
And from the perspective of child protection, it is bad policy.

 

In any event, Marty has under reported the prevalence of these issues in child 
sex abuse cases. For a summary of the cases and issues, see my cert petition in 
John Doe AP, which I have posted on my Cardozo web page





http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf

For the most recent case, see the Tennessee Supreme Court decision, Redwing v. 
Catholic Bishop for the Diocese of Memphis

 





-


On Jun 15, 2012, at 11:31 AM, "Douglas Laycock"  wrote:

Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments 
and church autonomy arguments:

 

My previous comments were not about the bankruptcies where federal law, the 
U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes 
prevail.

 

Second, it is one thing to plead an affirmative defense.  It is quite another 
to file a dispositive motion.  Professor Hamilton writes, "Just this week I 
have seen autonomy argued in Illinois, Hawaii, and California cases."  If she 
"saw" the arguments, there must be briefs.  Might she share those three briefs 
with the group?

 

The information I have suggests that counsel, at least in Hawaii and 
California, are not filing dispositive motions arguing that the church autonomy 
doctrine bars ecclesiastical negligent supervision claims.  Last evening, the 
leading ecclesiastical defense counsel in California (who has himself handled 
over 500 cases and who is daily communications with others from that defense 
bar) told me that he is unaware of defense counsel in California filing 
dispositive motions contending that tort liability is precluded by the church 
autonomy doctrine.  I suspect that the practical unavailability of a church 
autonomy argument against negligent ecclesiastical supervision claims in 
California has something to do with Church defendants paying out around $1.5 
billion in settlements in that state.  The leading ecclesiastical defense 
counsel in Hawaii also informed me that he is unaware of church autonomy 
arguments being briefed in Hawaii to bar ecclesiastical negligent supervision 
claims.  I have not recently conferred with church counsel in Illinois.

 

Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, 
in those states with such laws.  This is consistent with what I've seen.

 

Martin Nussbaum

 

 

PLEASE TAKE NOTICE, the information contained in this ele

Re: Religious exemptions and child sexual abuse

[Richard Dougherty]

Fascinating discussion, from which I am learning a lot.  As a non-expert,
it strikes me that Marci's account is akin to what I hear from family law
attorneys dealing with divorce or child-custody cases -- that it is routine
practice to make claims of spousal or child abuse, but that judges almost
never take such claims seriously.  So, yes, it might make it more
complicated to deal with such cases, and it might diminish response to real
cases of abuse, but it's unclear that it affects many cases, as I
understand it.

Richard Dugherty


On Fri, Jun 15, 2012 at 11:27 AM, Marci Hamilton  wrote:

>  To be sure church autonomy arguments outpace RFRA arguments, but less
> than half the states have rfras
> I don't actually get Doug's point -- a RFRA is irrelevant if it is not the
> dispositive issue in most cases?  It adds a layer of argument in these
> cases.   And from the perspective of child protection, it is bad policy.
>
> In any event, Marty has under reported the prevalence of these issues in
> child sex abuse cases. For a summary of the cases and issues, see my cert
> petition in John Doe AP, which I have posted on my Cardozo web page
>
>
> http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf
>
> For the most recent case, see the Tennessee Supreme Court decision, Redwing
> v. Catholic Bishop for the Diocese of Memphis
>
>
>
>   -
>
>
> On Jun 15, 2012, at 11:31 AM, "Douglas Laycock" 
> wrote:
>
>Martin Nussbaum’s response on the alleged prevalence of state RFRA
> arguments and church autonomy arguments:
>
> ** **
>
> My previous comments were not about the bankruptcies where federal law,
> the U.S. Bankruptcy Code, is operative, and RFRA arguments are made and
> sometimes prevail.
>
> ** **
>
> Second, it is one thing to plead an affirmative defense.  It is quite
> another to file a dispositive motion.  Professor Hamilton writes, "Just
> this week I have seen autonomy argued in Illinois, Hawaii, and California
> cases."  If she "saw" the arguments, there must be briefs.  Might she share
> those three briefs with the group?
>
> ** **
>
> The information I have suggests that counsel, at least in Hawaii and
> California, are not filing dispositive motions arguing that the church
> autonomy doctrine bars ecclesiastical negligent supervision claims.  Last
> evening, the leading ecclesiastical defense counsel in California (who has
> himself handled over 500 cases and who is daily communications with others
> from that defense bar) told me that he is unaware of defense counsel in
> California filing dispositive motions contending that tort liability is
> precluded by the church autonomy doctrine.  I suspect that the practical
> unavailability of a church autonomy argument against negligent
> ecclesiastical supervision claims in California has something to do with
> Church defendants paying out around $1.5 billion in settlements in that
> state.  The leading ecclesiastical defense counsel in Hawaii also informed
> me that he is unaware of church autonomy arguments being briefed in Hawaii
> to bar ecclesiastical negligent supervision claims.  I have not recently
> conferred with church counsel in Illinois.
>
> ** **
>
> Finally, Professor Hamilton only claims that state RFRAs are plead, not
> argued, in those states with such laws.  This is consistent with what I've
> seen.
>
> ** **
>
> Martin Nussbaum
>
> ** **
>
> ** **
>
> PLEASE TAKE NOTICE, the information contained in this electronic
> communication and any document attached hereto or transmitted herewith,
> including metadata, is attorney-client privileged, work product, private or
> otherwise confidential, and is intended for the exclusive use of the
> individual or entity named above.  The information transmitted in this
> e-mail and any attachment is intended only for the personal and
> confidential use of the intended recipients and is covered by the
> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.  If the reader
> of this message is not the intended recipient or the employee or agent
> responsible for delivering it to the intended recipient, you are hereby
> notified that any examination, use, dissemination, distribution, or copying
> of this communication or any part thereof is strictly prohibited.  If you
> have received this communication in error, please immediately notify the
> sender by telephone or reply e-mail and delete this communication.  You are
> further notified that all personal messages express views solely of the
> sender which are not to be attributed to Rothgerber Johnson & Lyons LLP and
> may not be copied or distributed without this disclaimer.
>
> ** **
>
> ** **
>
> 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:
> religionl

Re: Religious exemptions and child sexual abuse

[Marci Hamilton]

To be sure church autonomy arguments outpace RFRA arguments, but less than half 
the states have rfras
I don't actually get Doug's point -- a RFRA is irrelevant if it is not the 
dispositive issue in most cases?  It adds a layer of argument in these cases.   
And from the perspective of child protection, it is bad policy.

In any event, Marty has under reported the prevalence of these issues in child 
sex abuse cases. For a summary of the cases and issues, see my cert petition in 
John Doe AP, which I have posted on my Cardozo web page

> http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/hamilton02-447/MOJohnDoeAPcertpetn.pdf
> 
> 
> For the most recent case, see the Tennessee Supreme Court decision, Redwing 
> v. Catholic Bishop for the Diocese of Memphis
> 


> -
> 

On Jun 15, 2012, at 11:31 AM, "Douglas Laycock"  wrote:

> Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments 
> and church autonomy arguments:
>  
> My previous comments were not about the bankruptcies where federal law, the 
> U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes 
> prevail.
>  
> Second, it is one thing to plead an affirmative defense.  It is quite another 
> to file a dispositive motion.  Professor Hamilton writes, "Just this week I 
> have seen autonomy argued in Illinois, Hawaii, and California cases."  If she 
> "saw" the arguments, there must be briefs.  Might she share those three 
> briefs with the group?
>  
> The information I have suggests that counsel, at least in Hawaii and 
> California, are not filing dispositive motions arguing that the church 
> autonomy doctrine bars ecclesiastical negligent supervision claims.  Last 
> evening, the leading ecclesiastical defense counsel in California (who has 
> himself handled over 500 cases and who is daily communications with others 
> from that defense bar) told me that he is unaware of defense counsel in 
> California filing dispositive motions contending that tort liability is 
> precluded by the church autonomy doctrine.  I suspect that the practical 
> unavailability of a church autonomy argument against negligent ecclesiastical 
> supervision claims in California has something to do with Church defendants 
> paying out around $1.5 billion in settlements in that state.  The leading 
> ecclesiastical defense counsel in Hawaii also informed me that he is unaware 
> of church autonomy arguments being briefed in Hawaii to bar ecclesiastical 
> negligent supervision claims.  I have not recently conferred with church 
> counsel in Illinois.
>  
> Finally, Professor Hamilton only claims that state RFRAs are plead, not 
> argued, in those states with such laws.  This is consistent with what I've 
> seen.
>  
> Martin Nussbaum
>  
>  
> PLEASE TAKE NOTICE, the information contained in this electronic 
> communication and any document attached hereto or transmitted herewith, 
> including metadata, is attorney-client privileged, work product, private or 
> otherwise confidential, and is intended for the exclusive use of the 
> individual or entity named above.  The information transmitted in this e-mail 
> and any attachment is intended only for the personal and confidential use of 
> the intended recipients and is covered by the Electronic Communications 
> Privacy Act, 18 U.S.C. §2510-2521.  If the reader of this message is not the 
> intended recipient or the employee or agent responsible for delivering it to 
> the intended recipient, you are hereby notified that any examination, use, 
> dissemination, distribution, or copying of this communication or any part 
> thereof is strictly prohibited.  If you have received this communication in 
> error, please immediately notify the sender by telephone or reply e-mail and 
> delete this communication.  You are further notified that all personal 
> messages express views solely of the sender which are not to be attributed to 
> Rothgerber Johnson & Lyons LLP and may not be copied or distributed without 
> this disclaimer.
>  
>  
> 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 Marci Hamilton
> Sent: Thursday, June 14, 2012 6:44 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Religious exemptions and child sexual abuse
>  
> There is a significant federal RFRA litigation burden in the diocesan 
> bankruptcies.  Marty and I have been on opposite sides litigating it.   I 
> currently represent the victims in the Milwaukee Archdiocesan bankruptcy on 
> the RFRA and First Amendment issues.
>  
> I have seen state rfras pled in many cases.   These cases typically settle so 
> decisions are rare.   The trend is definitely against their theories but they 
> are part of the fabric of these case

RE: Religious exemptions and child sexual abuse

[Douglas Laycock]

Martin Nussbaum’s response on the alleged prevalence of state RFRA arguments 
and church autonomy arguments:

 

My previous comments were not about the bankruptcies where federal law, the 
U.S. Bankruptcy Code, is operative, and RFRA arguments are made and sometimes 
prevail.

 

Second, it is one thing to plead an affirmative defense.  It is quite another 
to file a dispositive motion.  Professor Hamilton writes, "Just this week I 
have seen autonomy argued in Illinois, Hawaii, and California cases."  If she 
"saw" the arguments, there must be briefs.  Might she share those three briefs 
with the group?

 

The information I have suggests that counsel, at least in Hawaii and 
California, are not filing dispositive motions arguing that the church autonomy 
doctrine bars ecclesiastical negligent supervision claims.  Last evening, the 
leading ecclesiastical defense counsel in California (who has himself handled 
over 500 cases and who is daily communications with others from that defense 
bar) told me that he is unaware of defense counsel in California filing 
dispositive motions contending that tort liability is precluded by the church 
autonomy doctrine.  I suspect that the practical unavailability of a church 
autonomy argument against negligent ecclesiastical supervision claims in 
California has something to do with Church defendants paying out around $1.5 
billion in settlements in that state.  The leading ecclesiastical defense 
counsel in Hawaii also informed me that he is unaware of church autonomy 
arguments being briefed in Hawaii to bar ecclesiastical negligent supervision 
claims.  I have not recently conferred with church counsel in Illinois.

 

Finally, Professor Hamilton only claims that state RFRAs are plead, not argued, 
in those states with such laws.  This is consistent with what I've seen.

 

Martin Nussbaum

 

 

PLEASE TAKE NOTICE, the information contained in this electronic communication 
and any document attached hereto or transmitted herewith, including metadata, 
is attorney-client privileged, work product, private or otherwise confidential, 
and is intended for the exclusive use of the individual or entity named above.  
The information transmitted in this e-mail and any attachment is intended only 
for the personal and confidential use of the intended recipients and is covered 
by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.  If the 
reader of this message is not the intended recipient or the employee or agent 
responsible for delivering it to the intended recipient, you are hereby 
notified that any examination, use, dissemination, distribution, or copying of 
this communication or any part thereof is strictly prohibited.  If you have 
received this communication in error, please immediately notify the sender by 
telephone or reply e-mail and delete this communication.  You are further 
notified that all personal messages express views solely of the sender which 
are not to be attributed to Rothgerber Johnson & Lyons LLP and may not be 
copied or distributed without this disclaimer.

 

 

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 Marci Hamilton
Sent: Thursday, June 14, 2012 6:44 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse

 

There is a significant federal RFRA litigation burden in the diocesan 
bankruptcies.  Marty and I have been on opposite sides litigating it.   I 
currently represent the victims in the Milwaukee Archdiocesan bankruptcy on the 
RFRA and First Amendment issues.

 

I have seen state rfras pled in many cases.   These cases typically settle so 
decisions are rare.   The trend is definitely against their theories but they 
are part of the fabric of these cases nonetheless.   

 

Autonomy theories are persistent in these cases.   Marty may not have seen the 
briefing but I see such issues from around the country on a daily basis.  Just 
this week I have seen autonomy argued in Illinois, Hawaii, and California cases.

 

Marci  





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RE: Religious exemptions in ND

[Douglas Laycock]

It is not just other constitutional interests that limit liability for harm
to children. It is also other public policies. 

 

For example, in Missouri, where Gibson v. Brewer limits the church’s
liability to cases where they knew about abuse and failed to act, public
schools have no state-law liability at all in sex abuse cases. See Mo. Stat.
§537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special
School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no
federal liability unless an official with authority to act had “actual
knowledge” and made “an official decision” not to do anything. Gebser v.
Lago Vista Independent School District, 524 U.S. 274, 290 (1998).

 

The should-have-known liability now imposed on churches in many states, and
the should-have-known-there-was-an-elevated-risk liability that is often
alleged and sometimes imposed, goes far beyond the liability rules
applicable to most public schools. 

 

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 Graber, Mark
Sent: Friday, June 15, 2012 9:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

 

May I suggest this is too strong.  A great many constitutional rights
increase to some degree the possibility that child abuse will occur, not be
detected and not be adequately punished.  Consider in this respect the
Fourth and Fifth Amendments, at least as presently interpreted (and I
suspect most of us would not agree with an interpretive rule that said
government does not violate the Fourth and Fifth Amendment whenever doing so
might increase to any degree the possibility that a crime will not be
committed, not be detected, and not be punished.  So we might assume that a)
protections for religious freedom will have some negative consequences,
including some severe negative consequences but b) that this is true for
pretty much all constitutional rights.

 

So the issue is how much do we risk because we value religious freedom
(remembering that a strategy of risk nothing will have other severe bad
consequences.

 

In this vein, may I suggest that the present alternatives are not helpful.
SMITH seems to suggest a rational basis test that would allow government to
severely burden religious practice whenever doing so has any appreciable
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a
compelling interest test that probably puts too high a burden on government
to do a variety of acts (not just in the area of criminal justice—so even if
you think, as I do, that preventing child abuse is obviously a compelling
government interest, you might still think the compelling interest standard
too strong in other cases).

 

Strikes me that one thing we might discuss is what that in-between standard
looks like.

 

Mark A. Graber

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RE: Religious exemptions in ND

[Christopher Lund]

That is true.

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 10:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

 

Chris Lund writes:

 

It's also important to keep in mind that the protection of state RFRAs can
always be legislatively narrowed-and that has happened.  Concerned with a
pending suit by a Muslim to claim a drivers' license without having to
take off her headscarf, Florida statutorily (and retroactively) removed
such claims from the protection of Florida's RFRA.  Judging by Florida's
reaction to it, that apparently is the most threatening state RFRA claim
that has ever been brought.  I leave it to the listserv to evaluate how
bad it really is, but it is certainly less scary than what Measure 3
opponents feared.

 

 

  I think the opportunity for legislative narrowing is a
critical argument in favor of state RFRAs - but wouldn't that have at
least been somewhat harder with Measure 3, which would have been a state
constitutional amendment and not a state statute?

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RE: Religious exemptions in ND

[Volokh, Eugene]

Chris Lund writes:

It's also important to keep in mind that the protection of state RFRAs can 
always be legislatively narrowed-and that has happened.  Concerned with a 
pending suit by a Muslim to claim a drivers' license without having to take off 
her headscarf, Florida statutorily (and retroactively) removed such claims from 
the protection of Florida's RFRA.  Judging by Florida's reaction to it, that 
apparently is the most threatening state RFRA claim that has ever been brought. 
 I leave it to the listserv to evaluate how bad it really is, but it is 
certainly less scary than what Measure 3 opponents feared.


  I think the opportunity for legislative narrowing is a critical 
argument in favor of state RFRAs - but wouldn't that have at least been 
somewhat harder with Measure 3, which would have been a state constitutional 
amendment and not a state statute?
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RE: Religious exemptions in ND

[Christopher Lund]

Obviously the sexual abuse of children is tragic and criminal.  But I
still am not getting how state RFRAs have protected it or encouraged it.  

 

State RFRA cases are more boring than those opposed to Measure 3 might
think.  Plaintiffs generally lose their claims; they sometimes win, but
they have not won anything remotely like what NARAL was fearing.  (In that
South Dakota piece-which is a bit dated now-I slog through the cases and
provide citations, to the extent people are interested.)

 

I counted somewhere around 25 Florida state RFRA cases, for example.  Of
those 25, plaintiffs won 1 on state RFRA grounds.  That case involved a
church that wanted to feed the homeless in a public park, despite a city
rule saying that parks could not be used for social-service purposes.  The
church didn't win the right to use the park of its choosing, but the trial
judge enjoined the city to let them use some park at some time.  The case
is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.-4 Dist.
2001).  

 

Of course, plaintiffs sometimes ask for things they can't possibly get
under state RFRAs-the right to use marijuana while driving, for example,
keeps coming up.  But that's a frivolous claim by a desperate criminal
defendant, and it simply loses.  State RFRAs have been asserted as
defenses in some of the sex abuse cases.  But usually such claims don't
even get separate analysis, and they certainly don't win.

 

If people like Marci will be more comfortable with a state RFRA with a
child safety exception, I'd gladly do it.  Not because I think it's
necessary, but because I think it isn't: A state RFRA with a child safety
exception will be treated exactly like a state RFRA without one.  Children
will be protected in any event.  

 

It's also important to keep in mind that the protection of state RFRAs can
always be legislatively narrowed-and that has happened.  Concerned with a
pending suit by a Muslim to claim a drivers' license without having to
take off her headscarf, Florida statutorily (and retroactively) removed
such claims from the protection of Florida's RFRA.  Judging by Florida's
reaction to it, that apparently is the most threatening state RFRA claim
that has ever been brought.  I leave it to the listserv to evaluate how
bad it really is, but it is certainly less scary than what Measure 3
opponents feared.

 

Best, Chris

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Friday, June 15, 2012 9:26 AM
To: religionlaw@lists.ucla.edu; lawyer2...@aol.com
Subject: Re: Religious exemptions in ND

 

Religious institutions are creating the conditions for abuse in MANY
circumstances.  That is the reality, 

and the notion they should be less culpable than the perpetrators in the
endangerment of children does them

and children no favors.  Religious institutions should not have one iota
more latitude to endanger children than

anyone else.  And any RFRA or First Amendment decision that decreases
deterrents to abuse or lets off

those responsible for endangering children is a mistake in my view. 

 

Not one other person on this listserv has endorsed exempting child safety
from a RFRA.  Rather, I've heard 

that the rfras don't affect these cases.  As someone involved in dozens,
and at times hundreds of these cases at once, I can tell you the rfras and
First Amendment do affect these cases.  For the record, I oppose any
religious liberty decision or rfra that affects the safety of children.  

 

For those who missed it, the Jehovahs Witnesses lost a child sex abuse
case in California this week, and the jury served

up 21 million in punitive damages.  The evidence included a letter
ordering keeping the abuse secret.  Just one

case out of thousands.

 

Best to all--  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.com

 

-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ;
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND

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 

RE: Religious exemptions in ND

[Graber, Mark]

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Friday, June 15, 2012 9:26 AM
To: religionlaw@lists.ucla.edu; lawyer2...@aol.com
Subject: Re: Religious exemptions in ND

Religious institutions are creating the conditions for abuse in MANY 
circumstances.  That is the reality,
and the notion they should be less culpable than the perpetrators in the 
endangerment of children does them
and children no favors.  Religious institutions should not have one iota more 
latitude to endanger children than
anyone else.  And any RFRA or First Amendment decision that decreases 
deterrents to abuse or lets off
those responsible for endangering children is a mistake in my view.

Not one other person on this listserv has endorsed exempting child safety from 
a RFRA.  Rather, I've heard
that the rfras don't affect these cases.  As someone involved in dozens, and at 
times hundreds of these cases at once, I can tell you the rfras and First 
Amendment do affect these cases.  For the record, I oppose any religious 
liberty decision or rfra that affects the safety of children.

For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in 
California this week, and the jury served
up 21 million in punitive damages.  The evidence included a letter ordering 
keeping the abuse secret.  Just one
case out of thousands.

Best to all--  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.com

-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ; 
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND
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 
mailto:lawyer2...@aol.com>>; 
religionlaw@lists.ucla.edu 
mailto:rel

Re: Religious exemptions in ND

[hamilton02]

Religious institutions are creating the conditions for abuse in MANY 
circumstances.  That is the reality,
and the notion they should be less culpable than the perpetrators in the 
endangerment of children does them
and children no favors.  Religious institutions should not have one iota more 
latitude to endanger children than
anyone else.  And any RFRA or First Amendment decision that decreases 
deterrents to abuse or lets off
those responsible for endangering children is a mistake in my view. 


Not one other person on this listserv has endorsed exempting child safety from 
a RFRA.  Rather, I've heard 
that the rfras don't affect these cases.  As someone involved in dozens, and at 
times hundreds of these cases at once, I can tell you the rfras and First 
Amendment do affect these cases.  For the record, I oppose any religious 
liberty decision or rfra that affects the safety of children.  


For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in 
California this week, and the jury served
up 21 million in punitive damages.  The evidence included a letter ordering 
keeping the abuse secret.  Just one
case out of thousands.


Best to all--  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.com




-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ; 
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND


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 ; 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.com




-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
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 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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_

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 ; 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.com


-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
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 mailto:hamilto...@aol.com>>
Sender: 
religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48
To: Law & Religion issues for Law 
Academicsmailto:religionlaw@lists.ucla.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Cc: Law & Religion issues for Law 
Academicsmailto:religionlaw@lists.ucla.edu>>
Subject: Re: Religious exemptions in ND

___
To post, send message to 
Religionlaw@lists.ucla.edu
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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.

Re: Religious exemptions in ND

[hamilton02]

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.com




-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
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 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
To post, send message to Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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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.

Re: Religious exemptions in ND

[lawyer2974]

"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 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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Re: Religious exemptions in ND

[Marci Hamilton]

The Sherbert/Yoder test was never treated by the 
Supreme Court as a test available across the 
board.   So NARAL's concerns and CHILD 's
Issues would not have been controlled by it

The concern is not over enforcement but rather enforcement
Giving religious groups more power to endanger children is
not a good idea.   

Marci



On Jun 14, 2012, at 11:34 PM, "Christopher Lund"  wrote:

> Connecticut and Alabama use “burden” instead of “substantial burden” in their 
> state RFRAs.  Rhode Island, New Mexico, and Missouri speak of “restrictions 
> on religious liberty.”  But I really don’t know how much the difference in 
> language ends up mattering.  Connecticut is a “burden” state, like North 
> Dakota would have been.  But the lower courts in Connecticut have interpreted 
> Connecticut’s RFRA to be equivalent to the standard laid out in Employment 
> Division v. Smith.  It’s hard to see how that is even possible, given what 
> state RFRAs were designed to do.  But there it is.  My South Dakota piece 
> (which Doug referred to earlier) provides the details. 
>  
> Given all this, it’s hard for me to understand these fears of dramatic 
> overenforcement.  Even with explicit authorization from state legislatures, 
> we can’t even seem to get back to Sherbert/Yoder—and it’s not as if the 
> Sherbert/Yoder regime led to the horrible things that NARAL was fearing.
>  
> Best, Chris
> ___
> Christopher C. Lund
> Assistant 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
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer
> Sent: Thursday, June 14, 2012 9:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Religious exemptions in ND
>  
> I believe that New Mexico's speaks in terms of "restrict[ing] a person's free 
> exercise of religion."
>  
> Roman
>  
> Storzer & Greene, P.L.L.C.
>  
> 1025 Connecticut Avenue, Northwest
> Suite One Thousand
> Washington, D.C. 20011
> Tel: (202) 857-9766
> Fax: (202) 315-3996
>  
> 110 Wall Street
> Eleventh Floor
> New York, N.Y. 10005
> Tel: (212) 943-4343
> Fax: (202) 315-3996
> 
> http://www.storzerandgreene.com
> stor...@storzerandgreene.com
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Thursday, June 14, 2012 9:32 PM
> To: religionlaw@lists.ucla.edu; b...@jmcenter.org
> Subject: Re: Religious exemptions in ND
> 
> Other than Conn and Alabama, I'm not aware of another state that eliminated 
> "substantial" from the formulation.
> Are there others?
>  
>  
> I don't know that all bets would need to be off in any case, since other 
> state 
> RFRAs have long used "burden" rather than "substantial burden," e.g. 
> Connecticut's.
>  
> 
>  
> 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.com
>  
> 
> -Original Message-
> From: Eric Rassbach 
> To: Law & Religion issues for Law Academics ; bob 
> 
> Sent: Thu, Jun 14, 2012 9:26 pm
> Subject: RE: Religious exemptions in ND
> 
>  
>  
> I don't know that all bets would need to be off in any case, since other 
> state 
> RFRAs have long used "burden" rather than "substantial burden," e.g. 
> Connecticut's.
>  
>  
>  
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> On 
> Behalf Of Douglas Laycock [dlayc...@virginia.edu]
> Sent: Thursday, June 14, 2012 9:15 PM
> To: b...@jmcenter.org; Law & Religion issues for Law Academics
> Subject: Re: Religious exemptions in ND
>  
> The Supreme Court of the United states would have had nothing to say about 
> the 
> meaning of Measure 3. It would have been a state law issue.
>  
>  
>  
> On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
>  "b...@jmcenter.org"  wrote:
> >Eric,
> > 
> >Glad to see you focusing on the claims made with respect to Measure 3. I've 
> been
> >counseling a nontheistic North Dakota group for over a year on Measure 3 and 
> its
> >predecessor. My primary concern has been the potential use of Measure 3 to
> >legalize discrimination against atheists, members of minority religions and
> >LGBT. Considering the fact that Justice Scalia doesn't believe the 
> Establishment
> >Clause protects atheists, Justice Thomas doesn't believe in incorporation and
> >six of nine justices self-identify themselves as Catholic, all bets are off 
> what
> >would have benn protected by mere burden in Measure 3.
> > 
> >Bob Ritter
> >Jefferson Madison Center for Religious Liberty
> >A Project of the Law Office of Robert V. Ritter
> >Falls Churc