RE: Nevada district court applies Fraternal OrderofPolicev.Newark(3dCir.), holds no-beard poli
What "legislative determination of constitutional rights"? It's true that the legislature's rhetoric is that of expressing disagreement with the judiciary, but they're entitled to do that. What the legislature actually did was create a *statutory* right that, in essence, gives courts considerable discretion in deciding when to carve out exemptions. But since courts have historically exercised far greater discretion in creating common-law rules, common-law defenses, and even common-law doctrines within statutory schemes (consider, in the federal system, fair use, antitrust law, and evidentiary privileges, or in some states common-law defenses to statutory penal codes), there's no violation of separation of powers there: The legislature is calling on courts to exercise their lawmaking discretion in certain contexts, but that discretion has long been a part of the judicial role. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, August 13, 2008 6:39 PM > To: Law & Religion issues for Law Academics > Subject: Re: Nevada district court applies Fraternal > OrderofPolicev.Newark(3dCir.), holds no-beard poli > > The constitutionality of state rfras has been underexamined > in part because they are not frequently invoked. In any > event, the state separation of powers doctrines are less > forgiving of legislative determination of constitutional > rights than federal government. Even federal doctrine may be > problematic as J Thomas indicated in Cutter. The Supreme > Court has yet to address constitutionality of rluipa or rfras > beyond Boerne and Cutter. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > > Date: Wed, 13 Aug 2008 16:58:31 > To: Law & Religion issues for Law > Academics > Subject: RE: Nevada district court applies Fraternal Order > ofPolicev.Newark(3d > Cir.), holds no-beard poli > > > I've never seen the constitutional argument against state RFRAs. > They can't be unconstitutional under the Establishment Clause, given > Cutter. And the separation of powers argument presupposes that it's > somehow inconsistent with the judicial role to make these sorts of > policy decisions (subject to legislative revision) -- yet judges have > throughout American history made much broader policy > decisions (subject > to legislative revision) in shaping the law of torts, crimes, > property, > evidence, contract, and more. > > Eugene > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > [EMAIL PROTECTED] > > Sent: Wednesday, August 13, 2008 4:56 PM > > To: Law & Religion issues for Law Academics > > Subject: Re: Nevada district court applies Fraternal Order > > ofPolicev.Newark(3d Cir.), holds no-beard poli > > > > I agree w Gene on this up to the pt he endorses state by > > state rfras. While I think state by state is preferable to > > federal, I do not think they are either good policy or sound > > constitutionally. But I think there is another point here -- > > pushing these issues into the ct keeps legislators relatively > > uninformed about the actual impact of religiously motivated > > behavior and therefore unrealistically positive about the > > potential harm from such conduct. That increases risk to the > > vulnerable (especially those with little power in the > > legislative process), particularly children. I do not think > > the first amendment was intended to or should impede the > > protection of the vulnerable from harm. I realize that I have > > now traveled relatively far from the original post, but think > > the framework is important to explain why I do not view > > courts as good fora for determining the scope of accommodation. > > Marci > > Sent from my Verizon Wireless BlackBerry > > > > -Original Message- > > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > > > > Date: Wed, 13 Aug 2008 10:09:42 > > To: Law & Religion issues for Law > > Academics > > Subject: RE: Nevada district court applies Fraternal Order of Police > > v.Newark(3d Cir.), holds no-beard poli > > > > > > I agree with Marci about the Free Exercise Clause, but of course > > both Title VII and various jurisdiction-by-jurisdiction > RFRAs (though > > there is not one in Nevada) represent the political process itself > > making a judgment that courts should draw the lines in the first > > instance. > > > > I do think it makes a difference that statutory schemes such as > > Title VII and RFRA are themselves revisable by the political > > process, so > > courts draw the first line but the legislature may revise > them -- much > > as has long been the case with the making of common-law rules and > > common-law defenses, as well as statutorily founded antitrust law, > > post-Federal-Rules-of-Evidence privilege law
Re: Nevada district court applies Fraternal Order ofPolicev.Newark(3dCir.), holds no-beard poli
The constitutionality of state rfras has been underexamined in part because they are not frequently invoked. In any event, the state separation of powers doctrines are less forgiving of legislative determination of constitutional rights than federal government. Even federal doctrine may be problematic as J Thomas indicated in Cutter. The Supreme Court has yet to address constitutionality of rluipa or rfras beyond Boerne and Cutter. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: "Volokh, Eugene" <[EMAIL PROTECTED]> Date: Wed, 13 Aug 2008 16:58:31 To: Law & Religion issues for Law Academics Subject: RE: Nevada district court applies Fraternal Order ofPolicev.Newark(3d Cir.), holds no-beard poli I've never seen the constitutional argument against state RFRAs. They can't be unconstitutional under the Establishment Clause, given Cutter. And the separation of powers argument presupposes that it's somehow inconsistent with the judicial role to make these sorts of policy decisions (subject to legislative revision) -- yet judges have throughout American history made much broader policy decisions (subject to legislative revision) in shaping the law of torts, crimes, property, evidence, contract, and more. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, August 13, 2008 4:56 PM > To: Law & Religion issues for Law Academics > Subject: Re: Nevada district court applies Fraternal Order > ofPolicev.Newark(3d Cir.), holds no-beard poli > > I agree w Gene on this up to the pt he endorses state by > state rfras. While I think state by state is preferable to > federal, I do not think they are either good policy or sound > constitutionally. But I think there is another point here -- > pushing these issues into the ct keeps legislators relatively > uninformed about the actual impact of religiously motivated > behavior and therefore unrealistically positive about the > potential harm from such conduct. That increases risk to the > vulnerable (especially those with little power in the > legislative process), particularly children. I do not think > the first amendment was intended to or should impede the > protection of the vulnerable from harm. I realize that I have > now traveled relatively far from the original post, but think > the framework is important to explain why I do not view > courts as good fora for determining the scope of accommodation. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > > Date: Wed, 13 Aug 2008 10:09:42 > To: Law & Religion issues for Law > Academics > Subject: RE: Nevada district court applies Fraternal Order of Police > v.Newark(3d Cir.), holds no-beard poli > > > I agree with Marci about the Free Exercise Clause, but of course > both Title VII and various jurisdiction-by-jurisdiction RFRAs (though > there is not one in Nevada) represent the political process itself > making a judgment that courts should draw the lines in the first > instance. > > I do think it makes a difference that statutory schemes such as > Title VII and RFRA are themselves revisable by the political > process, so > courts draw the first line but the legislature may revise them -- much > as has long been the case with the making of common-law rules and > common-law defenses, as well as statutorily founded antitrust law, > post-Federal-Rules-of-Evidence privilege law, fair use law under the > Copyright Act, and the like. That's why I support > jurisdiction-by-jurisdiction RFRAs even though I also support Smith > (http://www.law.ucla.edu/volokh/relfree.htm). But I think > it's helpful > not to generally condemn judicial decisionmaking as such as > to religious > exemptions, only judicial decisionmaking that's final and unmodifiable > by the legislature. > > Eugene > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > [EMAIL PROTECTED] > > Sent: Wednesday, August 13, 2008 10:04 AM > > To: Law & Religion issues for Law Academics > > Subject: Re: Nevada district court applies Fraternal Order of > > Police v.Newark(3d Cir.), holds no-beard poli > > > > I think the policy debate on this case illustrates why the > > First Amendment and the courts have no business determining > > accommodation. The ease w which those outside of government > > can judge that govt policy is necessarily wanting because it > > may burden religious practice is impressive. > > But the more interesting question is why the courts are > > better at drawing these lines than the political process. > > Marci > > Sent from my Verizon Wireless BlackBerry > > > > -Original Message- > > From: "Christopher Lund" <[EMAIL PROTECTED]> > > > > Date: Wed, 13 Aug 2008 10:33:17 > > To: > > Subject: Re: Nevada district
RE: Nevada district court applies Fraternal Order ofPolicev.Newark(3d Cir.), holds no-beard poli
I've never seen the constitutional argument against state RFRAs. They can't be unconstitutional under the Establishment Clause, given Cutter. And the separation of powers argument presupposes that it's somehow inconsistent with the judicial role to make these sorts of policy decisions (subject to legislative revision) -- yet judges have throughout American history made much broader policy decisions (subject to legislative revision) in shaping the law of torts, crimes, property, evidence, contract, and more. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, August 13, 2008 4:56 PM > To: Law & Religion issues for Law Academics > Subject: Re: Nevada district court applies Fraternal Order > ofPolicev.Newark(3d Cir.), holds no-beard poli > > I agree w Gene on this up to the pt he endorses state by > state rfras. While I think state by state is preferable to > federal, I do not think they are either good policy or sound > constitutionally. But I think there is another point here -- > pushing these issues into the ct keeps legislators relatively > uninformed about the actual impact of religiously motivated > behavior and therefore unrealistically positive about the > potential harm from such conduct. That increases risk to the > vulnerable (especially those with little power in the > legislative process), particularly children. I do not think > the first amendment was intended to or should impede the > protection of the vulnerable from harm. I realize that I have > now traveled relatively far from the original post, but think > the framework is important to explain why I do not view > courts as good fora for determining the scope of accommodation. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > > Date: Wed, 13 Aug 2008 10:09:42 > To: Law & Religion issues for Law > Academics > Subject: RE: Nevada district court applies Fraternal Order of Police > v.Newark(3d Cir.), holds no-beard poli > > > I agree with Marci about the Free Exercise Clause, but of course > both Title VII and various jurisdiction-by-jurisdiction RFRAs (though > there is not one in Nevada) represent the political process itself > making a judgment that courts should draw the lines in the first > instance. > > I do think it makes a difference that statutory schemes such as > Title VII and RFRA are themselves revisable by the political > process, so > courts draw the first line but the legislature may revise them -- much > as has long been the case with the making of common-law rules and > common-law defenses, as well as statutorily founded antitrust law, > post-Federal-Rules-of-Evidence privilege law, fair use law under the > Copyright Act, and the like. That's why I support > jurisdiction-by-jurisdiction RFRAs even though I also support Smith > (http://www.law.ucla.edu/volokh/relfree.htm). But I think > it's helpful > not to generally condemn judicial decisionmaking as such as > to religious > exemptions, only judicial decisionmaking that's final and unmodifiable > by the legislature. > > Eugene > > > -Original Message- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > [EMAIL PROTECTED] > > Sent: Wednesday, August 13, 2008 10:04 AM > > To: Law & Religion issues for Law Academics > > Subject: Re: Nevada district court applies Fraternal Order of > > Police v.Newark(3d Cir.), holds no-beard poli > > > > I think the policy debate on this case illustrates why the > > First Amendment and the courts have no business determining > > accommodation. The ease w which those outside of government > > can judge that govt policy is necessarily wanting because it > > may burden religious practice is impressive. > > But the more interesting question is why the courts are > > better at drawing these lines than the political process. > > Marci > > Sent from my Verizon Wireless BlackBerry > > > > -Original Message- > > From: "Christopher Lund" <[EMAIL PROTECTED]> > > > > Date: Wed, 13 Aug 2008 10:33:17 > > To: > > Subject: Re: Nevada district court applies Fraternal Order of > > Police v. > > Newark (3d Cir.), holds no-beard poli > > > > > > ___ > > 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 > >
Re: Nevada district court applies Fraternal Order of Policev.Newark(3d Cir.), holds no-beard poli
I agree w Gene on this up to the pt he endorses state by state rfras. While I think state by state is preferable to federal, I do not think they are either good policy or sound constitutionally. But I think there is another point here -- pushing these issues into the ct keeps legislators relatively uninformed about the actual impact of religiously motivated behavior and therefore unrealistically positive about the potential harm from such conduct. That increases risk to the vulnerable (especially those with little power in the legislative process), particularly children. I do not think the first amendment was intended to or should impede the protection of the vulnerable from harm. I realize that I have now traveled relatively far from the original post, but think the framework is important to explain why I do not view courts as good fora for determining the scope of accommodation. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: "Volokh, Eugene" <[EMAIL PROTECTED]> Date: Wed, 13 Aug 2008 10:09:42 To: Law & Religion issues for Law Academics Subject: RE: Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli I agree with Marci about the Free Exercise Clause, but of course both Title VII and various jurisdiction-by-jurisdiction RFRAs (though there is not one in Nevada) represent the political process itself making a judgment that courts should draw the lines in the first instance. I do think it makes a difference that statutory schemes such as Title VII and RFRA are themselves revisable by the political process, so courts draw the first line but the legislature may revise them -- much as has long been the case with the making of common-law rules and common-law defenses, as well as statutorily founded antitrust law, post-Federal-Rules-of-Evidence privilege law, fair use law under the Copyright Act, and the like. That's why I support jurisdiction-by-jurisdiction RFRAs even though I also support Smith (http://www.law.ucla.edu/volokh/relfree.htm). But I think it's helpful not to generally condemn judicial decisionmaking as such as to religious exemptions, only judicial decisionmaking that's final and unmodifiable by the legislature. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, August 13, 2008 10:04 AM > To: Law & Religion issues for Law Academics > Subject: Re: Nevada district court applies Fraternal Order of > Police v.Newark(3d Cir.), holds no-beard poli > > I think the policy debate on this case illustrates why the > First Amendment and the courts have no business determining > accommodation. The ease w which those outside of government > can judge that govt policy is necessarily wanting because it > may burden religious practice is impressive. > But the more interesting question is why the courts are > better at drawing these lines than the political process. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Christopher Lund" <[EMAIL PROTECTED]> > > Date: Wed, 13 Aug 2008 10:33:17 > To: > Subject: Re: Nevada district court applies Fraternal Order of > Police v. > Newark (3d Cir.), holds no-beard poli > > > ___ > 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. > ___ 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 ht
Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli
. The person who wrote the rule about not wearing a hat indoors may have been in the Navy. The Navy has a rule about not being "covered" inside. The bar in the club at NWS Seal Beach has a sign that says: "Anyone who enters here covered, shall buy a round for the house." Doesn't the uniform hat count as the equivalent of a yarmulke? Alan Armstrong On Aug 13, 2008, at 2:48 PM, Nelson Tebbe wrote: > > > You’re right—it’s supremely odd. That’s always struck me as a > problem with Eisgruber & Sager’s theory of equal liberty. Why > should someone’s religious freedom rights turn on the happenstance > of whether the government has created an exemption for some other > secular activity? > > Got slammed this week, but I’m looking forward to reading your > paper and returning to our dialogue. > > Nelson > > > > On 8/13/08 11:33 AM, "Christopher Lund" <[EMAIL PROTECTED]> wrote: > > So he can wear a beard, but not a yarmulke - because secular > exceptions have been made to the no-beard policy (for medical > reasons), but there have been no such exceptions to the no-headgear > policy. > > I find this troubling. The no-beard policy falls because people > sometimes need beards for medical reasons (pseudo folliculitis > barbae [PFB] being a medical condition common in African-American > officers, and requiring accommodation under the ADA). The no- > headgear policy is okay because people rarely need hats for medical > reasons (the only case I've seen is an ADA case where a plaintiff > wanted - and got - a right to wear a hat to disguise a cranial > disfigurement). > > So we end up giving an accomodation to a religious person seeking > to wear a beard, but not one wanting to wear a headcovering -- > because the relative incidence of cranial disfigurement is higher > than that of PFB? > > And the irony is that the department seems to have much better > reasons for the no-beard policy. The Court says that beards can be > used against officers in fights; they may impede putting on gas > masks, etc, etc. But there are no similar justifications against > hats. The department even lets officers wear hats outside and in > vehicles, just not indoors. (Why, I do not know.) > > Best, Chris > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL > 3211279 (D. > > Nev. 2008). The court concludes, though, that the headgear > regulation > > (which required the removal of all hats when entering any > building, when > > not in uniform) isn't subject to strict scrutiny because "the > regulation > > does not provide individualized exemptions for any reason, > secular or > > religious." > > ___ > > 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. > > > > > > > > > > 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 > > > ___ > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > > > __ > Nelson Tebbe > Associate Professor of Law > Brooklyn Law School > 250 Joralemon Street > Brooklyn, NY 11201 > 718.780.7960 > [EMAIL PROTECTED] > Papers available at http://papers.ssrn.com/sol3/cf_dev/ > AbsByAuth.cfm?per_id=343134 > > ___ > 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.
Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli
You're right-it's supremely odd. That's always struck me as a problem with Eisgruber & Sager's theory of equal liberty. Why should someone's religious freedom rights turn on the happenstance of whether the government has created an exemption for some other secular activity? Got slammed this week, but I'm looking forward to reading your paper and returning to our dialogue. Nelson On 8/13/08 11:33 AM, "Christopher Lund" <[EMAIL PROTECTED]> wrote: So he can wear a beard, but not a yarmulke - because secular exceptions have been made to the no-beard policy (for medical reasons), but there have been no such exceptions to the no-headgear policy. I find this troubling. The no-beard policy falls because people sometimes need beards for medical reasons (pseudo folliculitis barbae [PFB] being a medical condition common in African-American officers, and requiring accommodation under the ADA). The no-headgear policy is okay because people rarely need hats for medical reasons (the only case I've seen is an ADA case where a plaintiff wanted - and got - a right to wear a hat to disguise a cranial disfigurement). So we end up giving an accomodation to a religious person seeking to wear a beard, but not one wanting to wear a headcovering -- because the relative incidence of cranial disfigurement is higher than that of PFB? And the irony is that the department seems to have much better reasons for the no-beard policy. The Court says that beards can be used against officers in fights; they may impede putting on gas masks, etc, etc. But there are no similar justifications against hats. The department even lets officers wear hats outside and in vehicles, just not indoors. (Why, I do not know.) Best, Chris Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL 3211279 (D. > Nev. 2008). The court concludes, though, that the headgear regulation > (which required the removal of all hats when entering any building, when > not in uniform) isn't subject to strict scrutiny because "the regulation > does not provide individualized exemptions for any reason, secular or > religious." > ___ > 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. > > > 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 ___ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) __ Nelson Tebbe Associate Professor of Law Brooklyn Law School 250 Joralemon Street Brooklyn, NY 11201 718.780.7960 [EMAIL PROTECTED] Papers available at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=343134 ___ 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: Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli
1.Because no legislative body has the time to focus on all the peculiar circumstances in which an arguable accommodation claim surfaces. 2. Because referring everything to legislatures is a prescription for favored and politically connected groups getting accommodated and others being left unhelped.(Had this happened in NY,where the speaker of one house is an orthodox Jew it would eb failry easy to get a legislateive fix;not so in Nevada.And exactly which legsilature woud intervene to ehlp Wiccans?) And that is a constitutional problem in its own right, as Grumet suggests, or at least some Justices suggested in Grumet. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Wednesday, August 13, 2008 1:04 PM To: Law & Religion issues for Law Academics Subject: Re: Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli I think the policy debate on this case illustrates why the First Amendment and the courts have no business determining accommodation. The ease w which those outside of government can judge that govt policy is necessarily wanting because it may burden religious practice is impressive. But the more interesting question is why the courts are better at drawing these lines than the political process. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: "Christopher Lund" <[EMAIL PROTECTED]> Date: Wed, 13 Aug 2008 10:33:17 To: Subject: Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli ___ 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. ___ 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: Nevada district court applies Fraternal Order of Police v.Newark(3d Cir.), holds no-beard poli
I agree with Marci about the Free Exercise Clause, but of course both Title VII and various jurisdiction-by-jurisdiction RFRAs (though there is not one in Nevada) represent the political process itself making a judgment that courts should draw the lines in the first instance. I do think it makes a difference that statutory schemes such as Title VII and RFRA are themselves revisable by the political process, so courts draw the first line but the legislature may revise them -- much as has long been the case with the making of common-law rules and common-law defenses, as well as statutorily founded antitrust law, post-Federal-Rules-of-Evidence privilege law, fair use law under the Copyright Act, and the like. That's why I support jurisdiction-by-jurisdiction RFRAs even though I also support Smith (http://www.law.ucla.edu/volokh/relfree.htm). But I think it's helpful not to generally condemn judicial decisionmaking as such as to religious exemptions, only judicial decisionmaking that's final and unmodifiable by the legislature. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > [EMAIL PROTECTED] > Sent: Wednesday, August 13, 2008 10:04 AM > To: Law & Religion issues for Law Academics > Subject: Re: Nevada district court applies Fraternal Order of > Police v.Newark(3d Cir.), holds no-beard poli > > I think the policy debate on this case illustrates why the > First Amendment and the courts have no business determining > accommodation. The ease w which those outside of government > can judge that govt policy is necessarily wanting because it > may burden religious practice is impressive. > But the more interesting question is why the courts are > better at drawing these lines than the political process. > Marci > Sent from my Verizon Wireless BlackBerry > > -Original Message- > From: "Christopher Lund" <[EMAIL PROTECTED]> > > Date: Wed, 13 Aug 2008 10:33:17 > To: > Subject: Re: Nevada district court applies Fraternal Order of > Police v. > Newark (3d Cir.), holds no-beard poli > > > ___ > 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. > ___ 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: Nevada district court applies Fraternal Order of Police v.Newark (3d Cir.), holds no-beard poli
I think the policy debate on this case illustrates why the First Amendment and the courts have no business determining accommodation. The ease w which those outside of government can judge that govt policy is necessarily wanting because it may burden religious practice is impressive. But the more interesting question is why the courts are better at drawing these lines than the political process. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: "Christopher Lund" <[EMAIL PROTECTED]> Date: Wed, 13 Aug 2008 10:33:17 To: Subject: Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli ___ 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.
RE: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli
Chris correctly points to one of the significant problems with Fraternal Order of Police analysis. It makes the availability of free exercise protection turn on the fortuity that there is a secular exception to the challenged rule. To illustrate this point, I use an example of a police department with a no beards and a no long hair requirement that has both a Moslem and a Native American officer on its staff. The Moslem wants an exemption from the no beard policy, the Native American wants an exemption from the no long hair policy -- both for religious reasons. Because of the medical exception from the no beards policy, the rejection of the Moslem's claim is subjected to serious review. Because there is no medical condition caused by a short hair cut, and accordingly no medical exception to this rule, the rejection of the Native American's claim is upheld under rational basis review. Alan Brownstein From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Christopher Lund [EMAIL PROTECTED] Sent: Wednesday, August 13, 2008 8:33 AM To: religionlaw@lists.ucla.edu Subject: Re: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli So he can wear a beard, but not a yarmulke - because secular exceptions have been made to the no-beard policy (for medical reasons), but there have been no such exceptions to the no-headgear policy. I find this troubling. The no-beard policy falls because people sometimes need beards for medical reasons (pseudo folliculitis barbae [PFB] being a medical condition common in African-American officers, and requiring accommodation under the ADA). The no-headgear policy is okay because people rarely need hats for medical reasons (the only case I've seen is an ADA case where a plaintiff wanted - and got - a right to wear a hat to disguise a cranial disfigurement). So we end up giving an accomodation to a religious person seeking to wear a beard, but not one wanting to wear a headcovering -- because the relative incidence of cranial disfigurement is higher than that of PFB? And the irony is that the department seems to have much better reasons for the no-beard policy. The Court says that beards can be used against officers in fights; they may impede putting on gas masks, etc, etc. But there are no similar justifications against hats. The department even lets officers wear hats outside and in vehicles, just not indoors. (Why, I do not know.) Best, Chris Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL 3211279 (D. > Nev. 2008). The court concludes, though, that the headgear regulation > (which required the removal of all hats when entering any building, when > not in uniform) isn't subject to strict scrutiny because "the regulation > does not provide individualized exemptions for any reason, secular or > religious." > ___ > 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. > > > 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 ___ Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard poli
So he can wear a beard, but not a yarmulke * because secular exceptions have been made to the no-beard policy (for medical reasons), but there have been no such exceptions to the no-headgear policy. I find this troubling. The no-beard policy falls because people sometimes need beards for medical reasons (pseudo folliculitis barbae [PFB] being a medical condition common in African-American officers, and requiring accommodation under the ADA). The no-headgear policy is okay because people rarely need hats for medical reasons (the only case I've seen is an ADA case where a plaintiff wanted - and got - a right to wear a hat to disguise a cranial disfigurement). So we end up giving an accomodation to a religious person seeking to wear a beard, but not one wanting to wear a headcovering -- because the relative incidence of cranial disfigurement is higher than that of PFB? And the irony is that the department seems to have much better reasons for the no-beard policy. The Court says that beards can be used against officers in fights; they may impede putting on gas masks, etc, etc. But there are no similar justifications against hats. The department even lets officers wear hats outside and in vehicles, just not indoors. (Why, I do not know.) Best, Chris Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL 3211279 (D. > Nev. 2008). The court concludes, though, that the headgear regulation > (which required the removal of all hats when entering any building, when > not in uniform) isn't subject to strict scrutiny because "the regulation > does not provide individualized exemptions for any reason, secular or > religious." > ___ > 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. > > > 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 ___Christopher C. Lund Assistant Professor of Law Mississippi College School of Law 151 E. Griffith St. Jackson, MS 39201 (601) 925-7141 (office) (601) 925-7113 (fax) ___ 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: Nevada district court applies Fraternal Order of Police v. Newark (3d Cir.), holds no-beard policy must pass strict scrutiny
William Penn was famously jailed in the 17th century for refusing to remove his hat in court. This became an infamous incident in the colonies; Maryland and I think one other colony passed exemption laws specifically protecting the refusal to remove one's hat. We have progressed in some ways, and regressed a long ways in others. Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > Riback v. Las Vegas Metropolitan Police Dep't, 2008 WL 3211279 (D. > Nev. 2008). The court concludes, though, that the headgear regulation > (which required the removal of all hats when entering any building, when > not in uniform) isn't subject to strict scrutiny because "the regulation > does not provide individualized exemptions for any reason, secular or > religious." > ___ > 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[1] > > 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. > > > 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://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___ 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.
