Re: Drift of the Court on religion

[Douglas Laycock]

I don't know the answer to this question either, but it may relate to a 
different question.  Why didn't Scalia just overrule Sherbert and Yoder instead 
of distinguishing them in such odd ways?  Hardly anyone can take hybrid rights 
seriously, and taking his distinction of Sherbert seriously leads to cases like 
Fraternal Order of Police v. Newark. 

My speculation has always been that his fifth vote wouldn't vote to overrule 
anything.  And my nominee for such behavior has always been Justice White.  But 
that is obviously not based on much. 

Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:

> I'm sure Justice Scalia is not credible to lots of people, just as
> any Justice is not credible to lots of people.  But I take it the
> question should be whether his arguments about the Establishment Clause
> -- the question he seemed to be discussing -- are sound, a matter that
> is logically quite independent of whether one thinks his (and Justice
> Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
> Free Exercise Clause was sound.
>
> Incidentally, speaking of the drift of the Court on religion -- has
> anyone studied why Justice White provided the fifth vote for the Smith
> majority?  He did originally vote with Harlan in dissent in Sherbert v.
> Verner, but then seemed to accept the constitutionally compelled
> exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
> expressions of skepticism on the subject -- and in Bowen v. Roy took the
> most pro-claimant view of any Justice.  Yet in Smith he changed his
> view.  Any thoughts on why he so concluded?  Was he, for instance,
> persuaded by his thirty years of experience dealing with the
> constitutionally compelled exemptions regime that Scalia's critique was
> correct?  Or did he always take the view that the regime was unsound and
> should be jettisoned at the first opportunity, but that while it
> continued it should be enforced relatively rigorously?
>
> Eugene
>
>
> 
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
> Sent: Tuesday, June 03, 2008 5:57 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Scalia Decreis Drift of Court On Religion
>
>
> I'm not sure the author of the majority opinion in Employment
> Division V Smith is the most credible voice to criticize the Court's
> handling of religion.
>
> Brad Pardee
>
> - Original Message -
> From: Joel Sogol 
> To: Religionlaw 
> Sent: Monday, June 02, 2008 6:44 PM
> Subject: Scalia Decreis Drift of Court On Religion
>
>
> Scalia Decries Drift of Court On Religion - June 2, 2008
> - The New York Sun
>  /79084/>
>
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
--
[1] http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion___
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Re: Drift of the Court on religion

[David Waddilove]

I doubt very much that Justice Scalia could be naive enough to think that
there is a uniform approach to church state relations in Europe.  I suspect
that he meant France when he referred to Europe, but, as a highly placed
member of the United States government, he probably didn't want to cause a
diplomatic problem by publicly criticizing another country on its approach
to an internal matter.  It is easy to criticize an agglomeration like
"Europe" without such concern; it was simply code.

David Waddilove
Adjunct Professor
UALR Bowen School of Law
P.O. Box 2060
Little Rock, AR 72223


On Tue, Jun 3, 2008 at 12:54 PM, <[EMAIL PROTECTED]> wrote:

> The comparative issues are even more complicated than previously suggested.
>  I don't think there is a european approach to separation.  In this arena,
> each country abides by disestablishment to different degrees.  Compare
> France to Germany to Britain.  To the extent that Justice Scalia is
> comparing the US to a monolithic European approach, there is a fundamental
> flaw in his reasoning.
>
> Marci
>
> Marci Hamilton
> Visiting Professor of Public Affairs
> Princeton University
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: "Marc Stern" <[EMAIL PROTECTED]>
>
> Date: Tue, 3 Jun 2008 13:41:16
> To:"Law & Religion issues for Law Academics" 
> Subject: RE: Drift of the Court on religion
>
>
> But based on those subsidies, the UK has forbidden religious schools
> receiving government aid to tell students  that homosexual
> behavior is sinful (although they can teach that the church is opposed to
> homosexual behavior). And under its laws regarding sexual orientation
> equality, it has forbidden a Catholic school to fire a headmaster (a lovely
> English term)  who had a same sex partner. Moreover, the British have at
> least proposed that religious schools be required to accept a portion of
> students of differ faiths to avoid religious segregation.( I don't know off
> hand whether the proposal was adopted.)Thus, the question of whether the
> religious subsidies advance religious freedom is more complicated than
> Alan's post suggests-even before we get to the questioned of whether the
> nominal Christianity of  public schools in England is itself any boon to
> religion.
> Marc Stern
>
> 
>
> From: [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] On Behalf Of Brownstein, Alan
> Sent: Tuesday, June 03, 2008 1:35 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Drift of the Court on religion
>
>
>
>
> Sorry, Eugene. I can't help you on the question you asked about Justice
> White. But on the question of whether Justice Scalia's arguments about the
> Establishment clause are sound, I am somewhat perplexed by his apparent
> belief that Europe is committed to the separation of church and state and
> that religious expression is excluded from the public square throughout the
> continent. I'm not an expert on comparative law – but, to cite just one
> example,  it certainly seems to me that European countries are far more
> likely to permit government subsidies of religious schools and far more
> willing to permit religious teaching and prayer in the public schools than
> the United States.
>
> Alan Brownstein
>
>
>
> From: [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] On Behalf Of Volokh, Eugene
> Sent: Tuesday, June 03, 2008 10:18 AM
> To: Law & Religion issues for Law Academics
> Subject: Drift of the Court on religion
>
> I'm sure Justice Scalia is not credible to lots of people, just as any
> Justice is not credible to lots of people.  But I take it the question
> should be whether his arguments about the Establishment Clause -- the
> question he seemed to be discussing -- are sound, a matter that is logically
> quite independent of whether one thinks his (and Justice Stevens',
> Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise
> Clause was sound.
>
> Incidentally, speaking of the drift of the Court on religion -- has
> anyone studied why Justice White provided the fifth vote for the Smith
> majority?  He did originally vote with Harlan in dissent in Sherbert v.
> Verner, but then seemed to accept the constitutionally compelled exemptions
> regime -- not joining, for instance, Rehnquist's and Stevens' expressions of
> skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant
> view of any Justice.  Yet in Smith he changed his view.  Any thoughts on why
> he so concluded?  Was he, for instance, persuaded by his thirty years of
> experience dealing with the constitutionally compelled exemptions regime
> that Scalia's critique was correct?  Or did he always take the view that the
> regime was unsound and should be jettisoned at the first opportunity, but
> that while it continued it should be enforced relatively rigorously?
>
> Eugene
>
>
> 
>
> From: [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] On Behalf Of Brad & Linda
> Sent: Tuesda

RE: Drift of the Court on religion

[Brownstein, Alan]

I certainly did not mean to suggest that government subsidies are
necessarily good for religion. My point was that the situation in Europe
is far more complicated than Scalia suggests. Indeed, I think one of the
failings of Scalia's jurisprudence regarding the religion clauses is
that he tends to generalize about and oversimplify complex
constitutional questions.

 

Alan Brownstein

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern
Sent: Tuesday, June 03, 2008 10:41 AM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion

 

But based on those subsidies, the UK has forbidden religious schools
receiving government aid to tell students  that homosexual behavior is
sinful (although they can teach that the church is opposed to homosexual
behavior). And under its laws regarding sexual orientation equality, it
has forbidden a Catholic school to fire a headmaster (a lovely English
term)  who had a same sex partner. Moreover, the British have at least
proposed that religious schools be required to accept a portion of
students of differ faiths to avoid religious segregation.( I don't know
off hand whether the proposal was adopted.)Thus, the question of whether
the religious subsidies advance religious freedom is more complicated
than Alan's post suggests-even before we get to the questioned of
whether the nominal Christianity of  public schools in England is itself
any boon to religion.

Marc Stern



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion

Sorry, Eugene. I can't help you on the question you asked about Justice
White. But on the question of whether Justice Scalia's arguments about
the Establishment clause are sound, I am somewhat perplexed by his
apparent belief that Europe is committed to the separation of church and
state and that religious expression is excluded from the public square
throughout the continent. I'm not an expert on comparative law - but, to
cite just one example,  it certainly seems to me that European countries
are far more likely to permit government subsidies of religious schools
and far more willing to permit religious teaching and prayer in the
public schools than the United States.

 

Alan Brownstein

 

___
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Re: Drift of the Court on religion

[Paul Diamond]

There is no doubt that the situation in Europe is not good, but I hope that I 
can add some clarity.

Two European States have established Churches; the United Kingdom and Greece 
which grants privileges to these bodies.  Other European States have recognised 
religious entities which are funded; France has a clear division.  There is no 
uniform system.

The Blair government unleased a wave of legislation hostile to Judeo Christian 
principles (same sex marriage, hostility to Christian speech, gender issues) 
and he has triggered  a US style 'culture wars' in the United Kingdom.  There 
is now considerable litigation on similar issues to first Amendment cases.  The 
arrested Christian preachers will sue the Police for violation of their freedom 
of expression (Article 10) and freedom of religious expression (Article 9).

The tensions in the United Kingdom with the Muslim minority are as tense as I 
have ever seen, primarily due to threats of violence from Islamists.

On a legal point: 
The European Court has dealt with questions of access by (non established) 
religious associations to resources on a basis of non-discrimination. Religious 
associations cannot  insist that the State establishes a system for the 
collection and distribution of tax from members to religious associations (as 
in Germany, Sweden and Austria). But if it chooses to do so, such a system must 
be non-discriminatory.[1] This is not incompatible with differential 
distributions of financial resources, so long as such differences reflect 
'neutral' criteria such as the civil functions of a state church. Such civil 
functions might be the conduct of marriages and burials, the maintenance of 
buildings of historic value or the keeping of ancient public records.[2] The 
extent of general contributions to the association for these functions must be 
proportionate to their actual cost. 

Ironically, the Anglican Church has a public function is marriage and is 
subject to Constiutional/ Convention law (arguably) in this function.



Paul Diamond, barrister





[1] Iglesia Bautista El Salvador v Spain No. 17522/90 72 DR 256.

[2] Bruno v Sweden No. 32196/96; Lundberg v Sweden No. 36846/97


  - Original Message - 
  From: Marc Stern 
  To: Law & Religion issues for Law Academics 
  Sent: Tuesday, June 03, 2008 6:41 PM
  Subject: RE: Drift of the Court on religion


  But based on those subsidies, the UK has forbidden religious schools 
receiving government aid to tell students  that homosexual behavior is sinful 
(although they can teach that the church is opposed to homosexual behavior). 
And under its laws regarding sexual orientation equality, it has forbidden a 
Catholic school to fire a headmaster (a lovely English term)  who had a same 
sex partner. Moreover, the British have at least proposed that religious 
schools be required to accept a portion of students of differ faiths to avoid 
religious segregation.( I don't know off hand whether the proposal was 
adopted.)Thus, the question of whether the religious subsidies advance 
religious freedom is more complicated than Alan's post suggests-even before we 
get to the questioned of whether the nominal Christianity of  public schools in 
England is itself any boon to religion.
  Marc Stern

--

  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, 
Alan
  Sent: Tuesday, June 03, 2008 1:35 PM
  To: Law & Religion issues for Law Academics
  Subject: RE: Drift of the Court on religion


  Sorry, Eugene. I can't help you on the question you asked about Justice 
White. But on the question of whether Justice Scalia's arguments about the 
Establishment clause are sound, I am somewhat perplexed by his apparent belief 
that Europe is committed to the separation of church and state and that 
religious expression is excluded from the public square throughout the 
continent. I'm not an expert on comparative law - but, to cite just one 
example,  it certainly seems to me that European countries are far more likely 
to permit government subsidies of religious schools and far more willing to 
permit religious teaching and prayer in the public schools than the United 
States.

   

  Alan Brownstein

   

  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
  Sent: Tuesday, June 03, 2008 10:18 AM
  To: Law & Religion issues for Law Academics
  Subject: Drift of the Court on religion

   

  I'm sure Justice Scalia is not credible to lots of people, just as any 
Justice is not credible to lots of people.  But I take it the question should 
be whether his arguments about the Establishment Clause -- the question he 
seemed to be discussing -- are sound, a matter that is logically quite 
independent of whether one thinks his (and Justice Stevens', Rehnquist's, 
Kennedy's, White's, and Harlan

"Bad deal for both church and state that is made when subsidies and establishments are sought"

[Volokh, Eugene]

I sympathize with the concern that allowing religious groups to
participate on an equal footing in funding programs may sometimes yield
a "bad deal" for the religious institutions, when the government
attaches strings that pressure the institutions to deviate from their
religious principles.
 
But there are two substantial arguments, I think, that point the
other way.  First, it's also often a bad deal for religious institutions
when they are excluded from such funding programs, but their secular
competitors are funded.  An example:  The Bob Jones case illustrates
that even the normal tax exemptions for nonprofits can be used to
pressure religious institutions to change their policies (as Goldsboro
Christian Schools in fact did), since even tax exemptions can and do
come with strings attached.  Yet would it really be a better deal if, in
order to supposedly protect religious institutions from such pressure,
the government were required to deny tax exemptions to religious schools
(property tax exemptions, income tax exemptions for the schools, and
income tax exemptions for donors), even when exactly the same exemptions
were available to secular schools?
 
Second, excluding the institutions from benefit programs may
diminish pressure on the religious institutions while increasing
pressure on religious individuals.  In our current system, where the
government provides a massive subsidy to the 88% of all students who go
to secular public schools, but no subsidy to the remaining 12%
(including the 10% who go to religious schools), many parents of those
in the 88% are likely pressured to send their kids to public school even
though a public school education may be contrary to the parents'
religious beliefs.  Many parents may be sincerely religiously motivated
to give their children a comprehensively religious education, as free as
possible from un-Godly influences in the curriculum and in classmates'
behavior, but when offered an effective $8000 subsidy to send their kids
to public school may feel unable to resist.  Parents are thus pressured
to compromise their religious principles, in a way they wouldn't be
pressured if comparable (or even smaller) subsidies were given to all
schools, both public and private.
 
We see the flip side of that with the GI Bill and other programs,
such as the one in Witters.  It's true that these programs may have
strings attached that pressure religious institutions into changing
their religiously motivated policies.  But they help free at least some
religious college students from the pressure (caused by the massive
subsidy for public universities) to get a secular higher education
instead of a religious higher education.
 
Eugene
 
Vance Koven writes:

Scalia may of course have been thinking about places like Turkey or
controversies like the headscarf ban in France, but on the whole I think
Marc's observations about the bad deal for both church and state that is
made when subsidies and establishments are sought. None of that,
however, addresses Scalia's main point about just what "establishment"
ought to mean.

On Tue, Jun 3, 2008 at 1:41 PM, Marc Stern
<[EMAIL PROTECTED]> wrote:


But based on those subsidies, the UK has forbidden
religious schools receiving government aid to tell students  that
homosexual behavior is sinful (although they can teach that the church
is opposed to homosexual behavior). And under its laws regarding sexual
orientation equality, it has forbidden a Catholic school to fire a
headmaster (a lovely English term)  who had a same sex partner.
Moreover, the British have at least proposed that religious schools be
required to accept a portion of students of differ faiths to avoid
religious segregation.( I don't know off hand whether the proposal was
adopted.)Thus, the question of whether the religious subsidies advance
religious freedom is more complicated than Alan's post suggests-even
before we get to the questioned of whether the nominal Christianity of
public schools in England is itself any boon to religion.
Marc Stern

___
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RE: Drift of the Court on religion

[Volokh, Eugene]

Maybe, but note that Washington v. Davis was 7-0 in its rejection of
disparate impact as the Equal Protection Clause touchstone -- as I read
it, Brennan and Marshall didn't reach the question -- and in the
following year's Arlington Heights Brennan and Marshall endorsed the
rejection of disparate impact, so we basically have unanimity.  And of
course this must be so as to the Equal Protection Clause, at least where
race and sex are involved:  Nearly all laws will have some disparate
impact based on race and sex, and most laws will have substantial such
impact.  If Washington had come out the other way, you either would have
had a return of Lochner (if the Equal Protection Clause was read as
applying the same standard regardless of what race or sex was burdened)
or something close to it (if it was read as protecting only nonwhites
and women).  
 
So I don't think Davis does much to explain White's vote in the Free
Exercise Clause context, especially given White's adherence to the
constitutionally compelled exemption regime in the subsequent nearly 15
years.
 
Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brian Landsberg
Sent: Tuesday, June 03, 2008 11:00 AM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion



As to Justice White, perhaps his position is related to his
authorship of Washington v. Davis, rejecting disparate impact test in
another context.

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion

 

I'm sure Justice Scalia is not credible to lots of people,
just as any Justice is not credible to lots of people.  But I take it
the question should be whether his arguments about the Establishment
Clause -- the question he seemed to be discussing -- are sound, a matter
that is logically quite independent of whether one thinks his (and
Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on
the Free Exercise Clause was sound.

 

Incidentally, speaking of the drift of the Court on religion
-- has anyone studied why Justice White provided the fifth vote for the
Smith majority?  He did originally vote with Harlan in dissent in
Sherbert v. Verner, but then seemed to accept the constitutionally
compelled exemptions regime -- not joining, for instance, Rehnquist's
and Stevens' expressions of skepticism on the subject -- and in Bowen v.
Roy took the most pro-claimant view of any Justice.  Yet in Smith he
changed his view.  Any thoughts on why he so concluded?  Was he, for
instance, persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?



Eugene

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion

I'm not sure the author of the majority opinion in
Employment Division V Smith is the most credible voice to criticize the
Court's handling of religion.

 

Brad Pardee

- Original Message - 

From: Joel Sogol   

To: Religionlaw
  

Sent: Monday, June 02, 2008 6:44 PM

Subject: Scalia Decreis Drift of Court On
Religion

 

Scalia Decries Drift of Court On Religion - June
2, 2008 - The New York Sun
  

 

___
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Re: Drift of the Court on religion

[Vance R. Koven]

A bit off the main topic, but in reference to Marc's comment about the term
"headmaster," Boston high schools (though, curiously, not elementary or
middle schools) use the term. A teacher is a "master"--and both expressions,
for obvious reasons, are employed for teachers and principals of either sex.

Scalia may of course have been thinking about places like Turkey or
controversies like the headscarf ban in France, but on the whole I think
Marc's observations about the bad deal for both church and state that is
made when subsidies and establishments are sought. None of that, however,
addresses Scalia's main point about just what "establishment" ought to mean.

On Tue, Jun 3, 2008 at 1:41 PM, Marc Stern <[EMAIL PROTECTED]> wrote:

>  But based on those subsidies, the UK has forbidden religious schools
> receiving government aid to tell students  that homosexual
> behavior is sinful (although they can teach that the church is opposed to
> homosexual behavior). And under its laws regarding sexual orientation
> equality, it has forbidden a Catholic school to fire a headmaster (a lovely
> English term)  who had a same sex partner. Moreover, the British have at
> least proposed that religious schools be required to accept a portion of
> students of differ faiths to avoid religious segregation.( I don't know off
> hand whether the proposal was adopted.)Thus, the question of whether the
> religious subsidies advance religious freedom is more complicated than
> Alan's post suggests-even before we get to the questioned of whether the
> nominal Christianity of  public schools in England is itself any boon to
> religion.
> Marc Stern
>  --
>  *From:* [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] *On Behalf Of *Brownstein, Alan
> *Sent:* Tuesday, June 03, 2008 1:35 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Drift of the Court on religion
>
>  Sorry, Eugene. I can't help you on the question you asked about Justice
> White. But on the question of whether Justice Scalia's arguments about the
> Establishment clause are sound, I am somewhat perplexed by his apparent
> belief that Europe is committed to the separation of church and state and
> that religious expression is excluded from the public square throughout the
> continent. I'm not an expert on comparative law – but, to cite just one
> example,  it certainly seems to me that European countries are far more
> likely to permit government subsidies of religious schools and far more
> willing to permit religious teaching and prayer in the public schools than
> the United States.
>
>
>
> Alan Brownstein
>
>
>
> *From:* [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] *On Behalf Of *Volokh, Eugene
> *Sent:* Tuesday, June 03, 2008 10:18 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Drift of the Court on religion
>
>
>
> I'm sure Justice Scalia is not credible to lots of people, just as any
> Justice is not credible to lots of people.  But I take it the question
> should be whether his arguments about the Establishment Clause -- the
> question he seemed to be discussing -- are sound, a matter that is logically
> quite independent of whether one thinks his (and Justice Stevens',
> Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise
> Clause was sound.
>
>
>
> Incidentally, speaking of the drift of the Court on religion -- has
> anyone studied why Justice White provided the fifth vote for the Smith
> majority?  He did originally vote with Harlan in dissent in Sherbert v.
> Verner, but then seemed to accept the constitutionally compelled exemptions
> regime -- not joining, for instance, Rehnquist's and Stevens' expressions of
> skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant
> view of any Justice.  Yet in Smith he changed his view.  Any thoughts on why
> he so concluded?  Was he, for instance, persuaded by his thirty years of
> experience dealing with the constitutionally compelled exemptions regime
> that Scalia's critique was correct?  Or did he always take the view that the
> regime was unsound and should be jettisoned at the first opportunity, but
> that while it continued it should be enforced relatively rigorously?
>
>
>
> Eugene
>
>
>  --
>
> *From:* [EMAIL PROTECTED] [mailto:
> [EMAIL PROTECTED] *On Behalf Of *Brad & Linda
> *Sent:* Tuesday, June 03, 2008 5:57 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Scalia Decreis Drift of Court On Religion
>
> I'm not sure the author of the majority opinion in Employment Division V
> Smith is the most credible voice to criticize the Court's handling of
> religion.
>
>
>
> Brad Pardee
>
>  - Original Message -
>
> *From:* Joel Sogol <[EMAIL PROTECTED]>
>
> *To:* Religionlaw 
>
> *Sent:* Monday, June 02, 2008 6:44 PM
>
> *Subject:* Scalia Decreis Drift of Court On Religion
>
>
>
> Scalia Decries Drift of Court On Religion - June 2, 2008 - The New 

RE: Drift of the Court on religion

[Brian Landsberg]

As to Justice White, perhaps his position is related to his authorship
of Washington v. Davis, rejecting disparate impact test in another
context.

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion

 

I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.

 

Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?



Eugene

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion

I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.

 

Brad Pardee

- Original Message - 

From: Joel Sogol   

To: Religionlaw   

Sent: Monday, June 02, 2008 6:44 PM

Subject: Scalia Decreis Drift of Court On Religion

 

Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
  

 

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Re: Drift of the Court on religion

[hamilton02]

The comparative issues are even more complicated than previously suggested.  I 
don't think there is a european approach to separation.  In this arena, each 
country abides by disestablishment to different degrees.  Compare France to 
Germany to Britain.  To the extent that Justice Scalia is comparing the US to a 
monolithic European approach, there is a fundamental flaw in his reasoning.

Marci

Marci Hamilton
Visiting Professor of Public Affairs
Princeton University
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Marc Stern" <[EMAIL PROTECTED]>

Date: Tue, 3 Jun 2008 13:41:16 
To:"Law & Religion issues for Law Academics" 
Subject: RE: Drift of the Court on religion


But based on those subsidies, the UK has forbidden religious schools receiving 
government aid to tell students  that homosexual behavior is sinful (although 
they can teach that the church is opposed to homosexual behavior). And under 
its laws regarding sexual orientation equality, it has forbidden a Catholic 
school to fire a headmaster (a lovely English term)  who had a same sex 
partner. Moreover, the British have at least proposed that religious schools be 
required to accept a portion of students of differ faiths to avoid religious 
segregation.( I don't know off hand whether the proposal was adopted.)Thus, the 
question of whether the religious subsidies advance religious freedom is more 
complicated than Alan's post suggests-even before we get to the questioned 
of whether the nominal Christianity of  public schools in England is itself any 
boon to religion. 
Marc Stern 
 

 
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion

 
 
 
Sorry, Eugene. I can’t help you on the question you asked about Justice White. 
But on the question of whether Justice Scalia’s arguments about the 
Establishment clause are sound, I am somewhat perplexed by his apparent belief 
that Europe is committed to the separation of church and state and that 
religious expression is excluded from the public square throughout the 
continent. I’m not an expert on comparative law – but, to cite just one 
example,  it certainly seems to me that European countries are far more likely 
to permit government subsidies of religious schools and far more willing to 
permit religious teaching and prayer in the public schools than the United 
States. 
  
Alan Brownstein 
  
 
 
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion 
  
    I'm sure Justice Scalia is not credible to lots of people, just as any 
Justice is not credible to lots of people.  But I take it the question should 
be whether his arguments about the Establishment Clause -- the question he 
seemed to be discussing -- are sound, a matter that is logically quite 
independent of whether one thinks his (and Justice Stevens', Rehnquist's, 
Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. 
  
    Incidentally, speaking of the drift of the Court on religion -- has anyone 
studied why Justice White provided the fifth vote for the Smith majority?  He 
did originally vote with Harlan in dissent in Sherbert v. Verner, but then 
seemed to accept the constitutionally compelled exemptions regime -- not 
joining, for instance, Rehnquist's and Stevens' expressions of skepticism on 
the subject -- and in Bowen v. Roy took the most pro-claimant view of any 
Justice.  Yet in Smith he changed his view.  Any thoughts on why he so 
concluded?  Was he, for instance, persuaded by his thirty years of experience 
dealing with the constitutionally compelled exemptions regime that Scalia's 
critique was correct?  Or did he always take the view that the regime was 
unsound and should be jettisoned at the first opportunity, but that while it 
continued it should be enforced relatively rigorously? 
    
    Eugene 
  
 

 
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion 
 
I'm not sure the author of the majority opinion in Employment Division V Smith 
is the most credible voice to criticize the Court's handling of religion. 
 
  
 
Brad Pardee 
 
- Original Message - 
 
From: Joel Sogol   
 
To: Religionlaw   
 
Sent: Monday, June 02, 2008 6:44 PM 
 
Subject: Scalia Decreis Drift of Court On Religion 
 
  
Scalia 
Decries Drift of Court On Religion - June 2, 2008 - The New York Sun 

  
 ___
To post

RE: Drift of the Court on religion

[Marc Stern]

But based on those subsidies, the UK has forbidden religious schools
receiving government aid to tell students  that homosexual behavior is
sinful (although they can teach that the church is opposed to homosexual
behavior). And under its laws regarding sexual orientation equality, it
has forbidden a Catholic school to fire a headmaster (a lovely English
term)  who had a same sex partner. Moreover, the British have at least
proposed that religious schools be required to accept a portion of
students of differ faiths to avoid religious segregation.( I don't know
off hand whether the proposal was adopted.)Thus, the question of whether
the religious subsidies advance religious freedom is more complicated
than Alan's post suggests-even before we get to the questioned of
whether the nominal Christianity of  public schools in England is itself
any boon to religion.
Marc Stern


From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion



Sorry, Eugene. I can't help you on the question you asked about Justice
White. But on the question of whether Justice Scalia's arguments about
the Establishment clause are sound, I am somewhat perplexed by his
apparent belief that Europe is committed to the separation of church and
state and that religious expression is excluded from the public square
throughout the continent. I'm not an expert on comparative law - but, to
cite just one example,  it certainly seems to me that European countries
are far more likely to permit government subsidies of religious schools
and far more willing to permit religious teaching and prayer in the
public schools than the United States.

 

Alan Brownstein

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion

 

I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.

 

Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?



Eugene

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion

I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.

 

Brad Pardee

- Original Message - 

From: Joel Sogol   

To: Religionlaw   

Sent: Monday, June 02, 2008 6:44 PM

Subject: Scalia Decreis Drift of Court On Religion

 

Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
  

 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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messages to others.

RE: Drift of the Court on religion

[Brownstein, Alan]

Sorry, Eugene. I can't help you on the question you asked about Justice
White. But on the question of whether Justice Scalia's arguments about
the Establishment clause are sound, I am somewhat perplexed by his
apparent belief that Europe is committed to the separation of church and
state and that religious expression is excluded from the public square
throughout the continent. I'm not an expert on comparative law - but, to
cite just one example,  it certainly seems to me that European countries
are far more likely to permit government subsidies of religious schools
and far more willing to permit religious teaching and prayer in the
public schools than the United States.

 

Alan Brownstein

 

From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion

 

I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.

 

Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?



Eugene

 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion

I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.

 

Brad Pardee

- Original Message - 

From: Joel Sogol   

To: Religionlaw   

Sent: Monday, June 02, 2008 6:44 PM

Subject: Scalia Decreis Drift of Court On Religion

 

Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
  

 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Drift of the Court on religion

[Volokh, Eugene]

I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.
 
Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?

Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion


I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.
 
Brad Pardee

- Original Message - 
From: Joel Sogol   
To: Religionlaw   
Sent: Monday, June 02, 2008 6:44 PM
Subject: Scalia Decreis Drift of Court On Religion


Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
  

 

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Scalia Decreis Drift of Court On Religion

[Brad & Linda]

I'm not sure the author of the majority opinion in Employment Division V Smith 
is the most credible voice to criticize the Court's handling of religion.

Brad Pardee
  - Original Message - 
  From: Joel Sogol 
  To: Religionlaw 
  Sent: Monday, June 02, 2008 6:44 PM
  Subject: Scalia Decreis Drift of Court On Religion


  Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun 


___
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