Re: Do philosophy departments violate the Constitution?
In Mark's hypo the philosophy departments, and the teachers who speak within it, are state actors. The question, then, is not whether exclusion of a certain viewpoint from faculty speech would violate the free speech clause (the clause that UVa was held to have violated in Rosenberger); presumably it wouldn't, because the free speech clause does not restrict the state itself from expressing any views it wishes. The question, then, is whether the university would violate the *Establishment* Clause by *permitting* a faculty member to teach Ethics from a Christian/Roman Catholic Point of View -- and, for that matter, for permitting teachers more broadly to present their own views about what general approach to ethics, including ultimate issues of life, are correct/most defensible. I'd like to suggest a slight variant on the issues opened up by the discussion of invited speakers. Consider the philosophy department in a public university. It offers a number of courses in ethics, in which teachers survey the field and -- importantly for the problem -- present their own views about what general approach to ethics (utilitarianism, Kantianism, and the like) is correct/most defensible. Many of these courses spend a substantial amount of time on ultimate issues of life (of a sort that addressed -- in a different way -- in theology departments in religiously affiliated universities). [I invite people to tinker with the set-up in ways that make the following question more pointed.] Under Rosenberger, is the department violating the Constitution if it rejects a course proposal by a fully qualified instructor (Ph. D. in philosophy, with a specialization in ethics, and an advanced theological degree relevant to the course proposal) to offer a course (on the same terms as the other ethics courses are offered -- as an elective if they are, as a course that fulfills a departmental requirement if they do) in (not on) Christian ethics, or Roman Catholic ethics, or Ethics from a Christian/Roman Catholic Point of View, or ... -- when the rejection is on the ground that the perspective proposed is not within the department's definition of philosophy? ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Axson-Flynn
Sandy, the Tenth Circuit opinion does not suggest that your hypo would state a claim -- to the contrary. The court's opinion explains in great detail why a school has the authority to require students to fullfill curricular requirements, and why that does not make out a "compelled speech" or free exercise violation. The only reason the court of appeals reversed the summary judgment on the free speech claim was because there was a smidgen of evidence in the record that defendants' reason for requiring strict "script adherence" was hostility to plaintiff's Mormonism, rather than a genuine, consistently applied pedagogical rule. Similarly, the court allows the free exercise claim to go forward for trial because there is some evidence that defendants selectively singled out the plaintiff for more stringent treatment, and that the defendants had a policy of "individualized exemptions" that they applied to permit other students to "opt out" of certain curricular assignments, but which they refused to apply to permit the plaintiff to "opt out." - Original Message - From: "Levinson" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Wednesday, February 04, 2004 4:49 PM Subject: Re: Re: Axson-Flynn I haven't read the opinion. But let me ask this: Let's assume that the play chosen for presentation in a given semester was, say, David Mamet's Glengarry Glen Ross, which, to put it mildly, includes tons of profanity. A student presents herself at an audition, saying, "you realize, of course, that I cannot use those words, so I expect you to rewrite my part if I am chosen." Is there anyone on this list who believes that this "states a claim," so to speak, or can the audition be conditioned on the willingness to read the lines as written by the playwright? Does anyone on this list believe that the director has a duty to select a play that everyone in the class would be comfortable with? (Recall Butler v. Michigan, where the Court struck down a requirement that all literature sold in bookstores had to be acceptable for an audience that included children. Surely that was correct.) So is this case (which, recall, I haven't yet read) simply fact-specific or does it state a generalizable principle that would affect my hypothetical. (Or, with regard to the Jewish student), does she have a right that the play not be performed on Yom Kippur? Surely not. So, in the alternative, does the director have the duty to train an understudy who can perform on Yom Kippur rather than impose a duty on anyone selected to perform in the play to show up at all performances unless sick?)sandy-Original Message-From: David Cruz [EMAIL PROTECTED]To: Law Religion issues for Law Academics [EMAIL PROTECTED]Date: Wed, 4 Feb 2004 13:13:53 -0800 (Pacific Standard Time)Subject: Re: Axson-FlynnOn Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the "F" word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded. [snip] The court held that since the drama faculty had exempted a Jewish student from a required improvisational exercise on Yom Kippur but refused to grant Ms. Axson-Flynn an exemption from saying the forbidden words when performing required exercises, there was at least a genuine issue of material fact as to whether the University maintained an individualized exemption process which would trigger strict scrutiny under Smith-Lukumi-Sherbert. It seems right to me. [snip]Thanks to Rick for bringing this to our attention. I think that as longas "individualized exemptions" remain a legally viable distinction fromSmith, the disputed issue here does seem genuine and material.David B. CruzProfessor of LawUniversity of Southern California Law SchoolLos Angeles, CA 90089-0071U.S.A.___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Fuck the Draft
When Mel Nimmer stood up to argue on Cohen's behalf, Burger immediately instructed him as follows: "Mr. Nimmer, you may proceed whenever you're ready. I might suggest to you that . . . the Court is thoroughly familiar with the factual setting of this case and it will not benecessary for you, I'm sure, to dwell on the facts." This was, of course, a signal to refrain from quoting the jacket. Nimmer, to his credit, responded to theChief'ssuggestion by saying, "I certainly will keep very brief the statement of facts," and then proceededto explain that Cohen had been "convicted of engaging in tumultuous and offensive conduct, in violation of the California Disturbing the Peace Statute . . . . What this young man did" -- pregnant pause -- "was to walk through a courthouse corridor in Los Angeles County . . . wearing a jacket upon which were inscribed the words 'Fuck the Draft.'"! I forgot who told me this -- and perhaps it's apocryphal --but apparently Nimmer had decided before the arguent that he had little choice but to speak the words without reservation in order to win the case. - Original Message - From: "Douglas Laycock" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Monday, February 09, 2004 3:04 PM Subject: RE: F--- The Draft Harry Kalven, one of the leading First Amendment scholars of the generation that taught from World War II to the mid-70s, told my class at Chicago that there had been a substantial debate within the Court about whether to use the F word. He did not tell us who was on which side, or whether Harlan was reacting to Burger's timidity. At 02:42 PM 2/9/2004 -0500, you wrote: I cannot vouch for the story, but someone I thought at the time was reliable (a clerk?) tells me that Burger was so pedantic about not using the F word in Cohens that Harlan-hardly a libertine- was so put off that he insisted on using the F word spelled out simply to spite Burger. It is not the only spite Burger story circulating Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Rick Duncan Sent: Monday, February 09, 2004 2:38 PM To: Law Religion issues for Law Academics Subject: F--- The Draft Another observation about how far we have gone over the cliff: We have gone from cases deciding whether a person could be punished for saying "f--- the draft" to cases deciding whether a deeply religious student can be punished for refusing to say the "F" word. Is this cultural progress or what? Rick Duncan --- "A.E. Brownstein" [EMAIL PROTECTED] wrote: There are a lot of threads here. 1. My daughter's willingness to sing religious songs of other faiths when she was in the High School Choir, and her comfort level with such performances, was heavily influenced by the diversity or lack of diversity of the program. If songs of different faiths were included, I think she felt more distance between the personal beliefs of the singers and the message of the lyrics. She also thought that a diverse program was respectful of the diversity of the choir members and the community. 2. I'm not sure there is an exact analogy between an actor reciting lines spoken by a character in a play and a singer in a choir. I think the former conveys more of a feeling and a message that "This is not me" than the latter. Since I have never had sufficient talent to do either, my intuition may be wrong on this. 3. In the twenty years I have been teaching free speech issues, I have never felt the need to use examples of racial or religious epithets in class, or to display pornographic images, or to recite George Carlin's dirty words. (I do say "Fuck the Draft" when we talk about Cohen v. California.) I don't think this has made my classes less effective. I have never spoken with a student who seemed to have any doubts about what the class was referring to -- without having the words or pictures explicitly expressed. In speaking with students about other classes and out of class presentations, my sense is that such language and images will cause some students significant discomfort. It will distract others and silence some students. Different students have very different attitudes about racial epithets and pornography. Other professors follow different pedagogical protocols, based on a different evaluation of the costs and benefits of including specific terms and pictures. When we deal with certain subjects, I switch from calling on students to asking for volunteers. That seems to work reasonably well too. Alan Brownstein UC Davis At 09:44 PM 2/8/2004 -0600, you wrote: Richard Dougherty asks: Sandy: Why your hesitancy in speaking of the Messiah? How would you distinguish that from requiring Inherit the Wind?
Bottom-Side Briefs in Newdow
I've posted to SCOTUSblogthe respondent's briefand some of the briefs for amici on behalf of the respondent, all of which were filed yesterday,in No. 02-1624, Elk Grove Unified School District v. Newdow, the case involving the constitutionality of including the words "under God" in the Pledge of Allegiance in public primary and secondary schools. See http://www.goldsteinhowe.com/blog/archive/2004_02_08_SCOTUSblog.cfm#107676634682834495. The vast majority of the top-side briefs can be found on this helpful page created by the Pew Forum on Religion and Public Life. Although many of the briefs are, in my humble but not-impartial opinion, very good, I commend to you especially Doug Laycock's brief on behalf of 32 Clergy and the Unitarian Universalist Ass'n: http://www.goldsteinhowe.com/blog/files/newdow.laycock.pdf. The first two-thirds of Doug's brief are a powerful argument that the recitation of the words "under God" in public schools is unconstitutional, and, in particular, why the SG's counterargument -- that daily recitation of those words is permissible because it is not a religious exercise or the profession of a religious belief, but instead merely an "acknowledgement" of historical fact, a "descriptive" statement "about the Nation's historical origins, its enduring philosophy centered on the sovereignty of the individual, and its continuing demographic character" -- is not only mistaken, butalso an argument that, if taken seriously, would mean thatstate actors are asking millions of children to take the name of the Lord in vain ona daily basis. The final third of Doug's brief is most interesting. In those pages, heimplores the Court,if it is committed to reach the merits and uphold the constitutionality of "under God" in schools, to write a narrow, sui generis opinion that will not threaten to undermine the Court's entire line of school prayer cases. Doug then offers a test of five "factors," all of which would have to be present, that the Court could identify as being the necessary predicate for crafting an exception to its otherwise consistent religion-in-school doctrine, in the event the Court decides (contra the remainder of Doug's brief) to uphold the practice of having teachers lead students in a daily religious affirmation. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey
7-2, with dissents from Scalia and Thomas - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Wednesday, February 25, 2004 10:18 AM Subject: Locke v. Davey Ninth Circuit reversed, in an opinion by the Chief! Details to follow. ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey -- the Equal Protection Question
Very minor question about a potentially important footnote point in Davey. The Court holds in footnote 3 that where the Free Exercise Clause is not violated, religious discrimination is subject only to rational-basis scrutiny under the Equal Protection Clause -- citing Johnson v. Robison, which suggested the same thing. Is this correct? Is there a theory of the 14th Amendment that would suggest otherwise? The Court has often indicated that religious discrimination is subject to strict scrutiny under the EPC -- without ever, as far as I know, issuing a holding that depended on such a conclusion. But cf. Fowler, 345 U.S. at 527-28 (Frankfurter, J., concurring). Of course, many of us have been wary of this equal protection argument because to take it seriously would be to call into question religious accommodations. But assume for the moment that religious discrimination is generally subject to strict scrutiny under the EPC. If so, is there any good reason why the scrutiny should diminish in the absence of a Free Exercise violation? In other words, should there ever be a case in which the Equal Protection Clause prohibits a form of religious discrimination that the FEC permits? - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Wednesday, February 25, 2004 10:28 AM Subject: Re: Locke v. Davey Here's the opinion: http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Wednesday, February 25, 2004 10:22 AM Subject: Re: Locke v. Davey 7-2, with dissents from Scalia and Thomas - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Wednesday, February 25, 2004 10:18 AM Subject: Locke v. Davey Ninth Circuit reversed, in an opinion by the Chief! Details to follow. ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Locke v. Davey -- Blaine Amendments
I greatly appreciate Rick's gracious and thoughtful response. I hope that when he returns to South Bend he'll be able to fill us in further on this question. Rick's principal argument with respect to the "No public money" provision of article 11, section 1 appears to be that "the provision would not exist, in my judgment, but for the threats to American values that -- many believed -- were posed by Catholicism." Perhaps this is correct. And perhaps "[t]his connection is established in the recent work of Hamburger, McGreevy, and many others." As I said, I do not know thehistory nearly as well as Rick, or Hamburger, McGreevy, etc. But I do find it fairly odd -- that is to say, telling -- that none of the parties or amici in the case,nor Justices Scalia and Thomas,even attempted to demonstrate that anti-Catholicism was a "but for" cause of Washington's adoption of this particular sentence. Therefore, I think it was completely understandable -- inevitable, even -- that the Court "quickly . . . dismissed" the purported connection to anti-Catholicism. After all, the sentence is included in the midst of a constitutional provision that in every other respect is manifestly a striking affirmation of a dedication to protection of religious liberty -- obviously not animated by anti-Catholicism. Moreover, as the Court emphasizes, the sentence has its obvious genesis in Jefferson's Bill for Religious Liberty, Madison's Memorial and Remonstrance, and the Constitutions of eight states enacted between 1776 and 1802 -- years before James Blaine was even the proverbial twinkle in his parents' eye. In light of all that, I would think that it would take a great deal of evidence to persuade the Court that anti-Catholicism was a "but for" cause of the "No public money" sentence. But, as far as I know, the Court was offered no such evidence. Of course, to say that the "No funding" principle has a venerable pedigree, or even to say that it was motivated by that esteemed historical precedent rather than by, e.g., anti-Catholicism, is not to demonstrate why, or in what way, the principle furthers religious liberty; and therefore the fact that the state interest is "historic," and presumptively not motivated by religious animus or anti-Catholicism, does not explain why it is "substantial." (The Chief juxtaposes these two adjectives at page 11; but he never quite gets around to explaining the basis for the latter.) Inmy eyes, this is the great,unanswered question in the opinion -- in what way, exactly, does the "No funding" principle protect religious liberty or conscience? That is the debate that the briefs, and the Court, should have engaged, but unfortunately did not. - Original Message - From: Rick Garnett To: Law Religion issues for Law Academics Sent: Thursday, February 26, 2004 11:12 AM Subject: Re: Locke v. Davey -- Blaine Amendments Dear all,I appreciate Marty's kind words, and accept his entirely appropriate critique of my post yesterday regarding Davey. Marty is right to remind us -- that is, to remind me -- that "there are two pertinent Washington Constitutional provisions, both of which were included in the original Washington Constitution." I'm "on the road" today, so I apologize for my inability to clarify my earlier remarks, or document my earlier claims, to the extent I would like.I do want to emphasize again, though, that (like Marty) I did not expect that the connections between 19th Century anti-Catholicism and provisions like those at issue in Davey would be outcome-determinative. As many on this list have shown (I'm thinking, in particular, of Chip Lupu, Steve Smith, and Bob Tuttle), no-aid separationism can be respectably and powerfully defended today without relying on anti-Catholicism.I should also say -- and I regret that I have not always been clear on this point in my own work -- that I regard "anti-Catholicism" as something distinguishable from "bigotry." (I try to flesh out this argument in a short essay, "The Theology of the Blaine Amendments, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=455220) There is and has long been such a thing as "anti-Catholic bigotry", but I (now) believe it is more important to think about the arguments of those who feared and disagreed with, and not simply disliked, Roman Catholicism.As Marty points out, in the Becket Fund brief -- to which I contributed, and which was endorsed by a number of distinguished historians, including John Witte, Charles Glenn, George Marsden, etc. -- discussed the Blaine Amendments, their progeny, and their origins in a general way. The brief also addressed the Washington Constitution, and Article IX, Sec. 4 specifically. It did not speak directly to Section 11, though it did respond at some length to the suggestion that motives other than anti-Catholicism (again, I would
Re: Locke v. Davey and expanded free exercise rights
I agree with Marci that the precedental force of Lukumi has taken a serious hit. But I don't think it's quite as severe as she suggests. For one thing, it seems clear that Lukumi would continue to prohibit religious discrimination, even absent proof of animus or hostility,where the state imposes criminal or civil sanctions (see p.6), i.e., where there is a "substantial" burden on religious exercise. And, even in the context of benefits, the Court goes to great pains to leave open the possibility of a "presumptive" free exercise violation where the state interest is not as "historic and substantial" as the interest in avoiding the subsidization of clergy. The sentence in the final paragraph is significant: "The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars." Where the interest is less substantial, or the burden less "minor," who knows?Nevertheless, it is hard to deny that, in the benefits context(including, e.g., cases involvingprimary- and secondary-school vouchers), it's now going to be awfully difficult forplaintiffs to convince lower courts to invalidate religious exclusions. Lukumi is of weakened, and uncertain, force. The Rosenberger trump card is virtually a dead letter outside of some narrow, fora-like contextsin which the purpose of the program is to encourage a diversity of private viewpoints. McDaniel v. Paty apparently is limited to denials of the right to participate "in the political affairs of the community." And, just as the state has an "historic" and "substantial" interest in not subsidizing the ministry, presumably it has an equally historic and substantial interest in not subsidizing prayer, or the teaching and propagation of particular religious truths, such as the religious instruction that occurs in many sectarian schools. Offhand, I see only two possible lines of argument that might be fruitful. The first willapply only in very limited circumstances. Many so-called "baby Blaine" amendments, including one in Washington, prohibit funds from ever being subject to "sectarian control or influence," without regard to what is actually being subsidized. It's possible that some states would construe such a provision to prohibit funds from being used in institutions run by sectarian organizations, even where the funded program is wholly secular. In such a case, the exclusion would be triggered not by the religious nature of the activity that is funded, but instead by the religious nature, or affiliation,of the recipient. In my view, this will usually be a form of unconstitutional condition, punishing folks not for what they do (or for what the dollars subsidize), but for the religious choices and affiliations they have made. (This is the argument Judge Fernandez made, albeit unsuccessfully, in Gentala, 244 F.3d at 1082-86.) Second, perhaps the basic unconstitutional conditions argument might still have some force in the context of, e.g., school vouchers. Assume, for instance, that a student chooses to attend a sectarian school, but the state does not permit a voucher to be used at that school because it (legitimately) does not wish to subsidize instruction as to religious truths. The student, however,is willing to pay for the religious classes with her own funds, and to use the voucher only for the secular classes. The state does not permit this, because money is fungible. The student in that case could argue that the restriction not only prevents state subsidy of religious instruction, but also punishes her for attending religious classes with use of her own money. In Davey, the Court rejected that argument because Washington permitted Davey, at least in theory, to attend two colleges and use the scholarship only at the school where he was not majoring in divinity studies. At the primary and secondary school level, surely that is unrealistic -- no student will be able to attend two schools. Therefore, the religious exclusion might, in such a case, "require students to choose between their religious beliefs and receiving a government benefit" (p.7). Even if this argument has some force, it seems clear that the state could require quite severe segregation as a means of ensuring that its funds do not subsidize religious classes. In Rust, for example, the state was permitted to insist that a recipient set up a completely segregated, alternative clinic in which it could discuss abortion. Presumably, then, a state could require, at the very least, that a sectarian school teach its religious classes only after the completion of the "secular" school day, using faculty and administrators unconnected with the secular program. Of course, few sectarian schools would agree to such a condition, just as few if any title X recipients in Rust would have the wherewithal or desire to set up a separate
Potentially Important California State Case
http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF California generally requires employers providing health insurance to their employees to ensure that such insurance covers the costs of contraception. California has enacted a limited religious accommodation that exempts certain religious organzations (viz., churches), but not others, from this requirement. Catholic Charities does not satisfy any of the four statutory criteria for the exemption, and it sued under the Establishment and Free Exercise Clauses to have the exemption extended. The Cal Supreme Court ruled6 to 1 that the limited exemption was constitutional -- although the court did tentatively conclude that at least one of the criteria was of dubious constitutionality. The case raises numerous interesting issues concerning, e.g., the Ministerial Exception, general applicability under Lukumi, the so-called hybrid exception, Larson v. Valente, the scope of California's state constitutional free exercise guarantee, the notion of "substantial burden," etc. To my mind one of the most interesting and difficult questions it raises is how a legislature can and should craft, and limit, religious accommodations.The case demonstrates, in my view, why an across-the-board standard for exemptions -- such as those codified in federal and state RFRAs-- is preferable to a series of stand-alone, statute-by-statutelegislative exemptions. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Potentially Important California State Case
Marci: I did not say that all statute-specific accommodations are unconstitutional. Far from it. I think, for instance, that the title VII exemption at issue in Amos is constitutional (at least as applied to nonprofit employers), as are the peyote exemptions, as is the post-Goldman military accommodation, etc. And I think some accommodations are unconstitutional, such as those at issue in Zorach, Texas Monthly, CHILD, and Thornton v. Caldor.Those that do not, in my view, pass muster are, e.g.,those thatdo not alleviate significant, government-imposedburdens on religious exercise, those that do impose significantburdens on other private parties, those thatviolate the Free Speech Clause, and those that are a form of sect-discrimination. RFRA and RLUIPA do not share these faults, and they have the added virtue of ensuring that the legislature treats all comparable burdens on religious liberty with equal regard (thereby addressing, e.g.,Souter's concern in Kiryas Joel). - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Monday, March 01, 2004 4:52 PM Subject: Re: Potentially Important California State Case In a message dated 3/1/2004 4:32:25 PM Eastern Standard Time, [EMAIL PROTECTED] writes: The case demonstrates, in my view, why an across-the-board standard for exemptions -- such as those codified in federal and state RFRAs -- is preferable to a series of stand-alone, statute-by-statute legislative exemptions. So, Marty, would you say that the peyote exemptions cited with approval in Smith are unconstitutional, while the acros-the-board exemptions are not? I'm just wondering if you can provide an example of an exemption that you think should not pass muster? Marci ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
New News on Lee v. Weisman
Linda Greenhouse's initial review of Justice Blackmun's papers -- http://www.nytimes.com/2004/03/04/politics/04BLAC.html?hp-- reveals that Justice Kennedy was originally the author of a 5-4 decision upholding the school prayer in Lee, but after several months he conceded that his "draft looked quite wrong," and proceeded to switch his vote, and his opinion for the Court. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Davey v. Locke
Excellent, concise summary provided by Chip Lupu and Bob Tuttle at http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=23#fnB6. I would add to it only a minor elaboration. Chip and Bob conclude -- correctly, in my view -- that after Davey the only state exclusions of religion that are open to serious constitutional question are indirect aid (i.e., "voucherized") programs that exclude "all entities with a religious character," even where such entities agree to use the funds in an exclusively secular program. I think that it might help to distinguish among three types of statutory exclusions of "entities with a religious character": (i) exclusions of entities (or persons) by virtue of their affiliation with religious entities (e.g., affiliation with churches); (ii) exclusions of entities (or persons) because of their religious beliefs or tenets; and (iii) exclusions of entities or persons because they engage in religious activities outside the funded program. The lines between such exclusions might, of course, be fluid: a particular state constitution might impose any two, or all three, of these sorts of exclusions. All three, I think, would raise serious unconstitutional conditions questions. Denying funds because of an entity's (or person's) beliefs or affiliations would appear to penalize the putative recipient on account of such protected activity -- in such cases, the state will not have available the argument that it wishes to ensure that state funds are not used for religious activities. In terms of SCOTUS precedent, I think McDaniel v. Paty remains the best analogy, although the Davey Court unfortunately hinted that McDaniel might be limited to the denial, on religious grounds, of "the right to participate in the political affairs of the community." The best citation for a "belief"-based exclusion might be Davey itself, in which the Court indicates that there would be a constitutional problem if Washington required students to "choose between their religious beliefs and receiving a government benefit." Asfor the exclusion ofpersons or entities that engage in religious activities outside the funded program, the standard citations are League of Women Voters and Rust, both of whichhold that the state must permit the funding recipient some outlet, however onerous it might be to establish, in which it may engage in the constitutionally protected activities. However, the ridiculously costly and unrealistic"separate affiliate" requirement inRust itself, andthe "student canattend two schools" footnote of Davey,give the states extremely broad discretion in this respect. For example, in the school voucher context, presumablystates will be able to require that recipients provide religious classes or instruction in separate facilities, with separate faculty and administration, at the conclusion of the "secular" school day -- all in order to ensure that the state's fungible funds do not subsidize the religious activities. Of course, states are not required to impose so onerous a segregation requirement in a voucher program. There are many other, less "segregated" options that a state might decide to impose if it wishes to ensure that funds do not flow to religious instruction. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religious history school projects
See generally Kent Greenawalt, Teaching About Religion in the Public Schools, 18 J.L. Pol. 329 (2003); Jay D. Wexler, Preparing for the Clothed Public Square: Teaching About Religion, Civic Education, and the Constitution, 43 Wm. Mary L. Rev. 1159 (2002). - Original Message - From: Will Linden To: [EMAIL PROTECTED] Sent: Thursday, March 11, 2004 3:49 PM Subject: Religious history school projects On another list, folk were bitching about reported attempts to "indoctrinate students in Islam". Another contributor wrote about a fourth-grade class which had an assignment to "make a model of a babylonian ziggurat...accurate down to the the altar and accutrements used to worship the Babylonian gods...including human sacrifice, etc... The teacher failed him on the project when he refused to do it because the material "scared him." When the mother asked if the child could be allowed to do some other project, the teacher refused, and assigned the child a zero." This is, of course, "anecdotal". However, it drew yet another post noting that "In California the 4th graders have to do a California Missions project, and often they go on a field trip to see a Mission. I have never heard of anyone of refusing to build a Mission project on religious grounds. Since the Missions, like the Ziggurats, are part of the history curriculum, it would be an interesting question." I agree that it would, and herewith ask opinions of the list on whether the "Mission" unit raises First Amendment issues. (And yes, I have permission to cite it here.) ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Perlocutionary and Illocutionary Speech Acts
And an indispensible text discussing this distinction in the context of the Free Speech Clause is Kent Greenawalt's Speech, Crime, and the Uses of Language. - Original Message - From: Berg, Thomas C. [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Thursday, March 18, 2004 10:14 AM Subject: RE: Perlocutionary and Illocutionary Speech Acts Without remembering much more, I remember that a classic text on this is J.L. Austin's How To Do Things With Words. Tom Berg University of St. Thomas School of Law (Minnesota) _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thu 3/18/2004 4:46 AM To: [EMAIL PROTECTED] Subject: Perlocutionary and Illocutionary Speech Acts From a former life, I recall that a perlocutionary act is a meaningful speech act designed to have particular effects on people who hear them. For example, telling the story of the little engine that could has the perlocutionary force of encouraging a child to try to master some task. Illocutionary acts are meaningful speech acts which function as performative speech acts the utterance of which is an action of a particular kind. For example, the meaningful statement, All hands on deck is the illlocutionary speech act of ordering sailors to appear on deck. An observer who replied, No that's false, no one is on deck. would fail to appreciate the illocutionary (performative) force of the speech act. The utterance I do in a marriage ceremony is an illocutionary speech act. I think this is the nature of the distinction. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Newdow Oral Argument Transcript
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-1624.pdf - Original Message - From: Rick Duncan [EMAIL PROTECTED] To: [EMAIL PROTECTED]; Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Monday, April 05, 2004 3:19 PM Subject: Re: under God Is the transcript of the oral arguments in Newdow on line yet? Does anyone have a link? Cheers, Rick Duncan ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Cert. Petition in RLUIPA Case
It appears that Virginia has petitioned from the CTA4 decision in Madison v. Riter. http://www.roanoke.com/roatimes/news/story165342.html. Does anyone have the cert. petition? If so, please post it (or a link). Presumably the petition is predicated on the circuit split caused by Cutter v. Wilkinson (CTA6). Does anyone know the status of the en banc proceedings in Cutter? ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Cert. Petition in RLUIPA Case
Here's a link to Virginia's Petition in Bass v. Madison: http://www.goldsteinhowe.com/blog/files/bassvmadison.pet.pdf The petition surprisingly focuses as much or more on Commerce and Spending as it does on the Establishment Clause. I think it's highly unlikely that the Court would grant cert. on any question other than (possibly) whether section 3 of RLUIPA violates the EC. Also, the Sixth Circuit on March 3d denied rehearing and rehearing en banc in Cutter v. Wilkinson, so it does appear that there is a circuit split. Does anyone know whether the plaintiffs in Cutter plan to seek cert., and/or whether the plaintiffs in Bass will oppose cert. on the first question presented? - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Thursday, April 08, 2004 12:10 PM Subject: Cert. Petition in RLUIPA Case It appears that Virginia has petitioned from the CTA4 decision in Madison v. Riter. http://www.roanoke.com/roatimes/news/story165342.html. Does anyone have the cert. petition? If so, please post it (or a link). Presumably the petition is predicated on the circuit split caused by Cutter v. Wilkinson (CTA6). Does anyone know the status of the en banc proceedings in Cutter? ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Religionlaw Digest, Vol 6, Issue 9
No, definitely *not* what anyone would want happening to them! - Original Message - From: Lawrence VanDyke [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Sunday, April 11, 2004 8:39 PM Subject: RE: Religionlaw Digest, Vol 6, Issue 9 Hey Mark - I subscribe to the UCLA religion and law listserv (which I find pretty depressing, not just because a couple of the law professors have taken Leiter's side against me in the past). But this is really funny. Scroll down and look at messages number 4 5!! This is not what you want to have happen to you!! :) Hilarious! Especially cuz this Newsom guy is one of the ones that wrote something agreeing with Leiter. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Sunday, April 11, 2004 3:03 PM To: [EMAIL PROTECTED] Subject: Religionlaw Digest, Vol 6, Issue 9 Send Religionlaw mailing list submissions to [EMAIL PROTECTED] To subscribe or unsubscribe via the World Wide Web, visit http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw or, via email, send a message with subject or body 'help' to [EMAIL PROTECTED] You can reach the person managing the list at [EMAIL PROTECTED] When replying, please edit your Subject line so it is more specific than Re: Contents of Religionlaw digest... Today's Topics: 1. Auto Response from [EMAIL PROTECTED] ([EMAIL PROTECTED]) 2. RE: FYI An Interesting Case (Newsom Michael) 3. Auto Response from [EMAIL PROTECTED] ([EMAIL PROTECTED]) 4. RE: FYI An Interesting Case (Newsom Michael) 5. RE: FYI An Interesting Case (Newsom Michael) 6. RE: FYI An Interesting Case (Newsom Michael) 7. RE: FYI An Interesting Case (Newsom Michael) 8. Re: FYI An Interesting Case (Amar D. Sarwal) 9. Re: FYI An Interesting Case (Paul Finkelman) -- Message: 1 Date: Sat, 10 Apr 2004 12:07:39 -0700 (PDT) From: [EMAIL PROTECTED] Subject: Auto Response from [EMAIL PROTECTED] To: [EMAIL PROTECTED] Message-ID: [EMAIL PROTECTED] Content-Type: text/plain; charset=us-ascii I will be out of the office until April 14, 2004, and will not be checking email regularly while I am away. If you need assistance prior to my return, please contact: Kara Stein at [EMAIL PROTECTED] or (212) 891-6742. -- Message: 2 Date: Sun, 11 Apr 2004 12:54:50 -0400 From: Newsom Michael [EMAIL PROTECTED] Subject: RE: FYI An Interesting Case To: Law Religion issues for Law Academics [EMAIL PROTECTED] Message-ID: [EMAIL PROTECTED] Content-Type: text/plain; charset=us-ascii 1. Actually homophobia refers to FEAR, not hatred, of gay people. 2. Are you suggesting that the employee in this case loves gay people? What is your authority for such a claim? -Original Message- From: Amar D. Sarwal [mailto:[EMAIL PROTECTED] Sent: Thursday, April 08, 2004 7:47 PM To: Law Religion issues for Law Academics Subject: Re: FYI An Interesting Case Again, he did not say that gay people were of less value. Instead, as I gather, he was not willing to express any support for their homosexual orientation/conduct/choice. Christians are commanded to love all, no matter how they have sinned. Are you saying that one must find worth in the gay orientation/conduct/choice to not be considered a homophobe? To be clear, my understanding of the term homophobe is one who hates homosexuals. I don't think this gentleman qualifies. - Original Message - From: Newsom Michael [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] Sent: Thursday, April 08, 2004 5:57 PM Subject: RE: FYI An Interesting Case No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. -Original Message- From: Amar D. Sarwal [mailto:[EMAIL PROTECTED] Sent: Wednesday, April 07, 2004 3:48 PM To: Law Religion issues for Law Academics Subject: Re: FYI An Interesting Case I think you're missing the point. The gentleman was not homophobic. He just had no interest in affirming values with which he disagreed. A related example: I am not anti-Muslim, because I do not believe in Allah, nor do I wish to affirm his existence or value. - Original Message - From: Newsom Michael [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] To: [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] ; Law Religion issues for Law Academics [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] Sent: Wednesday, April 07, 2004 3:49 PM Subject: RE: FYI An Interesting Case To the extent, and only to the extent, that ATT Broadband failed explicitly to connect its concerns about homophobia to the effective functioning of the workplace, the decision may be right. Surely ATT is entitled to have a harmonious
Re: FYI An Interesting Case
May I respectfully suggest that we put an end to this thread? There has been a lot of heat, virtually no light, no one changing or affecting anyone else's views, at least two inadvertant private posts accidently sent to the list, etc. (This is not meant as directed especially to Rick; his simply happens to have been the most recent post.) This may be hard to believe, but there once was a (pre-blogging) day when we used to have very substantive, enlightening discussions about actual legal questions involving religion. I fear that many of our most valuable posters no longer participate because this list has all-too-often (albeit not always) lapsed into invective, predictable sloganeering, and superficial sound-bites about cases and headlines. This thread sure isn't helping matters. Of course, if others are getting a lot out of it, please do not hestitate on my account to continue the flame-wars . . . - Original Message - From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Sunday, April 11, 2004 9:42 PM Subject: RE: FYI An Interesting Case Michael: You are so full of hatred. Just read what you wrote. Best wishes, Rick Duncan --- Newsom Michael [EMAIL PROTECTED] wrote: Rick, you are so full of [EMAIL PROTECTED] I am a Christian, but I don't buy into your right wing [EMAIL PROTECTED] (I also suspect that my Catholicism is something that you can't handle.) No one on this listserv is more ideological or bigoted than you are. Anybody who disagrees with your right wing views is a bigot. It's like the pot calling the kettle black. You are a hateful bigot and a disgrace! -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Friday, April 09, 2004 11:23 AM To: Law Religion issues for Law Academics Subject: RE: FYI An Interesting Case --- Newsom Michael [EMAIL PROTECTED] wrote: No, I didn't miss the point. The employee's religious beliefs prevent him from affirming the value of gay people. I call that homophobia. It sounds like your ideological beliefs prevent you from affirming the value of Christians who believe that homsexuality is a serious moral disorder. I call that Christophobia and religious bigotry. Rick Duncan = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Small Business $15K Web Design Giveaway http://promotions.yahoo.com/design_giveaway/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner __ Do you Yahoo!? Yahoo! Tax Center - File online by April 15th http://taxes.yahoo.com/filing.html ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780
Footnote 17 of the Repondents' Brief in Hurley, which speaks for itself and which fully explains the ACLU's state-action argument: FN17. One amicus, the American Civil Liberties Union, argues that the state courts did not fully explore the way in which the City's longstanding pattern of delegating responsibility for "the" Evacuation Day/St. Patrick's Day Parade to the Council may have established a set of connecting arrangements under which the Council, acting as a surrogate for public authority, is obligated to exercise its delegated authority consistent with the Fourteenth Amendment. (Br. of Amicus A.C.L.U. at 19- 22). If this case were to be remanded, the ACLU suggests that the Supreme Judicial Court should revisit that "state action" question. There is indeed abundant evidence in the record, cited by the trial judge in his opinion (Cert. Pet. App. at B14-22), that the Council's conduct of the Parade in conjunction with City authorities constitutes state action, and that ground for affirming the judgment of the Supreme Judicial Court is open to this Court, even though it was raised only in a reply brief in that court, and rejected. Cf. Teague v. Lane, 489 U.S. 288 (1989). The City's long-standing delegation of administration of an important civic event to a nominally private party would support such a conclusion. See Terry v. Adams,345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944). - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Tuesday, April 20, 2004 9:17 AM Subject: Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780 I wasn't privy to the internal politics of the ACLU on this one, but it's pretty clear that the organization was reluctant to take the "anti-gay rights" point of view, despite the clear countervailing First Amendment interest of the parade organizers. By the time the case got to the Supreme Court, the gay rights group that was suing the parade organizers had dropped the argument, soundly rejected by the trial court, that the parade was anything but a private parade with no government sponsorship. For the ACLU to take the position that a remand was in order at that point was just bizarre, and could only be explained by either an incredible lapse in legal judgment, or, more likely, as an "out" that allowed the ACLU to avoid the bad p.r. from its liberal constituencies that would come from being on the "wrong" side of a gay rights case while still not betraying its First Amendment principles. If Mr. Spitzer has a more coherent explanation of why the ACLU was unwilling to file a brief supporting the parade organizers, I'd love to hear it. In a message dated 4/20/2004 9:01:44 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I am pleased to stand corrected.Marc Stern- Original Message -From: [EMAIL PROTECTED]To: [EMAIL PROTECTED]Sent: Monday, April 19, 2004 6:02 PMSubject: Re: HAnsen v. Ann Arbor Public Schools 293 FSupp2d 780 In a message dated 4/19/04 4:58:49 PM, [EMAIL PROTECTED] writes: This is especially so since in the Boston parade cases,if memory serves,the ACLU did not support the right of parade organizers to exclude marchers expressing a gay rights point of view. The ACLU's amicus brief strongly supported the right of private parade organizers to exclude marchers expressing a gay rights (or any other)point of view. I've pasted below an excerpt from the Summary of Argument section of the ACLU's brief. Art Spitzer ACLU Washington DC Professor David E. BernsteinGeorge Mason University School of Lawhttp://mason.gmu.edu/~dbernste blog: http://volokh.com/index.htm?bloggers=DavidB***My latest book, You Can't Say That!The Growing Threat to Civil Libertiesfrom Antidiscrimination Laws, has justbeen published*** ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: 11th Circuit Holds RLUIPA . . . *constitutional*
Uh, that should be constitutional.And it's a section 2(b)(1) case, too -- probably the mostdifficult subsection to justify under section 5. - Original Message - From: "Michael MASINTER" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Wednesday, April 21, 2004 5:12 PM Subject: http://www.ca11.uscourts.gov/opinions/ops/200313858.pdf Michael R. Masinter 3305 College Avenue Nova Southeastern University Fort Lauderdale, Fl. 33314 Shepard Broad Law Center (954) 262-6151 [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Cert. Petition in RLUIPA Case
The plaintiffs inSixth Circuit case,
Cutter v. Wilkinson, have filed a petition for cert. The Case No.
is 03-9877. See http://www.supremecourtus.gov/docket/03-9877.htm.
If anyone has an electronic copy, please post it. The Courtwill not
rule on the petition in Cutter or in Bass v. Madison until the
SG files briefs for the Respondent United States. If such briefs are filed
by May 28th, then the Court will act on the petition(s) this Term (i.e.,on
or before June 28th).
- Original Message -
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Saturday, April 17, 2004 7:32
AM
Subject: Re: Cert. Petition in RLUIPA
Case
The case, Bass v. Madison, has been
docketed as No. 03-1404, and plaintiffs have acquiesced to cert. on the
Establishment Clause question (while opposing cert. on the remaining
questiions): http://www.goldsteinhowe.com/blog/files/bass.cert.acquiesce.pdf.
(No filing yet from the SG.)
Also, there's an article by Richard Schragger (U.
Va.) in the latest Harvard Law Review, The Role of the Local in the
Doctrineand Discourse of Religious Liberty, 117 Harv. L. Rev. 1810
(2004), that apparently (I haven't yet read it) argues that national
religious-accommodation law, such as RLUIPA, is problematic from a Religion
Clause perspective in ways that analogous state and local religious
accommodations would not be -- which also happens to be the
principaltheme of the State of Virginia's petition in
Bass.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Thursday, April 08, 2004 5:36
PM
Subject: Re: Cert. Petition in RLUIPA
Case
Well, the circuit split issue isn't quite as
clear as I had suggested. In its petition, Virginia expressly
rejects the EC theory on which it had won in the district court,
and that the Sixth Circuit invoked in Cutter (namely, that a
government can accommodate religious exercise only if it provides comparable
accommodations for the exercise of other constitutional rights). And
there's good reason thatVirginia rejects that theory --namely,
that it wishes to preserve its own ability to grant religious
accommodations,including accommdations of the very sort involved in
this case. It so happens that Virginia does
providekosher meals to some prisoners for religious reasons. It
denied Madison such an accommodation, however, because (i) it determined
that he "had adequate alternatives" from other menus (e.g., the "no pork"
and vegetarian menus; (ii) it doubted the sincerity of his religious
beliefs; and(iii) "it consideredMadison's history of
disciplinary problems." (Just as an aside: The first of the
prison's reasons is troubling under the Religion Clauses themselves (wholly
apart from RLUIPA), because it suggests that the prison thinks it knows
better than Madison himself what his religion ("Hebrew Israelites")
requires, and that it requires less accommodation than, e.g., Judaism.
The second rationale (lack of sincerity) would,if
demonstrated,mean that Virginia would prevail under
RLUIPA. Likewise, the third justification (in essence, "we deny
religious accommodations to those prisoners who have had disciplinary
problems") is probablya ground on which Virginia should prevail under
RLUIPA itself, assuming the Religion Clauses permit the state to impose a
"good behavior" condition on the exercise of a religious
accommodation.)
Virginia does not wish to limit its own ability
to provide kosher meals to prisoners of its choosing. Accordingly,
Virginia relies on two alternative EC theories: (i) that the EC -- in
addition to imposing substantive constraints on both federal and state
governments -- prevents Congress from interfering with a
state's choices about how to accommoodate religion; and (ii) that,
per Thornton, a government cannot act to alleviate a burden on
religious exercise not of its own making (except, as under title
VII, when the required accommodation is minimally intrusive on the entity
that imposed the religious burden). These are both intriguing
theories, but they have not been passed upon by any court (have they?), and
more importantly, as Virginia concedes, they are not the subject of a
circuit split. Virginia argues, however, that if the Court grants
cert., the Court itself can consider the EC theory on which there is
a circuit split -- even though all the parties to the case (Madison,
Virginia and the United States) presumably will argue against
it.
- Original Message -
From:
Marty Lederman
To: Law Re
Re: Scalia disavows Boerne
Well, I agree that Justice Scalia's disavowal of theBoerne "proportionality and congruence" test -- and his proposal to further eviscerate section 5 in all but race-discrimination cases -- is interesting, in a "how low can he go?" sort of way. But it's hardly the most important news of the day, or even the most important news about constitutional law emanating from the Supreme Court. No other Justice joined Scalia's opinion, and I think it's a fairly safe bet that none of us will live to see the day when the Court adopts its reasoning. On the otherhand, in addition to the momentous constitutional developments that are breaking dailywith respect to the Executive's unilaterally imposeddetention and interrogation policies and practices, there were several truly important federalism-relateddevelopments at the Court today, including the following: -- The Court upheld Congress's power to enact title II of the ADA as applied to access to judicial proceedings -- which is especially important becausea contrary ruling would have resulted not only in invalidation of the abrogation of sovereign immunity (as in Florida Prepaid,Garrett and Kimel), but almost certainly would also have led to invalidation of the states' underlying substantive obligations of title II, as well (as in Boerne). (It would be very difficultto defend title II on Commerce Clause groundsbefore this Court.) -- The Court strongly reaffirmed Hibbs, leavingGarrettand Kimel on very uncertain and shifting doctrinal footing. (Scalia certainly is correct about one thing -- namely, that theBoerne test is extremely malleable, which in terms of the present Court means that it has whatever content Justice O'Connor deigns to attribute to it in a particular case.) In particular, the Court reaffirmed the understanding in Hibbs that nonstate governmental conduct, such as the conduct of city and county actors, can form part of (indeed, almost all of) the evidentiary predicate for congressional section 5 legislation (see pages 15-17 note 16). -- The Court in Lane stated categorically and unequivocally(page 8) that "[w]hen Congress seeks to remedy or prevent unconstitutional discrimination, section 5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause" -- a statement that would (along with Hibbs) appear to settle the question -- ominously raised in Garrett -- of the constitutionality of abrogating immunity for state violations of title VII's disparate impact prohibition. -- In Sabri, eight Justices of the Court easily turned aside a challenge to Congress's power to enact the bribery prohibition in 18 U.S.C. 666under the Spending and Necessary Proper Clauses. Many had thought that section 666 would (or should) be the opening salvo in a movement by the Court to impose significant new constraints on Congress's Spending power. (See, e.g., recent articles by George Brown, Rick Garnett, Peter Henning.) The Sabri decision is very good news for the constitutionality of the Spending conditions imposed in statutes such as title VI, title IX, section 504 of the Rehab Act, and RLUIPA, each of which applies to all of the operations ofa state agency if he agency receives any federal funds. -- In Sabri, eight Justices held (much to Justice Thomas's chagrin) that the McCulloch v. Maryland test for "necessary and proper" legislation is, in essence, coterminous with the exceedingly deferential rational-basis standard of review -- and that the NP test is easily met in the case of a condition imposed on receipt of funds designed to ensure that funds are used properly (and are not put to disfavored ends),because, inter alia, "money is fungible." -- As I posted at the time of oral argument, many Justices on the Sabri Court (including Scalia, O'Connor and Kennedy) expressed the view that in light of Perez, section 666 was obviously valid Commerce Clause legislation, even without proof of a federal nexus in each case, because it regulates bribes, which are economic transactions; and in his separate concurrence today, even Justice Thomas concedes that that is so (although he hints that he would overrule Perez, if he could find four votes to join him). -- Perhaps most importantly, in both Sabri and Lane, the Court reaffirmed the doctrine of U.S. v. Raines, under which facial challenges to exercises of Congress' enumerated powers are disfavored -- a doctrine that permits courts to hold that certain applications of statutes are within Congress's power, without having to reach the question whether Congress went "too far" in crafting the scope of the statute as a whole. In Sabri (and in Salinas) this means that a defendant whose bribe does have a nexus to federal funds (albeit not a nexus that the jury ever determined) will not be heard to complain that the statute might reach
Re: Baptisms in rivers located in public parks?
1. I assume, Eugene, that you meant to write "Following Locke v. Davey, is it unconstitutional for the government to say that 'religious activity is specifically prohibited'?" If the answer to that question is "yes," I don't think it's because of the Widmar/Lamb's Chapel line of cases. The immersion in water is, of course, expressive -- in the sense that most conduct, and virtually all public religious ritual, is --but it's hardly the sort of speech as was involved in those cases. More importantly, the state in this case obviously hasn't created any sort of public forum in the public river. Thus, if it's unconstitutional, it's on Free Exercise grounds, per Lukumi. And that would depend, I suppose, on whether religious immersion is being singled out, or treated disfavorably, in any way. Are persons allowed to wade or swim in the river for nonreligious reasons? (If religion is being singled out for disfavored treatment, I can't imagine that that's ok under Locke v. Davey. This is an "access to public lands" rather than a funding, case; there's no public imprimatur if baptisms are allowed on the same terms and conditions as other uses of the river; and it's hard to imagine any legitimate reason -- or any analogy to Locke's reliance on the historical tradition of government refusing to fund religious activities so as to avoid endorsement and involvement -- for singling out baptisms for disfavored treatment.) 2.Whether it would be a substantial burden under a state RFRAwould depend, I suppose, on the availability of alternative locales. But I wouldn't be so sure the government wouldn't prevail on "compelling interest" grounds. The fact that many other folks would be in thewater, too-- also at risk of drowning -- is hardly a ground for an exemption to a "no wading/swimming" rule that otherwise is uniformly applied to a particular river because (according to the Park Manager) "there had been four drownings three years earlier." - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Monday, May 24, 2004 7:07 PM Subject: Baptisms in rivers located in public parks? Seehttp://www.fredericksburg.com/News/FLS/2004/052004/05242004/1374047,discussing a public baptism. Here's the explanation for why the peopleinvolved thought the public nature of the baptism was important:[begin quote] For Kris Jones, who describes herself as a quiet person, it was a boldact of faith."For me, it's very hard to do something like that," said Jones, whosehusband, Todd, also was baptized. "I'm kind of quiet--anonconfrontational person."For me, to do something like that in public was a big step."But it was that public declaration that Pastor Todd Pyle felt wasimportant."Baptism, originally, was a public display of what took placeinside--that we're not ashamed of being a Christian," Pyle said.He finds it troublesome that baptisms have moved inside churches andaway from view."Christianity is isolated indoors so much that people are confused aboutwhat it is, so we just wanted to bring it outdoors," he said aftercoming back to the shore.[end quote] Here's the argument that the government is using to restrict it.[begin quote]As he was explaining that early Christians knew baptism and a publicprofession of faith often assured persecution, Park Manager BrianRobinson walked up and quietly told Pyle he needed to speak to him."It is park policy that we don't allow that kind of thing any more,"Robinson told him of the baptisms.He explained that there had been four drownings three years earlier, andthat everyone was discouraged from going into the water.Robinson added that religious activity is specifically prohibited. "Wedon't allow religious activities and church services."Afterward, Pyle said he'd been unaware of the prohibition. Before hisnext baptism, he said he would investigate the rules and if the localgovernments forbade it, he'd find another place to go.[end quote] Two questions:(1) Following Locke v. Davey, is it constitutional for the governmentto say that "religious activity is specifically prohibited"? I assumeyes, given Lamb's Chapel, Rosenberger, and Pinette, since this activityis speech as well as religious conduct. Or am I mistaken?(2) If Virginia had a state RFRA, would an evenhanded restriction ongoing into the water be seen as a substantial burden? (I assume thatthe rule would fail strict scrutiny, if it had to be exposed to strictscrutiny, given that it seems relatively unlikely that people woulddrown when surrounded by dozens of people.)___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see
Re: Tax On Theology Majors
What would be the conceivable state interest in imposing such a targeted tax? Assuming there is no legitimate interest in singling out "theology from a devotional perspective,"the classification would violate the Equal Protection Clause, and presumably the Free Exercise Clause as well, per Lukumi. - Original Message - From: "Rick Duncan" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Thursday, May 27, 2004 10:07 AM Subject: Tax On Theology Majors Suppose a state enacted a $1,000 per year tax on students majoring in theology from a devotional perspective. Would this violate Free Ex under Locke? Would it be unlawful viewpoint discrimination under the FSC? Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner __ Do you Yahoo!? Friends. Fun. Try the all-new Yahoo! Messenger. http://messenger.yahoo.com/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Lane v. Tennessee
Sorry, I hadn't meant to suggest that Sam overlooked this point. Indeed, I had intended (but simply forgot) to link to Sam's brief, in which this message was sent to SOC loud and clear. See also pages 11-12 of the SG's brief (http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2002-1667.mer.aa.pdf): Third, unlike Kimel and Garrett, this case implicates concerns beyond abrogation and the ability of individuals to sue the States for money damages. Because both Kimel and Garrett targeted employment discrimination, those decisions only invalidated the statutes abrogation provisions; the substantive prohibitions of those laws remain applicable to the States pursuant to Congresss undoubted power to regulate employment under its Commerce Clause authority, and they can be enforced against state officials under Ex parte Young, 209 U.S. 123 (1908). See Garrett, 531 U.S. at 374 n.9; EEOC v. Wyoming, 460 U.S. 226, 235-243 (1983). While petitioner concedes (Br. 16) that Title IIs substantive provisions are valid Commerce Clause legislation, its state amici (Br. 22, 25) and a number of other States pointedly do not [citing briefs].Accordingly, unless Title II is appropriate Commerce Clause legislation, the issue presented here draws into question the power of Congress to require both States and local governments, whether through private damages actions, private injunctive actions, or suits by the United States itself, to make their buildings, programs, and public life accessible to a historically marginalized population. - Original Message - From: Samuel Bagenstos To: Marty Lederman ; Law Religion issues for Law Academics ; [EMAIL PROTECTED] Sent: Friday, May 28, 2004 9:07 AM Subject: Re: Lane v. Tennessee I think there is more to it than Marty says -- I do think this was a clear case of prophylaxis, for many of the same reasons Vik Amar marshalls. But I certainly wouldn't ignore the notion that Justice O'Connor was afraid that the substantive obligations of Title II would go down if the Court ruled against the plaintiffs on the immunity question. As Marty knows, I was one of the lawyers who represented Lane, and in the introduction to the argument section of our brief before the Court we played up this very angle. To quote the key paragraph:Both the state and its amici reassure the Court that their position does not call into question the ultimate constitutionality of Title II; all that supposedly is at issue is whether Congress can properly impose a damages remedy on states that have violated the statute. See Pet. Br. 15-16; Ala. Br. 25-26. But the reassurances of the state and its amici ring hollow. If this Court rules that Title II cannot be supported by a sufficient Fourteenth Amendment predicate, the statute will provide no basis for any relief--damages or an injunction--unless it can be upheld under Congress's Article I commerce power. In their brief before this Court, the State's amici pointedly refuse to concede that the commerce power supports Title II. See Ala. Br. 5 (noting that an injunctive remedy exists for Title II violations only "assuming [Title II] is a valid exercise of Congress's Article I power"); id. 22, 25 (same). And a number of states have recently challenged the Commerce Clause basis for the statute. See Thompson v. Colorado, 278 F.3d 1020, 1025 n.2 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002); State v. Rendon, 832 So. 2d 141, 146 n.5 (Fla. Dist. Ct. App. 2002), rvw. denied, 851 So. 2d 729 (Fla. 2003); Meyers v. Texas, No. 02-50452 (5th Cir.) (pending); Doe v. Regier, No. 03-2794 (Fla. Dist. Ct. App.) (pending); McCarthy v. Hale, No. 03-50608 (5th Cir.) (pending). Of particular importance, the applications of Title II that come closest to the core of Congress's Fourteenth Amendment power--those guaranteeing participation in such quintessential activities of self-government as voting, jury service, and the like--are precisely those that are least likely to be sustained under the Commerce Clause. For all intents and purposes, then, petitioner is mounting a facial challenge to the basic constitutionality of Title II.A ruling that Title II exceeds Congress's authority would invalidate the very " 'milestone on the path to a more decent, tolerant, progressive society' " that the State purports to endorse. Pet. Br. 15-16 (quoting Garrett, 531 U.S. at 375 *12 (Kennedy, J., concurring)). Fortunately, Title II fully meets the state's constitutional challenge. * * *.At 08:35 AM 5/28/2004 -0400, Marty Lederman wrote: In addition to Sam's post below, Vik Amar and Michael Rappaport have now posted theories on why Justice O'Connor switched from Garrett to Lane.Amar: http://writ.newsfindlaw.com/amar/20040527.htmlRappaport: http://therightcoast.blogspot.com/2004_05_01_therig
Re: Gay Activists Threaten Church Tax-Exempt Status
Title: Gay Activists Threaten Church Tax-Exempt Status This appears to be the hot-button issue of the day, what with today's New York Times front-page story about Bush's attempt to use churches for electioneering (http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp), and the recent contretemps concerning Bishop Sheridan's politicking (see http://www.au.org/site/News2?page=NewsArticleid=6675abbr=prJServSessionIdr012=rx1ae42ab1.app7bsecurity=1002news_iv_ctrl=1241). In addition to Marc Stern's point, I'd add thatit's long struck me as odd that this is viewed as a serious constitutionalissue. All nonprofits that wish to receive the tax benefit, religious and secular, churches and other entities, are limited in the amount of electioneering they can do. If there's a problem with this condition, it's a policy, not a constitutional, concern (see, e.g., Regan), and is not limited to churches. Even pre-Smith, any Free Exercise claim would have been on extremely weak ground (on "substantial burden" grounds, primarily); and post-Smith, it's difficult to see what the claim would be. Moreover, if the IRS were to allow churches, but not secular nonprofits, to use tax benefits to engage in electioneering, that would be a fairly straightforward Free Speech violation (giving a religious preference w/r/t to core political _expression_), and would raise serious Establishment Clause questions, as well. As Chip Lupu has written w/r/t this tax-exemption, "the area of political activity is one in which the claim to the constitutional uniqueness of religion is unusually weak, and the claim to equal participation by all is unusually strong." Having said that, I should note that Rick Garnett and Steffen Johnson advanced serious arguments against the condition in the July 2001 Boston College Law Review. Although I haven't read those pieces in a while, I recall thinking that they were quite formidable, if ultimately unpersuasive to this reader. - Original Message - From: marc stern To: 'Law Religion issues for Law Academics' Sent: Thursday, June 03, 2004 9:44 AM Subject: RE: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organizations budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis BeckwithSent: Thursday, June 03, 2004 8:16 AMTo: Religion Law Mailing ListSubject: Gay Activists Threaten Church Tax-Exempt StatusImportance: Low Just got this from a friend. It is published by Focus on the Family, a conservative Christian outfit in Colorado Springs. Frank---June 1, 2004 Church's Tax-Exempt Status Threatened by Steve Jordahl, correspondent Pro-homosexual group lodges complaint with the state against a Montana church that aired the "Battle for Marriage" satellite broadcast. A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status. Canyon Ferry Road Baptist Church in Helena showed congregants "The Battle for Marriage" a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices. The complaint alleges that what the church did "may have implications for an organization's tax status." The commission has said it will investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the argument is without merit. "The letter that was sent out by these far-left activists is outrageous," McCaleb said. "I think it's defamatory, and it's certainly an intolerant effort to suppress free speech." Canyon Pastor B.G. Stumberg said his church is not intimidated. The commission is unable to affect a church's tax-exempt status on its own, but a decision against the church is the first step in stripping a congregation of its tax benefits. "I don't think it's scaring us at all," he said. "It's sort
Re: Gay Activists Threaten Church Tax-Exempt Status
I'm a bit unclear on one part of Doug's post. Are you saying, Doug, (i) that the church is differently situated because, unlike secular nonprofits, it can't (or realistically won't be able to) set up an affiliate through which to engage in political speech (if so, why is that true?), or, alternatively, (ii) that for some reason the partisan political speech of the spiritual leader is qualitatively "very different" -- in a way that should matter for statutory or constitutional analysis? -- from the partisan political speech of her nonreligious counterpart? - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Thursday, June 03, 2004 12:10 PM Subject: RE: Gay Activists Threaten Church Tax-Exempt Status I agree that the absolute limit on candidate advocacy is a problem. Of course it is a problem for all other non-profits as well, and the usual solution is to set up a political affiliate. The one other way in which churches are differently situated is the speech of the clergy. When the church addresses a moral issue, including the positions of competing candidates on that moral issue, it is very different for the spiritual leader to make the statement versus the head of the 501(c)(4) affiliate making the statement. I agree with Marty's analysis of current law, but the restriction on the speech of the clergy is a constitutional problem.At 10:52 AM 6/3/2004 -0400, you wrote: content-class: urn:content-classes:messageContent-Type: multipart/alternative;boundary="_=_NextPart_001_01C4497A.74159228""urn:schemas-microsoft-com:vml" xmlns:o = "urn:schemas-microsoft-com:office:office" xmlns:w = "urn:schemas-microsoft-com:office:word" xmlns:st1 = "urn:schemas-microsoft-com:office:smarttags" The "susbtantial" limit on lobbying does provide ample breathing room for most religious institutions, including any bona fide house of worship I could imagine. And there's probably no limit on religious groups' advocacy re moral issues, where the advocacy isn't also lobbying.But there's no such latitude re advocacy for candidates, and we are, after all, in an election year. So I expect that the candidate part of the limit will be asserted frequently in the months to come, and it could well represent a meaningful threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of marc stern Sent: Thursday, June 03, 2004 9:44 AM To: 'Law Religion issues for Law Academics' Subject: RE: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organization s budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Francis Beckwith Sent: Thursday, June 03, 2004 8:16 AM To: Religion Law Mailing List Subject: Gay Activists Threaten Church Tax-Exempt Status Importance: Low Just got this from a friend. It is published by Focus on the Family, a conservative Christian outfit in Colorado Springs. Frank --- June 1, 2004 Church's Tax-Exempt Status Threatened by Steve Jordahl, correspondent Pro-homosexual group lodges complaint with the state against a Montana church that aired the "Battle for Marriage" satellite broadcast. A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status. Canyon Ferry Road Baptist Church in Helena showed congregants "The Battle for Marriage" a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices. The complaint alleges that what the church did "may have implications for an
Reply Brief in Bass v. Madison (RLUIPA case)
Virginia Reply Brief in RLUIPA Case Virginia has filed its Reply Brief in support of its petition in No. 03-1404, Bass v. Madison, arguing that the Court should grant certiorari not only on the question of the Establishment Clause challenge to RLUIPA (a question that both the plaintiff and the U.S. have agreed warrants a grant), but also on peititioner's alternative grounds for invalidation (absence of Spending or Commerce authority; alleged Seminole Tribe/Coeur d'Alene Tribe exception to Ex parte Young). Previous discussions of the case can be found here and here. The Court will consider the petition at its June 24th Conference, with a decision likely on the 28th. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
New Legislation on Church Tax-Exempt Status
From today's Washington Post (http://www.washingtonpost.com/ac2/wp-dyn/A26244-2004Jun8?language=printer): House Republican leaders have tacked on to a major jobs bill a provision that would give religious leaders more freedom to engage in partisan politics without endangering the tax-exempt status of their churches. Conservative Christian groups have been pushing for such legislation for years, while civil liberties organizations and religious minorities have opposed it. But unlike past proposals, which were stand-alone bills, the current provision is attached to a huge tax bill that House leaders have placed on a fast track for consideration. ... Under current tax rules, clergy members are allowed to speak out on political issues and to lead nonpartisan voter registration drives. But the IRS can revoke a congregation's 501(c)3 tax-exempt status if it endorses candidates or engages in partisan politics. The American Jobs Creation Act, introduced Friday by House Ways and Means Committee Chairman Bill Thomas (R-Calif.), is scheduled for markup Thursday and a vote on the House floor next week. The bill's main purpose is to cut the top corporate tax rate from 35 percent to 32 percent and provide other tax relief to businesses, in return for repealing subsidies that have triggered European sanctions on U.S. farmers and manufacturers. But on page 378 of the bill is a provision entitled "Safe Harbor for Churches." It would allow clergy members to engage in political activity, including endorsing candidates, as long as they make clear that they are acting as private citizens and not on behalf of their religious organizations. They could not make partisan political statements in church publications, at church functions or using church funds. The provision also would allow clergy members to commit three "unintentional violations" of the tax rules on political activity each year without risking the loss of tax-exempt status. After the first violation, the church, synagogue or mosque would have to pay corporate taxes on one week's worth of its annual revenue. For the second violation, the penalty would be taxation of 50 percent of the organization's annual revenue. The penalty for the third violation would be taxation of a year's revenue, but not permanent loss of its tax exemption. Here's the text of the bill: H.R. 4520, the American Jobs Creation Act of 2004'. SEC. 692. SAFE HARBOR FOR CHURCHES. (a) IN GENERAL- Section 501 is amended by redesignating subsection (q) as subsection (r) and by inserting after subsection (p) the following new subsection: `(q) SAFE HARBOR FOR CHURCHES- `(1) STATEMENTS BY RELIGIOUS LEADERS AS PRIVATE CITIZENS- An organization described in section 508(c)(1)(A) (relating to churches) shall not fail to be treated as organized and operated exclusively for a religious purpose, or to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, for purposes of subsection (c)(3), or section 170(c)(2) (relating to charitable contributions), 4955, or 4956 solely by reason of a statement by a religious leader of such organization which is clearly identified as a statement made as a private citizen and not made on behalf of or in representation of such organization. A statement shall not be treated as clearly identified for purposes of this paragraph if such statement is made in an official publication of such organization, at an official function of such organization, or if such statement is paid for in whole or part by such organization. `(2) UNINTENTIONAL VIOLATIONS- An organization described in section 508(c)(1)(A) (relating to churches) shall not fail to be treated as organized and operated exclusively for a religious purpose, or to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, for purposes of subsection (c)(3), or section 170(c)(2) (relating to charitable contributions) unless such organization or any of its religious leaders so participates or intervenes on more than 3 separate occasions during any calendar year. This paragraph shall not apply with respect to any such participation or intervention which constitutes an intentional disregard by such organization or any of its religious leaders of the prohibition of such activity under subsection (c)(3) or section 170(c)(2). `(3) CROSS REFERENCE- `For tax imposed on churches for impermissible activities, see section 4956.'. (b) IMPOSITION OF TAX ON IMPERMISSIBLE ACTIVITIES- (1) IN GENERAL- Subchapter C of chapter 42 is amended by inserting after section 4955 the following new section: `SEC. 4956. TAX ON IMPERMISSIBLE ACTIVITIES BY CHURCHES. `(a)
The President and the Pope
Assuming that the news reports of the President's plea to the Vatican are accurate, see, e.g., http://www.talkingpointsmemo.com/archives/week_2004_06_13.php#003064(President allegedly asked for the Vatican's help in encouraging the U.S. bishops to be more outspoken"on the cultural front"), would that violate the Religion Clauses? What if the President had expressly or implicitly urged the Vatican to "encourage" U.S. Bishops to deny communion to politicians whowould not outlaw abortion? P.S. I am not asking whetherthe issue would not be justiciable -- of course it wouldn't be. I'm asking whether such conduct would be appropriate for a President who took his constitutional obligations seriously. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Newdow
Justice Stevens wrote the Opinion of a five-Justice Court, reversing the decision of the U.S. Court of Appeals for the Ninth Circuit on standing grounds. Chief Justice Rehnquist and Justices O'Connor and Thomas each wrote opinions concurring in the judgment, concluding that Newdow did have standing but that it is constitutional for a school district to include the words "under God" in a daily recitation of the Pledge of Allegiance. Justice O'Connor joined the Chief Justice's opinion in whole; and Justice Thomas joined Part I of that opinion. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The President and the Pope
I don't wish to become entangled in this increasingly ad hominem debate; andI suppose I regret starting the thread, seeing as how the question appears to have been willfully misconstrued and turned to other ends. But for what it's worth, I think it should be quite obvious from my prior posts and elsewhere that my "antennae" go neither berzerk nor "bezerk" wheneverpublic officials "act[] on [their] religious positions in the political square." This case (as described in press reports, anyway -- I make no claim about their accuracy) obviously involves something quite beyond a public official acting in accord with his religious beliefs, no matter what one thinks of the propriety or constitutionality of the President's conduct. - Original Message - From: Amar D. Sarwal To: Law Religion issues for Law Academics Sent: Monday, June 14, 2004 12:38 PM Subject: Re: The President and the Pope I have understood the distinction from the beginning of this thread. I was just surprised that you "approved of" Kerry violating his own Church's norms by receiving communion. Later in the thread, you made clear that you have no horse in that battle, but you mangled my position. I will leave it at that. As for the general point, I repeat that the antennae on this thread go bezerk when this president acts on his religious positions in the political square. I fear that many have no idea how much poorer we would be if our predecessors had not done the same (of course, recognizing that there have been grave mistakes as well). - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Monday, June 14, 2004 12:27 PM Subject: Re: The President and the Pope In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, [EMAIL PROTECTED] writes: did not force you to discuss the denial of communion aspect of the story.You did that yourself when you said:"This does not mean that I would hesitate to vote against a president whoasked the Pope to instruct American bishops to denounce action I approveof."The "action that I approve of" in the context of this story has to be Kerrytaking communion in violation of Church norms. I'm afraid the above failsto observe an elementary distinction between a constitutional issue and a political or policy issue. I might believe that nothing in the Constitution prohibits a President from asking the Pope to urge his Bishops to act in a certain manner while at the same time believing that for political reasons it is a bad idea. Thus, I might defend a President's constitutional prerogativeto consult with the Pope, but simultaneously embrace the proposition that guys I want to be president not engage in such conduct.Similarly, it might be constitutionally permissible for a President to invade Iraq, butthat doesn't mean I shouldn't vote against a President who does so if my conception of what's right should counsel me to do so. The ideas of the right and the good are not exhausted by what is constitutionally permissible. While I always welcome "aid[s] [to my]understanding," let me reiterate:what is religiously proper concerning who should and who should not take communion is entirely irrelevant to the question of whether the President's conduct in consulting the Pope is constitutionally permissible. I do not see that the distinction between the religious question and the constitutional questionis in any way novel, but it is important to adhere to it nonetheless. BobbyRobert Justin LipkinWidener University School of LawDelaware ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The Merits in Newdow
Justice Thomas, by the way, would also hold that the Fourteenth Amendment does not incorporate the Establishment Clause: "Quite simply, the Establishment Clause is best understood as a federalism provisionit protects state establishments from federal interference but does not protect any individual right." This suggests that Justice Thomas might be very sympathetic to the State of Virginia's federalism-based Establishment Clause argument in the(likely-to-be) upcoming case challenging the constitutionality of RLUIPA, Bass v.Madison. - Original Message - From: Marty Lederman To: David Cruz ; [EMAIL PROTECTED] ; Law Religion issues for Law Academics Sent: Monday, June 14, 2004 11:56 AM Subject: The Merits in Newdow The collection of concurrences on the merits are quite interesting. The Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice Thomas!)-- that the Pledge is OK in schools because "under God" is "not endorsement of any religion," but instead "a simple recognition of the fact [that]'[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.'" Justice O'Connor joins the Chief's opinion, but writes separatelyto suggest that the Pledge in schools is ok only because of a confluence of "four factors" that will virtually never again appear in combination in any other case. This result derives directly from pages 24-29 of the amicus brief that Doug Laycock wrote: http://goldsteinhowe.com/blog/files/newdow.laycock.pdf. Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf-- that if Lee v. Weisman was correctly decided, then public schools may not lead students in daily recitation of the words "under God." Thomas, however, would overrule Lee. - Original Message - From: "Marty Lederman" [EMAIL PROTECTED] To: "David Cruz" [EMAIL PROTECTED]; [EMAIL PROTECTED] Sent: Monday, June 14, 2004 11:42 AM Subject: Links to Newdow Opinions It appears that those links did not work. All of the opinions can be found here: http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: The Merits in Newdow
1. Section 3 of RLUIPA does not
purport to protect Free Exercise rights; i.e., it's not section 5
legislation. It is, instead, a statute that protects the manner in which
federal funds are used.
2. I agree that CT almost certainly would
agree that certain religious accommodations are not forbidden by the
Establishment Clause -- e.g., Virginia's own provision of kosher meals to some
religious prisoners.
3. Virginia's argument, however,is that
the Establishment Clause in addition places restraints on the manner in
which the federal government may dictate the accommodation policies of
state governments. I do not agree with this argument, nor do I
think that RLUIPA section 3 "dictates" anything (the Virginia Department of
Corrections can avoid the operation of RLUIPA simply by declining federal funds
-- at least where, as here, there is no allegation that its denial of
accommodation affects interstate commerce). But there are distinct echoes
of thatargument in Justice Thomas's federalism-based theory of the
Establishment Clause in his opinion today.
- Original Message -
From:
marc
stern
To: 'Law Religion issues for Law
Academics'
Sent: Monday, June 14, 2004 2:41 PM
Subject: RE: The Merits in Newdow
Why? It is Virginia that has set
up an establishment clause defense to the federal act. The Act itself purports
to protect Free Exercise rights and Thomas does not contend these are not
incorporated .And Thomas ash also joined opinions suggesting that what is
permitted accommodation is not necessarily forbidden by the Establishment
Clause. The prisoner plaintiff( respondent)is not contending that Virginias
limited accommodation policy establishes religion by preferring main line
faiths.
Marc
Stern
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Marty
LedermanSent: Monday, June
14, 2004 1:36 PMTo:
Law Religion issues for Law
Academics; David Cruz; [EMAIL PROTECTED]Subject: Re: The Merits in
Newdow
Justice Thomas, by the way, would
also hold that the Fourteenth Amendment does not incorporate the Establishment
Clause: "Quite simply, the Establishment Clause is best understood as a
federalism provisionit protects state establishments from federal
interference but does not protect any individual right." This suggests
that Justice Thomas might be very sympathetic to the State of Virginia's
federalism-based Establishment Clause argument in the(likely-to-be)
upcoming case challenging the constitutionality of RLUIPA, Bass
v.Madison.
- Original Message -
From: Marty Lederman
To: David Cruz ; [EMAIL PROTECTED] ; Law Religion issues for Law
Academics
Sent: Monday,
June 14, 2004 11:56 AM
Subject: The
Merits in Newdow
The collection of concurrences
on the merits are quite interesting. The Chief's opinion adopts the
SG's argument -- darn-near-preposterous, IMHO (and that of Justice
Thomas!)-- that the Pledge is OK in schools because "under God" is
"not endorsement of any religion," but instead "a simple recognition of the
fact
[that]'[f]rom the time of our
earliest history our peoples and our institutions have reflected the
traditional concept that our Nation was founded on a fundamental belief in
God.'"
Justice O'Connor joins the
Chief's opinion, but writes separatelyto suggest that the Pledge in
schools is ok only because of a confluence of "four factors" that will
virtually never again appear in combination in any other case. This
result derives directly from pages 24-29 of the amicus brief that Doug
Laycock wrote: http://goldsteinhowe.com/blog/files/newdow.laycock.pdf.
Justice Thomas concludes --
correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf--
that if Lee v.
Weisman was correctly decided, then public schools
may not lead students in daily recitation of the words "under God."
Thomas, however, would overrule Lee.
- Original Message -
From: "Marty Lederman"
[EMAIL PROTECTED]
To: "David Cruz"
[EMAIL PROTECTED];
[EMAIL PROTECTED]
Sent: Monday, June 14, 2004
11:42 AM
Subject: Links to Newdow
Opinions
It appears that those links
did not work. All of the opinions can be found here:
http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html
___To
post, send message to [EMAIL PROTECTED]To subscribe,
unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-b
Re: The President and the Pope
In the category of being hoist by one's own petard: A friendly reader notes that I, too, misspelled "berserk." J My sincerest apology. - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Monday, June 14, 2004 12:52 PM Subject: Re: The President and the Pope I don't wish to become entangled in this increasingly ad hominem debate; andI suppose I regret starting the thread, seeing as how the question appears to have been willfully misconstrued and turned to other ends. But for what it's worth, I think it should be quite obvious from my prior posts and elsewhere that my "antennae" go neither berzerk nor "bezerk" wheneverpublic officials "act[] on [their] religious positions in the political square." This case (as described in press reports, anyway -- I make no claim about their accuracy) obviously involves something quite beyond a public official acting in accord with his religious beliefs, no matter what one thinks of the propriety or constitutionality of the President's conduct. - Original Message - From: Amar D. Sarwal To: Law Religion issues for Law Academics Sent: Monday, June 14, 2004 12:38 PM Subject: Re: The President and the Pope I have understood the distinction from the beginning of this thread. I was just surprised that you "approved of" Kerry violating his own Church's norms by receiving communion. Later in the thread, you made clear that you have no horse in that battle, but you mangled my position. I will leave it at that. As for the general point, I repeat that the antennae on this thread go bezerk when this president acts on his religious positions in the political square. I fear that many have no idea how much poorer we would be if our predecessors had not done the same (of course, recognizing that there have been grave mistakes as well). - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Monday, June 14, 2004 12:27 PM Subject: Re: The President and the Pope In a message dated 6/14/2004 11:49:23 AM Eastern Standard Time, [EMAIL PROTECTED] writes: did not force you to discuss the denial of communion aspect of the story.You did that yourself when you said:"This does not mean that I would hesitate to vote against a president whoasked the Pope to instruct American bishops to denounce action I approveof."The "action that I approve of" in the context of this story has to be Kerrytaking communion in violation of Church norms. I'm afraid the above failsto observe an elementary distinction between a constitutional issue and a political or policy issue. I might believe that nothing in the Constitution prohibits a President from asking the Pope to urge his Bishops to act in a certain manner while at the same time believing that for political reasons it is a bad idea. Thus, I might defend a President's constitutional prerogativeto consult with the Pope, but simultaneously embrace the proposition that guys I want to be president not engage in such conduct.Similarly, it might be constitutionally permissible for a President to invade Iraq, butthat doesn't mean I shouldn't vote against a President who does so if my conception of what's right should counsel me to do so. The ideas of the right and the good are not exhausted by what is constitutionally permissible. While I always welcome "aid[s] [to my]understanding," let me reiterate:what is religiously proper concerning who should and who should not take communion is entirely irrelevant to the question of whether the President's conduct in consulting the Pope is constitutionally permissible. I do not see that the distinction between the religious question and the constitutional questionis in any way novel, but it is important to adhere to it nonetheless. BobbyRobert Justin LipkinWidener University School of LawDelaware ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___To post, send message t
Tushnet on Newdow
Mark apparently wanted to recollect what it's like to take a law-school exam: He just finished parrying 26 Questions (many of them with mulitple subparts!) on Newdow in one hour, in a public QA on the Washington Post website: http://discuss.washingtonpost.com/wp-srv/zforum/04/sp_nation_tushnet061404.htm - Original Message - From: "Mark Tushnet" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Monday, June 14, 2004 2:20 PM Subject: Kremlinology on Newdow FWIW: Here's one (my) take on things. Rehnquist offered his (mostly historical) opinion upholding the Pledge to the "conservatives." O'Connor wasn't satisfied with it, and wrote her much more tortured (so to speak) opinion upholding the Pledge. Stevens told Kennedy that he (Stevens) didn't think that either of those opinions would get a vote from the liberals, which would lead to a 4-4 affirmance if Kennedy went with either Rehnquist or O'Connor. Better, Stevens said to Kennedy, to join me and the other liberals on a standing decision -- which I can write so that it has no implications for any other case. Kennedy went along with Stevens's suggestion. (That's why it took so long to get the standing opinion out -- for a while there was some chance that the decision would go on the merits. If I were Rehnquist, I'd be annoyed at Kennedy [if this scenario is right] and maybe Scalia for causing the possibility of a 4-4 split. But' he's a genial sort.) ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Cert. Petitions in RLUIPA Prison Cases
The Court did not rule on the petition in
Bass. Presumably this means the Court wishes to consider that
petition in conjunction with the plaintiffs' petition in Cutter;
responsive briefs in Cutter are due in three weeks. The
Court will consider both petitions at its first conference next Term. This
appears to mean that for at least the remainder of this year, section 3 of
RLUIPA will, in effect, be inoperative in prisons in Michigan, Ohio, Kentucky
and Tennessee.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Friday, May 28, 2004 5:55 PM
Subject: Cert. Petitions in RLUIPA Prison
Cases
The SG today filed a Brief for the United States -- a Respondent that
intervened to defend the constitutionality of RLUIPA -- in No. 03-1404,
Bass v. Madison. (See discussion below.) The SG, like the
plaintiff, argues that the Court should grant cert. to decide whether section
3 of RLUIPA violates the Establishment Clause, but that the Court should deny
cert. on the remaining constitutional challenges to the statute. As for the
Sixth Circuit case in which another peititon is pending, No. 03-9877,
Cutter v. Wilkinson, the SG writes: "The later petition filed in the
Sixth Circuit case, Cutter, et al. v. Wilkinson, et al., No. 03-9877,
provides a less optimal vehicle for this Court's review, due to the
multiplicity of parties and factual claims presented in the three combined
cases, and the complications in the alignment of all the different parties as
petitioners and respondents that would arise were the Court to consolidate
consideration of that case with the present petition. In addition, were the
Court to grant that petition, in which RLUIPA was held to violate the
Establishment Clause, the respondent state officials would be free to raise a
host of distinct constitutional challenges as alternative grounds for
affirmance. As explained in point 2, infra, such a development could require
this Court to address a number of difficult, sensitive, and vitally important
constitutional issues without the benefit of their consideration by the court
of appeals in the instant case, in the Cutter case, or by many other
courts of appeals. Accordingly, if this Court grants the instant petition, the
United States will suggest that the Cutter case be held pending the
Court's ruling in the case at hand."
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Friday, April 23, 2004 4:25
PM
Subject: Re: Cert. Petition in RLUIPA
Case
The plaintiffs inSixth Circuit case,
Cutter v. Wilkinson, have filed a petition for cert. The Case
No. is 03-9877. See http://www.supremecourtus.gov/docket/03-9877.htm.
If anyone has an electronic copy, please post it. The Courtwill
not rule on the petition in Cutter or in Bass v. Madison
until the SG files briefs for the Respondent United States. If such
briefs are filed by May 28th, then the Court will act on the petition(s)
this Term (i.e.,on or before June 28th).
- Original Message -
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Saturday, April 17, 2004 7:32
AM
Subject: Re: Cert. Petition in RLUIPA
Case
The case, Bass v. Madison, has been
docketed as No. 03-1404, and plaintiffs have acquiesced to cert. on the
Establishment Clause question (while opposing cert. on the remaining
questiions): http://www.goldsteinhowe.com/blog/files/bass.cert.acquiesce.pdf.
(No filing yet from the SG.)
Also, there's an article by Richard Schragger
(U. Va.) in the latest Harvard Law Review, The Role of the Local in
the Doctrineand Discourse of Religious Liberty, 117 Harv. L.
Rev. 1810 (2004), that apparently (I haven't yet read it) argues that
national religious-accommodation law, such as RLUIPA, is
problematic from a Religion Clause perspective in ways that analogous
state and local religious accommodations would not be -- which also
happens to be the principaltheme of the State of Virginia's petition
in Bass.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for
Law Academics
Sent: Thursday, April 08, 2004 5:36
PM
Subject: Re: Cert. Petition in
RLUIPA Case
Well, the circuit split issue isn't quite
as clear as I had suggested. In its petition, Virginia expressly
rejects the EC theory on which it had won in the district
court, and that the Sixth Circuit invoked in Cutter (namely,
that a government can a
Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
Sorry: The font on that post came through garbled for some reason. Here it is again. I agree with Eugene that theres not much of a compelled speech problem here, for reasons the Court explained in Southworth. (Of course, its not quite as easy as that, because of cases such as Dale, Abood and United Foods, which find compelled-speech problems in the unlikeliest of places. But those cases are in my view wrongly decided.) To be sure, carrying a message presents more significant compelled-speech problems than does paying for it, see Wooley. But in this case, the flyer would be contained in a sealed envelope, which is a far cry from a license plate, whatever one thinks of Wooley. For similar reasons, Im not terribly persuaded by Judge Michaels dissenting view that permitting insertion of Good News Club flyers would coerce students to engage in religious activity, as in Lee v. Weisman. Nevertheless, I think the case is not as clear-cut as it appears at first; but the reasons why that is so are obscured by the (questionable) way in which the case was litigated. (Disclosure: I live in Montgomery County and my children are students in the School District; but until reading the decision today I had very little inkling of the facts of the case or how it was being litigated.) The court finds without much effort that the School Districts exclusion of the Good News Club flyers would be a Free Speech Clause violation if there were no Establishment Clause bar to distributing the flyers. This conclusion is not surprising, because the School District conceded that its exclusion of the flyers which would announce Good News Club meetings -- was unconstitutional viewpoint discrimination under controlling precedent. Slip op. at 7. That concession was probably ill-advised. I think the Free Speech Clause question is much more complicated than the District and the court assumed it to be, wholly apart from Wooley and any issue of compelled speech. Just as did the Supreme Court in Rosenberger, the court in this case incorrectly assumed that the school permits virtually all types of nonprofit speech (except religious speech), including most any controversial _expression_, to be conveyed to students and parents in the relevant program. That assumption is mistaken. The School District policy in question does not permit all nonprofit groups to distribute whatever literature they choose. That is to say, it is not a public forum, nor analogous to one. The policy states that [a]nnouncements of educational services or cultural or recreational programs directly related to the educational program may be made available to students provided that the organization sponsoring the announcement is not-for-profit and the announcement is approved for distribution by either the director for School Administration or the deputy superintendent of schools. Thus, groups may distribute literature only if (i) it is directly related to the educational program, and (ii) it is approved for distribution by a school official, who is presumably entrusted with some discretion in the matter. Under any reasonable understanding, announcements of religious meetings are not directly related to the educational program, because, whatever else that criterion means, it must not encompass invitation to participation in religious activities _expression_ that the School District itself is constitutionally forbidden from conveying as part of its educational program. That, frankly, should be end of the Free Speech claim, and thus the end of the case, except that it appears that in practice, the School Districts enforcement of the directly related criterion is a bit counterintutive. According to the DOJ Brief (which is the only brief I could find online -- http://www.usdoj.gov/crt/briefs/cef_montgomery.pdf), [m]aterials distributed under this policy (or under any of the other written or unwritten policies followed by the Board) have included advertisements for a variety of activities, including adult education classes, cultural events such as plays and Earth Day celebrations, athletic league try-outs, and charitable activities such as clothing and food drives. I suppose that perhaps those advertisements are in some attenuated sense directly related to our schools educational program -- although frankly, they seem to me indirectly related, at best. Nevertheless, if directly related simply means the sort of speech that school teachers themselves would be permitted to make to their students which is how the criterion appears to have been understood in practice -- then these school-approved advertisements satisfy, at least for the most part, the criterion in a way that invitation to bible study would not. See Mergens, 496 U.S. at 265-66 (Marshall, J., concurring in the judgment) (although a school may permissibly encourage its students to become well rounded
Re: Child Evangelism Fellowship v. Montgomery County -- the View from Montgomery County
I agree with Doug that unconstrained discretion to discriminate on the basis of viewpoint would be problematic. And Doug, who filed an amicus brief in the case, presumably knows more than I about the way in which the SchoolDistrict's policy was implemented "on the ground." Perhaps the exclusion of the religious club was indefensible in light of the other flyers the District has approved. But I doubt it. I'm a parent in the school district and I receive slews of these flyers every Wednesday. I can assure you that the vast majority of them would occasion no controversy whatsoever and are entirely consistent with the curricular objectives of the schools. That explains the "389 out of 402" ratio. More importantly, I cannot recall a single instance in which we received a flyer that raised our eyebrows or that prompted community controversy and/or parental outrage. That is to say, I cannot recall a single time when we have received a flyer urging students to attend meetings or seminars of an advocacy group, a political party or candidate, a church or religious club, or any other hot-button group. No doubt this is because such groups very rarely even ask for access to the backpacks, because they presume (correctly, until now) that the School District would reject the request out of hand, and because in the handful of cases in which controversial groups have asked for access (perhaps as many as 13 times in an 18-month span), the District has rejected such requests Of course, if groups such as these knew that they had a constitutional right of access to advertise in students' backpacks -- which apparently they now do under the Fourth Circuit's ruling --they would be a lot more assertive about exercising that right and seeking such access. But I think the Fourth Circuit is simply wrong in concluding that exclusion of political, advocacy and other controversial groups is a Free Speech violation. The closest SCOTUS precedent is probably Cornelius, in which the Court held that such "avoidance of controversy" criteria would be permissible if they are not a pretext for exclusion based on hostility toward certain viewpoints. 473 U.S. at 809-12. Similarly, in Planned Parenthood v. Clark, 941 F.2d 817 (9th Cir. 1991), the en banc Ninth Circuit, relying upon Cornelius,upheld a school's exclusion of Planned Parenthood ads from a high-school yearbook pursuant to a policy excluding ads involving sensitive and controversial issues, ads that cause tension and anxiety in the community, and ads that were inconsistent with what the school itself could convey to its students. Id. at 829-30. Montgomery County's policy here is much more defensible than that at issue in Planned Parenthood, both because of the audience (elementary school students and their parents as opposed to graduating high-schoolers) and because the school districtin Planned Parenthooddid not abide by its policy in practice -- it permitted ads run by political candidates, churches, tanning salons and casinos --thus raising a much greater spectre of pretext and of invidious viewpoint discrimination than we have here. Doug, do you think that the Kerry Campaign, and Planned Parenthood, and the NRA, and the Young Socialist Workers, and NORML, etc., etc., ought to have a constitutional right to place flyers in our students' backpacks merely because the school district permits art camps and behavioral seminars and the Red Cross and the Shakespeare Theatre, etc., to place flyers in backpacks for uncontroversialcultural or recreational programs related to the schools' educational program? If so, then I suppose we simply have a principled disagreementaboutFree Speech Clause doctrine -- although I think we'd agree that the upshot of such a reading of the Free Speech Clause will be the cessation of the flyer practice altogether, in Montgomery County and in many others. If, on the other hand,you agree thatflyers for ideological, advocacy, and generally controversial activitiescan be excluded from the backpacks generally, then is there any justification -- policy or constitutional -- for treating any differently Good News Club notices urging parents to send their children to meetings in which they will pray and learn to embrace the Gospel of the Lord Jesus Christ? - Original Message - From: "Douglas Laycock" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Thursday, July 01, 2004 12:24 PM Subject: RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County Marty says they allowed 389 out of 402 requests. That is consistent with applying a child-adjusted compelling interest test, rejecting only those that violate Tinker or Bethel, and probably a few more that the school finds objectionable on some ground that it might or might not be able to defend. Approving that many is not consistent with approving only those that the
FL Voucher Program -- Where's the Free Exercise Issue?
I find this Florida case befuddling in an important respect -- Why is the Free Exercise/Locke v. Davey question even at issue on appeal? 1. The Florida Legislature enacted a voucher plan that applies to religious and non-religious schools alike. 2. The Circuit Court found that, because the program included religious schools, it facially violated the State Constitution, and thus the court declared the statute unconstitutional, and ruled that the Defendants "are hereby enjoined and prohibited from taking any action to implement the Opportunity Scholarship Program for the 2002-2003 school year and thereafter. Thus, under the trial court's order, the voucher program is inoperative, and students cannot use the vouchers at any private school, whether or not it is religious. In other words, the court in effect ruled that the application of the statute at religious schools and the application at secular schools are not severable from one another. 3. The nonseverability ruling,frankly, surprised me, because I find it hard to imagine the legislature would not want students to be able to use vouchers at leastin secular schools, evenif they are constitutionally prohibited from using them in religious schools. But what do I know about Florida severability doctrine? (Answer: nuthin'.) 4. The Governor and AG did not appeal theseverability ruling. (See footnote 4 of yesterday's ruling.) That is to say, they did not argue that at the very least the program should be sustained as to secular schools, regardless of what the constitution requires as to religious schools. (Query whether this doesn't reveal a great deal about whether their objective is genuinely to ensure that needy students have better educational options.) 5. Let's say, for argument's sake, that the District Court of Appeal was correct in holding yesterday that the Florida Constitution forbids voucherized aid to religious schools. Why isn't that the end of the matter? The result is that religious and nonreligious private schools are treated identically: vouchers can be used at neither. Thus, no Lukumi issue; no McDaniel v. Paty issue;no Torcaso issue; no Locke v. Davey issue; no Free Exercise issue at all. If the legislature subsequently enacted a secular-school-only voucher law, then the Free Exercise issue would arise. But why is it in the case now? According to the dissent in yesterday's decision, there's a Free Exercise question because although the "no vouchers" regime is facially neutral, it "'targets religious conduct for distinctive treatment.'" (quoting Lukumi, 508 U.S. at 534). The dissent goes on tosay that "[t]he record in the instant case makes it clear that preventing the use of opportunity scholarships at religious institutions was the object of the trial courts order. Therefore, the trial courts order was not neutral towards religion, and it must be invalidated unless it was justified by a compelling governmental interest and narrowly tailored to advance that interest." The dissent also asks and answers the following question: "Could the state cure a discriminatory act of not hiring or terminating an individual because of race by simply eliminating the employment position? Obviously not." Obviously? But cf. Palmer v. Thompson. Is this right? Is the trial court's order prohibiting all vouchers, regardless of whether the school is secular or religious, analogous to a law prohibiting all animal sacrifice, "whether it is secular or religious"? - Original Message - From: "Michael MASINTER" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Monday, August 16, 2004 11:07 AM Subject: Fl Voucher Program Unconstitutional So says Florida's First District Court of Appeal, construing the Florida Constitution's no aid provision in Article One, Section Three, which provides: "No revenue of the state . . . shall ever be taken from the public treasury directly or indirectly in aid . . . of any sectarian institution." Rejecting arguments that the state constitution imposed no greater restriction on state spending than did the establishment clause, the court relied on Locke v. Davey to reject the argument that, so construed, it would violate the Free Exercise clause. The court certified the question to the Florida Supreme Court. http://www.1dca.org/opinion/opinions2004/8-16-04/02-3160.pdf Michael R. Masinter Visiting Professor of Law On Leave From University of Miami Law School Nova Southeastern University (305) 284-3870 (voice) Shepard Broad Law Center (305) 284-6619 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can
Re: Cert granted in Cutter
What's remarkable is that the Court did exactly the opposite of what the SG urged -- it granted in Cutter and held in Bass v. Madison. Therefore not onlymust defenders of the statutefile their briefs topside, but they must address all of the constitutional arguments-- Commerce andSpending, in addition tothe Establishment Clause. What could have been a discrete and interesting EC case has now turned into a potential blockbuster on several important constitutional questions that have ramifications far beyond the reach of RLUIPA. - Original Message - From: "Anthony Picarello" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Tuesday, October 12, 2004 11:30 AM Subject: Cert granted in Cutter Supreme Court to Review Inmate Freedom Law By GINA HOLLANDAssociated Press WriterWASHINGTON (AP) -- The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism.The case does not question inmates' right to practice their religion, but asks whether states have to accommodate requests for a particular diet, special haircut or religious symbols.Some states argue that a 2000 law intended to protect the rights of prisoners amounts to an unconstitutional government promotion of religion - and that it makes prisons more dangerous.States that receive federal funds must accommodate prisoners' religious beliefs unless wardens can show that the government has a strong reason not to, under a 2000 law.The Supreme Court will consider an appeal from Ohio inmates, described as a Wiccan witch, a Satanist, a racial separatist who is an ordained minister of the Christian Identity Church, and others.The state inmates had sued claiming they were denied access to religious literature and ceremonial items. The Cincinnati based-6th U.S. Circuit Court of Appeals used their case to strike down the law, called the Religious Land Use and Institutionalized Persons Act, on grounds that it violates the separation of church and state."All of (the law's) defenders and antagonists, whether public or private, whether winners or losers below, are all of one voice on the need for some review in some case, and Ohio joins that chorus," Ohio Solicitor Douglas Cole told the court.He said that inmates can use religion as a cover to promote gangs.The inmates' lawyer, Ohio State University law professor David Goldberger, said that prisoners are stripped of many of their rights, but access to religious should not be one of them.The First Amendment both guarantees the freedom to exercise one's religion and says government may not "establish" religion. As interpreted by the Supreme Court, the Establishment Clause has come to mean that government is generally prohibited from promoting or endorsing religion.Before Congress acted, "prisoners, detainees and individuals institutionalized in mental hospitals faced substantial and unwarranted burdens in freely practicing their faiths," the Supreme Court was told by Bush administration lawyers. The administration has defended the law.The case is Cutter v. Wilkinson, 03-9877.___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 [EMAIL PROTECTED] 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.
Re: Cert granted in Cutter
In response to a couple of e-mail inquiries, a clarification: The petition in Cutter (http://www.goldsteinhowe.com/blog/files/Cutter.petition.pdf) raises only the Establishment Clause question, because that was the only ground on which the CTA6 declared section 3 of RLUIPA invalid. Ohio, however, has indicated that it intends to urge the Commerce and Spending Clause arguments as alternative grounds for affirmance. (Presumably the state, in order to win the case if it lost on the EC argument,would have to prevail on both its Commerce and Spending Clause arguments, because the plaintiffs' case could go forward if Congress could act under either authority.) Therefore, petitioners, the SG,and their amici will have to decide whetherand to what extent the Commerce and Spending arguments will be addressed in the topside briefs. (I was mistaken to suggest previously that those arguments "must" be addressed topside.) The SG had urged the Court to hold Cutter, and to deny cert. on the Commerce and Spending questions in Bass, precisely in order to avoid this scenario and to focus the case on the EC question. - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Tuesday, October 12, 2004 11:49 AM Subject: Re: Cert granted in Cutter What's remarkable is that the Court did exactly the opposite of what the SG urged -- it granted in Cutter and held in Bass v. Madison. Therefore not onlymust defenders of the statutefile their briefs topside, but they must address all of the constitutional arguments-- Commerce andSpending, in addition tothe Establishment Clause. What could have been a discrete and interesting EC case has now turned into a potential blockbuster on several important constitutional questions that have ramifications far beyond the reach of RLUIPA. - Original Message - From: "Anthony Picarello" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Tuesday, October 12, 2004 11:30 AM Subject: Cert granted in Cutter Supreme Court to Review Inmate Freedom Law By GINA HOLLANDAssociated Press WriterWASHINGTON (AP) -- The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism.The case does not question inmates' right to practice their religion, but asks whether states have to accommodate requests for a particular diet, special haircut or religious symbols.Some states argue that a 2000 law intended to protect the rights of prisoners amounts to an unconstitutional government promotion of religion - and that it makes prisons more dangerous.States that receive federal funds must accommodate prisoners' religious beliefs unless wardens can show that the government has a strong reason not to, under a 2000 law.The Supreme Court will consider an appeal from Ohio inmates, described as a Wiccan witch, a Satanist, a racial separatist who is an ordained minister of the Christian Identity Church, and others.The state inmates had sued claiming they were denied access to religious literature and ceremonial items. The Cincinnati based-6th U.S. Circuit Court of Appeals used their case to strike down the law, called the Religious Land Use and Institutionalized Persons Act, on grounds that it violates the separation of church and state."All of (the law's) defenders and antagonists, whether public or private, whether winners or losers below, are all of one voice on the need for some review in some case, and Ohio joins that chorus," Ohio Solicitor Douglas Cole told the court.He said that inmates can use religion as a cover to promote gangs.The inmates' lawyer, Ohio State University law professor David Goldberger, said that prisoners are stripped of many of their rights, but access to religious should not be one of them.The First Amendment both guarantees the freedom to exercise one's religion and says government may not "establish" religion. As interpreted by the Supreme Court, the Establishment Clause has come to mean that government is generally prohibited from promoting or endorsing religion.Before Congress acted, "prisoners, detainees and individuals institutionalized in mental hospitals faced substantial and unwarranted burdens in freely practicing their faiths," the Supreme Court was told by Bush administration lawyers. The administration has defended the law.The case is Cutter v. Wilkinson, 03-9877.___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be
Re: Pamphlets at School
Marc's question was not whether the school could
prohibit distribution of religious literature; as I understand it, it was
whether the school could prohibit literature distributors from targeting Jewish
students as the audience for the literature, regardless of its
content. I think the answer to that question is probably "yes" -- a simple
prohibition on religious discrimination against students would do the trick, and
it would be no more unconstitutional than are the bans on religious
discrimination in, e.g., the Civil Rights Act.
- Original Message -
From: "Gene Summerlin" [EMAIL PROTECTED]
To: "'Law Religion issues for Law Academics'"
[EMAIL PROTECTED]
Sent: Friday, November 05, 2004 11:43
AM
Subject: Pamphlets at School
While the school could potentially eliminate the distribution of all
flyers or pamphlets as a time, place or manner restriction, I seriously
doubt that a content based prohibition on just religious speech would be
upheld. The right to free speech includes the right to
distribute literature. Martin v. City of Struthers, 319 U.S. 141 (1943).
The Supreme Court considers the distribution of printed material as pure
speech. Texas v. Johnson, 491 U.S. 397, 406 (1989). The peaceful
distribution of literature is a protected form of free speech just like
verbal speech. United States v. Grace, 461 U.S. 171, 176 (1983)
("leafletting is protected speech."); Lovell v. City of Griffin, 303
U.S. 444, 451-52 (1938) ("liberty of circulating is as essential to
[freedom of speech] as liberty of publishing; indeed without
circulation, the publication would be of little value.") The Supreme
Court has recognized "that the right to distribute flyers and literature
lies at the heart of the liberties guaranteed by the speech and press
clauses of the First Amendment." ISKCON v. Lee, 112 S. Ct. 2711, 2720
(1992). Of course, in a school setting the school has the right
to prohibited speech activities if those activities "substantially
interfere with the work of the school, or impinge upon the rights of
other students." Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503,
509 (1969). However, the Tinker Court made it clear that impinging
upon the rights of other students is something substantially more than
communicating a message that others disagree with or find
offensive. "Any departure from absolute regimentation may cause
trouble. Any variation from the majority's opinion may inspire fear. Any
word spoken, in class, in the lunchroom, or on the campus, that deviates
from the views of another person may start an argument or cause a
disturbance. But our Constitution says we must take this risk and our
history says that it is this risk of hazardous freedom -- this kind of
openness -- that is the basis of our national strength and of the
independence of vigor of Americans who grew up and live in this
relatively permissive, often disputatious, society." Tinker, 393
U.S. at 508-09 (citations omitted). Nor can school
officials require "preapproval" of distributed material. See
Fujishima v. Board of Educ., 460 F.2d 1355, 1358 (7th Cir. 1972). See
e.g., Nitzderg v. Parks, 525 F.2d 378, 383-85 (4th Cir. 1975); Baughman
v. Board of Educ., 478 F.2d 1345 (4th Cir. 1973); Quarterman v. Byrd,
453 F.2d 54 (4th Cir. 1971); Eisner v. Stamford Board of Educ., 440 F.2d
803 (2d Cir. 1971); Riseman v. School Committee, 439 F.2d 148 (1st Cir.
1971); Johnston-Loehner v. O'Brien, 859 F.Supp. 575 (M.D. Fla. 1994);
Slotterback v. Interboro Sch. Dist., 766 F.Supp. 280 (E.D. Penn. 1991);
Riveria v. Board of Regents, 721 F.Supp. 1189, 1197 (D. Col. 1989);
Sullivan v. Houston Indep. Sch. Dist., 333 F.Supp. 1149 (S.D. Tex.
1971); Zucker v. Panitz, 299 F.Supp. 102 (S.D. N.Y. 1969). See also
Muller v. Jefferson Lighthouse Sch., 98 F.3d 1530 (7th Cir. 1996);
Hedges v. Wauconda Community Unit Sch. Dist. No. 118, 9 F.3d 1295 (7th
Cir. 1993); Bystrom v. Friedley High Sch., 822 F.2d 747 (8th Cir. 1987);
Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960 (5th Cir.
1972). From a practical perspective, if I were asked to
advise the school I would be sure to inform them that if they decide to
enact such a ban, they better start a litigation fund because it is sure
to start a lawsuit. Good luck, Marc. Gene
Summerlin Ogborn Summerlin Ogborn P.C. 210 Windsor
Place 330 So. 10th St. Lincoln, NE 68508 (402)
434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile)
www.osolaw.com [EMAIL PROTECTED]
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of marc
stern Sent: Friday, November 05, 2004 9:58 AM To: 'Law
Religion issues for Law Academics' Subject: (no subject)
Anonymous students left pamphlets calling on students to
accept Jesus on the desks of Jewish public high school students and no
other students. I have been asked whether a school could ban religiously
targeted distribution of any pamphlet. Any responses? Marc
Stern
Pamphlets at School
Eugene and Marc are, of course,correct: The case is not quite as simple as I suggested. Let me try to break down the questions they raise: 1. Could a state prohibit private discrimination "on a public sidewalk" generally? Well, no legislature would ever do so, because we are nowhere near any sort of social consensus that legislatures should start regulating the choices we make in our everyday interactions, on the sidewalks or in our homes -- even where they might be a consensus that some such choices are invidious. "Law does not, in our legal culture, commonly deal withdinner invitations and the choice of children's back-yard playmates." Charles Black, 81 Harv. L. Rev. at 102. Thus, I don't think any of us will live to see the answer to Marc's question (could a state prohibit private persons from discriminating against others on a public sidewalk?) -- the constitutional question will not arise because there is unlikely to be any such statute. 2. On the other hand, we are, of course, familiar with a well-known set of prohibitions on discrimination in public spaces -- namely, public accommodation laws, modeled on title II. Those laws do not prohibit all discrimination in public spaces, but are instead limited to discrimination that has some real, tangible effect on access to meaningful privileges and benefits of public life, including, most obviously, actualaccess to public spaces, events, and the like. Does that extend to prohibiting speakers from excluding certain audiences for speech conducted in a public setting? I think it often does as a matter of statute, and I had thought the cases were fairly uniform thatspeakers in a public accommodation (e.g., an auditorium,a bandstand) can constitutionally be prohibited from discriminating w/r/t their audience; but Eugene is correct that there is some split of authority, including the City of Cleveland v. Nation of Islam case. I do not think the constitutional claim is very strong -- but then again, I think Dale is wrongly decided. 3. Turning to schools: Marc is correct that, in general, antidiscrimination provisions -- at least those at the federal and state level with which we're familiar -- run against the schools themselves (including private schools), rather than against the students. But this means, in part, that schools have a legal obligation to prohibit student-to-student discrimination that tangibly affects the education of the discriminated-against students. See Davis v. Monroe County. Accordingly, I imagine that most schools in this nation do implement some sort of behavior codespursuant towhich students are not permitted to discriminate against one another on certain grounds, including race, sex and religion. 4. Of course schools do not enforce such rules against every sort of student discrimination -- e.g., choosing one's friends or dates,or picking sides in a kickball game -- for the same reason that legislatures do not prohibit racial and religious discrimination in every sphere of our lives (including how we treat others in everyday social interactions). And they certainly do not prohibit discrimination when it has absolutely no adverse impact on the "disfavored" class, such as in Eugene's example of aJewish student group distributing leaflets about Yom Kippur services to students whom they knew to be Jewish.But they do enforce anti-discrimination laws in those circumstances where the conduct -- including expressive conduct -- obviously is unwanted, or causes tangible harm, or is offensive. See, e.g., Davis itself. The fact that the school limits its anti-discrimination enforcement only to these sorts of harmful (or "severe and pervasive") cases does not make the prohibition content-based, contra Gene Summerlin -- in part because the prohibition is not limited to discriminatory speech, but applies as well to nonexpressiveforms of discrimination (again, see Davis). The school could constitutionally enforce a much broader anti-discrimination ban; the fact that it does not do so, that it reserves sanctions for discrimination with real impact, and that it measures such impact in part by the recipients' reactions to such conduct (including speech), does not to my mind (nor the Court's I think -- see Davis) raise a serious free speech problem -- but that's a much more complicated subject that Eugene and I and others have long debated without much resolution. 5. So is the proselytizing here offensive and unwanted, or is it (as Eugene appears to suggest) merely another form of benign, attempted persuasion, akin to trying to convince one's fellow students that the Stones were better than the Beatles (or vice versa), or Kerry better than Bush?I think it is theformer: We had plenty of knock-down, drag-out, impassionedarguments in my high school about any number of things that were deeply important to us, including politics, music and art; but if anyone had tried to convince
Re: Pamphlets at School
Well, I don't disagree with the Court's recent decisions that proselytizing should receive as much free speech protection, as a doctrinal matter, as other forms of attempted persuasion. And I certainly do not think that an "endeavor should get less protection becausethe subject of the proposed change is deeply meaningful to both the speaker and the listener."I suppose all thatI meant to convey by my point No. 5are these two things: (i) Putting aside constitutional doctrine, we should not blithely assume that proselytizing is in any meaningful sense equivalent -- to the listener or to the speaker -- as other forms of attemtped persuasion. (ii) I did not mean to suggest that schools themselves should formally distinguish between religious proselytizing and other forms of student-to-student speech, and treat the former as categorically disfavored. I was simply trying to suggest that schools can prohibit unwanted speech directed to a certain class of students, andthat, as a practical matter, most students will in fact view religious proselytizing as very much unwanted, if not highly inappropriate. If a student asks that such entreaties cease, the school is well within its rights, I think, to honor that student's request. And the fact that different students will be offended by different speech addressed directly to them does not render unconstitutional, or content-based, the underlying school policy of respecting the sensitivities of the targeted student audience. Cf. Rowan. - Original Message - From: Menard, Richard H. To: 'Law Religion issues for Law Academics' Sent: Friday, November 05, 2004 2:29 PM Subject: RE: Pamphlets at School .:. You raise a lot of good points. In response only to point (5): The notion that proselytizing is more suspect because it may be received as "offensive and unwanted" (I agree with that premise) seems to me either to ignore or to reject something at the heart of the endeavor. Proselytizing -- which, bear in mind, iswidely understood asan affirmative Christian obligation-- is not preachingto the choir (who presumably won't be offended), but rather an effort to change minds. Isn't it a little perverse to say that the fact that the endeavor should get less protection becausethe subject of the proposed change is deeply meaningful to both the speaker and the listener? -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Marty LedermanSent: Friday, November 05, 2004 1:50 PMTo: Law Religion issues for Law AcademicsSubject: Pamphlets at School .:. Eugene and Marc are, of course,correct: The case is not quite as simple as I suggested. Let me try to break down the questions they raise: 1. Could a state prohibit private discrimination "on a public sidewalk" generally? Well, no legislature would ever do so, because we are nowhere near any sort of social consensus that legislatures should start regulating the choices we make in our everyday interactions, on the sidewalks or in our homes -- even where they might be a consensus that some such choices are invidious. "Law does not, in our legal culture, commonly deal withdinner invitations and the choice of children's back-yard playmates." Charles Black, 81 Harv. L. Rev. at 102. Thus, I don't think any of us will live to see the answer to Marc's question (could a state prohibit private persons from discriminating against others on a public sidewalk?) -- the constitutional question will not arise because there is unlikely to be any such statute. 2. On the other hand, we are, of course, familiar with a well-known set of prohibitions on discrimination in public spaces -- namely, public accommodation laws, modeled on title II. Those laws do not prohibit all discrimination in public spaces, but are instead limited to discrimination that has some real, tangible effect on access to meaningful privileges and benefits of public life, including, most obviously, actualaccess to public spaces, events, and the like. Does that extend to prohibiting speakers from excluding certain audiences for speech conducted in a public setting? I think it often does as a matter of statute, and I had thought the cases were fairly uniform thatspeakers in a public accommodation (e.g., an auditorium,a bandstand) can constitutionally be prohibited from discriminating w/r/t their audience; but Eugene is correct that there is some split of authority, including the City of Cleveland v. Nation of Islam case. I do not think the constitutional claim is very strong -- but then again, I think Dale is wrongly decided. 3. Turning to schools: Marc is correct that, in general, antidiscrimination provisions -- at least those at the federal
Doug Laycock on Newdow and Davey
Doug's Harvard Comment on Newdow and Davey is now available online at http://www.harvardlawreview.org/issues/118/1_laycock.pdf. I haven't read it yet, but in light of Doug's amicus briefs in both cases (as well as his contributions to this list regarding both of them), I'm willing to wager that it's characteristically terrific. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
Florida Voucher Decision
If I understandTom's post correctly, he agrees with the majority in the Florida casethat there is no FreeExercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to "severability") is nottreating religious schools unfavorably vis-a-vis otherprivate schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included?Tom says "yes." But the dissent in the Florida case says "no"! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (which is contrary to the Florida's court's holding, but assume arguendo that the dissent is correct to distinguish Davey), and (ii) the FloridaConstitutionprohibits use of vouchers in religious schools, could the Florida Legislatureignore the Florida Constitution and enact a plan that permits vouchers to be used at religious and nonreligious schools alike? Tom is absolutely correct that nothing in the federal Constitution would prohibit the legislature from doing so. In Tom's words, the state has the "choice" between all or nothing. The problem, as I see it, is that the state has chosen --the State Constitution appears to compel the answer of "nothing." Tom suggests that the effect of the federal constitutional command is not only to require nondiscrimination, but also to, in effect, erase, or invalidate, the "flawed" state constitutional provision, or, in any event, to make it "not binding" on lower-level state decisionmakers. That's a very interesting jurisprudential question, I think. Of course, we all know that when a court declares a statute (or state constitutional provision) "invalid," it does not mean that the provision magically disappears, or is thereby repealed. What it means is that the courts will enjoin any application of the statute that violates the federal constitutional norm. If, therefore, the state constitution required that religious schools be "singled out" for disfavored treatment, as Tom suggests, then of course the lower-level state actors could never apply that provision in a manner consistent with a federal rule that such discrimination is unconstitutional -- because any such application would be enjoined. The difficulty with Tom's analysis, as I see it, is that the state constitutional norm here does not require religious schools to be singled out -- it merely requires that they not receive aid. The federal Constitution has not "invalidated" the refusal of Florida to give aid to religious schools -- Tom concedes that Florida need not do so as long as secular and religious schools alike. It has merely (that is to say, hypothetically, if the Florida court is wrong) prohibited discrimination. Therefore there is no conflict between the two constitutions, and the lower-level state actors must honor both. I genuinely do not know whether this is correct -- but I think that it is a question of state, not federal, law. This is essentially the conclusion that Van Alstyne reached in an analogous context in his "Thirty Pieces of Silver" article -- that if Congress offers the state funds only on a condition that the state do something that is independently barred by the state's own constitution, the state has no choice but to decline the federal funds. On the other hand, Lead/Deadwood suggests otherwise, and would probably be support for Tom's theory. - Original Message - From: "Berg, Thomas C." [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Saturday, November 13, 2004 11:03 AM Subject: RE: Florida Voucher Decision I haven't read the Florida decision yet; but I've heard such reasoning before. As Marty describes the reasoning, it is inconsistent with the premises and result of Widmar, and indeed of a vast number of other public-forum cases. In Widmar, the Missouri state constitutional principle singling out religious groups for exclusion (in the name of strict separation) was overridden by the federal constitutional right of equal access. The result was that the state university must *either* close its classrooms to student groups on a religion-neutral basis *or* allow the religious group to meet. Had the Widmar Court given any shrift to the kind of argument in Florida that Marty describes, the only permissible remedy would have been to
Re: Florida Voucher Decision
I don't have time just now to respond to Tom's question. But I did want to make clear that the argument about which Tom is concerned is not the argument of the Florida court majority. The majority's argument is: 1. The Florida Constitution prohibits the use of vouchers in religiousschools. 2. The voucher statute is not severable as between secular and religious private schools, i.e., the Florida legislature would not have intended that vouchers could be used at secular schools if they cannot be used at religious schools. 3. Hence, the entire statute is invalid and enjoined, and vouchers may not be used at any private schools. 4. Because that injunction does not favor secular over religious private schools, it is facially and formally neutral, and therefore does not implicate Lukumi or the Free Exercise Clause. (The dissent takes issue with this conclusion; but as I understand Tom's earlier post, he agrees with me that the majority is probably correct.) 5. Even if there were discrimination against religious schools here -- i.e., even if the statute were severable, or the legislature were to enact a new statute permitting use of vouchers at private secular schools only -- that disparate treatment would be constitutional under Davey. I am interested in others' views on point No. 4. Tom's question, by contrast,assumes arguendo that point No. 5 came out the other way, and asks whether, in that case, a state court or legislature could permit the use of vouchers at all private schools, or whether, instead, the state constitution would require that the voucher plan be prohibited for all private schools, unless and until the state constitution is amended. In my view, that is a question of state law. - Original Message - From: "Berg, Thomas C." [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Saturday, November 13, 2004 2:02 PM Subject: RE: Florida Voucher Decision I'll let others opine on the specific question Marty asks. Since I'll be unable to post for a while this afternoon, let me just make one comment on the issue I raised, in response to Marty. It may be true, as Marty says, that the Florida constitutional provision doesn't "require the singling out of religious schools" for no aid -- it just requires that they not receive aid. But the provision unquestionably does single out religious schools for no aid: it forbids aid to them while not forbidding aid to nonreligious schools. In that sense, the provision is surely discriminatory, even if the state could also deny aid to other schools in order to produce an overall nondiscriminatory result. I don't see why a provision that is inherently discriminatory in this way should be given the effect of forcing the state's hand in this way. Marty, do you agree with my claim that if the Florida court's argument is right, it would not only require the invalidation of private-school vouchers, but also would require the closure of forums in many of the equal-access cases (all the ones where there was a general state or local rule above the individual-school level that forbade, or was interpreted to forbid, the use of classrooms for religious purposes) -- and that it could also require the closure of forums in many cases where the excluded perspective was not religious? In other words, do you agree that the Florida court's rationale could cut a very wide swath through the previous equal-access logic of "accept the excluded group or close the forum altogether"? Tom Berg _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sat 11/13/2004 10:45 AM To: Law Religion issues for Law Academics Subject: Florida Voucher Decision If I understand Tom's post correctly, he agrees with the majority in the Florida case that there is no Free Exercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to "severability") is not treating religious schools unfavorably vis-a-vis other private schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included? Tom says "yes." But the dissent in the Florida case says "no"! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (wh
SG Application for Stay of Hoasca Tea Injunction
I've posted the following notice on SCOTUSblog: http://www.goldsteinhowe.com/blog/archive/2004_11_28_SCOTUSblog.cfm#110202070029645176. Temporary Stay of Injunction in "Hoasca Tea" Case Three weeks ago, the en banc U.S. Court of Appeals for the Tenth Circuit upheld a preliminary injunction that would prevent the U.S. government from enforcing the Controlled Substances Act with respect to the importation, possession and distribution of hoasca (a tea containing dimethyltryptamine, or DMT, a substance regulated under Schedule I of the Act) for use in religious ceremonies of a church known as O Centro Espirita Beneficients Uniao Do Vegetal, or "UDV." The court of appeals' mandate issued on Tuesday.Yesterday, the Acting Solicitor General moved the Supreme Court to stay the preliminary injunction pending a filing of a cert. petition, and made an emergency application to the Court for a temporary stay of the injunction pending the disposition of the Government's motion to stay the injunction. Justice Breyer granted the application for a temporary stay, pending disposition of the motion for a stay pending petition. He ordered the plaintiffs to file responsive papers by the end of the day tomorrow (Friday), with the SG's reply due on Tuesday.The injunction is based upon the Religious Freedom Restoration Act (RFRA), which requires the United States to grant an exemption to one of its laws when the law substantially burdens the exercise of religion, unless denial of the religious exemption would be a narrowly tailored way of advancing a compelling governmental interest. (The Court in Boerne invalidated RFRA as applied to the States; but it remains constitutional as applied to the federal government.) The Government claims that there are two compelling interests that support denial of the RFRA exemption here: (i) preventing the risks of danger caused by ingestion of the tea and/or its possible diversion to nonreligious uses; and (ii) ensuring that the U.S. remains in strict compliance with the United Nations Convention on Psychotropic substances, which generally requires signatories (including the U.S.) to prohibit almost all use of certain psychotropic substances, including DMT. The second argument is not that strict treaty compliance is a "compelling interest" in and of itself, but instead that if the U.S. violates the Convention in any respect, it will undermine U.S. efforts to secure worldwide cooperation in the international fight to control psychotropic substances.In his concurring opinion in the en banc proceeding, Tenth Circuit Judge Michael McConnell identified what will probably be one of the principal issues in the case as it is argued in the Supreme Court: Judge McConnell contends that the U.S. will be hard-pressed to demonstrate that something is a "compelling interest" under RFRA if the government allows other exemptions that also undermine that interest in analogous ways. (The Bush Administration has generally agreed with this understanding of the "compelling interest" test in RFRA and related contexts. See, e.g., its explanation for why RFRA would dictate an exemption for religious organizations to a statutory requirement that recipients of certain social-service funds not discriminate on the basis of religion in employment decisions: 67 Fed. Reg. 77,351-52 (Dec. 17, 2002).) Judge McConnell points, in particular, to a statute that permits members of recognized Native American tribes to use peyote, a Schedule I substance, in religious ceremonies. 42 U.S.C. 1996a. He argues that this peyote exemption demonstrates that "concerns for religious freedom can sometimes outweigh risks that otherwise justify prohibiting Schedule I substances," shows that "[n]either Congress nor the Executive has treated the CSA's general findings about Schedule I substances as precluding a particularized assessment of the risks involved in a specific sacramental use," and "indicates Congress?s belief that at least some use of substances controlled by the Act are 'consistent with the public health and safety,' despite the generalized congressional finding that any Schedule I substance is not safe to consume even under the supervision of medical personnel." The Government, in response to such arguments, has argued that the health and diversion risks created by the plaintiffs' use of DMT would be greater than the risks created when Native Americans use peyote. There are factual disputes on this question between the parties.The plaintiffs and Judge McConnell also argue that
Church of Body Modification Case.
Actually, I see no reason at all to think that this religion is in any way bogus -- any more than mainstream religions with which we are much more familiar. More to the point, it need not be an actual established "religion," as such, in order to be protected by title VII's religious accommodation provision. That law has been construed by the EEOC to track the Seeger/Welch definitions of "religion," i.e., to protect "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." 29 CFR 1605.1. Which leads back to Marc's question: Is a "grooming" rule based upon customer "preference" permissible in this area, even though an employer obviously could not facially discriminate against blacks, or women, or Jews, just because of customer preference? I'm not sure what the answer is, but I do want to suggest that the cases are not exactly parallel. In the classic "customer veto" case, the customers themselveswould be discriminating on the basis of the protected characteristic, and therefore thelawquite naturally does not permit the employer to tailor her business practices to account for such customer biases.In this case, presumably the employer's not-implausible assumption is that customers will, rightly or wrongly, look askance on multiple body piercings, not because they view suchpiercings as religious in nature (to the contrary -- they'd probably be as surprised as Richard that the piercings are religiously motivated), but instead because of mainstream Western orthodoxy w/r/t such piercings (ok on ears, not-so-ok on other parts of the face). I'm not sure how this would or should cut under title VII, but I suspect the CTA1 is correct that courts have generally sided with employers in such cases. From: Menard, Richard H. To: 'Law Religion issues for Law Academics' Sent: Monday, December 06, 2004 9:41 AM Subject: RE: Steven Williams Case .:. .:. I've seen that in RFRA and RLUIPA cases: an almost neurotic reluctance to call a bogus "religion" a spade. Makes for messy jurisprudence, but by and large the cases seem to come out right. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Marc SternSent: Monday, December 06, 2004 9:35 AMTo: Law Religion issues for Law AcademicsSubject: RE: Steven Williams Case .:. .:. Could be, but the court specifically refused to rule on that issue. Marc From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Menard, Richard H.Sent: Monday, December 06, 2004 9:30 AMTo: 'Law Religion issues for Law Academics'Subject: RE: Steven Williams Case .:. I haven't read the opinion yet, but it sounds like a tacit judgment on the sincerity of the belief. Church of Body Modification, please. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Marc SternSent: Monday, December 06, 2004 9:25 AMTo: Law Religion issues for Law AcademicsSubject: RE: Steven Williams Case .:. The First Circuit last week decided Cloutier v. Costco Wholesale Corp, 04-1475 a Tile VII religious accommodation case. The plaintiff claimed to be a member of the Church of Body Modification which required members to wear facial jewelry. Such jewelry violated Costco's no facial jewelry policy. The Court found that an accommodation of the faith would have constituted undue hardship to Costco because customers would be offended by the appearance of facial jewelry." Courtshave also upheld dress code policies thatare designed to appeal to customer preference or to promote a professional public image." I find this astonishing. No court would uphold a whites only hiring policy on ground of customer preference. Airlines long ago lost the argument about customer preferences for sexy stewardesses. Why is religious garb different? The judicial evisceration of Title VII's religious accommodation provisions continues apace. Marc Stern Sidley Austin Brown Wood LLP mail server made the following annotations on 12/06/2004, 08:29:41 AM-This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. Sidley Austin Brown Wood LLP mail server made the following annotations on 12/06/2004, 08:44:39 AM-This e-mail is sent by a law firm and may contain information that is
Re: Steven Williams Case
In very brief: Under the "government speech" doctrine, a state may require its teachers, in their official capacities (i.e., while teaching), to hue to the state's prescribed curriculum. This is the majority view in the courts of appeals -- that there is no Free Speech Clause right of indivdual teachers to teach what they wish in the classroom -- although there is some recent caselaw going the other way (principally in the Sixth Circuit, IIRC). Of course, the state is not entirely free to teach whatever it wishes -- the Establishment Clause imposes some constraints. And, from all that appears (see http://www.nytimes.com/2004/12/05/weekinreview/05murp.html),the interesting question in this case is an Establishment question, not a free speech question -- namely, not whether the school may restrict Mr. Williams' preferred mode of teaching, but whether it must. - Original Message - From: Ed Brayton To: Law Religion issues for Law Academics Sent: Monday, December 06, 2004 3:08 PM Subject: Re: Steven Williams Case Mr. Henderson-I disagree with your characterization of the situation. The title of the press release was "Declaration of Independence Banned from Classroom". But that isn't the reality. The reality is that a series of fliers that included excerpts from the Declaration of Independence were not allowed by the principal. Now, whether that decision is reasonable or not depends on the exact content of those fliers, what was intended by them, and several other factors. But it is still an exaggeration or oversimplification, at best, to portray that as banning the Declaration of Independence from the classroom. Do you think if he had just hung a copy of the Declaration on the wall, it would have been taken down? Highly unlikely. In order for it to be "banned from the classroom", that would need to be the case. I think this is precisely the kind of "grotesque overgeneralization and hyperbole" that you admit is the case with the claim that prayer has been banned in school.But really that is neither here nor there. I did not intend for that to be the focus of the discussion. I was hoping, and still hope, for some discussion of the legal issues surrounding the case. Do teachers have a right to free speech while acting as teachers? Not an absolute one, I'm sure we would all agree, so what are the limitations on it? If those limitations are determined by the curriculum standards they are required to teach to, who has the authority to determine when supplemental material is germane to the teaching requirements, the teacher or the administration? If the two disagree, does that mean there was a rights violation that should be handled in court or should some other body handle such disputes? These are all interesting questions and they only scratch the surface. Any thoughts on those?Ed Brayton[EMAIL PROTECTED] wrote: The facts in the Steven Williams case, concededly relevant to the analysis to be applied and the likely outcome of that analysis, do not support the charge that the Alliance Defense Fund has made any misrepresentation of the facts whatever. It appears that a single (meaning only one, not a marriage reference)complained about ahandout given to the students as an exemplar:a two-sidedpiecewith George Washington's proclamation of a day of prayer on one side andGeorge Bush'ssimilar proclamation from this past May on the other. The upshot of the handling of the parental complaint was aninstruction from the principal:"I must review every one of your lesson plans and supplemental handouts." Thereafter, handouts containing references toGod were rejected (these documents are identified in the complaint linked in the original email of this thread). None of thehandouts were addressed to religious matters except where the handout was a needed tool for meeting the instructional content standards related to religious aspects of American history. Among the prohibited fliers was the flier with exerpts from the Declaration of Independence. I also note from the press releases of ADF related to this matter that their organization has not engaged in the sort of grotesque overgeneralization and hyperbole of the "prayer being banned in school" ilk. Instead, the lawsuit papers and the releases are perfectly plain and to the point that the ban was with respect to Mr. Williams' classrooms and classes. Now, given that state of affairs, perhaps the discussion of constitutional principles can proceed free from the rancor that might otherwise accompany a discussion of such a case where accusations of misrepresentation are part of the lead off. By way of disclosure, I do not work for ADF, although I have enjoyed a warm and
Re: Steven Williams Case
Interesting you should raise that distinction, Alan. I think that there really is a due process issue in discharging a teacher for classroom speech or conduct that the teacher had every reason to think was acceptable at the time and that only became "unacceptable," and worthy of sanction, after the community objected. This was the problem in the Fourth Circuit Boring v. Buyncombe County case, too, and in Boring's cert. petition, counsel focused on the denial of due process (to no avail). But from the perspective of thefree speech clause, what difference does it makeif the teacher is fired because her speech demonstrated(in the school's view, after the fact) a lack of judgment,or whether she's fired because her speech violated a specific ex ante curricular prohibition? Why should the former be entitled to greater constitutional protection, apart from the fair-notice issue? - Original Message - From: A.E. Brownstein To: Law Religion issues for Law Academics Sent: Monday, December 06, 2004 4:39 PM Subject: Re: Steven Williams Case I don't think Cockrel is really inconsistent with Marty's earlier statement that "Under the "government speech" doctrine, a state may require its teachers, in their official capacities (i.e., while teaching), to hue to the state's prescribed curriculum. This is the majority view in the courts of appeals -- that there is no Free Speech Clause right of individual teachers to teach what they wish in the classroom." In Cockrel, the teacher had permission to invite the speakers who caused the controversy into her classroom and the school district conceded that the presentations had educational value. The school district did not argue that the plaintiff had taught material that was outside of the curriculum. If she had, I think Marty is correct that the school district could have required her to hue the line and stick to the curriculum.The only open question in this area, I think, is what happens when teachers say things in brief statements during class that are not expressly prohibited by district rules, but are arguably outside of the curriculum, Not every sentence spoken in a classroom relates to the school's curriculum. There is some play in the joints -- particularly with regard to the discussion of unanticipated current events. Once the principal tells a teacher that particular comments are unacceptable (e.g. stick to the curriculum), I think the teacher has no free speech rights to continue a classroom discussion. What is less clear is whether the teacher can be disciplined for the comments he or she expressed before the principal instructed her to end the discussion.Alan BrownsteinUC DavisAt 03:51 PM 12/6/2004 -0500, you wrote: "urn:schemas-microsoft-com:vml" xmlns:o = "urn:schemas-microsoft-com:office:office" xmlns:w = "urn:schemas-microsoft-com:office:word" xmlns:st1 = "urn:schemas-microsoft-com:office:smarttags" Cockrel v. Shelby County School Dist., 270 F.3d 1036, 1051-52 (CTA6 2001), cert. denied, 537 U.S. 813 (2002). - Original Message - From: Marc Stern To: Law Religion issues for Law Academics Sent: Monday, December 06, 2004 3:35 PM Subject: RE: Steven Williams Case What recent 6th circuit case recognizes a teachers right to speak? There is old first circuit law to this effect-going back to the Viet Nam era, but I do not remember recent case law to this effect. But then they say that recent memory always goes first / Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Marty Lederman Sent: Monday, December 06, 2004 3:20 PM To: Law Religion issues for Law Academics Subject: Re: Steven Williams Case In very brief: Under the "government speech" doctrine, a state may require its teachers, in their official capacities (i.e., while teaching), to hue to the state's prescribed curriculum. This is the majority view in the courts of appeals -- that there is no Free Speech Clause right of indivdual teachers to teach what they wish in the classroom -- although there is some recent caselaw going the other way (principally in the Sixth Circuit, IIRC). Of course, the state is not entirely free to teach whatever it wishes -- the Establishment Clause imposes some constraints. And, from all that appears (see http://www.nytimes.com/2004/12/05/weekinreview/05murp.html), the interesting question in this case is an Establishment question, not a free speech question -- namely, not whether the school may restrict Mr. Williams' preferred mode of teaching, but whether it must.
SG Brief in Ten Commandments Case
The Acting SG has filed a brief in support of the display of the Ten Commandments in the case arising from McCreary County, Kentucky: http://goldsteinhowe.com/blog/files/McCreary.03-1693.Brief.pdf ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
Court DENIES SG Application for Stay of Hoasca Tea Injunction!
http://www.goldsteinhowe.com/blog/archive/2004_12_05_SCOTUSblog.cfm#110270595545446896 2:06 PM | Lyle Denniston Link to this Post Tea injunction stands The Supreme Court on Friday denied the Justice Department's request to allow it to enforce a ban on religious use of a hallucinogenic substance, hoasca tea, during the pendency of the government's petition challenging a court's decision that the Religious Freedom Restoration Act likely requires a religious exemption from the Controlled Substances Act. A federal judge in New Mexico, relying upon RFRA, has granted a preliminary injunction barring enforcement of the CSA as to a religious group's use of the tea.Here is the Court's order Friday in Ashcroft v. O Centro Espirita, 04A469:"The application for a stay of injunction or, in the alternative, to recall and stay the mandate presented to Justice Breyer and by him referred to the Court is denied. The temporary stay entered December 1, 2004, is vacated."There was no indication of any dissent.[Addendum from Marty Lederman: What this means, as a practical matter, is that the members of the UDV will be able to use hoasca in religious rituals, notwithstanding the Controlled Substances Act, for an extended period -- almost certainly the most significant RFRA exemption to federal law in the history of that statute. Assuming the SG petitions for certiorari on the preliminary injunction (rather than going back to district court for a trial on the merits), and further assuming that the Court grants the petition and rules for the Government, it will likely be at least a year until the Court overturns the injunction. And by the time the Court hears arguments in the case, presumably there will be some evidence concerning whether the RFRA exemption has caused the harms -- in terms of health risks, diversion to improper (non-RFRA-exempted) use, and damage to U.S. efforts in the international narcotics-interdiction campaign -- that the government has articulated. (Of course, if the Government does not return to the district court, it might be very difficult to figure out a way to include in the record of the case any intervening evidence of the experience under the RFRA exemption.)] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
Re: charitable choice hypothetical
A complicated question, I think, Alan. I assume, in your hypo, that the state is simply paying for the cost of bus service, right? -- not actually providing the service through the auspices of a state-run transporation outfit. Because if the bus driver were actually an employee of the state, obviously the state could not limit its employment decisions to persons of a particular religion. See Torcaso; McDaniel; article VI, etc. Nor could the state cede the power to religious institutions to cabin the state's own choices of whom to employ (Larkin). So let's assume a program of direct payment to private schools for the costs of providing bus service. Under current doctrine (which might not be for long for this world), the dollars could not be expended on "specifically" religious activity, such as proselytizing, bible studies or prayer. (Bowen v. Kendrick; Tilton;SOC's opinion in Michell v. Helms.) The question, then, would be why such dollars could be used for discriminatory hiring practices -- i.e., why coreligionist hiring is constitutionally distinct in this cotext from prayer, bible studies, etc., even though the Religion Clause would prohibit the state itself from engaging in both forms of activity "directly." But in order to answer that question, one would need a fuller, richer account of why direct aid provided to all schools (e.g., ona per capita basis) cannot be used for certain religious activity. Unfortunately, all we know, as of now, is that according to Justice O'Connor, "the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause's prohibition." Not much to go on in that cryptic statement. I would note, however, that on the Burger Court, even the anti-separationist Justices thought there was a serious problem in providing funds to schools that discriminate on the basis of religion. In his dissent in Lemon, for instance, Justice White acknowledged that an aid program (e.g., for teacher salaries) would be unconstitutional to the extent there were evidence that the recipient schools restricted entry on racial or religious grounds, or required all students to receive instruction in the tenets of a particular faith. 403 U.S. at 671 n.2. The Court cited with apparent favor to this footnote in Norwood, 413 U.S. at 464 n.7. I suppose one could argue that discriminating against students is more problematic than discriminating against employees, because students are the "ultimate" beneficiaries of the aid program. But then again, it's the employees, not the students, who actually receive the government dollars. The basic question, I suppose, is whether the government violates the Constitution by giving money to an entity knowing that the state moneys will be used to engage in a form of discrimination that would be forbidden to the state itself. I don't know that there is a single answer to that question. In my view, however, the constitutional problem is most pronounced where the government aid is discretionary and selective, and distributed on the basis of highly subjective criteria, because in such a case, it's much more tenable to conclude that the government's choice of a discriminating recipient over a nondiscriminating recipient evidences at least a modicum of government "endorsement" of the discrimination. That is to say, the government is more (constitutionally) responsible for what happens with its funding when in the first instance it must make discretionary choices of who should receive that funding. By contrast, I think the constitutional concern is less pronounced where the aid is awarded on the basis of objective criteria, or on a per capita basis. But cf. O'Connor's opinion in Mitchell. Is that at all responsive? - Original Message - From: "A.E. Brownstein" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Thursday, December 23, 2004 2:24 PM Subject: charitable choice hypothetical In reading arguments defending charitable choice provisions that permit religious non-governmental providers to discriminate on the basis of religion in hiring employees to staff government funded programs serving public purposes -- even if the program is entirely supported by government funds and is subject to various government regulations and conditions, I began to think about the reach of these arguments. Proponents of discriminatory hiring argue: 1. This is an accommodation of the religious liberty interest of religious individuals to work together with co-religionists. 2. The accommodation serves the legitimate secular purpose of permitting co-religionists to work together. 3. The accommodation does not impermissibly advance religion. The reason religion is not impermissibly advanced is, in part, because a. The discrimination is not
Re: charitable choice hypothetical
Thanks for the links, Mark. I'm sure that many of us will have disagreements with some of the substance of the book, but I can say right away and without reservation that the appendices alone make it well worth one's time and paper-costs to download if you're at all interested in this issue. I used this site: http://www.lo.redjupiter.com/gems/cpj/religiousstaffing.pdf - Original Message - From: Scarberry, Mark [EMAIL PROTECTED] To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Thursday, December 23, 2004 3:29 PM Subject: RE: charitable choice hypothetical On the general issue of charitable choice and hiring of co-religionists, list members may be interested in a book just published by the Center for Public Justice: Esbeck, Carlson-Thies and Sider, The Freedom of Faith-Based Organizations To Staff on a Religious Basis. I have no connection with the book other than that I just received a free copy. A notice that came with the book says that copies can be obtained (for a charge) by calling 1-800-650-6600 and that a free pdf version is available at several websites: www.cpjustice.org, www.esa-online.org, and www.clsnet.org. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: A.E. Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, December 23, 2004 11:25 AM To: Law Religion issues for Law Academics Subject: charitable choice hypothetical In reading arguments defending charitable choice provisions that permit religious non-governmental providers to discriminate on the basis of religion in hiring employees to staff government funded programs serving public purposes -- even if the program is entirely supported by government funds and is subject to various government regulations and conditions, I began to think about the reach of these arguments. Proponents of discriminatory hiring argue: 1. This is an accommodation of the religious liberty interest of religious individuals to work together with co-religionists. 2. The accommodation serves the legitimate secular purpose of permitting co-religionists to work together. 3. The accommodation does not impermissibly advance religion. The reason religion is not impermissibly advanced is, in part, because a. The discrimination is not invidious and the persons denied job opportunities are not stigmatized by their exclusion from these job opportunities. b. The religious liberty of persons denied employment because of their religious beliefs is not burdened by being denied tax payer funded, public purpose employment opportunities. Obviously, I strongly disagree with most of these arguments. But my question is this. Suppose a state provides free school bus service to students attending both private and public schools. May the state allow religious private schools to select the bus driver transporting their students to the school and insist that the driver must be of the same faith as the school's teachers and administrators -- and may the state grant such requests as an accommodation? (Or alternatively, when public school teachers are assigned to provide remedial services to students at a religious school, may religious schools be granted the accommodation of choosing teachers of a particular faith to be assigned to those duties.) Wouldn't all of the above arguments apply to these situation? The religious discrimination would be an accommodation of religious individuals desire to work with co-religionists. (And., of course, the state can take religion into account in accommodating religion.) The accommodation would serve a secular purpose and not impermissibly advance religion for all of the reasons argued above. If there is an Establishment Clause problem with these hypothetical accommodations, what is it? It can't be that public resources (here labor instead of capital) are placed under the control of religious institutions which practice religious discrimination in using those resources -- because that is what charitable choice does. Alan Brownstein UC Davis ___ 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 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
Re: charitable choice hypothetical
Well, I suppose the reasons that there is "no conventional Establishment Clause basis for objecting to my hypotheticals" are that (i) I can't imagine anyone actually suggesting that state staffing decisions be made on the basis of religion and (ii) thatit seems clear that it would be unconstitutional. States simply cannot make staffing decisions on the basis of employees' religion. Indeed, that would even be the case where there is a religious "accommodation," such as provision of chaplains in the military or in prison -- assignments can't be made on the basis of the chaplains' religion. But even if one could imagine a situation in those contexts where religious selectivity might be acceptable (e.g., a Catholic soldier asking for a priest rather than a rabbi to administer last rites, where the choice does not affect the employment oppotunities of either chaplain), what would be the theory here? If the bus driver is a state employee (i.e., a state actor), what possible reason would the school have for insisting that she be of a particular religion? As far as I can tell -- having given the question about two seconds of thought -- none of the usual rationales for coreligionist hiring in the charitable-choice context would be apposite where, as here, the driver is an employee of the state and is not acting as part of a church or as a surrogate of the school. - Original Message - From: "A.E. Brownstein" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Thursday, December 23, 2004 4:19 PM Subject: Re: charitable choice hypothetical Thanks for a thoughtful response, Marty. But in fact I am asking a version of the more extreme question that you presume is answered by the case law. In my hypo, the state is providing the bus service. There are two subsets of the question. One involves the religious institution being given a choice among existing state employees of who is assigned to the job of bus driver (if no one of the appropriate faith is currently employed by the state, the accommodation can not be provided.) The other involves the state taking the religious institution's accommodation needs into account in making hiring decisions. I don't think either Torcaso or Larkin control the first question. Indeed, it is not entirely clear to me that either Article VI or Larkin control the second situation. The accommodation here is available to all religious schools so the state is not denying all employment to persons of a particular religion. Obviously, there will be more job opportunities for members of larger faiths than smaller faiths. But is that really a prohibited religious test for office. I assume that there are more Protestant Ministers hired as Army Chaplains than Rabbis (because there are more Protestant than Jewish soldiers) but I don't think that violates Article VI. The Larkin analogy is stronger. But it turns on what constitutes a delegation of power. It might not be hard to structure the accommodation to avoid that constraint. There is also the question of why giving a religious institution capital, real property, or materials that may be used in a religiously discriminatory way is substantively different than giving them a state paid employment position for delegation purposes. I do not suggest that there may not be persuasive answers to these questions, but they may not be as self evident as you suggest. Marty, may I assume from your answer that you agree that Article VI and Larkin aside, there is no conventional Establishment Clause basis for objecting to my hypotheticals. Alan Brownstein UC Davis At 03:03 PM 12/23/2004 -0500, you wrote:A complicated question, I think, Alan. I assume, in your hypo, that the state is simply paying for the cost of bus service, right? -- not actually providing the service through the auspices of a state-run transporation outfit. Because if the bus driver were actually an employee of the state, obviously the state could not limit its employment decisions to persons of a particular religion. See Torcaso; McDaniel; article VI, etc. Nor could the state cede the power to religious institutions to cabin the state's own choices of whom to employ (Larkin).So let's assume a program of direct payment to private schools for the costs of providing bus service. Under current doctrine (which might not be for long for this world), the dollars could not be expended on "specifically" religious activity, such as proselytizing, bible studies or prayer. (Bowen v. Kendrick; Tilton; SOC's opinion in Michell v. Helms.) The question, then, would be why such dollars could be used for discriminatory hiring practices -- i.e., why coreligionist hiring is constitutionally distinct in this cotext from prayer, bible studies, etc., even though the Religion Clause would prohibit the state itself from engaging in both forms of activity
Re: charitable choice hypothetical
I think I now see what Alan's getting at -- namely, that he's testing thelegitimacy (or adequacy) of thecurrent state-action doctrine. This is something that Martha Minow, and very few others, have been examining lately. Thepuzzle is something like this: 1. At time A, the state performs various social service functions -- whether it be drug counseling, welfare administration, operating a prison, or providing bus service to public and private schools. Those functions areindisputably and uncontroversially subject to constitutional norms -- e.g., the First Amendment, due process, equal protection,etc. -- and therefore (among other things) hiring cannot be done on a racial or religious basis. 2. At timeB -- in the age ofprivatization -- it becomes too expensive for the state itself to perform those functions (or to monopolize the field, in any event), or legislatures decide that state-run systems are less efficient than private systems. Therefore, such services and functions "devolve" to the private sector, with the state deciding to substantially subsidize the private actors. The functions are more or less the same. And the objectives -- incarcerating felons; rehabilitating drug users; taking kids to school -- are exactly the same. That is to say, they are what have long been viewed as public functions. But the state has "contracted out" the services. 3. Under standard Rehnquist Court state-action doctrine, the funded private actors at time B are not state actors, and thereforeall of the constitutional norms that governed the state when it was performing the services at time A suddenly fall away, even though the services -- and the objectives -- are precisely the same. Alan might well be trying to get us to ponder -- why should that be? I think it's a very good question. Indeed, I think that it's a very helpful way to think about why some of us are so troubled by discrimination on the part of those who receive state funds in order to perform valauble social services. But if I'm right about this, then the object of Alan's "critique" is not so much the charitable-choice proponents, as it is the Burger/Rehnquist Court decisions on state action (e.g., Jackson, Blum, Rendell-Kohn). Indeed, as many begin assessing Rehnquist's legacy on the Court, we should not forget that one of his earliest and most complete, most startling "victories" was the thorough and decisive rejection of the post-Brown challenge to the state-action doctrine. In the 1960's, recall, the question of state action was the most important, and most seriously analyzed, question in constitutional law. See, for example, Charles Black's magisterial Harvard Foreword on state action, still one of the single greatest law-review articles ever written, but now laregly ignored because it seems so anachronistic. It only took Rehnquist a couple of landmark decisions to end that debate completely, to the point where, even in an age of massive "privitization," (i) almostno one's writing about it anymore; (ii) modern law students (and courts, of course) simply take for granted that the state action distinction is meaningful, valid and inevitable; and (iii) Burton and Reitman are but a distant and faint memory, recalled, if at all, only as an inexplicable skirmish of no real moment. Perhaps -- although I'm not holding my breadth -- these antidiscrimination questions relating to charitable choice will get people to wondering once again about the state action question. - Original Message - From: "A.E. Brownstein" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Thursday, December 23, 2004 5:46 PM Subject: Re: charitable choice hypothetical I'm certainly not arguing that this is constitutional. But I also don't think that "I can't imagine anyone thinking this is constitutional" answers why it is unconstitutional. I suppose part of the problem here is that we apparently disagree as to the rationales for allowing discrimination in hiring by religious organizations. I think one of the rationales is that some religious organizations believe that the people performing the service at, with, or for a religious organization should be of like minded creed. Particularly, in a school context it is not difficult for me to understand why a religious school would prefer that everyone working with children to be of the same faith -- even if they were on the government's payroll. Thus, under charitable choice a religious non governmental provider could not be required to participate in an ecumenical program where members of diverse faiths would work together, for example, in staffing a soup kitchen. Having non-believers working in the program would be unacceptable whether they were on the government payroll, on a different religious organization's payroll or the religious
Re: charitable choice hypothetical
Please excuse the egregious typos scattered throughout this post (especially where I "hold my breadth"!)-- I was simply too lazy to proofread this morning, which ought to teach me a lesson. - Original Message - From: Marty Lederman To: Marty Lederman ; Law Religion issues for Law Academics Sent: Sunday, December 26, 2004 8:54 AM Subject: Re: charitable choice hypothetical I think I now see what Alan's getting at -- namely, that he's testing thelegitimacy (or adequacy) of thecurrent state-action doctrine. This is something that Martha Minow, and very few others, have been examining lately. Thepuzzle is something like this: 1. At time A, the state performs various social service functions -- whether it be drug counseling, welfare administration, operating a prison, or providing bus service to public and private schools. Those functions areindisputably and uncontroversially subject to constitutional norms -- e.g., the First Amendment, due process, equal protection,etc. -- and therefore (among other things) hiring cannot be done on a racial or religious basis. 2. At timeB -- in the age ofprivatization -- it becomes too expensive for the state itself to perform those functions (or to monopolize the field, in any event), or legislatures decide that state-run systems are less efficient than private systems. Therefore, such services and functions "devolve" to the private sector, with the state deciding to substantially subsidize the private actors. The functions are more or less the same. And the objectives -- incarcerating felons; rehabilitating drug users; taking kids to school -- are exactly the same. That is to say, they are what have long been viewed as public functions. But the state has "contracted out" the services. 3. Under standard Rehnquist Court state-action doctrine, the funded private actors at time B are not state actors, and thereforeall of the constitutional norms that governed the state when it was performing the services at time A suddenly fall away, even though the services -- and the objectives -- are precisely the same. Alan might well be trying to get us to ponder -- why should that be? I think it's a very good question. Indeed, I think that it's a very helpful way to think about why some of us are so troubled by discrimination on the part of those who receive state funds in order to perform valauble social services. But if I'm right about this, then the object of Alan's "critique" is not so much the charitable-choice proponents, as it is the Burger/Rehnquist Court decisions on state action (e.g., Jackson, Blum, Rendell-Kohn). Indeed, as many begin assessing Rehnquist's legacy on the Court, we should not forget that one of his earliest and most complete, most startling "victories" was the thorough and decisive rejection of the post-Brown challenge to the state-action doctrine. In the 1960's, recall, the question of state action was the most important, and most seriously analyzed, question in constitutional law. See, for example, Charles Black's magisterial Harvard Foreword on state action, still one of the single greatest law-review articles ever written, but now laregly ignored because it seems so anachronistic. It only took Rehnquist a couple of landmark decisions to end that debate completely, to the point where, even in an age of massive "privitization," (i) almostno one's writing about it anymore; (ii) modern law students (and courts, of course) simply take for granted that the state action distinction is meaningful, valid and inevitable; and (iii) Burton and Reitman are but a distant and faint memory, recalled, if at all, only as an inexplicable skirmish of no real moment. Perhaps -- although I'm not holding my breadth -- these antidiscrimination questions relating to charitable choice will get people to wondering once again about the state action question. - Original Message - From: "A.E. Brownstein" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Thursday, December 23, 2004 5:46 PM Subject: Re: charitable choice hypothetical I'm certainly not arguing that this is constitutional. But I also don't think that "I can't imagine anyone thinking this is constitutional" answers why it is unconstitutional. I suppose part of the problem here is that we apparently disagree as to the rationales for allowing discrimination in hiring by religious organizations. I think one of the rationales is that some religious organizations believe that the people performing the service at, with, or for a religious organization should be of
Re: The Amish
A link to the Labi article: http://www.legalaffairs.org/issues/January-February-2005/feature_labi_janfeb05.html - Original Message - From: Sanford Levinson To: Law Religion issues for Law Academics Sent: Saturday, January 01, 2005 4:06 PM Subject: RE: The Amish I strongly recommend an article by Nadya Labi, "The Gentle People," in the current issue of Legal Affairs. It argues that incest is rife within Amish communities and that, basically, the community does next to nothing to control it, other than pressing the victims to "forgive" the perpetrators (who go on perpetrating). It is, I think, an essential "corrective," as it were, to the image of the Amish portrayed in Yoder. At the very least, there seems to be no good reason to be less concerned about child abuse within the Amish community than, say, the abuse that is alleged with regard to polygamous "old-Mormon" communities or, indeed, pedophilia within the Catholic Church. Even if the article is off by 50% with regard to the actual number of young women who are raped or otherwise abusedby their fathers and, especially,brothers, it nevertheless states a powerful claim. One of its central points is the practical inability of the formal legal system to do much about this, inasmuch as some prosecutors treat the perpetrators like football players in Virginia (i.e., there's a lot of turning the eye away); more seriouis, perhaps, is the very strong code within the Amish community that effectively prevents "going to law" to resolve such problems. The only effective remedy appears to be physically running away, by young women who, of course, have received nothing that could possibly count as an education adequate to allow them to flourish in what is disdainfully termed, by the Amish, the "English" society. No doubt there are many wonderful people among the Amish, though, of course, I suspect that most of us have never met anyone who actually lives within that community, just as most of us have never had the pleasure of meeting a Satmar Hasid from Kiryat Joel. We are ultimately reduced to a version of "making up stories" about how they actually live their lives and (mis)treat their children and whether the FE Clause gives them a pass from any genuine monitoring by the "external" legal order. A Happy New Year to all! sandy ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Ministerial Exception
Very interesting set of concurrences and dissents in today's CTA9 denial of an en banc petition in a ministerial exception case: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9C615790509C87F488256FA500055365/$file/0235805o.pdf?openelement ___ 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.
21st Century Zorach
Dahlia Lithwick in Slate on current released-time programs in Virginia and elsewhere: http://slate.msn.com/id/2113611/. The U.S. Court of Appeals for the Second Circuit recently upheld a New York released time program, on the authority of Zorach, even though the children remaining in the classroom were in effect relegated to thimb-twiddling: http://caselaw.lp.findlaw.com/data2/circs/2nd/039292p.pdf. Zorach itself aside, does anyone on the list think that these programs are constitutional, and/or that they would survive scrutiny under the Court's more modern, Amos/Caldor/Texas Monthly/Kiryas Joel accommodation doctrine? I assume that in most such cases, the released time (i) does not alleivate any significant government-imposed burden on religious exercise, and (ii) does impose not-trivial burdens on other private parties (namely, the minority of students being left behind with nothing much (substantively) to do other than to await the return of the religious majority). In such cases, are the programs constitutionally defensible? ___ 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.
Re: 21st Century Zorach
If I may, this is how Chip described his grade-school program in his George Washington article on accommodation: In his public school in Albany, when Patty H. "scooped up her blue-and-white paper-covered catechism and headed for religious instruction at St. Theresa's of Avila, a parochial school located a short block away," there was a significant burden on "those of us who did not have scheduled religious instruction at this time, the remaining hour of school was dead and empty--no assignments and no guidance other than an admonition to be silent. . . . [T]he released time program trapped nonparticipating students in an entirely wasted hour of school. This, of course, was no product of the teacher's idiosyncrasies; the empty hour was an explicit feature of the program, which included assurances to participants that they would miss nothing of importance while they were engaged in religious instruction." It is very notable, I think, that even Michael McConnell, one of the strongest and most compelling defenders of religious accommodations,conceded in his response to Chip that if there were such a "wasted hour" inZorach itself, then the released time programwould have been invalid: "Zorach is a difficult case because the opinion does not provide sufficient information about the activities in which the nonparticipating students were engaged. In my opinion, a released time program of the sort Professor Lupu experienced as a child, in which the nonparticipating students were inflicted with 'an entirely wasted hour of school,' Lupu, supra note 6, at 744, would be unconstitutional." What this means, I think, is that on Michael's view Zorach was not in fact a "difficult" case, but was instead as clearly unconstitutional as Doug and Alan and Chip have suggested: Right at the outset, the majority opinion in Zorach describes the plaintiffs' complaint that "the classroom activities come to a halt while the students who are released for religious instruction are on leave." Id. at 309. And JusticeJackson's dissentconfirms this understanding: "Here schooling is more or less suspended during the 'released time' so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church." Id. at 324. As Jackson reasonably explains, it is exactly this "dead time" (not any continued instruction (which Frankfurter imagines in his concurrence)) that had the effect of encouraging students to attend church schools. If this reading is correct, then Zorach itself is the very case that McConnell conceded would be unconstitutional. - Original Message - From: "Lupu" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Friday, February 18, 2005 1:49 PM Subject: RE: 21st Century Zorach Released time has several problems in addition to trapping the left- behind students in a dead hour (Rick, high schoolers may have study halls, but 2nd graders usually don't, so this is a sham argument): 1. Why is released time only for religious studies? Why shouldn't it be for any activity of educational or civic value (Scouts, chess, or music lessons away from school, etc.)? I have never heard a good argument for religion-only released time. 2. Why should the school be releasing time from its curriculum in the first place? If school is longer than need be, shorten it. If parents want religious education for their children, why not send them for it before or after school? 3. In communities in which the vast majority of children go to Bible study during release time, there is pressure on other children to conform and ask parental permission to go too. (Someone wrote an op-ed in the Washington Post in the past week or so, describing this exact situation as part of her childhood.) Conformity pressures are always present among children, of course, but here (as in Engel), the school is creating the context in which conformity pressures are highlighted. Being "left behind" in class is a more visible nonconformity than going off on one's own after school. (In my grade school days, the only children who left my public school for release time were Catholic; there weren't many, and the program spotlighted them as in a religious minority in the public school and as too poor to attend Catholic school as most of their fellow Catholics did.) Chip Lupu On 18 Feb 2005 at 10:13, Rick Duncan wrote: Forwarded by: [EMAIL PROTECTED] Forwarded to: [EMAIL PROTECTED] Date forwarded: Fri, 18 Feb 2005 13:00:39 EST/EDT Date sent: Fri, 18 Feb 2005 10:13:30 -0800 (PST) From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: 21st Century Zorach Send reply to: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw- [EMAIL PROTECTED]
Re: 21st Century Zorach
A small clarification: The Constitution does not, as such, prohibit the teaching in publicschools of most "values" that are central to, and derived from,religion.See, e.g., Bowen v. Kendrick, 487 U.S. at 612-13, 621. What it prohibits are"specifically religious activities," id. at 621, i.e., teacher-led or -encouraged prayer, religious proselytization, and teaching of specifically religious tenets and beliefs. And it prohibits specifically antireligiousactivities, too, such as teaching or encouraging students to adopt atheism. Obviously, the Constitution might prohibit the teaching of some beliefs (e.g., creationism) that are central to certain religious traditions -- but the dichotomy between "religious values" on the one hand, and "environmental," "healthy lifestyle," "multicultural" and "patriotic" values, on the other, ismisleading, I think. But hey, what do I know? Seeing as how I not only welcome, but revere, the public school system, apparently I am(in Jim Henderson's view) a parent who is either "daunted" by the process [read; prospect] of educating my children, or who "lack[s]skills necessary to do so." - Original Message - From: "Scarberry, Mark" [EMAIL PROTECTED] To: "'Law Religion issues for Law Academics'" religionlaw@lists.ucla.edu Sent: Friday, February 18, 2005 2:06 PM Subject: RE: 21st Century Zorach A possible argument for having release time only for religious programs is that parents who wish to have religious values taught to their children are just about the only ones who cannot seek to have the public schools inculcate their chosen values. Those who wish to have environmental values, healthy lifestyle values, multicultural values, or patriotic values can seek to have their values taught by the school. The Establishment Clause prohibits schools from inculcating religious values not because those values are unimportant or disfavored or damaging, but because such inculcation is to be left to parents and private organizations, who are guaranteed the right freely to exercise religion. Where the school steps out of the way to allow parents to have such inculcation done by private groups, both the Establishment and Free Exercise clauses are honored. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Lupu [mailto:[EMAIL PROTECTED] Sent: Friday, February 18, 2005 10:50 AM To: Law Religion issues for Law Academics Subject: RE: 21st Century Zorach Released time has several problems in addition to trapping the left- behind students in a dead hour (Rick, high schoolers may have study halls, but 2nd graders usually don't, so this is a sham argument): 1. Why is released time only for religious studies? Why shouldn't it be for any activity of educational or civic value (Scouts, chess, or music lessons away from school, etc.)? I have never heard a good argument for religion-only released time. 2. Why should the school be releasing time from its curriculum in the first place? If school is longer than need be, shorten it. If parents want religious education for their children, why not send them for it before or after school? 3. In communities in which the vast majority of children go to Bible study during release time, there is pressure on other children to conform and ask parental permission to go too. (Someone wrote an op-ed in the Washington Post in the past week or so, describing this exact situation as part of her childhood.) Conformity pressures are always present among children, of course, but here (as in Engel), the school is creating the context in which conformity pressures are highlighted. Being "left behind" in class is a more visible nonconformity than going off on one's own after school. (In my grade school days, the only children who left my public school for release time were Catholic; there weren't many, and the program spotlighted them as in a religious minority in the public school and as too poor to attend Catholic school as most of their fellow Catholics did.) Chip Lupu On 18 Feb 2005 at 10:13, Rick Duncan wrote: Forwarded by: [EMAIL PROTECTED] Forwarded to: [EMAIL PROTECTED] Date forwarded: Fri, 18 Feb 2005 13:00:39 EST/EDT Date sent: Fri, 18 Feb 2005 10:13:30 -0800 (PST) From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: 21st Century Zorach Send reply to: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw- [EMAIL PROTECTED] mailto:religionlaw- [EMAIL PROTECTED] But isn't a study hall something constructive? Public schools have study halls all the time, and they count toward the mandatory school attendance requirement. No? I thought the point that someone, maybe Doug, made was that parents are coerced into granting their consent for released time unless the school provides some meaningful activity for those who
Ten Commandments
The Pew Forum has posted the trancscript of their recent "event" with Doug Laycock and Jay Sekulow on tomorrow's two Ten Commandments cases: http://pewforum.org/events/index.php?EventID=69 I haven't read through the whole thing, but Doug's opening presentation is terrific -- would make for a very effective oral argument tomorrow. I hesitate to ask this, but does anyone on the list genuinely think that either of the displays in these cases is constututional? This question might be more fruitful (and more fun): Any predictions? ___ 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.
Re: Ten Commandments
Hey, I'm simply trying to prompt worthwhile conversation -- please feel free to answer whichever questions you think are most interesting! - Original Message - From: Richard Dougherty [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, March 01, 2005 9:12 PM Subject: Re: Ten Commandments I hesitate to ask this, but does anyone on the list genuinely think that either of the displays in these cases is constututional? Marty: Do you mean are they constitutional, or will they pass muster with the current Court's understanding of what is consitutional? Those can be very different questions. And there is (at least) a third option: they don't pass muster, but somehow will be read to do so for this case(s). Richard Doughery ___ 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 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.
Van Orden Transcript
http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html Transcript(s) in Ten Commandments Cases 03:45 PM | Marty Lederman | Comments (1) | TrackBack (0) The Associated Press has posted an earlier-than usual transcript of Wednesday's oral argument in the Texas Ten Commandments case. We're still checking to see whether the transcript in the Kentucky case, McCreary County, is also available. ___ 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.
Re: Van Orden Transcript
And here's the McCreary County transcript: http://wid.ap.org/documents/scotus/050302mccrearycounty.pdf - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Friday, March 04, 2005 4:55 PM Subject: Van Orden Transcript http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html Transcript(s) in Ten Commandments Cases 03:45 PM | Marty Lederman | Comments (1) | TrackBack (0) The Associated Press has posted an earlier-than usual transcript of Wednesday's oral argument in the Texas Ten Commandments case. We're still checking to see whether the transcript in the Kentucky case, McCreary County, is also available. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Ten Commandments Cases
Jack Balkin's prediction: http://balkin.blogspot.com/2005/03/my-prediction-on-ten-commandments-case.html ___ 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.
Harm to Others as a Factor in Accommodation Doctrine
As usual, it appears that we will not be able to change one another's minds w/r/t the question whether piecemeal legislative accommodations are superior to, or more constitutionally acceptablethan, judicial accommodations pursuant to a general statutory mandate. (And we're certainly not moving the conversation materially beyond where Chip and Doug and Michael McConnell and Bill Marshall and Jon Nuechterlein, and others, left it several years ago.) So let me ask another question, prompted by Marci's suggestion that accommodations that "harm others" are unconstitutional. Surely, harm to other private parties has played a large role in accommodation doctrine. The general notion that the state should not require private party A to suffer in the furtherance of B's religious objectives or beliefs is a compelling and recurrent theme, and it explains Thornton and Hardison, not to mention the important Harlan concurrence in Welsh and the Court's decisions to expand the military exemption beyond religious objectors in that case and in Seeger. And I agree with Marci that religious exemptions to vaccination statutes, and to child welfarre laws, should generally be unconstitutional because of the serious harms they cause. But then how to explain the two cases in which the Court has approved accommodations -- Zorach and Amos?We've recently discussed the serious harm to nonparticipating students in the release-time cases. And in Amos, the respondent (Mr. Mayson) lost his job of 16 years because he failed to qualify for a temple recommend. 483 U.S. at 330. No small harm to third parties. Is there any way to make sense of this aspect of accommodation doctrine? What role should harm to third parties play in assessing a religious exemption? - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Friday, March 11, 2005 8:19 AM Subject: Re: Institutional Capacity to Manage Exemptions Ellis--- I'm not sure what you mean by across-the-board exemptions. If laws like RFRA, they are illegitimate, but if they are tailored to particular practices, and the public good does not suffer from the exemption, I think they are crucial to the proper balance of liberty and order. The one thing a society cannot do is wish away the intense power of religious belief in people's lives, whether that government is the Soviet Union when it tried unsuccessfully to destroy the Orthodox Church, China now trying to suppress Falun Gong and Christianity, or our country. Religion is a given part of human existence, and deserves to be given as much latitude as possible. Thus, the question is not whether, but where to draw the line on exemptions.A mandatory exemption system is inimical to the public good, especially those who are most vulnerable. But an exemption that harms others is contrary to the scheme of ordered liberty the Constitution constructs. Marci But why should they be granted across-the-board exemptions? It won't do to say that the First Amendment requires such, because that is the issue. Why should the First Amendment be interpreted to require such? ___ 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.
Re: Harm to Others as a Factor in Accommodation Doctrine
The caselaw and legislative history are fairly clear -- and uniform, as far as I know-- in holding to the contrary. The general right of churches to insist that their employees share the church's religious beliefs cannot be used to circumvent the other prohibitions of title VII. For example, if the church has a tenet prohibiting pre-marital pregnancy, or prohibiting lawsuits against the church, such a tenet will not excuse the church from engaging in discrimination based on pregnancy, and will not justify employment sanctions against those who sue the church. In our October 12, 2000 OLC Opinion on religious discrimination by recipients of "charitable choice" funds, we included a fairly extensive discussion of the cases up through 2000 (pages 30-32). The authorities include, e.g., Senator Williams's statement at 118 Cong. Rec. 7167 (1972); and the following cases: Cline, 206 F3d at 658; Bollard, 196 F.3d at 945; Boyd, 88 F3d at 413-14; Demarco, 4 F3d at 173; Freemont Christian Sch., 781 F2d at 1364-67; Rayburn, 772 F2d at 1166-67; Pacific Press, 676 F2d at 1276-77; Mississippi College, 626 F2d at 484; McClure, 460 F2d at 558; Ganzy, 995 F. Supp. at 348-49, 359-60; Vigars, 805 F. Supp. at 806-08; and Dolter, 483 F. Supp. at 269-70. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Monday, March 14, 2005 8:09 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine \ I would disagree, because any woman who wants to be a priest is clearly at odds with heavily document ecclesiology in the Church that forbids them becoming a priest. Their views, therefore, cut them out of the picture before you even get to gender. Marci Actually, as to the Catholic Church and women (priests), the title VII exemption does notaddress the problem at all, as I tried to explainin a postyesterday. In order to permit the Church to limit the priesthood to men, it's necessary to turn to the First Amendment. - Original Message - ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Wieseltier on the Ten Commandments Cases
A terrific essay in the New Republic: http://www.tnr.com/doc.mhtml?i=20050321s=diarist032105 ___ 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.
Re: American Jewish Congress v. Corp. for National Community Service
I think that Chip and Bob's analysis is
pitch-perfect. The most questionable part about the program -- aside from
a serious statutory issue that AJC apparently dropped because of standing
concerns -- has always been the $400 grants to Notre Dame. For the reasons
Chip and Bob explain, I'm not persuaded by theCTADC's reliance on
Regan as support for those grants. Levitt is the
precedent much more on-point.
Indeed, Judge Randolph's opinion goes much further
than Regan, including as "administrative costs" not only the costs of
complying with the federal government's paperwork and technical requirements,
but also the costs of the teacher-training
(the education) itself, and of "supervision." This is, in effect, no
different than saying that the teachers' salaries for teaching secular subjects
in Nyquist and Lemon were "administrative costs" of complying
with thegrant program and therefore could be subsidized. The Court
expressly rejected such a "reimbursement for secular value" argument in those
cases,and that doctrine was reaffirmed by Justice O'Connor's governing
opinion in Mitchell. Thus, as Chip/Bob suggest, the CTADC's
decision significantly echoes the theme one hears quite a bit of these days --
that direct grants can be provided to faith-intensive programs, as long as the
government receives "secular" value for its money. Although this might be
a valid theory of the EC, it has thus far been rejected by the SCOTUS, and would
require fairly significant overrulings in order to carry the
day.
Interestingly,DOJ
didnot, in its briefing or argument, raise the Regan
argument. Instead, DOJ argued that because the $400 is sent to Notre Dame
on a "per capita" basis, depending on the number of students who choose to
attend Notre Dame, it is, in effect, indirect, or voucher-like,
funding, governed by Zelman. This was Judge Posner's rationale in
FFRF v. McCallum, which DOJ cited extensively. The D.C. Circuit
no doubt concluded that the Posner "de facto voucher" rationale -- no matter how
compelling it might be -- is directly foreclosed by O'Connor's governing opinion
in Mitchell. Thus, the court itself latched onto the
Regan rationale, without the briefing that might have demonstrated why
it was a tenuous ground for reversal.
Disclosure: Several years ago, I worked on
the matter for DOJ before the initiation of the lawsuit. Obviously,
nothing I say here contains any confidential information, and my views do not
necessarily reflect DOJ's.
- Original Message -
From: "Lupu" [EMAIL PROTECTED]
To: "Law Religion issues for Law Academics"
religionlaw@lists.ucla.edu
Sent: Wednesday, March 16, 2005 1:28
PM
Subject: Re: American Jewish Congress v. Corp. for
National Community Service
Last week, there was a brief discussion on the list about a decision
by the DC Circuit (3/8/05, reversing the district court) to uphold
against constitutional challenge various aspects of the Americorps
Education Awards Program. Bob Tuttle and I have now posted a
comment on the D.C Circuit opinion at the website for the Roundtable on
Religion and Social Welfare Policy. The comment can be found
here:http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=34ChipOn 15 Mar 2005 at 17:57, Steven Jamar
wrote: On Tuesday, March 15, 2005, at 04:44 PM, James Maule
wrote: What major social reform effectuated through legal
change was NOT a political non-starter when it first was
proposed? "Never doubt that the work of a small group of
thoughtful, committed citizens can change the world. Indeed, it's the
only thing that ever has." Margaret Meade
[EMAIL PROTECTED]
3/15/2005 3:12:30 PMThe idea of
cleanly separating religious marriage from state-recognized
relationship is appealing, but a political non-starter, in my
view. Rob Vischer --
Prof. Steven D.
Jamar
vox: 202-806-8017 Howard University School of
Law
fax: 202-806-8428 2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "God, give us grace to accept with serenity the
things that cannot be changed, courage to change the things which should
be changed, and the wisdom to distinguish the one from the
other." Reinhold Neibuhr 1943
___ 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
archiveIra C. ("Chip") LupuF. Elwood Eleanor Davis
Professor of Law The George Washington University Law School 2000 H St.,
NWWashington D.C 20052(202) 994-7053[EMAIL PROTECTED][EMAIL PROTECTED]___To post, send message
to Religionlaw@lists.ucla.eduTo
subscribe,
Re: Harm to others -- Please don't forget accommodations
Marci, you write that "[a]ccommodation should be measured according to whether the accommodation goes beyond fitting the designated religious conduct, and moves into giving benefits to the religious to get around the law even when not for religious purposes." But surely, in the cases where you and I would probably agree that third-party harms raise serious constitutional questions -- e.g., the vaccination exemptions, Caldor and Hardison, the religious objector exemption to the draft (before the Court broadly construed it to go beyond religious objection in Seeger and Welsh), the child-welfare religious exemptions-- the problem is not that the exempted parties are using religion as a pretext to "get around" the law, is it? The problem, instead, is that even (indeed, especially) where the religiousclaims to exemption areentirely sincere and compelling, others must bear the (significant) costs of accommodating those sincere religious objections, right? - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, March 16, 2005 7:26 AM Subject: Re: Harm to others -- Please don't forget accommodations As I think Iindicated early on, harm tothird parties is the central theme of myforthcoming book, God vs. the Gavel (Cambridge Univ Press).It is also central to my article in the BYU Church Autonomy symposium. You are absolutely right that the Free Exercise Clause does not permit COURTS to engage ina harm inquiry. Thatis the point of Smith and my extended defense of it in both works. Third party harm is part of the public good analysis by the legislature. When courts weighed public policy through strict scrutiny of neutral, generally applicable laws, they typically focussed exclusively on the harm to the religious conduct and failed to consider harm to third parties in any meaningful way. (the one exception would be J. O'Connor in Smith).They did so in part because they are institutionally incompetent to get to the larger public issues. The thread focused on this in large part, beca! use I threw out this thesis, which is frankly new in the Free Exercise dicourse. With respect to the Establishment Clause, harm to third parties again is more properly considered by the legislature than the courts. Accommodation should be measured according to whether the accommodation goes beyond fitting the designated religious conduct, and moves into giving benefits to the religious to get around the law even when not for religious purposes. For example, the peyote exemption is fine for religious purposes, but strays into the EC when it's for recreational purposes. This, of course, does not answer all questions re: accommodation, but it is my view that it is the appropriate framework. Marci-Original Message-From: Marty Lederman [EMAIL PROTECTED]To: Law Religion issues for Law Academics religionlaw@lists.ucla.eduSent: Wed, 16 Mar 2005 00:54:22 -0500Subject: Harm to others -- Please don't forget accommodations I'm extremely heartened that my inquiry about the measure of harm to others in Religion Clause doctrinehas spawnedsuch a rich and interesting thread (or two). I'm still absorbing many of the posts -- they're coming too fast and furious! -- but I think it's fair to say this has been among our most fruitful of recent threads. And I don't mean to sidetrack it, or to stymie it in any way. But I think it's rather odd that the thread almost immediately after my initial questions turned into a discussion about the role of third-party harm in Free Exercise doctrine. "Odd" because, now 15 years after Smith, there isn't a whole lot of Free Exercise doctrine in which third-party harm could be at all relevant. It's not terribly important in the Lukumi/FOP v. Newark line of cases involving discrimination against religion or lack of general applicability. It doesn't re! ally play much of an express role in the "ministerial exception" line of cases (although it could well explain the courts' reluctance to extend that doctrine to its logical conclusion, as in the sex-harassment cases). Of course, it does play a role in the one remaining "precedent" establishing Free Exercise rights against laws that genuinely are generally applicable -- namely, Yoder (compare Prince)-- but how much generative power does that case have? The place in current doctrine where third-party harm does play a very significant role -- as I indicated way back in my original post -- is in the Establishment Clause cases dealing with legislatively granted religious exemptions to generally applicable rules, i.e., in "permissive accommodation" cases. There's no question that, in determining whether such accommodations are constitutional, t
Re: Harm to others -- Please don't forget accommodations
Bobby: Agreed! I would note in this regard, however, that however the difficult cases might be decided, even as eloquent a proponent of permissive accommdation as Michael McConnell conceded (60 G.W. L. Rev. 685) that certain tangible "harms" to third parties could render an exemption unconstitutional. For example, as to Zorach itself, McConnell acknowledged that if there were a "wasted hour" for the students left behind (as Chip Lupu had described his own experience in the New York State schools), then the release-time programwould have been invalid: "Zorach is a difficult case because the opinion does not provide sufficient information about the activities in which the nonparticipating students were engaged. In my opinion, a released time program of the sort Professor Lupu experienced as a child, in which the nonparticipating students were inflicted with 'an entirely wasted hour of school,' Lupu, supra note 6, at 744, would be unconstitutional." McConnell went on to argue that the types of third-party harms that should "count" for Religion Clause purposes are those that could induce the third parties to alter their own (real or feigned) religious beliefs, conduct or affiliation. I'm not sure I agree that the inqiury should be so limited; but that's one very interesting perspective on your question. FWIW, we had a somewhat interesting list-thread on the problem back on February 16-20, dealing specifically with contemporary release-time programs. P.S. I would respectfully suggest that then-Professor McConnell erred in suggesting that the opinion in Zorach itself "does not provide sufficient information about the activities in which the nonparticipating students were engaged" to enable us to determine whether the program was unconstitutional. Right at the outset, the Court's opinion describes the plaintiffs' complaint that "the classroom activities come to a halt while the students who are released for religious instruction are on leave." 343 U.S. at 309. And Justice Jackson'sdissent confirmed this understanding: "Here schooling is more or less suspended during the 'released time' so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church." Id. at 324. As Jackson reasonably explained, it was exactly this "dead time" that had the effect of encouraging students to attend church schools. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Thursday, March 17, 2005 9:08 PM Subject: Re: Harm to others -- Please don't forget accommodations Much of this interesting discussion about the constitutional implications of "harm to others" has taken place absent even a semblance of a seriousanalysis of the concept of "harm." (The classic analysis of "harm" in the last several decades can be found, I suggest,in Joel Feinberg's trilogy plus one.)After all, just what does "harm" mean? Is harm the same as "cost," "burden," "interference," "offensiveness," and so forth? Are these terms descriptive, evaluative, or some combination of both. Let me suggest without attending to just what "harm" means, we cannot persuasively identify whichactions are properly identified as harmful, and therefore, it is terribly difficult to adequately argue for various interpretations of the religion clauses based on harm to others. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: Harm to others -- Please don't forget accommodations
I was just looking back to the "good ol' days," seven years ago, when then-Professor McConnell was able to participate with us in discussing these same issues. For those interested, here are links to what I thought was an especially valuable and revealing exchange prompted by Jim Dwyer's concerns about religious exemptions that give parents the right to use "spiritual treatment" on sick children. This is very much a selective list of the posts in the thread in question -- there were many, many more: http://lists.ucla.edu/pipermail/religionlaw/1998-November/013756.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-November/013759.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-November/013760.html (Dwyer) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013776.html(Dwyer) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013780.html(Volokh) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013784.html (Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013789.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013798.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013802.html(Volokh) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013803.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013819.html(Laycock) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013819.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013821.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013827.html(Volokh) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013824.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013822.html(Masinter) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013822.html(Dwyer) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013835.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013840.html(Lederman) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013844.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013845.html(Levinson) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013849.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013873.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013877.html(Dwyer) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013883.html(McConnell) http://lists.ucla.edu/pipermail/religionlaw/1998-December/013884.html(Lederman) It actually goes on quite a ways from there . . . - Original Message ----- From: Marty Lederman To: Law Religion issues for Law Academics Sent: Friday, March 18, 2005 5:36 AM Subject: Re: Harm to others -- Please don't forget accommodations Bobby: Agreed! I would note in this regard, however, that however the difficult cases might be decided, even as eloquent a proponent of permissive accommdation as Michael McConnell conceded (60 G.W. L. Rev. 685) that certain tangible "harms" to third parties could render an exemption unconstitutional. For example, as to Zorach itself, McConnell acknowledged that if there were a "wasted hour" for the students left behind (as Chip Lupu had described his own experience in the New York State schools), then the release-time programwould have been invalid: "Zorach is a difficult case because the opinion does not provide sufficient information about the activities in which the nonparticipating students were engaged. In my opinion, a released time program of the sort Professor Lupu experienced as a child, in which the nonparticipating students were inflicted with 'an entirely wasted hour of school,' Lupu, supra note 6, at 744, would be unconstitutional." McConnell went on to argue that the types of third-party harms that should "count" for Religion Clause purposes are those that could induce the third parties to alter their own (real or feigned) religious beliefs, conduct or affiliation. I'm not sure I agree that the inqiury should be so limited; but that's one very interesting perspective on your question. FWIW, we had a somewhat interesting list-thread on the problem back on February 16-20, dealing specifically with contemporary release-time programs. P.S. I would respectfully suggest that then-Professor McConnell erred in suggesting that the opinion in Zorach itself "does not provide sufficient information about the activities in which the nonparticipating students were engaged" to enable us to determine whether the program was unconstitutional. Right at the outset, the Court's opinion describes the plaintiffs' complaint that "the classroom activities come to a halt while the students who are released for religious instruction a
Harm to others and religious accommodations
Davey demonstrates, it still has a great deal of generative power for the Court. I think the "third-party harm" component of accommodation doctrine is akin to, and derives from, this tradition. Thus, I think we need to think harder about the"three pence" principle and why it should or should not play any role in Religion Clause doctrine. - Original Message - From: "Berg, Thomas C." [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Friday, March 18, 2005 1:43 PM Subject: RE: Harm to others -- Please don't forget accommodations Would Marty (or anyone else) argue that a significant third-party harm is sufficient in itself to invalidate a legislative accommodation of religion? If so, why should it be sufficient, given that the government adjusts and shifts burdens like this all the time to accommodate secular interests? For example, every deferment from the draft for graduate students, or for persons with physical conditions that weren't seriously crippling, also meant that some other "young men [would] have to go off to kill and be killed in place of the" deferred or exempted. Likewise, accommodations required by the Americans with Disabilities Act always impose "distinct costs" on the employer in question, and often on other employees as well. Of course, the Establishment Clause may limit government action with respect to the religious interest while no constitutional provision (post-New-Deal) limits it with respect to secular interests. But I'm not sure how convincing it is to say that "there's something offensive to the Religion Clauses in asking private party A to bear significant costs in the service of private party B's religious beliefs" -- once we acknowledge that in a crowded and interrelated society, accommodating one interest will often involve shifting costs, even kinds that Marty calls "distinct costs," to others. At the very least, we have to consider that the other half of the Religion Clauses, the Free Exercise Clause, implies that religious conscience is a particularly important interest. If shifting costs -- even "distinct costs" -- is an inevitable part of accommodating interests, then some such shifting has to be allowed if religious conscience is to be given the importance that the Free Exercise Clause implies. That suggests, at the least, a weighing of the relative burdens (the one removed from religious conscience by the accommodation, and the one imposed on others), not just a focus on the latter. Tom Berg _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Fri 3/18/2005 3:56 AM To: Law Religion issues for Law Academics Subject: Re: Harm to others -- Please don't forget accommodations Alan: Thanks very much for that thoughtful reply. To answer your discrete question: No -- I don't think that "economic" cost to the state itself (e.g., lost tax revenue) should ordinarily count as a "third-party" harm that should call accommodations into question, even though obviously such costs are eventually borne by the people as a whole (e.g., each person's tax burden is marginally higher). However Texas Monthly should have been decided (and I'm generally with the majority and the White concurrence), I don't think it's a case where "third party harms" should drive the decision. What I'm thinking of instead are the private parties who suffer (for lack of a better word) "direct" harms from accommodations, such as the employers and (especially) fellow employees in Thornton and Hardison, the young men who will have to go off to kill and be killed in place of the religious objectors in the draft cases, the students left to sit idly by in Zorach and recent release-time cases, the long-time employee fired in Amos, the children left unvaccinated -- and those exposed to such children -- where there are religious exemptions to compelled-immunization statutes, etc. Indeed, I think this is an important distinction in the Cutter case that is to be argued on Monday: Ohio complains that RLUIPA imposes at least two sorts of harms in prisons: (i) administrative costs to the state in complying with RLUIPA (i.e., time and money); and (ii) safety risks to guards and fellow inmates. I don't think that the former ought to play much of a role in deciding whether a particular application of RLUIPA would violate the Establishment Clause -- it's a harm to the state, and the Religion Clauses do not protect the States, as such, from costs imposed by the private exercise of religion (even though those costs are ultimately distributed, and dispersed, to the taxpaying public as a whole). (I realize that Jefferson/Madison "three pence" rhetoric suggests otherwise.) The latter sort of cost, however -- risk of physical harm to guards and inmates -- would
Re: Discrimination Against Wiccans; Simpson v. Chesterfield County
I think this might be a very important case -- or, at the least, an omen ofthings to come, in a range of cases involving charitable choice, school vouchers, etc. Indeed, it's the classic "Wiccan" hypo -- that many of us have been invoking, and wondering about, in various discussions of alleged "neutrality" in government aid and _expression_ programs -- come to life. We can all agree, can't we, that this is indefensible in a fairly fundamental respect? Might I suggest that it's a bit of a scandal that the only amicus urging affirmance was Americans United? Where were all the defenders of Free Exercise -- the groups that regularly file briefs on behalf of a nondiscrimination principle in such cases? I wonder whether this isn't a perfect occasion for an amicus brief (at the en banc stage, say) from a wide-ranging coalition of religious leaders and religion-law scholars, from across the spectrum(spectra?), whose views on Religion Clause issues often radically diverge but who are all in accord on this one . . .(As in: "Marsh v. Chambers was a closely divided and hotly contested decision. Many of us think Marshwas correctly decided; others of us believe that the Courtgot it wrong; but regardlessof our respective views on Marsh, on this much we all agree . . . ") Any takers? - Original Message - From: Lund, Christopher To: 'Law Religion issues for Law Academics' Sent: Thursday, April 14, 2005 11:01 PM Subject: Simpson v. Chesterfield County The Fourth Circuit just released a very interesting case, Simpson v. Chesterfield County - available here, http://pacer.ca4.uscourts.gov/opinion.pdf/041045.P.pdf. It's a fascinating twist on Marsh v. Chambers. Simpson is a Wiccan who brought suit against the County's practice of prayer. Now most of the lawsuits in Marsh's wake have been to shut the prayer down, either on the basis that the public entity is not sufficiently "legislative" or because the prayer was somehow "sectarian." But Simpson is not trying to shut the prayer down; she's trying to join in - the Board opened up their meetings to members of the public to come and give prayers. (The prayer-givers were overwhelmingly Christian, but there was at least one example each of a Muslim and Jewish prayer-giver.) Simpson wrote the Board, asking for her turn. They turned her down, saying that their invocations "are traditionally made to a divinity that is consistent with the Judeo-Christian tradition" (their words). (Simpson, by the way, was a monotheist and her invocations were entirely nondenominational - well within that aspect of Marsh.) The Fourth Circuit today upheld the Board's policy, holding that Marsh v. Chambers gives the County the discretion not only to have a nondenominational prayer, but also to select the prayer-giver. Basically, the Court's reasoning boils down to this: The prayer-giver in Marsh was of a single denomination, a Presbyterian chaplain. And if Nebraska could have a single Presbyterian chaplain give prayers for sixteen years, surely the County could have a more inclusive policy that includes at least some others (i.e., Baptists, Catholics, Jews, Muslims, but not Wiccans). Of no concern to the Court is the fact that Simpson was singled out for exclusion (unlike Marsh), or that the basis of the singling out was theological. The Court also tersely dismisses as inapplicable a passage from Marsh that suggested that "proof that the chaplain's reappointment stemmed from an impermissible motive" would be constitutionally problematic. Thoughts? (I certainly have mine, but I am biting my tongue for the moment.) Chris Christopher C. Lund Visiting Assistant Professor University of Houston Law Center 100 Law Center Houston, TX 77204-6060 [EMAIL PROTECTED] (713) 743-2553 (direct) (713) 743-2122 (fax) ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: Locke v. Davey follow-up
"Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a few years . . . . - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 2:09 PM Subject: RE: Locke v. Davey follow-up I don't quite understand this. Steve himself says "A state maynot want to use public funds to support religion and religious training.And it can constitutionally do so." In my hypothetical, that is*precisely* what the state is trying to do.Now perhaps Steve's "unreality" point is simply that theprovision is unlikely to be enacted. That's hard to tell; the U.S. is abig country, and lots of things that are unlikely generally may getenacted in one or another location under one or another circumstance. Irealize that some hypos are so outlandish that they shed little light onthe question. But is this really *that* outlandish? Is it reallypointless to consider what would happen when a state is genuinelycommitted to the *very sentiments expressed in Steve's own quote*, andjust takes them further than Washington did in Locke?Finally, as to looking to the principles actually used by theCourt, I would have thought that we ought to ask them to be logical --perhaps not perfectly crisp and clear in all instances, but stillgenerally logical.Eugene-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Tuesday, May 03, 2005 10:31 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-upThe reason I find Eugene's hypo uninteresting is the unreality of it.Of course, I say this despite having seen many things I once thoughtfrom the realm of fantasy come to pass.There is a difference between a tax and subsidy.There is a difference between a direct payment and an indirect one.There is a difference between programs with conditions and directrequirements without the inducements.But, in every instance, the edges are blurry and if pushed too far, onething has the undesired effect that the distinction was trying to make.A state may not want to use public funds to support religion andreligious
Re: Locke v. Davey follow-up
Eugene: Could you clarify your hypo just a bit to address Doug's question?: Is your "no religion" restriction imposed only on the government funds, or is there (as in Davey, Rust, Sabri, etc.) a broader, "segregation"restriction on the recipient's use of her own funds, on the theory that money is fungible and receipt of government money "frees up" dollars for the "disfavored" expenditure? If the latter, what's the restriction? In Davey, it was that the student had to work toward a theology major in a separate undergrad program; in Rust, that abortion could be counseled only by a separate affiliate, in a separate clinic, strictly segregated in personnel, placement and bookkeeping.In the absence of an organizational recipient or a "program," as such, wouldn't your hypo have to concede that the recipient can use her non-government-provided funds for religious purposes? Which wouldn't make the problem disappear -- especially not for someone dependent on the welfare benefits. But it would change the hypo somewhat -- e.g., to make it more akin to Maher and Harris v. McRae. - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 3:51 PM Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as inSmith, Bob Jones, U.S. v. Lee, and the like -- this *is* discriminationagainst religion (both the hypo and the program in Locke). One mightargue that it's justifiable discrimination, but it's discrimination.As to the government's reasons for the condition, both in Lockeand in my hypo, the government is indeed saying "because this isreligious and we wish to respect what we see as taxpayers' right not tofund the sacred." Is that good enough?Toni Massaro writes: I think that every failure to accommodate does not constitute "discrimination against" -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of "neutrality" does not capture this nuance. As for the hypo --a very tough one, as are all of the "unconstitutional conditions" hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. "Romer-like" My point about "neutrality" being an insufficient tool is that I think the government should have more room to say "because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically" than "because this is indecent or has sexual content orand I do not like it" Also, "neutrality" has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: Locke v. Davey follow-up
Title: Message Just curious: If the opinion is intentionally "underreasoned" in order to (i) keep the Court's docket running smoothly; and (ii) readily bring on board seven votes; and (ii) leave open for further cases those difficult questions -- not presented in the case itself -- that might divide the seven-Justice majority . . . is that a prudentially justified exception? - Original Message - From: Conkle, Daniel O. To: Law Religion issues for Law Academics Sent: Tuesday, May 03, 2005 4:09 PM Subject: RE: Locke v. Davey follow-up I think you had it right the first time, Eugene:At least as a general proposition, weindeed ought to ask the justices to be logical and principled in the sense you have in mind, and they should be subject to criticism when they are not. (I say "at least as a general proposition" to leave room for the possibility of prudentially justified exceptions.) Dan Conkle -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, EugeneSent: Tuesday, May 03, 2005 2:54 PMTo: Law Religion issues for Law AcademicsSubject: RE: Locke v. Davey follow-up Touche; I should have said that there ought to be logic at least to our theories of what the right rule here should be, and to the frameworks that we propose as tools for organizing the caselaw and for deciding future cases.. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-up "Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a few years . . . . - Original Message
Religious Perspectives on Homosexuality in Public Schools
[CROSS-POSTED TO CONLAWPROF AND RELIGIONLAW] My own school district, in Montgomery County, Maryland, recently instituted a new sex education curriculum for the 8th and 10th grades,which was to begin in six pilot schools yesterday. A federal judge issued a TRO enjoining the curriculum yesterday: http://www.mdd.uscourts.gov/Opinions152/Opinions/CRC050505.pdf The judge found that plaintiffs had a likelihood of success on both Free Speech and Establishment Clause grounds. I think the free speech claim is frivolous: The court assumed that a school must be "viewpoint neutral" in its curricular speech. The Establishment Clause question might be more interesting. It's based on a few passages from the new curriculum that the court found troubling. According to the Board's attorney, the passages in question are "meant for teacher guidance only." And it's not clear, in any event, why the proper remedy for a constitutional violation would not be to excise or edit those passages, rather than to enjoin the curriculum altogether. But assume arguendo that the passages in question are conveyed to 8th and 10th graders, and that the only legal question in the case is whether these particular passages (as opposed to the whol curriculum) must be eliminated or edited. Many of us would probably agree that there are better (or more appropriate)ways in which the school district could convey what it's trying to say about moral and religious disagreements on the question of homosexuality. But what do folks think of the Establishment Clause claim? Here's what the court wrote, with quotes from the curricular documents: In this case, Plaintiffs allege that the Revised Curriculum discriminates between religious sects in that it prefers those sects that are friendly to the homosexual lifestyle. The Revised Curriculum notes that Fundamentalists are more likely to have negative attitudes about gay people than those with other religious views." The Revised Curriculum also paints certain Christian sects, notably Baptists [footnote (see below)], which are opposed to homosexuality, as unenlightened and Biblically misguided: "Religion has often been misused to justify hatred and oppression. Less than half a century ago, Baptist churches (among others) in this country defended racial segregation on the basis that it was condoned by the Bible. Early Christians were not hostile to homosexuals. Intolerance became the dominant attitude only after the Twelfth Century." The Revised Curriculum plainly portrays Baptist churches as wrongly expressing the same intolerance attitude towards homosexuals today as they did towards African Americans during segregation. The Revised Curriculum states that this attitude towards homosexuality is based on generalized arguments that most modern day people reject: Today, many people no longer tolerate generalizations about homosexuality as pathology or sin. [footnote: The Revised Curriculumalso notes that fundamentalists and evangelicals are more likely than other religions to have negative attitudes about gay people. The Revised Curriculum contrasts this view with view of more tolerant religious backgrounds.] The Revised Curriculum also implies that the Baptist Churchs position on homosexuality is theologically flawed. The materials state that theologians and Biblical scholars agree that Jesus said absolutely nothing at all about homosexuality. The materials also note that many seemingly innocuous activities were deemed abominations by the Bible, such as wearing clothing made from more than one kind of fiber, and earing [sic] shellfish, like shrimp and lobster, inviting the reader to draw the conclusion that not all activities that were banned in the Bible are still morally objectionable today. The Court would again note that the strength Defendants substantive theological arguments are irrelevant it is their exclusive nature that the Court finds troubling. Most disturbingly, the Revised Curriculum juxtaposes this portrait of an intolerant and Biblically misguided Baptist Church against other, preferred Churches, which are more friendly towards the homosexual lifestyle. The Revised Curriculum states: "Fortunately, many within organized religions are beginning to address the homophobia of the church. The Nation Council of Churches of Christ, the Union of American Hebrew Congregations, the Unitarian Universalist Association, the Society of Friends (Quakers), and the Universal Fellowship of Metropolitan Community Churches support full civil rights for gay men and lesbians, as they do for everyone else." (emphasis added). The Court is extremely troubled by the willingness of Defendants to venture or perhaps more correctly bound into the crossroads of controversy where religion, morality, and homosexuality converge. The Court does not understand why it is necessary, in attempting to achieve the goals of advocating tolerance and
More Discrimination Against Wiccans
According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of divorced parents from exposing their 9-year-old son to Wiccan beliefs and rituals. Both parentspractice Wicca, and both strongly oppose the court's restriction. The court's order apparently was based on the recommendation of a domestic relations bureau, which was concerned about the "discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school [that the child attends]. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages," the bureau said in its report. In other words, the parents' religious beliefs must be subordinated to those of the school that they have chosen for their son's education. I'm guessing that ifthe facts were reversed -- i.e., if the parents were Catholic but sent their son to a Wiccan school -- the judge would not have chosen to privilege the school's belief system. ___ 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.
Re: More Discrimination Against Wiccans
Perhaps the same thing that Judge Wilkinison and the unanimous Fourth Circuit panel was thinking in the recent Simpsoncase, I'm afraid. - Original Message - From: Ed Brayton To: Law Religion issues for Law Academics Sent: Thursday, May 26, 2005 10:53 AM Subject: Re: More Discrimination Against Wiccans Marty Lederman wrote: According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of divorced parents from exposing their 9-year-old son to Wiccan beliefs and rituals. Both parentspractice Wicca, and both strongly oppose the court's restriction. The court's order apparently was based on the recommendation of a domestic relations bureau, which was concerned about the "discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school [that the child attends]. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages," the bureau said in its report.I just wrote about this on my blog. It's the most obvious and blatant free exercise violation I can ever recall seeing. What on earth was this judge thinking?Ed Brayton No virus found in this outgoing message.Checked by AVG Anti-Virus.Version: 7.0.322 / Virus Database: 266.11.17 - Release Date: 5/25/05 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: More Discrimination Against Wiccans
Title: Message Yes, the cases are different, and perhaps the Indiana case raises even more constitutional problems than the Virginia case. (Eugene lists five distinct constitutional clauses implicated here: http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117124986.) But both cases involve a stark and entirely unjustifiable denominational discrimination against Wiccans. Moreover, the Fourth Circuit case, contrary to common understanding, is not about the content of government prayer or speech. To be sure, it appears that the County Council required that the prayer be "monotheistic." But,whether or not that is itself constitutionally problematic because of the "government speech" doctrine (cf. Johanns; the CTA4's own recent decision in Wynne v. Great Falls), it's not directly at issue in the case, becauseMs. Simpson herself is a monotheist, and she offered to make a nonsectarian, non-proselytizing invocation that referred to a divinity in very general terms. She was excluded not because of the content of her proposed prayer but because of her affiliation with a disfavored denomination. Although the Board's list of approved persons includes clergy from at least 235 congregations (including the Islamic Center of Virginia, which has sent Imams to give the invocations, Jewish congregations, Jehovah's Witness congregations, and Morman churches), County policy "allows only monotheistic congregations to add their religious leaders to the list of those eligible to give an invocation." Because the County viewed the Wiccans as failing this monotheism test, Ms. Simpson was excluded. Just as clearly unconstitutional as the Indiana case, no? - Original Message - From: Conkle, Daniel O. To: Law Religion issues for Law Academics Sent: Thursday, May 26, 2005 11:46 AM Subject: RE: More Discrimination Against Wiccans Aren't these cases rather different? The Indiana case involves a judicial intrusion into the private religious decisionmaking of parents (in the absence of any dispute between them). The 4th Cir. and the 10 commandments cases raise the very different issue of governmental speech relating to religion.I think one can supportthe permissibility of generalized governmentalstatements about religion, and even"Judeo-Christian" prayersinthe Marsh tradition, without accepting the Indiana decision trumping private religious/parental rights. (Needless to say, one also can reject the permissibility of generalized governmental statements about religion or argue more specifically against the 4th Circuit ruling or against the posting of the 10 commandments, etc., butI do think that those cases raisedifferent questions.) Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Thursday, May 26, 2005 10:33 AMTo: religionlaw@lists.ucla.eduSubject: Re: More Discrimination Against Wiccans Isn't it fairly obvious what this judge and the domestic relations person were thinking? They were thinking that this is a "Christian" country, just as the 4th Cir was when it approved legislative prayers that include monotheism and exclude Wiccans. The "system" requires faiths that are consistent with Christianity, and those that are not, can be excluded, on this reasoning. This isa direct result ofthe current,though misguided,cultural pressure to "reclaim" the country for Christians, is it not? If there were two states, other than Alabama, where we were going to see this play out, it would be Virginia and Indiana. My question is if this case were to go up, which side would the DOJ take, given its position in the Ten Commandments and Pledge of Allegiance cases? Marci In a message dated 5/26/2005 10:54:45 A.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Marty Lederman wrote: According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of divorced parents from exposing their 9-year-old son to Wiccan beliefs and rituals. Both parentspractice Wicca, and both strongly oppose the court's restriction. The court's order apparently was based on the recommendation of a domestic relations bureau, which was concerned about the "discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to
Re: More Discrimination Against Wiccans
Now, this is
interesting -- interject the Wiccans into the picture, and all of a
suddenEugene starts sounding a lot more like me (as opposed to, say,
Justice O'Connor) when it comes to the questions of "neutrality" and
"endorsement." This appears to be quite a change from his perspective in
the "equal access" and "license plate message" cases.
I agree, Eugene, that if and when the Council
permits the Wiccan to give the invocation, that might convey the very
modest message of endorsement that you suggest -- namely, not that Wiccans'
views are "right," but that their views are "within the realm of what the
legislature thinks is tolerable." Such "mild" endorsement -- X is within
the realm of the "tolerable"/acceptable/beneficial; Y is not -- is present
whenever thestatemakes choices involving some discretion,
or some line-drawing.
However:
1. Is it really permissible, even on a very
vigorous understanding of the"government speech"doctrine, for
thestate to choose to articulate the message that certain
religious views are "tolerable" but that certain other views are
not within the realm of the tolerable? Particularly where, as
here, the view the state does not wish to characterize as "tolerable" does not
concern a social issue about which the state may adopt its own view (e.g.,
racial segregation; the Iraq war), but instead involves a specifically
religious question. That is to say-- putting it in the specific
terms of the Simpsoncase -- can the state convey the
viewthat polytheism is "not within the realm of the
tolerable"?
2. In McDaniel v. Paty, could
Tennessee have won the case simply by saying that it did not wish to lend any
legitimacy -- "quasi-endorsement" -- to religious views, or to particular
religious beliefs? In Torcaso, could Maryland have sustained its
testfor public office simply by arguing that it did notwish to
convey that atheism is "within the realm of the tolerable"?In
Pinette, could Ohio simply have said -- quite reasonably --
that it did not wish to convey to its citizens that it finds the Klan to be
within the realm of the "tolerable"? (Truth be told, that really
was what was going on in Pinette. "Imagine the outrage,
for instance, if Louis Farrakhan were invited to deliver a legislative
prayer"? Well, imagine the outrage if the KKK were "invited" (by which
Eugene presumably means "permitted") to place a cross in front of the state
capitol.)
Indeed, if the exclusion of minority religions were
done at the federal level, how could this "within the range of the tolerable"
endorsement notion comport with ArticleVI?
3. Really, how much of a message of
"quasi-endorsement" would the Council send if it added Ms. Simpson to the list
of 235+ clergy -- from all over the religious spectrum -- who are
eligible to make invocations? Isn't this inconsistent with Justice
O'Connor's view in Mergens that "[t]he proposition that schools do not
endorse everything they fail to censor is not complicated," and
that"secondary school students are mature enough and are likely to
understand that a school does not endorse or support student speech that it
merely permits on a nondiscriminatory basis"? At most, wouldn't a
reasonable observer understand the "message" to be, not that the
Council "tolerates" polytheism, but that the Constitution
does? (This would be especially clear, of course,if the inclusion of
Ms. Simpson were effected pursuant to a court order in a high-profile
case. But I think it would be true, as well, even if the Council had
voluntarily added her to the list, so that, like the Jewish and Mormon and
Muslim clergy, she gives invocations once every 235 meetings or
so.)
4. Most interestingly, Eugene, if you think
there is at least a mild form of state "endorsement" of religious beliefs in
this context, what does that mean forthe so-called "equal access"
contexts, such as Rosenberger, Pinetteand the
license-plate cases, where the state is forbidden from endorsing
religion at all? You're sounding here a bit like Justice Souter
("There is a communicative element inherent in
the very act of funding itself."). Indeed, if there's endorsement
here, thenit would appear tome that a fortirorithere
must have been impermissible endorsement inRosenberger,
where the funding decision was much more selective, much more
subjective, and much more "evaluative." The funding of Wide Awake -- along
with only 14 (not 235) other magazines and newspapers, by a student
committee, following contentious debates about which school groups are most
worthyto receive portions ofscarce school resources --not only
sends the message that Wide Awake's views are "tolerable" (a message that,
frankly, I don't view as especially troubling froman EC
perspective), but that such views provide "University-wide benefits" (the
principal criterion for funding in the UVa program), and, indeed, that such
religious views provide greater benefits toUVa than
RLUIPA Unanimously Upheld in Cutter
Details to follow. ___ 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.
Re: RLUIPA Unanimously Upheld in Cutter
Justice Ginsburg wrote the opinion. There's a separate Thomas concurrence. More to follow. - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Tuesday, May 31, 2005 10:05 AM Subject: RLUIPA Unanimously Upheld in Cutter Details to follow. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: RLUIPA Unanimously Upheld in Cutter
Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself --the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith FreeExercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterringstates from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. - Original Message - From: Mark Graber To: religionlaw@lists.ucla.edu Sent: Tuesday, May 31, 2005 11:20 AM Subject: Re: RLUIPA Unanimously Upheld in Cutter One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM What a fascinating opinion. J. Ginsburg upholds strict scrutiny with respect to prison regulations, but at the same time demands deference to prison authorities, as does RLUIPA. At the very end, she seems tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting aspect of the opinions is J. Thomas's reservation of the issue of Congress's power under either the Spending or Commerce Clauses.He seems to withdraw any concerns about spending at the end of his concurrence,though, which leaves the question whether RLUIPA is valid under the Commerce Clause up front and center for RLUIPA in both the prison and land use contexts. Obviously, further litigation to come. Marci ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: RLUIPA Unanimously Upheld in Cutter
My SCOTUSblog post on the decision. I welcome suggestions -- and encourage responses in the "Comments" section of theblog. http://www.scotusblog.com/movabletype/archives/2005/05/cutter_v_wilkin.html Cutter v. Wilkinson 11:54 AM | Marty Lederman | Comments (0) | TrackBack (0) In Cutter v. Wilkinson, No. 03-9877, the U.S. Court of Appeals for the Sixth Circuit held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) facially violated the Establishment Clause. The Supreme Court today, in an opinion written by Justice Ginsburg, unanimously rejected the Sixth Circuit's sweeping and fairly radical holding. A very thorough, very helpful background memo on RLUIPA and on the Cutter case can be found at this Pew Forum site. In brief, RLUIPA section 3 requires state prison systems (and other state institutions) to alleviate substantial burdens that they impose on the religious exercise of persons they house, unless they can show that denial of the religious accommodation is the "least restrictive means" of advancing a "compelling govenrmental interest." RLUIPA section 3 applies whenever the state agency receives federal funds, and/or when the burden on religious exercise (or its alleviation) affects interstate commerce. The section 3 substantive test is, in effect, the test of Sherbert v. Verner, which nominally governed Free Exercise doctrine until the Court largely abandoned it in its 1990 decision in Employment Division v. Smith. Congress had previously codified that same test in the Religious Freedom Restoration Act, which governs federal prisons. (The Court held in City of Boerne v. Flores that Congress lacks the power under section 5 of the Fourteenth Amendment to apply RFRA to the states.) The court of appeals had held that it was impermissible for Congress to accommodate religious exercise if it did not provide equivalent accommodation to all other constututional rights -- that is, that a legislature could not single out religious exercise for special accommodation. This argument appeared to be inconsistent with the Court's 1987 decision in Corporation of Presiding Bishop v. Amos, and the Court today easily rejected it. As the Court noted, the Sixth Circuit's rationale would invalidate virtually all religious accommodations -- including those that Ohio itself regularly makes. In a variation on the "test" articulated in Amos, the Court in Cutter held that an accommodation is permissible if it alleviates "exceptional government-created burdens on private religious exercise," so long as the accommodation is "measured so that it does not override other significant interests." There is no such "override" of other significant interests under RLUIPA, the Court explained, because under the statute itself, security concerns are a "compelling interest"; deference is due to institutional officials' expertise in this area; and (the Court strongly implied) therefore a prison would generally satisfy RLUIPA's nominally strict scrutiny where there is a genuine security-related reason to deny the religious exemption: "We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns." The Court did not address several important subsidiary questions involving its articulated accommodation test, such as: -- When is a government-imposed burden on religious exercise "exceptional"? The adjective is a curious development: In Amos, the Court approved alleviation of "significant" government-imposed burdens. [Attention prospective law-student note-writers: What is the practical and doctrinal import of the Court's change from "significant" to "exceptional"?] -- What about alleviation of privately imposed burdens, such as when the legislature requires private employers to accommodate their employees' religious exercise? The Court doesn't say; but it emphasizes that RLUIPA satisfies the Constitution because the burdens it alleviates are government-imposed. -- If an accommodation is constitutionally problematic when it "overrides other significant interests" -- a consideration also strongly emphasized in City of Thornton v. Caldor -- why didn't the accommodation in Amos itelf raise serious questions, where the statutory exemption permitted an employer to discharge a loyal employee who had been on the job for 16 years? The Court also declined to address several other important questions. For instance, the Court avoided opining about whether RFRA is constitutional as applied to the federal government (see footnote 2), and about the constitutionality of section 2 of RLUIPA, which deals with local land-use regulation (see footnote 3). More importantly, the Court avoided any decision on Oh
Whither Lemon?
I think it's been clear for a long while that
when the Court cites theLemon test, it's almost an afterthought
-- a pro forma doctrinal appendage or a fig leaf. (This was especially
true in Amos, I think.)That's why many folks who brief
these cases to the Court -- Doug and I included -- choose not to rely on the
Lemonframework: It doesn't really get at what's going on in
the cases, not even at a doctrinal level, and thus doesn't helpfully "speak" to
the Court. The one very significant exception, I think, is thenarrow
line of cases (e.g., Edwards v. Aguillard) thatcan best
be explained with reference to the first (purpose) prong of
Lemon.
- Original Message -
From:
Douglas
Laycock
To: Law Religion issues for Law
Academics
Sent: Tuesday, May 31, 2005 1:28 PM
Subject: RE: RLUIPA Unanimously Upheld in
Cutter
I see no interment. They have ignored it before,
and then returned to it when they thought it helpful. This opinion
relies on Amos, and Amos marches through the Lemon
test, so it may just be that they have more specific doctrine to work with on
this issue.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven
JamarSent: Tuesday, May 31, 2005 11:20 AMTo: Law
Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously
Upheld in Cutter
Time for another AALS panel writing the obit for Lemon? :)
Steve
On May 31, 2005, at 12:12 PM, Stuart BUCK wrote:
So has the Lemon test been interred, or not? Compare footnote 6 of the majority
("We resolve this case on other grounds."), with Thomas's footnote 1 ("The
Court properly declines to assess RLUIPA under the discredited test of Lemon
. . . .").
Best,
Stuart Buck
--
Prof. Steven D. Jamar
vox:
202-806-8017
Howard University School of Law
fax: 202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
Nothing worth doing is completed in our
lifetime,
Therefore, we are saved by hope.
Nothing true or beautiful or good makes complete
sense in any immediate context of history;
Therefore, we are saved by faith.
Nothing we do, however virtuous, can be
accomplished alone.
Therefore, we are saved by love.
No virtuous act is quite as virtuous from the
standpoint of our friend or foe as from our own;
Therefore, we are saved by the final form of love
which is forgiveness.
Reinhold Neibuhr
___To post, send
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Re: RLUIPA Unanimously Upheld in Cutter
I didn't intend to suggest anything otherwise -- I believe we're in agreement, and apologize for any confusion. Where we might disagree is on the question of whether "strict" scrutiny was ever all-that-strict in Free Exercise/RFRA/RLUIPA law. - Original Message - From: Anthony Picarello To: Law Religion issues for Law Academics Sent: Tuesday, May 31, 2005 2:08 PM Subject: RE: RLUIPA Unanimously Upheld in Cutter I agree that the true test on the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case next term. But I'd add that I don't see a meaningful dilution of "strict scrutiny" in this decision. Instead, the Court just reaffirmedtwo unremarkable propositions: (1) that prison security is a compelling state interest, and (2) that prison officials are entitled to some deference in their assessment whether a particular accommodation threatens that interest. Is this anything new? Is it fair to say that the opinion says anything stronger than that? Prison officials still bear the burden of proof and persuasion to show that this interest is actually present in the particular context, and that they have chosen the "least restrictive means" of serving that interest, also in context. Incidentally, I could find no suggestion at allthat "least restrictive means" is somehow eliminated from that burden. In fact, I did see a favorable citation to two district court opinions (fn11) where "least restrictive means" was an important part of the analysis under RFRA. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 31, 2005 11:47 AMTo: Law Religion issues for Law AcademicsSubject: Re: RLUIPA Unanimously Upheld in Cutter Well, this has been the paradox in Free Exercise Clause law all along, hasn't it?: That the Court articulated a strict scrutiny test in Sherbert/Yoder, but never came anywhere close to applying such a test in the free-exercise context: The government virtually always won, by hook or by crook (no substantial burden; compelling interest; carve-outs for prisons/military/government "property," etc.). (That's one primary explanation for Smith itself --the Court no doubt wished to call a halt to its own charade.) Congress adopted the Court's own strict-scrutiny rhetoric, while signaling fairly clearly that courts should be just about as deferential to the state as the SCOTUS itself had been in pre-Smith FreeExercise cases. The strict scrutiny standard thus has the (intended) deterrence/in terrorem effect at the administrative level -- at the very least deterringstates from denying exemptions where the harm is speculative, or where there really would be very little cost involved, such as where the state makes analogous no-religious exemptions. But if the state has a good reason for denying the exemption, it likely will win in litigation. That's what has happened at the federal level, with modest results that all parties appear to approve. The real test of how effective RFRA and RLUIPA will be will come in next Term's UDV case involving the application of that statutory test to the prohibition on use of hoasca tea. - Original Message - From: Mark Graber To: religionlaw@lists.ucla.edu Sent: Tuesday, May 31, 2005 11:20 AM Subject: Re: RLUIPA Unanimously Upheld in Cutter One might also note we now have another area of law (in addition to affirmative action) where compelling interest seems no longer shorthand for the individual rights claim (almost) always wins. MAG [EMAIL PROTECTED] 05/31/05 11:16AM What a fascinating opinion. J. Ginsburg upholds strict scrutiny with respect to prison regulations, but at the same time demands deference to prison authorities, as does RLUIPA. At the very end, she seems tocaution all lower courts to be very careful beforethey find for the prisoner. Seems tome the prisons now have a Turner v. Safley rule in fact, even if it isan RLUIPA federal claim in theory. Oneinteresting aspect of the opinions is J. Thomas's reservation of the issue of Congress's power under either the Spending or Commerce Clauses.He seems to withdraw any concerns about spending at the end of his concurrence,though, which leaves the question whether RLUIPA is valid under the Commerce Clause up front and center for RLUIPA in both the prison and land use contexts. Obviously, further litigation to come. Marci ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see
Deportation and other burdens on religion
. . . or what if -- just hypothetically, of course -- the federal government systematically and specifically exploited religious fears, sensitivities and obligations of persons of a particular religion in order to degrade them and thereby coerce them to talk during interrogations, such as, for example (again, purely hypothetically here, of course),removing all religious items, forced shaving of facial hair, forced nudity,prohibiting them from praying during Ramadan unless they disregarded their religious obligation not to drink water, subjecting themto a drill known as "Invasion of Space by a Female," and hanging pictures of scantily clad women around their necks? Assume, for purposes of this hypo, that the Religion Clauses do apply extraterritorially (see, e.g., Lamont v. Woods) to our conduct toward persons under our control, or, at the very least, that the government would (hypothetically) never resort to a technical non-extraterritoriality argument as justification for conduct that would concededly be unconstitutional here in the U.S. Constitutional violation (hypothetically)? - Original Message - From: Mark Graber To: [EMAIL PROTECTED] ; religionlaw@lists.ucla.edu Sent: Friday, June 17, 2005 8:41 AM Subject: Deporting Religious Teenagers To play a variation on Sandy's theme, what would be our response if the FBI was investigating teenage Christian evangelicals and deported a women who listened to a minister who refused to condemn abortion clinic bombings (or investigating teenage Zionists and deported a man who listed to the disciples of Meir Kahane). Mark A. Graber [EMAIL PROTECTED] 06/17/05 06:45AM Theh following story appears in today's New York Times, about what some might call the persecution by the US of a young Moslem woman:http://www.nytimes.com/2005/06/17/nyregion/17suicide.html?pagewanted=4themc=thMy questions are as follows: 1. Does the FBI's scrutiny of her religious views raise any questions with regard to the FE Clasue (or, for that matter, the Establishment Clause)? 2. What would our response be if this story came from, say, China or Iran and involved a young Catholic who endorsed traditional Catholic views of "just war" against tyrants? The latter question, of course, is not precisely a question about American constitutional law and may be considered inappropriate. I assume, then, that it would be easy enough to translate the question into a more American context, if the teenager in question had been persuaded by religious-based theories of the legitimacy of tyrannicide.sandy ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
Re: Government displays protesting against the Supreme Court'sEstablishment Clause jurisprudence
"not implausible"? OK, so imagine that certain public elementary and secondary schools, notwithstanding Engle and Schempp and Santa Fe, continue to engage in prayer before classes and football games (indeed, I've been told that such practices do, in fact,continue in many school districts, although I've never investigated the truth of such assertions); but the school officials claim that the purpose of the prayer is not to convey any religious beliefs or sentiments, but instead "merely" to protest what they consider to be the wrongly decided SCOTUS school-prayer decisions. "Not implausible"? P.S. Even if, in some strange alternative universe, the officials' objectives genuinely were not religious, then I think the harm to religious liberty would be all the greater, for the reasons Doug Laycock has repeatedly and eloquently explained w/r/t the so-called "secularization" of the "under God" pledge and the erection of religious monuments. - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Thursday, July 07, 2005 6:24 PM Subject: Government displays protesting against the Supreme Court'sEstablishment Clause jurisprudence Say that a City Council mounts a display of historical Americandocuments that have religious themes -- say, the ones cited in JusticeScalia's McCreary dissent -- with an introductory posting that says:"The City Council of [name] condemns the Supreme Court's decisionsstriking down the display of religious symbols in government buildings.These decisions go against centuries of American tradition, as well asagainst the views of the Framers. Throughout American history,governmental bodies have repeatedly acknowledged God, and shouldcontinue to be free to do so. We post just a few samples of suchacknowledges of God, which we believe should be constitutional." Andlet's say that this indeed sincerely reflects the City Council members'purpose -- not implausible, since I suspect that quite a few governmentofficials would like to do this sort of thing.Would this be constitutional? Should it be? Rereading McCrearyCounty led me to think that this sort of purpose is part of what wasgoing on as to the second and third displays, though I would think onlya part. I'm curious what would happen if this was really thegovernment's purpose.Eugene___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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 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.
RE: Free speech for chaplains
Of course, this isn't a context in which religious tests can be eliminated altogether. (Query: Why isn't it therefore a violation of article VI?) But the military clergy hiring must be nondenominational, i.e., made without sectarian discrimination. (But cf. the recent Simpson Wiccan decision and Scalia and Thomas opinions in the Ten Commandments cases, all of which give a green light to sectarian discrimination.) I assume that the comments in question here were spoken in Klingenschmitt's official capacity. If so, he violated the Establishment Clause, and the government can discipline him for acting in clear violation of the Constitution (and, for that matter, in violation of military rules about appropriate official speech and conduct). That is to say, this (presumably) is not a penalty imposed based on Klingenschmitt's *private* speech or beliefs, as Rick Duncan appears to assume. To the extent my assumption is wrong, and it *is* a punishment for speech in his private capacity, it raises interesting questions at the intersection of Pickering/Connick/Torcaso/McDaniel/Larson/etc. ___ 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. ---BeginMessage--- How does the military appoint a chaplain without requiring a religious test for the office? MAG [EMAIL PROTECTED] 07/12/05 11:12AM Sandy's question is an interesting one. Can the military fire or disciplinea chaplin because the military disagrees with his religious beliefs (or at least with his preaching of his religious beliefs)? Doesn't such a decision amount to a religious test for office? Or at the very least, denominational discrimination forbidden by Larson v. Valente (evangelicals need not apply)? In other words, could the military require a doctrinal statement--"salvation is universal for all who believe anything sincerely"-- for the office of chaplin? To put a twist on the issue, suppose a chaplin preaches that homosexual marriages are within God's will. Could a chaplin be disciplined for preaching that? Cheers, Rick DuncamSanford Levinson [EMAIL PROTECTED] wrote: There is a fascinating article in today's NYTimes on the increasing number of Evangelical chaplains in the armed services. Consider oe James Klingenschmitt, of the Evangelical Episcopal Church, whose retention was recommended against by his commanding officer following, among other things, his preaching at a memorial service at sea for a Catholic sailor that "emphasized that for those who did not accept Jesus, 'God's wrath remains upon him.'" I presume that the this was not meant to apply to the Catholic seaman, but it obviously suggested to any Jewish or Muslim (or atheist or Buddhist, etc., etc., etc.) that they were condemned to God's wrath. In any event, is there a serious argument that it is improper to take such speech into account in deciding whether to recommend that the contract be renewed. I presume, incidentally, that the armed forces would not renew the contract of a chaplain who sugested that a given wa! r was in fact "unjust," If the armed services can constittionally do that (presumably on grounds that it is not good for the morale of those in the armed services), then why can't it fire chaplains who suggest that many members of the armed services are damned to eternal perdition? sandy___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease 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.Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902Red State Lawblog: www.redstatelaw.blogspot.com"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner ! __Do You Yahoo!?Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com ---End Message--- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
RE: Government displaysprotestingagainsttheSupremeCourt's Establi shment Clausejurisprudence
Yes, that's right, Mark. I do not mean to be referring to "religious motivation," but instead to be referring to a "but for" objective of promoting [expressly] [specifically] [uniquely] [your adjective here] religious actvities/beliefs/doctrines. Of course this is a very fluid concept -- but the Ten Commandments cases from Texas and Kentucky, and Eugene's hypo, are easy cases, no matter how you'd slice it. -- Original message -- Sorry for the additional post, but perhaps I misread Marty's proposal. He talks not of a religious purpose but rather of a purpose to advance religion. I suppose one can say that enactment of social welfare legislation and abolition of slavery was not done for the purpose of advancing religion, though it was done for a religious purpose. Perhaps he could elaborate on how his approach would amend Lemon's first prong, which seems to deal not with whether there is a purpose to advance religion, but with whether there is on the one hand a secular purpose, or on the other a religious purpose, for the governmental action. Mark S. Scarberry Pepperdine University School of Law-Original Message- F! rom: Scarberry, Mark Sent: Tuesday, July 12, 2005 12:55 PM To: 'Law Religion issues for Law Academics' Subject: RE: Government displaysprotestingagainsttheSupremeCourt's Establishment Clausejurisprudence Let me understand. If government action would not have been taken "but for" the religious purpose of those who take the action, then, according to Marty, the action violates the Establishment Clause under the first prong of the Lemon test. Such a "but for" test as a general matter in Establishment Clause cases would eliminate much of the social welfare and antidiscrimination legislation that has been enacted, probably along with the (somewhat) progressive income tax scheme. Abolition of slavery would never have occurred without a religious motivation for it. That's not to say that religion didn't also play a role on the pro-sl! avery side, and of course the Establishment Clause can't inva lidate a later Constitutional amendment, but an interpretation of the Establishment Clause as setting up a test that would be violated by the post-Civil War Amendments (including the 14th under which the Est. Clause has been incorporated against the states!) does not seem plausible to me. Perhaps Marty means to limit such an approach to cases in which a government actor posts or uses explicitly religious language. Mark S. Scarberry Pepperdine University School of Law-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, July 12, 2005 12:41 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: RE: Government displaysprotestingagainsttheSupremeCourt's Establishment Clausejurisprudence! Forget "primary" and "secondary." What the Court appears to be getting at in Epperson/Edwards/Wallace/McCreary County -- the so-called "purpose prong" decisions -- is whether an objective to advance religion is a *but for* cause of the state action. (Yes, I know that there are problems with a "but for" causation test, too -- but I think it's about as close as we're going to get to describing what the doctrinal rule is and should be in the mine run of cases.) And, as many of us have written in this thread, the answer to *that* question in your hypothetical would be "of course it is."___ 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 Ple! ase note that messages sent to this large list cannot be viewed as pri vate. 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 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.
Re: George Washington adding under God to the Presidential oath
Jim: The proper adjective is Democratic, as in Democratic Party. (But then, you probably already knew that.) Sorry for the lecture, but this is a hobbyhorse of mine: The lockstep use of Democrat as an adjective is not only juvenile, and grating on the ears, it's also quite literally McCarthyist -- in the sense that it was a tactic first used by Joseph McCarthy, who wished to deny the Democratic Party the positive associations generally associated with the word democratic. ___ 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. ---BeginMessage--- I am slow coming to this thread. I did some research on oaths in connection with the mysterious disappearance of "so help me God" in testimonial oaths administered during the Democrat interregnum on the Senate Judiciary Committee, after Jim Jeffords left the Republican Caucus. With Pat Leahy at the helm, I observed that witnesses were not being asked to give an oath which invoked Divine assistance (the "so help me God" oath). Was this a deliberate omission? Was this an excited, inexperienced Senator's accidental omission? Did it mean anything? These were the questions I was pursuing. In a humorous vein, the Law Committee of the Parliament of Victoria, in Australia, prepared a report on oaths and multicultural society, included an anecdote about a clerk asking a magistrate if it would be a problem that testimonial oaths for two previous weeks of court were administered on the Shorter Oxford Dictionary, the courtroom Bible having disappeared. In the process of my research, I did find older materials that run alongside the answerto your question. Thomas Aquinas wrote on the invocation of Divine assistance in swearing an oath, among other things concluding that to do so was permissible, was subject to becoming habitual and the source of abuse, and was, in its essence, a religious act. (Question 89 in Aquinas' Treatise on Prudence and Justice). Aquinas' discussion is important because it lays out an early available theological justification for the employment of religious oaths in juridical proceedings. John Locke, in his Letter on Toleration, adverts to the subject but does not take the matter on directly. In the letter he explains why it is that atheists cannot be relied upon in establishing truth or determining sincere commitments to duty: "Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all error, yet if they do not tend to establish domination over others, or civil impunity to the church in which they are taught, there can be no reason why they should not be tolerated." Blackstone explained the practice (apparently well-established) of judicial oaths invoking Divinity: "The belief of a future state of rewards and punishments, the entertaining just ideas of the main attributes of the Supreme Being, and a firm persuasion that He superintends and will finally compensate every action in human life (all which are revealed in the doctrines of our Savior, Christ), these are the grand foundations of all judicial oaths, which call God to witness the truth of those facts which perhaps may be only known to Him and the party attesting; all moral evidences, therefore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity." The Fundamental Orders of Connecticut include the text of an oath to be taken by magistrates that concludes with an invocation of divine aid: "and that I will maintain all the lawful priviledges thereof according to my understanding, as also assist in the execution of all such wholesome laws as are made or shall be made by lawful authority here established, and will further the execution of Justice for the time aforesaid according to the righteous rule of God's word; so help me God, in the name of the Lord Jesus Christ." Other examples also exist (God forbid that I suggest peeking at Rector, Holy Trinity Church v. US for sources?). During Washington's time, immigrants arriving into Pennsylvania from abroad undertook an oath of loyalty and fealty to the British Crown and of abjuration of
RE: Assaults on the England language
Actually, I don't think giving or taking offense has much to do with it (although offense certainly is taken). Indeed, Republic Party folks aren't even addressing their Democratic counterparts when they use the adjective: They're addressing the public, and they couldn't care less how we Democrats respond to the term. As I understand it, Democrat is used as an adjective for two related reasons: First, McCarthy and his modern-day counterparts wish to deny Democrats the *positive* connotations that are associated with the word democratic. Second, apparently numerous surveys have shown that audiences hear the word Democrat as much less mellifulous, and harsher, than democratic. Something about connotations with words such as bureaucrat and technocrat. Audiences cringe when they hear the ending hard t much more than when the word ends in tic. Or so I've been told. ___ 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. ---BeginMessage--- Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Stuart BUCKSent: Thursday, July 21, 2005 12:23 PMTo: religionlaw@lists.ucla.eduSubject: Re: Assaults on the England languageI.e., is it the case that people take offense at "Democrat Party" for absolutely no reason other than that offense is intended, and that correspondingly people use "Democrat Party" sheerly for the purpose of causing offense? Precisely. Douglas Laycock ---End Message--- ___ 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.
Is Roberts a Strict Constructionist?
Constitutional protections . . . should not depend merely on a strict construction that may allow 'technicalities of form to dictate consequences of substance.' As the Court remarked in the leading contract clause case of this century [Blasidell], 'where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details.' . . . . 'The great clauses of the Constitution are to be considered in the light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time.' [quoting U.S. Trust]. That's from John Roberts's Case Note, 92 Harv. L. Rev. at 91, responding to Justice Brennan's plain meaning argument in Allied Steel that the constitutional phrase Laws *impairing* the obligation of Contracts should be construed to mean . . . Laws *impairing* the obligation of contracts -- and not laws that impose additional obligations beyond those required by existing contracts. See also, e.g., most of Roberts's briefs in constitutional cases and, especially, his extended Harvard Law Review Developments section on regulatory takings. There are many things one can say about that essay -- including that it is extremely impressive for a young student, demonstrating remarkable erudition and sophistication, and that he was obviously very influenced by the writings of Michelman, Sax and Ackerman (even if Robertss pragmatic and theoretical considerations appear to push him to support a requirement of just compensation in situations where those scholars would not). But what one certainly *cannot* say about it -- or of most other Roberts constitutional writings -- is that it is the least bit textualist, or originalist, or strict constructionist. A judge adopting Roberts's understanding of how the Takings Clause should be construed would, in Sam Ventola's words, be imposing some other world view through judicial fiat -- not that there's anything! wrong with that! (unless, of course, one does not share the Roberts world view regarding of property regulation). Indeed, the writings I've seen suggest that Roberts is not any sort of a doctrinaire constitutional theorist, devoted to certain meta-principles. Instead, hes basically a pragmatist -- comfortable and facile, as all good lawyers are, with the full array of argumentative modes -- albeit one with a very definite political/jurisprudential bias. I predict that that will make him -- for better or worse, depending on one's constitutional vision -- much more influential on the Court than, say, Judge Luttig, Brown or Jones would have been. If I had to hazard one analogy, I suppose it would be that he'll be similar to, and perhaps as effective as, Justice Rehnquist. And it's not going out on very much of a limb to assume that *that's* why the President chose him -- strict construction's got nothin' to do with it. the original meaning of the copyright clause could not have included: movies records CDs videos webpages TV Radio etc. Original meaning is a something to understand, but one cannot be bound by it in a meaningful way. The world has changed. And the Constitution is a living one. This is not to say that any number of times the Court has strayed from the text of the Constitution. It has done so repeatedly with some horrible results and some good results. International law, at least in the forms of treaties and customary law are within the contemplation of the Constitution. Consistency at the edge cases and difficult cases tends to be hard to come by -- the principles one chooses to base a decision on can determine the outcome. Constitutional law is simply not so simple. Steve On Jul 25, 2005, at 5:15 PM, Samuel V wrote: Well necessary criteria would be that the decision (1) is based on the language of the Constitution itself, and the original meaning of those words, (2) does not rely on some extra-Constitutional basis, such as modern social policy or foreign law, unless that policy or law is incorporated by the Constitution, (3) is consistent, in that if it treats cases differently, it does so in a way rooted in the Constitution itself. I personally think you could have decisions which are principled according to these criteria coming down either way on the religion clauses. When I think of decisions based on judicial fiat, I tend to think more of other decisions. ___ 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;
