RE: Church excludes nursing woman

[Christopher Lund]

Just a few short replies, and then I'll leave everyone alone:


1.   You're right.  The Court doesn't resolve the child-labor issue.  It 
just said the issue was different.  For myself, I have trouble believing the 
Court is going to let a 13-year-old kid work 40 hours a week for a church, even 
if the church sincerely believes him to be a minister.  But you're right that 
it didn't resolve the issue.



2.   No disagreement here.  I agree that the government could not prohibit 
the ordination of a child minister.  And I agree that the government could 
limit the hours that the child works.  It could limit them, presumably, to 
zero.  That is, the government could prohibit the child minister from working 
any hours at all.  The ordination would have to be in name and in principle 
only.  Again, we're returning to the conclusion that churches have no immunity 
from child-labor laws.



3.   I don't know if "religious affairs" is broader or vaguer than 
"exclusively ecclesiastical questions."  I guess it depends on how those 
concepts get fleshed out.  You say you mean "exclusively ecclesiastical 
questions" to refer to  "questions which the state lacks substantive 
jurisdiction to decide."  I don't quite get that.  It seems circular to me.  
And I don't quite get how ecclesiastical questions cease being ecclesiastical 
questions when religious groups are funded by the state.  If the idea is that 
it is no longer an *exclusively* ecclesiastical question, then that raises a 
bunch of issues-the kind of ones that Marty was asking earlier.  I don't see, 
for example, why Cheryl Perich's firing was *exclusively* ecclesiastical in the 
first place.  She didn't just lose her religious call; she lost her secular 
salary.  Justice Ginsburg pointed out at oral argument that the church hired 
uncalled teachers-which meant the church could rescind Perich's call (the 
exclusively ecclesiastical part) without taking away her job.  Obviously the 
Court didn't go that road.  But whatever-this is all within the realm of 
reasonable debate.  Everyone's theory has issues.  Certainly mine does.

... and that brings me to my shameless plug.  I offer a slightly different take 
from Chip in this piece, Free Exercise Reconceived: The Logic and Limits of 
Hosanna-Tabor, available here, 
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1002=nulr.
  It spends a lot of time trying to unpack the boundaries of the decision, 
relying pretty heavily on the decisions of lower courts both before and after 
Hosanna-Tabor.

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website-http://law.wayne.edu/profile/christopher.lund/
Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 10:54 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Church excludes nursing woman

A few replies to Chris:

1.  The Court never says in Hosanna-Tabor that "churches have no immunity from 
child-labor laws."   Please read that section of the opinion again (page 21 of 
the pdf version). It explicitly concludes: "The case before us is an employment 
discrimination suit brought on behalf of a minister, challenging her church's 
decision to fire her. Today we hold only that the ministerial exception bars 
such a suit. We express no view on whether the exception bars other types of 
suits, including actions by employees alleging breach of contract or tortious 
conduct by their religious employers. There will be time enough to address the 
applicability of the exception to other circumstances if and when they arise." 
Chris, you are making up some notion of interest balancing in this enterprise 
that is just not there.

2. I do not think the government could prohibit the ordination of a child 
minister.  I do think it could limit the hours that the child works.

3.  "Religious affairs" seems like a much broader (or vaguer) concept than 
"exclusively ecclesiastical questions."  The latter encompasses those questions 
which the state lacks substantive jurisdiction to decide.  (This is a crucial 
piece of what church-state separation means -- power to decide certain 
questions).  Whether a religious community may proselytize in its government 
funded social service efforts is not an exclusively ecclesiastical question.  
The government has a legitimate interest in who has access to services it 
funds.  If the social service were exclusively church funded and was part of 
what it sees as its ministry, the content of the service would present an 
exclusively ecclesiastical question.

On Thu, Apr 27, 2017 at 10:19 PM, Christopher Lund 
> wrote:
Chip and I agree on a 

Re: Church excludes nursing woman

[Michael Moreland]

Setting aside the discussion of Hosanna-Tabor and RFRA for a moment, the 
initial question was about where a person “has a right to be.” As it happens, 
Virginia has a church trespass statute (Va. Code. § 18.2-128), which provides, 
"It shall be unlawful for any person, whether or not a church member or 
student, to enter upon or remain upon any church or school property in 
violation of (i) any direction to vacate the property by a person authorized to 
give such direction….” Imprudent as the church’s decision might be here, 
doesn’t the statutory right of the church to exclude for trespass (without all 
the difficulties of “excommunication” and so on) give a straightforward answer 
to the problem?

--
Michael P. Moreland
Visiting Professor of Law
and Mary Ann Remick Senior Visiting Fellow
University of Notre Dame
3101 Eck Hall of Law
Notre Dame, Indiana 46556
Tel: 574-631-2306
Email: moreland...@nd.edu

From: 
> 
on behalf of Steven Jamar >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Thursday, April 27, 2017 at 10:44 PM
To: Law Religion & Law List 
>
Subject: Re: Church excludes nursing woman

Anyway, to return to my original question, how would this work out under RFRA, 
it seems that there is no substantial burden on religious exercise unless the 
church in question considers uncovered breast feeding immodest under its 
religious teachings. Then, is uncovered breast feeding a compelling state 
interest? I don’t think so. If it is, there seems to be no less instrusive 
alternative than to say “allow it.”
Under Smith, this would be a neutral, generally applicable law that applies to 
religious conduct — here allowing uncovered breast feeding during a service in 
the sanctuary — where the person has a right to be unless the church 
excommunicates (or whatever term they use to define members) the person.
Which then brings us to Hosanna-Tabor. I agree that some aspects of religious 
practice, e.g., selecting ministers and even choosing who is a “minister” is 
insulated from governmental regulation. And I agree that a religion can choose 
who will be admitted as congregants and can impose any rules of modesty and 
decorum it likes. But can a religion be required to show that it has a rule of 
modesty that was violated? Or can it exclude anyone for an ad hoc, unknown 
rule? Does it matter whether it was an officious meddling congregant as opposed 
to a church official who did the meddling? Or is the exclusion utterly 
unreviewable.
The ecclesiastical immunity of Hossana-Tabor has limits — child abuse, 
pedophilia, murder, slavery, and so on — but just where is that edge? Surely we 
can stop trial of faith by serpent’s bite. But what short of that?

Steve


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost



___
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: Church excludes nursing woman

[Ira Lupu]

A few replies to Chris:

1.  The Court never says in Hosanna-Tabor that "churches have no immunity
from child-labor laws."   Please read that section of the opinion again
(page 21 of the pdf version). It explicitly concludes: "The case before us
is an employment discrimination suit brought on behalf of a minister,
challenging her church’s decision to fire her. Today we hold only that the
ministerial exception bars such a suit. We express no view on whether the
exception bars other types of suits, including actions by employees
alleging breach of contract or tortious conduct by their religious
employers. There will be time enough to address the applicability of the
exception to other circumstances if and when they arise." Chris, you are
making up some notion of interest balancing in this enterprise that is just
not there.

2. I do not think the government could prohibit the ordination of a child
minister.  I do think it could limit the hours that the child works.

3.  "Religious affairs" seems like a much broader (or vaguer) concept than
"exclusively ecclesiastical questions."  The latter encompasses those
questions which the state lacks substantive jurisdiction to decide.  (This
is a crucial piece of what church-state separation means -- power to decide
certain questions).  Whether a religious community may proselytize in
its *government
funded* social service efforts is not an exclusively ecclesiastical
question.  The government has a legitimate interest in who has access to
services it funds.  If the social service were exclusively church funded
and was part of what it sees as its ministry, the content of the service
would present an exclusively ecclesiastical question.

On Thu, Apr 27, 2017 at 10:19 PM, Christopher Lund  wrote:

> Chip and I agree on a lot of this, so I’ll try to make this short:
>
>
>
> *“Chris says this is a matter of church freedom, which it is, but then he
> has to face the question of why isn't every question a church decides a
> matter of church freedom (no balancing, and the church always wins).”*
>
>
>
> True.  There have to be limits on church autonomy, just as there are
> limits on everything else.  The most obvious limit is that churches can
> only claim autonomy in their **religious** affairs.  But there also is
> going to have to be some kind of limitation for sufficiently strong
> government interests.  To give just one example, *Hosanna-Tabor *gives
> churches immunity from ministers bringing employment-related claims.  But
> it also says that churches have no immunity from child-labor laws.  The
> interest in protecting children is (rightly) just too strong.
>
>
>
> Chip and I both think that this line of cases is motivated by two things:
> (1) notions of judicial incompetence and (2) notions of religious freedom.
> The only thing I want to press is that (1) exists in significant part
> because of (2).  That is, a big reason why we deem the state incompetent to
> address religious questions is because we think religious organizations
> should have the right to decide those questions for themselves without
> government interference.*
>
>
>
> Again, at the end of the day, I don’t know if I have any disagreement at
> all with Chip.  I use the phrase, “church autonomy.”  He’d prefer the
> phrase, “church freedom.”  I’d say churches have autonomy in their
> religious affairs.  He would rather say, I take it, that they have freedom
> in deciding ecclesiastical questions.  Fine with me.
>
>
>
> Best,
>
> Chris
>
>
>
> * I have sometimes thought similar things might be said about the
> political-question doctrine, for its motivations lie both in: (1) notions
> of judicial incompetence over political questions, (2) notions that
> political questions are committed to other branches.  And again there, (2)
> becomes a reason for (1).  But maybe I should leave well enough alone…
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Thursday, April 27, 2017 9:39 PM
>
> *To:* Law & Religion issues for Law Academics 
> *Subject:* Re: Church excludes nursing woman
>
>
>
> Thanks for the kind words, Marty.  Now look at your formulation: "We [the
> state] *accept* your word that nursing women are not 'entitled' to
> worship as a matter of religious precepts.  We will not second-guess that
> ecclesiastical question.  Nevertheless, we have concluded that the
> nondiscrimination norm is more important than honoring religious notions of
> 'entitlement.'  Therefore you can't exclude such women."
>
>
>
> That approach is perfectly inconsistent with the "no balancing" paragraph
> that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very
> well with pre-Smith Free Exercise law, but that's been wiped out by Smith.
> The Court in Hosanna-Tabor says Smith does not apply in a ministerial
> exception case. Why? Because who is fit for ministry, like who may attend a
> 

Re: Church excludes nursing woman

[Steven Jamar]

Anyway, to return to my original question, how would this work out under RFRA, 
it seems that there is no substantial burden on religious exercise unless the 
church in question considers uncovered breast feeding immodest under its 
religious teachings. Then, is uncovered breast feeding a compelling state 
interest? I don’t think so. If it is, there seems to be no less instrusive 
alternative than to say “allow it.” 
Under Smith, this would be a neutral, generally applicable law that applies to 
religious conduct — here allowing uncovered breast feeding during a service in 
the sanctuary — where the person has a right to be unless the church 
excommunicates (or whatever term they use to define members) the person.
Which then brings us to Hosanna-Tabor. I agree that some aspects of religious 
practice, e.g., selecting ministers and even choosing who is a “minister” is 
insulated from governmental regulation. And I agree that a religion can choose 
who will be admitted as congregants and can impose any rules of modesty and 
decorum it likes. But can a religion be required to show that it has a rule of 
modesty that was violated? Or can it exclude anyone for an ad hoc, unknown 
rule? Does it matter whether it was an officious meddling congregant as opposed 
to a church official who did the meddling? Or is the exclusion utterly 
unreviewable.
The ecclesiastical immunity of Hossana-Tabor has limits — child abuse, 
pedophilia, murder, slavery, and so on — but just where is that edge? Surely we 
can stop trial of faith by serpent’s bite. But what short of that?

Steve


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost





> On Apr 27, 2017, at 10:19 PM, Christopher Lund  wrote:
> 
> Chip and I agree on a lot of this, so I’ll try to make this short:
>  
> “Chris says this is a matter of church freedom, which it is, but then he has 
> to face the question of why isn't every question a church decides a matter of 
> church freedom (no balancing, and the church always wins).”
>  
> True.  There have to be limits on church autonomy, just as there are limits 
> on everything else.  The most obvious limit is that churches can only claim 
> autonomy in their *religious* affairs.  But there also is going to have to be 
> some kind of limitation for sufficiently strong government interests.  To 
> give just one example, Hosanna-Tabor gives churches immunity from ministers 
> bringing employment-related claims.  But it also says that churches have no 
> immunity from child-labor laws.  The interest in protecting children is 
> (rightly) just too strong.
>  
> Chip and I both think that this line of cases is motivated by two things: (1) 
> notions of judicial incompetence and (2) notions of religious freedom.  The 
> only thing I want to press is that (1) exists in significant part because of 
> (2).  That is, a big reason why we deem the state incompetent to address 
> religious questions is because we think religious organizations should have 
> the right to decide those questions for themselves without government 
> interference.*  
>  
> Again, at the end of the day, I don’t know if I have any disagreement at all 
> with Chip.  I use the phrase, “church autonomy.”  He’d prefer the phrase, 
> “church freedom.”  I’d say churches have autonomy in their religious affairs. 
>  He would rather say, I take it, that they have freedom in deciding 
> ecclesiastical questions.  Fine with me.
>  
> Best,
> Chris
>  
> * I have sometimes thought similar things might be said about the 
> political-question doctrine, for its motivations lie both in: (1) notions of 
> judicial incompetence over political questions, (2) notions that political 
> questions are committed to other branches.  And again there, (2) becomes a 
> reason for (1).  But maybe I should leave well enough alone…
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Thursday, April 27, 2017 9:39 PM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Church excludes nursing woman
>  
> Thanks for the kind words, Marty.  Now look at your formulation: "We [the 
> state] accept your word that nursing women are not 'entitled' to worship as a 
> matter of religious precepts.  We will not second-guess that ecclesiastical 
> question.  Nevertheless, we have concluded that the nondiscrimination norm is 
> more important than honoring religious notions of 'entitlement.'  Therefore 
> you can't exclude such women."
>  
> That approach is perfectly inconsistent with the "no balancing" paragraph 
> that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very well 
> with pre-Smith Free Exercise law, but that's been wiped out by 

RE: Church excludes nursing woman

[Christopher Lund]

Chip and I agree on a lot of this, so I’ll try to make this short:

“Chris says this is a matter of church freedom, which it is, but then he has to 
face the question of why isn't every question a church decides a matter of 
church freedom (no balancing, and the church always wins).”

True.  There have to be limits on church autonomy, just as there are limits on 
everything else.  The most obvious limit is that churches can only claim 
autonomy in their *religious* affairs.  But there also is going to have to be 
some kind of limitation for sufficiently strong government interests.  To give 
just one example, Hosanna-Tabor gives churches immunity from ministers bringing 
employment-related claims.  But it also says that churches have no immunity 
from child-labor laws.  The interest in protecting children is (rightly) just 
too strong.

Chip and I both think that this line of cases is motivated by two things: (1) 
notions of judicial incompetence and (2) notions of religious freedom.  The 
only thing I want to press is that (1) exists in significant part because of 
(2).  That is, a big reason why we deem the state incompetent to address 
religious questions is because we think religious organizations should have the 
right to decide those questions for themselves without government interference.*

Again, at the end of the day, I don’t know if I have any disagreement at all 
with Chip.  I use the phrase, “church autonomy.”  He’d prefer the phrase, 
“church freedom.”  I’d say churches have autonomy in their religious affairs.  
He would rather say, I take it, that they have freedom in deciding 
ecclesiastical questions.  Fine with me.

Best,
Chris

* I have sometimes thought similar things might be said about the 
political-question doctrine, for its motivations lie both in: (1) notions of 
judicial incompetence over political questions, (2) notions that political 
questions are committed to other branches.  And again there, (2) becomes a 
reason for (1).  But maybe I should leave well enough alone…

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 9:39 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Church excludes nursing woman

Thanks for the kind words, Marty.  Now look at your formulation: "We [the 
state] accept your word that nursing women are not 'entitled' to worship as a 
matter of religious precepts.  We will not second-guess that ecclesiastical 
question.  Nevertheless, we have concluded that the nondiscrimination norm is 
more important than honoring religious notions of 'entitlement.'  Therefore you 
can't exclude such women."

That approach is perfectly inconsistent with the "no balancing" paragraph that 
Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very well with 
pre-Smith Free Exercise law, but that's been wiped out by Smith.  The Court in 
Hosanna-Tabor says Smith does not apply in a ministerial exception case. Why? 
Because who is fit for ministry, like who may attend a particular worship 
service, cannot be a matter for state decision. Chris says this is a matter of 
church freedom, which it is, but then he has to face the question of why isn't 
every question a church decides a matter of church freedom (no balancing, and 
the church always wins).

If you read the article (Marty and Chris have), you will see how deeply 
grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme Court 
precedent (church property and personnel cases, all the way back to Watson v. 
Jones) and 2) widespread, continuous lower court adherence in the wake of 
Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom to control 
the conditions of worship -- who leads, and who may attend), and the 
Establishment Clause (state is not competent to prescribe the appropriate 
participants in worship).  We didn't make this up; we found it deeply in the 
law.  Many others who have defended Hosanna-Tabor are making stuff up about 
some doctrine of institutional church autonomy that just doesn't exist.

On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund 
> wrote:
I don’t know whether anything rides on this in terms of results—maybe there is 
no need to get into it—but I think Hosanna-Tabor is just as much about the 
rights of religious organizations as it is about judicial competence.

Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees 
religious bodies independence from secular control or manipulation—in short, 
power to decide for themselves, free from state interference, matters of church 
government as well as those of faith and doctrine.”  It doesn’t use the phrase 
“church autonomy.”  But why isn’t that a pretty decent shorthand for what the 
Court is talking about here?  Throughout its opinion, the Court says things 
like  “the Free Exercise Clause . . . protects a group’s right to 

Re: Church excludes nursing woman

[Ira Lupu]

Thanks for the kind words, Marty.  Now look at your formulation: "We [the
state] *accept* your word that nursing women are not 'entitled' to worship
as a matter of religious precepts.  We will not second-guess that
ecclesiastical question.  Nevertheless, we have concluded that the
nondiscrimination norm is more important than honoring religious notions of
'entitlement.'  Therefore you can't exclude such women."

That approach is perfectly inconsistent with the "no balancing" paragraph
that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very
well with pre-Smith Free Exercise law, but that's been wiped out by Smith.
The Court in Hosanna-Tabor says Smith does not apply in a ministerial
exception case. Why? Because who is fit for ministry, like who may attend a
particular worship service, cannot be a matter for state decision. Chris
says this is a matter of church freedom, which it is, but then he has to
face the question of why isn't every question a church decides a matter of
church freedom (no balancing, and the church always wins).

If you read the article (Marty and Chris have), you will see how deeply
grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme
Court precedent (church property and personnel cases, all the way back to
Watson v. Jones) and 2) widespread, continuous lower court adherence in the
wake of Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom
to control the conditions of worship -- who leads, and who may attend), and
the Establishment Clause (state is not competent to prescribe the
appropriate participants in worship).  We didn't make this up; we found it
deeply in the law.  Many others who have defended Hosanna-Tabor are making
stuff up about some doctrine of institutional church autonomy that just
doesn't exist.

On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund  wrote:

> I don’t know whether anything rides on this in terms of results—maybe
> there is no need to get into it—but I think *Hosanna-Tabor *is just as
> much about the rights of religious organizations as it is about judicial
> competence.
>
>
>
> *Hosanna-Tabor* says, quoting *Kedroff*, that “[t]he Constitution
> guarantees religious bodies independence from secular control or
> manipulation—in short, power to decide for themselves, free from state
> interference, matters of church government as well as those of faith and
> doctrine.”  It doesn’t use the phrase “church autonomy.”  But why isn’t
> that a pretty decent shorthand for what the Court is talking about here?
> Throughout its opinion, the Court says things like  “the Free Exercise
> Clause . . . protects a group’s right to shape its own faith and mission
> through its appointments” and “the First Amendment itself . . . gives
> special solicitude to the rights of religious organizations.”  There are a
> bunch of similar statements about churches’ “rights” or “freedoms” or
> “interests.”  So why are we hesitant to use the language of rights here?  I
> must be missing something.
>
>
>
> Look at the last paragraph of the opinion:
>
>
>
> *The interest of society in the enforcement of employment discrimination
> statutes is undoubtedly important.  But so too is the interest of religious
> groups in choosing who will preach their beliefs, teach their faith, and
> carry out their mission. When a minister who has been fired sues her church
> alleging that her termination was discriminatory, the First Amendment has
> struck the balance for us. The church must be free to choose those who will
> guide it on its way. The judgment of the Court of Appeals for the Sixth
> Circuit is reversed.*
>
>
>
> There are two interests, says the Court—society’s interest and the
> church’s interest.*  And the church’s interest triumphs, says the Court.
> The church must be free to choose those who guide it.  There is no
> expressed concern in that paragraph about judicial incompetence.  The
> expressed concern is about the church’s rights.
>
>
>
> Again, I’m not objecting to the results to which Chip’s formulation
> leads.  I don’t know quite where it leads.  A broad idea of Chip’s
> “exclusively ecclesiastical questions” could lead to a very robust
> understanding of *Hosanna-Tabor*.  I take that to be precisely what Marty
> was fearing in his most recent post.
>
>
>
> Best,
>
> Chris
>
>
>
> *Interest balancing (cough, cough).
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=36340
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-bounces@
> lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Thursday, April 27, 2017 7:49 PM
> *To:* Law & Religion issues for Law Academics 
> *Subject:* 

RE: Church excludes nursing woman

[Christopher Lund]

I don’t know whether anything rides on this in terms of results—maybe there is 
no need to get into it—but I think Hosanna-Tabor is just as much about the 
rights of religious organizations as it is about judicial competence.

Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees 
religious bodies independence from secular control or manipulation—in short, 
power to decide for themselves, free from state interference, matters of church 
government as well as those of faith and doctrine.”  It doesn’t use the phrase 
“church autonomy.”  But why isn’t that a pretty decent shorthand for what the 
Court is talking about here?  Throughout its opinion, the Court says things 
like  “the Free Exercise Clause . . . protects a group’s right to shape its own 
faith and mission through its appointments” and “the First Amendment itself . . 
. gives special solicitude to the rights of religious organizations.”  There 
are a bunch of similar statements about churches’ “rights” or “freedoms” or 
“interests.”  So why are we hesitant to use the language of rights here?  I 
must be missing something.

Look at the last paragraph of the opinion:

The interest of society in the enforcement of employment discrimination 
statutes is undoubtedly important.  But so too is the interest of religious 
groups in choosing who will preach their beliefs, teach their faith, and carry 
out their mission. When a minister who has been fired sues her church alleging 
that her termination was discriminatory, the First Amendment has struck the 
balance for us. The church must be free to choose those who will guide it on 
its way. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

There are two interests, says the Court—society’s interest and the church’s 
interest.*  And the church’s interest triumphs, says the Court.  The church 
must be free to choose those who guide it.  There is no expressed concern in 
that paragraph about judicial incompetence.  The expressed concern is about the 
church’s rights.

Again, I’m not objecting to the results to which Chip’s formulation leads.  I 
don’t know quite where it leads.  A broad idea of Chip’s “exclusively 
ecclesiastical questions” could lead to a very robust understanding of 
Hosanna-Tabor.  I take that to be precisely what Marty was fearing in his most 
recent post.

Best,
Chris

*Interest balancing (cough, cough).
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=36340

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, April 27, 2017 7:49 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Church excludes nursing woman

Neither Eugene not Steven has made any attempt to state the principle for which 
Hosanna-Tabor stands.  It certainly does not stand for a broad and free 
floating principle of church autonomy, subject to some balancing test.  It does 
not assert that broad principle, and it explicitly eschews any balancing of 
interests.

Hosanna-Tabor is much cleaner that many have made it out to be.  It reaffirms a 
longstanding constitutional principle, resting on both Religion Clauses of the 
First Amendment, that the state may not resolve exclusively ecclesiastical 
questions. See generally Lupu & Tuttle, The Mystery of Unanimity in 
[Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017), 
https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.

Who is fit for ministry is such a question.  Another exclusively ecclesiastical 
 question is who is entitled to attend a worship service, and under what 
conditions.  So the church has a First A right to exclude a breast-feeding 
woman from its worship service.  Once the church does so, it is no longer a 
place where she has a right to be.

On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar 
> wrote:
I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these 

Re: Church excludes nursing woman

[Marty Lederman]

I think Chip and Bob's article is probably the best thing yet written about
H-T, or at least it makes the best sense of the opinion.  As Chip knows,
however, I am uneasy, not about whether they've accurately captured what
the Chief was getting at (or what he must have been getting at), but about
just how one determines what is a "purely ecclesiastical question," and
about why adjudication of the legal claim in a case such as this, or H-T,
would necessarily *require the court to assess* such a religious question.

Here, for instance, why is "who is *entitled* to attend a worship service"
an "exclusively ecclesiastical question"?  Does it necessarily require an
assessment that civil authorities are incapable of making, such as whether
the presence of nursing women would make prayer ineffective?  (It might --
but perhaps not.  Depends on why the church is excluding them.  It might be
for the same (noncompelling) secular reasons that other organizations are
uneasy with nursing, e.g., it makes some men uncomfortable.)

But even if the question of "entitlement" to worship-attendance is, for
some reason, "exclusively ecclesiastical," why would civil authorities have
to engage on that question?  "Fine," the (completely hypothetical,
nonexistent) state might say:  "We *accept* your word that nursing women
are not 'entitled' to worship as a matter of religious precepts.  We will
not second-guess that ecclesiastical question.  Nevertheless, we have
concluded that the nondiscrimination norm is more important than honoring
religious notions of 'entitlement.'  Therefore you can't exclude such
women."

Of course, this entire hypo is off-the-charts, in the sense that no state
in our lifetimes -- or on this planet -- will ever prohibit churches from
imposing modesty rules for worship services.

On Thu, Apr 27, 2017 at 7:48 PM, Ira Lupu  wrote:

> Neither Eugene not Steven has made any attempt to state the principle for
> which Hosanna-Tabor stands.  It certainly does not stand for a broad and
> free floating principle of church autonomy, subject to some balancing
> test.  It does not assert that broad principle, and it explicitly eschews
> any balancing of interests.
>
> Hosanna-Tabor is much cleaner that many have made it out to be.  It
> reaffirms a longstanding constitutional principle, resting on both Religion
> Clauses of the First Amendment, that the state may not resolve exclusively
> ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of
> Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017),
> https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.
>
> Who is fit for ministry is such a question.  Another exclusively
> ecclesiastical  question is who is entitled to attend a worship service,
> and under what conditions.  So the church has a First A right to exclude a
> breast-feeding woman from its worship service.  Once the church does so, it
> is no longer a place where she has a right to be.
>
> On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar 
> wrote:
>
>> I assume freedom of association would protect a church in selecting its
>> membership. And I assume Hosanna-Tabor would protect religion-driven
>> decorum decisions like separate seating for men and women in synagogues and
>> mosques.
>> But this is just a case of people being uncomfortable — not a
>> religiously-compelled doctrine or code of conduct. I don’t see either
>> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just
>> any activity a church claims and RFRA requires a substantial burden on the
>> exercise of religion (assuming the VA RFRA is like the federal one — again,
>> I’m not interested in the particulars of the VA RFRA).
>>
>>
>> --
>> Prof. Steven D. Jamar
>> Assoc. Dir. of International Programs
>> Institute for Intellectual Property and Social Justice
>> http://iipsj.org
>> http://sdjlaw.org
>>
>> "In these words I can sum up everything I've learned about life:  It
>> goes on."
>>
>> --Robert Frost
>>
>>
>>
>>
>>
>> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
>>
>> 1.  Does the principle underlying *Hosanna-Tabor *extend
>> to churches excluding members (or visitors) based on race, sex, religion,
>> etc.?  I assume it would, which is why, for instance, Orthodox synagogues
>> could have separate seating for men and women, Nation of Islam events could
>> be men-only (there are a few cases on the latter, though free speech cases
>> rather than religious freedom cases), various churches could be racially or
>> ethnically exclusionary in their membership, and so on.
>>
>> 2.  If a church can exclude people from membership or
>> attendance based on race, sex, etc., I assume it would likewise be free to
>> exclude people who engage in certain behavior.
>>
>> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but
>> I assume the *Hosanna-Tabor *principle – if it’s 

Re: Church excludes nursing woman

[Ira Lupu]

Neither Eugene not Steven has made any attempt to state the principle for
which Hosanna-Tabor stands.  It certainly does not stand for a broad and
free floating principle of church autonomy, subject to some balancing
test.  It does not assert that broad principle, and it explicitly eschews
any balancing of interests.

Hosanna-Tabor is much cleaner that many have made it out to be.  It
reaffirms a longstanding constitutional principle, resting on both Religion
Clauses of the First Amendment, that the state may not resolve exclusively
ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of
Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017),
https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf.

Who is fit for ministry is such a question.  Another exclusively
ecclesiastical  question is who is entitled to attend a worship service,
and under what conditions.  So the church has a First A right to exclude a
breast-feeding woman from its worship service.  Once the church does so, it
is no longer a place where she has a right to be.

On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar  wrote:

> I assume freedom of association would protect a church in selecting its
> membership. And I assume Hosanna-Tabor would protect religion-driven
> decorum decisions like separate seating for men and women in synagogues and
> mosques.
> But this is just a case of people being uncomfortable — not a
> religiously-compelled doctrine or code of conduct. I don’t see either
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just
> any activity a church claims and RFRA requires a substantial burden on the
> exercise of religion (assuming the VA RFRA is like the federal one — again,
> I’m not interested in the particulars of the VA RFRA).
>
>
> --
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org
> http://sdjlaw.org
>
> "In these words I can sum up everything I've learned about life:  It
> goes on."
>
> --Robert Frost
>
>
>
>
>
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
>
> 1.  Does the principle underlying *Hosanna-Tabor *extend
> to churches excluding members (or visitors) based on race, sex, religion,
> etc.?  I assume it would, which is why, for instance, Orthodox synagogues
> could have separate seating for men and women, Nation of Islam events could
> be men-only (there are a few cases on the latter, though free speech cases
> rather than religious freedom cases), various churches could be racially or
> ethnically exclusionary in their membership, and so on.
>
> 2.  If a church can exclude people from membership or
> attendance based on race, sex, etc., I assume it would likewise be free to
> exclude people who engage in certain behavior.
>
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but
> I assume the *Hosanna-Tabor *principle – if it’s applicable – would
> provide categorical protection, not subject to trumping under strict
> scrutiny.
>
> Eugene
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu ] *On
> Behalf Of *Steven Jamar
> *Sent:* Thursday, April 27, 2017 9:49 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Church excludes nursing woman
>
> If RFRA applied to the state, or if Virginia had a state RFRA that copied
> the federal RFRA, would this state law be legal?
>
> Virginia law provides that a woman can breast feed uncovered anywhere she
> has a legal right to be. Can a church then exclude her because breast
> feeding uncovered might make some other congregants uncomfortable?
>
> https://www.washingtonpost.com/local/virginia-politics/
> this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/
> adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>
> --
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org
> http://sdjlaw.org
>
>
> "Years ago my mother used to say to me... 'In this world Elwood' ... She
> always used to call me Elwood... 'In this world Elwood, you must be Oh So
> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend
> pleasant.  You may quote me." --Elwood P. Dowd
>
> - Mary Chase, "Harvey", 1950
>
>
>
> ___
> 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: Church excludes nursing woman

[Steven Jamar]

Eugene clearly reads Hosanna-Tabor far more broadly than I do.

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Whenever you find yourself on the side of the majority, it is time to pause 
and reflect."

Mark Twain






> On Apr 27, 2017, at 6:19 PM, Volokh, Eugene  wrote:
> 
> If I’m right that Hosanna-Tabor applies, wouldn’t the church 
> just have a categorical right to exclude members or attendees, 
> notwithstanding any antidiscrimination law, just as it has a categorical 
> right to dismiss clergy notwithstanding any discrimination law – even without 
> a showing that the church feels religiously compelled to violate the law?
>  
> To be sure, I don’t think that Hosanna-Tabor protects “just 
> any activity [of] a church.”  But it does protect decisions whether to accept 
> or reject clergy; might it equally protect decisions whether to accept or 
> reject church members or attendees?
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 10:13 AM
> To: Law Religion & Law List
> Subject: Re: Church excludes nursing woman
>  
> I assume freedom of association would protect a church in selecting its 
> membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
> decisions like separate seating for men and women in synagogues and mosques.
> But this is just a case of people being uncomfortable — not a 
> religiously-compelled doctrine or code of conduct. I don’t see either 
> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just 
> any activity a church claims and RFRA requires a substantial burden on the 
> exercise of religion (assuming the VA RFRA is like the federal one — again, 
> I’m not interested in the particulars of the VA RFRA).
>  
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org 
> http://sdjlaw.org 
> 
> "In these words I can sum up everything I've learned about life:  It goes on."
> 
> --Robert Frost
> 
> 
> 
> 
>  
> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  > wrote:
>  
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> 
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org 
> http://sdjlaw.org 
> 
> "Years ago my mother used to say to me... 'In this world Elwood' ... She 
> always used to call me Elwood... 'In this 

RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special Treatment or Not?

[Failinger, Marie]

My class discussed this problem of government funding of parochial schools 
yesterday.   Most retreated to the simplistic model of “don’t take the money if 
you don’t want the conditions,”  which isn’t very reflective about the deeper 
and longer-term issues involved in financial interdependence between religion 
and the state.   They had great difficulty thinking through how far the 
government might, legally can and ethically should go in imposing majoritarian 
values on religious schools.

It does not seem that my students realize that, in an era of declining 
voluntary support for some religious institutions, some of them  truly hurting 
for money (especially to compete with the more lavishly appointed suburban 
public schools) may be tempted to take the money and either ignore the 
conditions or ignore the effect that complying with the conditions will have 
eventually on their community values.  Of course, these same temptations can 
also be presented by a tuition-financed religious school that finds itself 
catering to the consumerist mentality of parents who are paying significant 
tuition to send their children to religious schools and therefore expect them 
to compete with public schools in amenities, ethos and programs.

Partly, I think, this is partly due to the fact that the virtue and habit of 
benevolence and shared community sacrifice has not been passed down very well 
to the non-gray-haired members of Christian congregations in some 
denominations.As just one example, in my church body, which is more 
mainstream, many (perhaps most) church schools have gone from being largely 
supported through congregational giving (in which all of the people in the 
congregation essentially took care of the children of the church school) to 
tuition to be paid by the parents, with perhaps some limited scholarships for 
low-income people and perhaps meager support from the congregation.  This 
is not only true in the struggling congregations but in the wealthy 
congregations, where such support should be easily available.

Perhaps the justices who asked these questions are responding to this “reality 
on the ground” more than trying to stake out a different ideological approach.  
 However, I really wonder some days if the “voluntary principle” will work for 
the future in this much altered climate of expectations about religious 
benevolence, if our church body’s experience is representative.

Marie A. Failinger  |  Professor of Law
651-695-7658 |  Fax: 651-290-6414
marie.failin...@mitchellhamline.edu

Mitchell Hamline School of Law
875 Summit Ave. | St. Paul, MN 55105
Great in theory. Even better in practice.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Wednesday, April 26, 2017 5:20 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?


Not all of the same folk who complain about government funding.



There are still some of us left who support the old model of significant 
limitations on government funding of religious institutions and significant 
protection of religious institutions from government regulation and 
interference.



What I see developing, unhappily, is both conservatives and liberals accepting 
a minimalist, formalistic understanding of the religion clauses. Constitutional 
prohibitions will invalidate overt discrimination against religion through 
regulation or funding.

Neutral regulations and conditions accompanying funding will be grist for the 
political mill. I suspect that the end result will be increased polarization 
and antipathy in our society and a patchwork quilt of distinct environments. A 
lot may depend on where one lives.



Alan


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Marc Stern >
Sent: Wednesday, April 26, 2017 2:47:32 PM
To: Law & Religion issues for Law Academics
Subject: RE: Trinity Lutheran and the ERISA cases - Do Churches Want Special 
Treatment or Not?

That’s all true, but the deal used to be no funding and lots of church  
autonomy in return., including the right to hire and fire for religious 
reasons. The same folks who complain about government funding are quite willing 
to  allow government regulation of religious organizations with our regard to 
funding.

Marc D. Stern
General Counsel
AJC
212 891 1480
646 289 2707 (c )
212 891 1495 (f)
ste...@ajc.org
www.ajc.org
Facebook.com/AJCGlobal
Twitter.com/AJCGlobal
[Description: cid:image005.jpg@01CFA04D.71B24C30]

From: 

RE: Church excludes nursing woman

[Volokh, Eugene]

If I’m right that Hosanna-Tabor applies, wouldn’t the church 
just have a categorical right to exclude members or attendees, notwithstanding 
any antidiscrimination law, just as it has a categorical right to dismiss 
clergy notwithstanding any discrimination law – even without a showing that the 
church feels religiously compelled to violate the law?

To be sure, I don’t think that Hosanna-Tabor protects “just any 
activity [of] a church.”  But it does protect decisions whether to accept or 
reject clergy; might it equally protect decisions whether to accept or reject 
church members or attendees?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 10:13 AM
To: Law Religion & Law List
Subject: Re: Church excludes nursing woman

I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).


--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost




On Apr 27, 2017, at 12:54 PM, Volokh, Eugene 
> wrote:

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle – if it’s applicable – would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c

--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




___
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 

Re: Church excludes nursing woman

[Steven Jamar]

I assume freedom of association would protect a church in selecting its 
membership. And I assume Hosanna-Tabor would protect religion-driven decorum 
decisions like separate seating for men and women in synagogues and mosques.
But this is just a case of people being uncomfortable — not a 
religiously-compelled doctrine or code of conduct. I don’t see either 
Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just any 
activity a church claims and RFRA requires a substantial burden on the exercise 
of religion (assuming the VA RFRA is like the federal one — again, I’m not 
interested in the particulars of the VA RFRA).
 

-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"In these words I can sum up everything I've learned about life:  It goes on."

--Robert Frost





> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene  wrote:
> 
> 1.  Does the principle underlying Hosanna-Tabor extend to 
> churches excluding members (or visitors) based on race, sex, religion, etc.?  
> I assume it would, which is why, for instance, Orthodox synagogues could have 
> separate seating for men and women, Nation of Islam events could be men-only 
> (there are a few cases on the latter, though free speech cases rather than 
> religious freedom cases), various churches could be racially or ethnically 
> exclusionary in their membership, and so on.
>  
> 2.  If a church can exclude people from membership or 
> attendance based on race, sex, etc., I assume it would likewise be free to 
> exclude people who engage in certain behavior.
>  
> 3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
> assume the Hosanna-Tabor principle – if it’s applicable – would provide 
> categorical protection, not subject to trumping under strict scrutiny.
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
>  
> [mailto:religionlaw-boun...@lists.ucla.edu 
> ] On Behalf Of Steven Jamar
> Sent: Thursday, April 27, 2017 9:49 AM
> To: Law & Religion issues for Law Academics
> Subject: Church excludes nursing woman
>  
> If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
> federal RFRA, would this state law be legal?
>  
> Virginia law provides that a woman can breast feed uncovered anywhere she has 
> a legal right to be. Can a church then exclude her because breast feeding 
> uncovered might make some other congregants uncomfortable?
>  
> https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
>  
> 
> 
> -- 
> Prof. Steven D. Jamar
> Assoc. Dir. of International Programs
> Institute for Intellectual Property and Social Justice
> http://iipsj.org 
> http://sdjlaw.org 
> 
> "Years ago my mother used to say to me... 'In this world Elwood' ... She 
> always used to call me Elwood... 'In this world Elwood, you must be Oh So 
> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend 
> pleasant.  You may quote me." --Elwood P. Dowd
> 
> - Mary Chase, "Harvey", 1950
> 
> 
> 
>  
> ___
> 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: Church excludes nursing woman

[Volokh, Eugene]

1.  Does the principle underlying Hosanna-Tabor extend to 
churches excluding members (or visitors) based on race, sex, religion, etc.?  I 
assume it would, which is why, for instance, Orthodox synagogues could have 
separate seating for men and women, Nation of Islam events could be men-only 
(there are a few cases on the latter, though free speech cases rather than 
religious freedom cases), various churches could be racially or ethnically 
exclusionary in their membership, and so on.

2.  If a church can exclude people from membership or 
attendance based on race, sex, etc., I assume it would likewise be free to 
exclude people who engage in certain behavior.

3.  Virginia does have a state RFRA, Va Code 57-2.02, but I 
assume the Hosanna-Tabor principle - if it's applicable - would provide 
categorical protection, not subject to trumping under strict scrutiny.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, April 27, 2017 9:49 AM
To: Law & Religion issues for Law Academics
Subject: Church excludes nursing woman

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c

--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950



___
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.

Church excludes nursing woman

[Steven Jamar]

If RFRA applied to the state, or if Virginia had a state RFRA that copied the 
federal RFRA, would this state law be legal?

Virginia law provides that a woman can breast feed uncovered anywhere she has a 
legal right to be. Can a church then exclude her because breast feeding 
uncovered might make some other congregants uncomfortable?

https://www.washingtonpost.com/local/virginia-politics/this-breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c
 


-- 
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"Years ago my mother used to say to me... 'In this world Elwood' ... She always 
used to call me Elwood... 'In this world Elwood, you must be Oh So Smart, or Oh 
So Pleasant.' Well for years I was smart -- I recommend pleasant.  You may 
quote me." --Elwood P. Dowd

- Mary Chase, "Harvey", 1950




___
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.