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.
Free Exercise Right to Shelter the Homeless
Dear all, FYI: On October 29, Judge McKenna of the S.D.N.Y. ruled in a case brought by the Fifth Avenue Presbyterian Church, seeking a permanent injunction preventing the City of New York . . . from dispersing homeless persons sleeping, at the Church's invitation, in the landings at the tops of the staircases leading up into the . . . entrances of the Church . . . and on the Church's property . . . . The Church claimed that the City's actions in removing homeless persons from the Church's property . . . violated [the Church's] rights under the Free Exercise Clause[.] Apparently, the City conceded that its actions substantially burdened the Church's sincerely held religious beliefs, but noted that the Church could avoid the burden by expanding its indoor shelter. The court was not moved by this argument. The City next argued that strict scrutiny of its conduct was not required, because the law in question is neutral and of general applicability. The court stated, though, that it is not an individual City law that must be neutral and generally applicable [to avoid strict scrutiny], but the City's actions in applying City law that must be neutral and generally applicable. And, the court concluded, because the City's enforcement actions were overbroad, they do not constitute a neutral government action. Nor were they generally applicable, because they result in disparate treatment of religious activity by failing to prohibit nonreligious conduct that endangers [legitimate] interests in a similar or greater degree. Finally, the City's actions were found to flunk strict scrutiny. The opinion is available at 2004 U.S. Dist. LEXIS 22185. best, Rick Garnett Notre Dame Law School At 10:57 AM 11/5/2004, you wrote: 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 ___ 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. ___ 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: Evidence of religious conversion at a death penalty sentencin ghearing .:.
I guess that would count for whatever weight the jury gives it. With the right (wrong) jury, it might be evidence of redemption or whatever. Why withhold the information whatever the sect? -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED]Sent: Friday, November 12, 2004 11:10 AMTo: [EMAIL PROTECTED]Subject: Re: Evidence of religious conversion at a death penalty sentencinghearing .:. But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, butthat the conversion to a system of religious belief is (or so a jury mightfind) indicative of a likelihood of redemption (in a secular sense) and htatthe person need not be executed to protect society.I would imagine that the same would be true if a convict showed devotion tosome secular equivalent. Under the court's cap[ital punishment rules ,postarrest conduct in jail-even after conviction and on retrial-- is relevant asa mitigating factor. Sidley Austin Brown & Wood LLP mail server made the following annotations on 11/12/2004, 10:20:24 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. ___ 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: Evidence of religious conversion at a death penalty sentencin ghearing .:.
GIven the violence of white supremacist gangs in the prisons, I cannot imagine that any lawyer would permit his client to raise his membership in the Aryan Brotherhood or the KKK. For what purpose would the denominational choice be relevant? If it is to let the jurors attach to the convict certain characteristics, isn't that an establishment of religion in the system? I guess that would count for whatever weight the jury gives it. With the right (wrong) jury, it might be evidence of redemption or whatever. Why withhold the information whatever the sect? -Original ___ 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: Evidence of religious conversion at a death penalty sentencinghearing .:.
If no lawyer would let his client mention it, why worry about it for Establishment Clause purposes as you did in your first post? Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:34 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penalty sentencinghearing .:. GIven the violence of white supremacist gangs in the prisons, I cannot imagine that any lawyer would permit his client to raise his membership in the Aryan Brotherhood or the KKK. For what purpose would the denominational choice be relevant? If it is to let the jurors attach to the convict certain characteristics, isn't that an establishment of religion in the system? I guess that would count for whatever weight the jury gives it. With the right (wrong) jury, it might be evidence of redemption or whatever. Why withhold the information whatever the sect? -Original ___ 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.
The Death Penalty and Religious Conversion (from Nate Oman)
Dear all, Nate Oman asked me to forward this to the list: Eugene, The issue in Payton is actually (not surprisingly) narrower than portrayed by USA Today. It has to do with the issue of whether or not Paton was entitled to an instruction that under the rather inelegantly worded California death penalty statute the jury could consider post-crime rehabilitation in mitigation of his sentence. The California Supreme Court has already ruled that as a matter of state law the jury can consider such evidence. At Payton's trial, however, the court didn't give the jury any instructions on this point and simply read the language in the statute. In addition, the Court allowed the prosecution to argue to the jury that the statute did NOT allow them to consider post-crime rehabilitation. Payton argues that this violated his rights under the Eighth Amendment. There is no challenge to the religious nature of his rehabilitation before the Court. Presumably, however, a jury could not mitigate his sentence merely because of his religious conversion per se, but they could take the religious conversion as evidence of real and sincere change. Indeed, I think that a jury could even draw the inference that deeply religious conversion was more probative of deep rehabilitation than would be a purely atheistic change of heart. I do not, however, believe that the jury could permissibly take the position that an atheist was incapable of similar rehabilitation. In other words, I think that jury ought to be able to consider religion as evidence of some other factor, but should not be able to use religion itself as the factor. Nate Oman ___ Nathan Oman SIDLEY AUSTIN BROWN WOOD LLP 1501 K Street, NW Washington, DC 20005 (202) 736-8680 ___ 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.
Religion of peace?
Marc makes a good point, but say that there is a dispute about whether the particular strain of, say, Islam -- or for that matter, Christianity -- to which the defendant has converted is a religion of peace or a religion that allows or even suggests violence that U.S. law would condemn. What evidence would the state and the defendant introduce? Statements of coreligionists? Religious experts who would testify about what they think the real meaning of the religion is (since we know that for most religions, there will be some people who can interpret it as countenancing violence)? Would we feel comfortable having juries resolve these questions? Indeed, prison officials do sometimes evaluate whether certain religious publications advocate violence. But I had thought that the prison cases have been seen as an unfortunate though necessary departure from traditional norms of government action. Would it be proper to extend them to death penalty sentencing phases, where a person's life would turn in part on a jury's evaluation of whether a church advocates violence? Eugene Marc Stern writes: So activity in amnesty international counts ,but not in a religious group? Why cant the state prove that a church advocates violence to rebut a mitigating showing of membership in the Church of Creator .Prison officials make that showing all the time both under RLUIPA and under OLone and the Constituion.. The problem all around with religion Clause analysis in prisons (and other total institutions such as childrens homes) is that the government exercise more power over every aspect of life than it can in civilian applications which no doubt were at the forefront of the framers minds. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:10 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penaltysentencinghearing But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, but that the conversion to a system of religious belief is (or so a jury might find) indicative of a likelihood of redemption (in a secular sense) and htat the person need not be executed to protect society. I would imagine that the same would be true if a convict showed devotion to some secular equivalent. Under the court's cap[ital punishment rules ,post arrest conduct in jail-even after conviction and on retrial-- is relevant as a mitigating factor. ___ 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.
Religious faith as evidence of honesty or future dangerousness
Let me suggest an analogy, one that is hardly on all fours but that I thought might be relevant: As I understand it, rules of evidence generally bar the factfinder from considering a person's religiosity as evidence of honesty (setting aside the question whether membership in a particular group may show bias in particular cases). Would the Establishment Clause likewise prohibit such consideration? If so, wouldn't the same apply to considering a person's religiosity as evidence of other character traits, such as future dangerousness? Or would it actually be fine for a jury to consider a person's being a devout churchgoer, alongside other factors, as evidence of his credibility? Eugene ___ 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: Religion of peace?
Eugene's response moves me to reveal a secret heretical thought I have harbored for some time now-that the religion clauses (and much else in the constitution) were simply not written with anything like modern life in mind, that government has become so complex that the simple rules the founders lay down don't work, and we need something else. But I have not got a clue what that better thing might be--and I am certain that there is no social consensus on what that something might be. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 12, 2004 12:02 PM To: Law Religion issues for Law Academics Subject: Religion of peace? Marc makes a good point, but say that there is a dispute about whether the particular strain of, say, Islam -- or for that matter, Christianity -- to which the defendant has converted is a religion of peace or a religion that allows or even suggests violence that U.S. law would condemn. What evidence would the state and the defendant introduce? Statements of coreligionists? Religious experts who would testify about what they think the real meaning of the religion is (since we know that for most religions, there will be some people who can interpret it as countenancing violence)? Would we feel comfortable having juries resolve these questions? Indeed, prison officials do sometimes evaluate whether certain religious publications advocate violence. But I had thought that the prison cases have been seen as an unfortunate though necessary departure from traditional norms of government action. Would it be proper to extend them to death penalty sentencing phases, where a person's life would turn in part on a jury's evaluation of whether a church advocates violence? Eugene Marc Stern writes: So activity in amnesty international counts ,but not in a religious group? Why can't the state prove that a church advocates violence to rebut a mitigating showing of membership in the Church of Creator .Prison officials make that showing all the time both under RLUIPA and under O'Lone and the Constituion.. The problem all around with religion Clause analysis in prisons (and other total institutions such as children's homes) is that the government exercise more power over every aspect of life than it can in civilian applications which no doubt were at the forefront of the framers minds. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:10 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penaltysentencinghearing But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, but that the conversion to a system of religious belief is (or so a jury might find) indicative of a likelihood of redemption (in a secular sense) and htat the person need not be executed to protect society. I would imagine that the same would be true if a convict showed devotion to some secular equivalent. Under the court's cap[ital punishment rules ,post arrest conduct in jail-even after conviction and on retrial-- is relevant as a mitigating factor. ___ 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: Religious faith as evidence of honesty or future dangerousness
Unfortunately as a factual mater there is no necessary relationship between church (= house of worship) attendance and probity. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 12, 2004 12:06 PM To: [EMAIL PROTECTED] Subject: Religious faith as evidence of honesty or future dangerousness Let me suggest an analogy, one that is hardly on all fours but that I thought might be relevant: As I understand it, rules of evidence generally bar the factfinder from considering a person's religiosity as evidence of honesty (setting aside the question whether membership in a particular group may show bias in particular cases). Would the Establishment Clause likewise prohibit such consideration? If so, wouldn't the same apply to considering a person's religiosity as evidence of other character traits, such as future dangerousness? Or would it actually be fine for a jury to consider a person's being a devout churchgoer, alongside other factors, as evidence of his credibility? Eugene ___ 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: Religion of peace?
Except for the Society of Friends, the Mennonites and a few other pietistic faiths, please tell me what religion out there qualifies as a religion of peace? Pual Finkelman Volokh, Eugene wrote: Marc makes a good point, but say that there is a dispute about whether the particular strain of, say, Islam -- or for that matter, Christianity -- to which the defendant has converted is a religion of peace or a religion that allows or even suggests violence that U.S. law would condemn. What evidence would the state and the defendant introduce? Statements of coreligionists? Religious experts who would testify about what they think the real meaning of the religion is (since we know that for most religions, there will be some people who can interpret it as countenancing violence)? Would we feel comfortable having juries resolve these questions? Indeed, prison officials do sometimes evaluate whether certain religious publications advocate violence. But I had thought that the prison cases have been seen as an unfortunate though necessary departure from traditional norms of government action. Would it be proper to extend them to death penalty sentencing phases, where a person's life would turn in part on a jury's evaluation of whether a church advocates violence? Eugene Marc Stern writes: So activity in amnesty international counts ,but not in a religious group? Why cant the state prove that a church advocates violence to rebut a mitigating showing of membership in the Church of Creator .Prison officials make that showing all the time both under RLUIPA and under OLone and the Constituion.. The problem all around with religion Clause analysis in prisons (and other total institutions such as childrens homes) is that the government exercise more power over every aspect of life than it can in civilian applications which no doubt were at the forefront of the framers minds. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:10 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penaltysentencinghearing But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, but that the conversion to a system of religious belief is (or so a jury might find) indicative of a likelihood of redemption (in a secular sense) and htat the person need not be executed to protect society. I would imagine that the same would be true if a convict showed devotion to some secular equivalent. Under the court's cap[ital punishment rules ,post arrest conduct in jail-even after conviction and on retrial-- is relevant as a mitigating factor. ___ 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. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ 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: Religious faith as evidence of honesty or future dangerousnes s .:.
Title: RE: Religious faith as evidence of honesty or future dangerousness .:. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of Volokh, Eugene Sent: Friday, November 12, 2004 9:06 AM To: [EMAIL PROTECTED] Subject: Religious faith as evidence of honesty or future dangerousness .:. Let me suggest an analogy, one that is hardly on all fours but that I thought might be relevant: As I understand it, rules of evidence generally bar the factfinder from considering a person's religiosity as evidence of honesty (setting aside the question whether membership in a particular group may show bias in particular cases). Would the Establishment Clause likewise prohibit such consideration? If so, wouldn't the same apply to considering a person's religiosity as evidence of other character traits, such as future dangerousness? Or would it actually be fine for a jury to consider a person's being a devout churchgoer, alongside other factors, as evidence of his credibility? Eugene Sidley Austin Brown & Wood LLP mail server made the following annotations on 11/12/2004, 12:51:01 PM - 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. ___ 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: Florida Voucher Decision
Dear all, Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original social meaning and purpose of Florida's no-aid provision and other similar provisions. For example: In footnote 9, the Florida court states that [w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars and that [some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions. (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support the statement that Florida's 1868 (and 1885) no-aid provision was not tainted by post-war nativism? What about the Chief Justice's observations about what he regarded as the lack of a connection between one particular Washington provision and the Blaine Amendment movement generally? (Now, I have not done the historical research on Florida's provision specifically; perhaps it really is the case that Florida's no-aid provision was anomalously free of nativist support. But the Florida court's citations do not, in my view, make the case). What's more -- Putting aside the fact that concern about the perceived anti-democratic effects and aims of 19th Century Catholicism need not be regarded as bigotry (even if, as I believe, this concern was, for the most part, misplaced); and putting aside also the question whether, under current doctrine, it matters today that the Florida no-aid provision reflected (among other things), a widespread desire to constrain the influence of Catholicism (in the same footnote, the court suggests that the 1968 retention of the provision removes any possible taint); I am quite surprised by the court's casual confidence that anti-Catholicism did not play a role in the adoption of the no-aid provision. There is, in my view, an innocents abroad quality to the discussion. On page 15, for example, the court quotes Justice Brennan's (questionable) claim in Lemon that the no-aid provisions and the common-school movement reflected a desire for secular public schools, rather than private sectarian schools. And, in footnote 7, the court notes President Grant's 1875 call for a no-aid amendment to the United States Constitution, without mentioning at all the overtly anti-Catholic (which does not, again, mean bigoted) nature of Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American Freedom (2003)). I know that Marc Stern, Steve Green, and others have written powerfully and well that the Blaine Amendments are more complicated than some of the amendments' critics (including, perhaps, me) have appreciated. Still . . . I'd welcome others' reactions. Best, Rick Garnett Notre Dame Law School At 03:11 PM 11/12/2004, you wrote: The First District Court of Appeal today again held Florida's voucher system violated the no aid provision of Florida's constitution. The 114 page opinion with dissents, is available on line at: http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc) 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 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
Re: Evidence of religious conversion at a death penalty sentencinghearing
But Eugene, doesn't your solicitude for individuated, non-group focused jurisprudence in the area of rights trump everything for you here, like it has nearly always done for the S Ct in the death penalty cases? That is, every fact matters, and group-based analysis (one religious group or another) is per se not relevant? I'm not arguing for this position, just surprised to see Eugene seem to take a position so at odds with his typical individual rights positions. Steve -- 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 I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits. Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize) ___ 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: Religion of peace?
Buddhism. On Friday, November 12, 2004, at 12:26 PM, Paul Finkelman wrote: Except for the Society of Friends, the Mennonites and a few other pietistic faiths, please tell me what religion out there qualifies as a religion of peace? Pual Finkelman -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ Politics hates a vacuum. If it isn't filled with hope, someone will fill it with fear. Naomi Klein ___ 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: Florida Voucher Decision
Rick's thoughtful post reminded me of an issue I had planned to raise on the list but never got around to. Having read only a few pieces by early writers, such as the Elisha Williams excerpt in the McConnell, Garvey, Berg, Religion and the Constitution casebook, I was struck by the anti-Catholic foundation underlying William's commentary. I began to wonder whether there is an anti-Catholic taint not only to no-aid provisions in state constitutions but to the entire American constitutional commitment to free exercise rights -- the theological justification for which resonates with Protestant beliefs of the period and, it may be argued, stands in contrast to a Catholic perspective of the time. (I recognize that proponents of religious liberty had reasons to fear oppression from a variety of sources -- and distinctions drawn between Protestant and Catholic thought at most could only be part of the story. My question is simply how much of a part of the story of our commitment to religious liberty is it, if any?) Does anyone know if anyone has written anything on this issue? Alan Brownstein UC Davis At 05:31 PM 11/12/2004 -0500, you wrote: Dear all, Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original social meaning and purpose of Florida's no-aid provision and other similar provisions. For example: In footnote 9, the Florida court states that [w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars and that [some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions. (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support the statement that Florida's 1868 (and 1885) no-aid provision was not tainted by post-war nativism? What about the Chief Justice's observations about what he regarded as the lack of a connection between one particular Washington provision and the Blaine Amendment movement generally? (Now, I have not done the historical research on Florida's provision specifically; perhaps it really is the case that Florida's no-aid provision was anomalously free of nativist support. But the Florida court's citations do not, in my view, make the case). What's more -- Putting aside the fact that concern about the perceived anti-democratic effects and aims of 19th Century Catholicism need not be regarded as bigotry (even if, as I believe, this concern was, for the most part, misplaced); and putting aside also the question whether, under current doctrine, it matters today that the Florida no-aid provision reflected (among other things), a widespread desire to constrain the influence of Catholicism (in the same footnote, the court suggests that the 1968 retention of the provision removes any possible taint); I am quite surprised by the court's casual confidence that anti-Catholicism did not play a role in the adoption of the no-aid provision. There is, in my view, an innocents abroad quality to the discussion. On page 15, for example, the court quotes Justice Brennan's (questionable) claim in Lemon that the no-aid provisions and the common-school movement reflected a desire for secular public schools, rather than private sectarian schools. And, in footnote 7, the court notes President Grant's 1875 call for a no-aid amendment to the United States Constitution, without mentioning at all the overtly anti-Catholic (which does not, again, mean bigoted) nature of Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American Freedom (2003)). I know that Marc Stern, Steve Green, and others have written powerfully and well that the Blaine Amendments are more complicated than some of the amendments' critics (including, perhaps, me) have appreciated. Still . . . I'd welcome others' reactions. Best, Rick Garnett Notre Dame Law School At 03:11 PM 11/12/2004, you wrote: The First District Court of Appeal today again held Florida's voucher system violated the no aid provision of Florida's constitution. The 114 page opinion with dissents, is available on line at: http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc) Michael R. Masinter Visiting Professor of Law On Leave From
Re: Religion of peace? .:.
Title: Re: Religion of peace? .:. You say religion of peace. Perhaps you mean religion of pacifism (not the same, see Brish Quakers circa 1939). Thus rephrased, point taken. Richard Menard Sidley Austin Brown Wood 202-736-8016 (office) 202-246-7408 (mobile) -Original Message- From: [EMAIL PROTECTED] [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Fri Nov 12 12:26:45 2004 Subject: Re: Religion of peace? .:. Except for the Society of Friends, the Mennonites and a few other pietistic faiths, please tell me what religion out there qualifies as a religion of peace? Pual Finkelman Volokh, Eugene wrote: Marc makes a good point, but say that there is a dispute about whether the particular strain of, say, Islam -- or for that matter, Christianity -- to which the defendant has converted is a religion of peace or a religion that allows or even suggests violence that U.S. law would condemn. What evidence would the state and the defendant introduce? Statements of coreligionists? Religious experts who would testify about what they think the real meaning of the religion is (since we know that for most religions, there will be some people who can interpret it as countenancing violence)? Would we feel comfortable having juries resolve these questions? Indeed, prison officials do sometimes evaluate whether certain religious publications advocate violence. But I had thought that the prison cases have been seen as an unfortunate though necessary departure from traditional norms of government action. Would it be proper to extend them to death penalty sentencing phases, where a person's life would turn in part on a jury's evaluation of whether a church advocates violence? Eugene Marc Stern writes: So activity in amnesty international counts ,but not in a religious group? Why can't the state prove that a church advocates violence to rebut a mitigating showing of membership in the Church of Creator .Prison officials make that showing all the time both under RLUIPA and under O"'Lone and the Constituion.. The problem all around with religion Clause analysis in prisons (and other total institutions such as children's homes) is that the government exercise more power over every aspect of life than it can in "civilian" applications which no doubt were at the forefront of the framers minds. Marc Stern _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of [EMAIL PROTECTED] Sent: Friday, November 12, 2004 11:10 AM To: [EMAIL PROTECTED] Subject: Re: Evidence of religious conversion at a death penaltysentencinghearing But would the conversion to the World Church of the Creator (white supremacist religion in prison and on the web) also count? I think not, which means the courts cannot say that conversion to religion per se indicates good behavior. They need to stick to the objective facts of good behavior. The appeal to Christianity is an attempt to bring into the case mom and apple pie, but it can't be a legitimate criterion, under the rule against sect preferences in both Religion Clauses. Marci I assume that the point is not that Christianity has special status, but that the conversion to a system of religious belief is (or so a jury might find) indicative of a likelihood of redemption (in a secular sense) and htat the person need not be executed to protect society. I would imagine that the same would be true if a convict showed devotion to some secular equivalent. Under the court's cap[ital punishment rules ,post arrest conduct in jail-even after conviction and on retrial-- is relevant as a mitigating factor. ___ 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. -- Paul Finkelman Chapman Distinguished Professor University of Tulsa College of Law 3120 East 4th Place Tulsa, Oklahoma 74104-2499 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ 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. Sidley Austin Brown & Wood LLP mail server
