Re: Kim Davis released, given that her Deputies are issuing licenses

[Arthur Spitzer]

On Doug Laycock's point ("He can issue a preliminary injunction based on a
preliminary view of all the other issues, so why not based on a preliminary
view of the class certification question? I haven’t thought about that, but
it sounds plausible."), indeed, we got a preliminary injunction based on a
preliminary view of the class certification question earlier this year in
R.I.L-R v. Jeh Johnson, No. 15-cv-0011 (D.D.C.), available here:
https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv0011-33

Art Spitzer


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On Tue, Sep 8, 2015 at 3:44 PM, Doug Laycock  wrote:

> Good point. He can issue a preliminary injunction based on a preliminary
> view of all the other issues, so why not based on a preliminary view of the
> class certification question? I haven’t thought about that, but it sounds
> plausible.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Marty Lederman [mailto:lederman.ma...@gmail.com]
> *Sent:* Tuesday, September 08, 2015 3:40 PM
> *To:* Doug Laycock
> *Cc:* Howard Wasserman; Cohen,David; Volokh, Eugene; Dellinger, Walter;
> conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman; Law & Religion
> issues for Law Academics
>
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> My sense is that the judge extended his *preliminary *injunction to cover
> all couples seeking a license because he anticipates granting the motion
> for class certification and wished to preserve their rights in the
> meantime.  Not sure whether that's kosher -- cart before horse and all --
> but I wouldn't be surprised if he grants the motion for class certification
> soon.
>
>
>
> On Tue, Sep 8, 2015 at 1:57 PM, Doug Laycock 
> wrote:
>
> Howard and I agree that issuing the injunction to protect non-parties is
> an error, although there are cases going both ways, and I haven’t looked in
> the Sixth Circuit.
>
>
>
> And that error should be a good defense to a motion for civil contempt. It
> is no defense to a motion for criminal contempt, but again, it so far does
> not appear that anyone wants to go there.
>
>
>
>
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* Howard Wasserman [mailto:wasse...@fiu.edu]
> *Sent:* Tuesday, September 08, 2015 1:43 PM
> *To:* Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter;
> Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
>
>
> *Subject:* Re: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> I don't think it's mootness-I think it would be a motion to dissolve the
> injunction as having been complied with. That will just alert the judge to
> certify the class.
>
>
>
> Doug: I agree Judge Bunning did that. But that would seem to be a good
> defense to a contempt motion.
>
>
>
>
> Howard M. Wasserman
> Professor of Law
> FIU College of Law
> University Park, RDB 2065
> Miami, Florida  33199
> (305) 348-7482
> (786) 417-2433
> howard.wasser...@fiu.edu
> Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
> http://ssrn.com/author_id=283130
>
>
> --
>
> *From:* Cohen,David 
> *Sent:* Tuesday, September 08, 2015 1:38 PM
> *To:* Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger,
> Walter; Douglas Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh
> Blackman
> *Subject:* RE: Kim Davis released, given that her Deputies are issuing
> licenses
>
>
>
> In other words, shouldn’t Davis file a motion to dismiss the complaint as
> moot?
>
>
>
> *David S. Cohen*
>
> *Professor of Law*
>
>
> Thomas R. Kline School of Law
>
> *Drexel University *
>
> 3320 Market St.
>
> Philadelphia, PA 19104
>
> Tel: 215.571.4714
>
> drexel.edu
> 
> | facebook
> 
> | twitter
> 
>
> Available NOW
> 

Re: What's happening in KY? -- my differences with Eugene

[Arthur Spitzer]

I'll ask them if they have one.

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On Sat, Sep 5, 2015 at 3:54 PM, Marty Lederman 
wrote:

> The court reportedly told the deputies that they'd better issue the
> licenses, and they did so *without *including her name.  (It's not
> pre-printed.)  The judge is reported to have said at the hearing that he
> wasn't sure whether such licenses would be valid, but it seems to be what
> he has "permitted" the deputies to do.  A transcript might clarify some of
> this.  Can you obtain one from the ACLU lawyers, Art?  Thanks
>
> On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
> wrote:
>
>> Marty says: "Davis is not seeking for the *court *to give her
>> a just-not-with-my-name-on-them accommodation --- something he has in fact
>> just given her!"
>>
>> Perhaps I missed this detail in one of your earlier posts, Marty.  Can
>> you fill me in on just how the court has already provided this relief?  I
>> thought the forms were pre-printed with her name and title.  Did the court
>> authorize her to print new forms? Or to black out her name with a magic
>> marker?
>>
>> Thanks,
>> Art Spitzer
>>
>>
>>
>> *Warning:  This email is subject to monitoring by the NSA.*
>>
>> On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
>> wrote:
>>
>>> 1.  I *don't *understand Kim Davis to claim "that God would view her
>>> issuing such licenses with her name on them as authorization."  I can't
>>> even imagine what that would mean:  That God has a view of when the
>>> appearance of a name on the "issued in" line of a state licensing form
>>> constitutes one human being "authorizing" another to perform a marriage?
>>> That God has a view about the actual legal operation of Kentucky law?  Of
>>> course not.  Davis instead argues that she would be sinning because her
>>> name would provide* legal *authorization to the minister, under KY
>>> law.  That's a secular question.
>>>
>>> 2. As I understand it, Davis is not seeking for the *court *to give her
>>> a just-not-with-my-name-on-them accommodation --- something he has in fact
>>> just given her! -- but instead is asking the court to grant her the right
>>> to prevent all licenses from being issued in the county, on the theory that 
>>> *the
>>> legislature* could, in theory, create the just-not-with-my-name-on-them
>>> accommodation.
>>>
>>> 3.  Most importantly, you seem to agree, Eugene, that the very
>>> possibility of such a legislative fix is not sufficient to give Davis a
>>> RFRA right to cessation of all issuance of marriage licenses in her
>>> county.  Does this mean that you disagree with the Alito view of "least
>>> restrictive means" -- to include all possible legislative alternatives --
>>> which the plaintiffs are pressing hard in the contraception cases?
>>>
>>> On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene 
>>> wrote:
>>>
>>>>Marty doesn’t view her issuance of the licenses as
>>>> authorization.  He may well be right that Kentucky law doesn’t view it as
>>>> authorization.  But, as I understand it, Kim Davis claims that God would
>>>> view her issuing such licenses with her name on them as authorization.  If
>>>> that is indeed Kim Davis’s claim, which it seems to be, then I don’t think
>>>> it matters that Kentucky’s view is not Kim Davis’s view of God’s view.
>>>>
>>>>
>>>>
>>>>Now I agree that Davis is not entitled to the cessation
>>>> of all issuance of marriage licenses in her county as an accommodation –
>>>> that would unduly interfere with the state’s interest in providing marriage
>>>> licenses to its citizens (and possibly the citizens’ federal constitutional
>>>> right in having licenses issued by their county of residence, though that’s
>>>> a somewhat more contested question).  But *if* she continues to seek a
>>>> just-not-with-my-name-on-them accommodation, which she indeed said in her
>>>> stay application would be adequate, then the Kentucky RFRA would entitle
>>>> her to that exemption.
>>>>
>>>>
>>>>
>>>>Eugene
>>>>
>>>>
>>>>
>>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *

Re: What's happening in KY? -- my differences with Eugene

[Arthur Spitzer]

Marty says: "Davis is not seeking for the *court *to give her
a just-not-with-my-name-on-them accommodation --- something he has in fact
just given her!"

Perhaps I missed this detail in one of your earlier posts, Marty.  Can you
fill me in on just how the court has already provided this relief?  I
thought the forms were pre-printed with her name and title.  Did the court
authorize her to print new forms? Or to black out her name with a magic
marker?

Thanks,
Art Spitzer



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On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
wrote:

> 1.  I *don't *understand Kim Davis to claim "that God would view her
> issuing such licenses with her name on them as authorization."  I can't
> even imagine what that would mean:  That God has a view of when the
> appearance of a name on the "issued in" line of a state licensing form
> constitutes one human being "authorizing" another to perform a marriage?
> That God has a view about the actual legal operation of Kentucky law?  Of
> course not.  Davis instead argues that she would be sinning because her
> name would provide* legal *authorization to the minister, under KY law.
> That's a secular question.
>
> 2. As I understand it, Davis is not seeking for the *court *to give her
> a just-not-with-my-name-on-them accommodation --- something he has in fact
> just given her! -- but instead is asking the court to grant her the right
> to prevent all licenses from being issued in the county, on the theory that 
> *the
> legislature* could, in theory, create the just-not-with-my-name-on-them
> accommodation.
>
> 3.  Most importantly, you seem to agree, Eugene, that the very possibility
> of such a legislative fix is not sufficient to give Davis a RFRA right to
> cessation of all issuance of marriage licenses in her county.  Does this
> mean that you disagree with the Alito view of "least restrictive means" --
> to include all possible legislative alternatives -- which the plaintiffs
> are pressing hard in the contraception cases?
>
> On Sat, Sep 5, 2015 at 3:17 PM, Volokh, Eugene 
> wrote:
>
>>Marty doesn’t view her issuance of the licenses as
>> authorization.  He may well be right that Kentucky law doesn’t view it as
>> authorization.  But, as I understand it, Kim Davis claims that God would
>> view her issuing such licenses with her name on them as authorization.  If
>> that is indeed Kim Davis’s claim, which it seems to be, then I don’t think
>> it matters that Kentucky’s view is not Kim Davis’s view of God’s view.
>>
>>
>>
>>Now I agree that Davis is not entitled to the cessation of
>> all issuance of marriage licenses in her county as an accommodation – that
>> would unduly interfere with the state’s interest in providing marriage
>> licenses to its citizens (and possibly the citizens’ federal constitutional
>> right in having licenses issued by their county of residence, though that’s
>> a somewhat more contested question).  But *if* she continues to seek a
>> just-not-with-my-name-on-them accommodation, which she indeed said in her
>> stay application would be adequate, then the Kentucky RFRA would entitle
>> her to that exemption.
>>
>>
>>
>>Eugene
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
>> *Sent:* Saturday, September 05, 2015 11:47 AM
>> *To:* Law & Religion issues for Law Academics
>>
>> *Subject:* Re: What's happening in KY? -- my differences with Eugene
>>
>>
>>
>> On Points 1 and 2 of Eugene's post, Davis's religious objection is not,
>> as Eugene suggests, *independent *of whether her name serves to provide
>> her "authorization" of a same-sex marriage; instead, she claims that it
>> violates her religion *because *it in fact serves as an authorization.
>> And thus, understandably, she cites Kentucky law for that proposition,
>> because it's a question not of religious doctrine but of the legal affect
>> of the appearance of her name.  Her reading of that law is, I suggest,
>> mistaken if not tendentious.  And since her religious objection is
>> predicated on a mistake of fact/law that civil authorities can assess,
>> rather than on a disputed religious tenet, there's no substantial burden on
>> her religious exercise.  (Obviously, this same issue is now front and
>> center in the contraception cases--most or all of the theories of
>> complicity are, I've argued, based upon mistakes of law or fact that the
>> courts need not accept.)
>>
>>
>>
>> The more important point for present purposes, however, is No. 3:  And on
>> that, I basically *agree *with Eugene that if there were a substantial
>> burden here (but see above), then perhaps Kentucky law, viewed as a whole
>> (including RFRA), could be read to provide that the issuance of a license
>> by Deputy Clerk Mason, *without *Davis's name, is both permissible and
>> results in a valid marriage license.  The problem, how

Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Arthur Spitzer]

Could March for Life lawfully refuse to employ a person whose spouse or
dependents wish to use forms of contraception that March for Life opposes?

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On Tue, Sep 1, 2015 at 11:07 AM, Ira Lupu  wrote:

> So now March for Life will receive more favorable legal treatment than
> Priests for Life? Something is deeply wrong with this picture.
> (Re the employee claim, Marty is right that the decision ignores the
> interests of female dependents of the objecting employees.)
>
> Sent from my iPhone
>
> On Sep 1, 2015, at 10:45 AM, Levinson, Sanford V 
> wrote:
>
> So, is the argument that RFRA would be unconstitutional if it protected
> only "religious freedom," so that we a) expand it to protect any and all
> claims of "conscience," even if based on admittedly non-religious grounds
> and b) we must assume as well that Congress would prefer this solution to
> one that would, as Justice Stevens had suggested, simply invalidate RFRA?
> If I'm wrong in my surmise, then I think that Leon's RFRA argument makes no
> sense, unlike his equal protection argument, which requires no Orwellian
> interpretation of "religion."
>
> Although no one agreed with me at the time of Hobby Lobby, I continue to
> be perplexed how anyone who finds Leon persuasive could defend Gillette or,
> indeed, forcing pacifists to help finance the killing machine of government
> by paying taxes.
>
> Sandy
>
> Sent from my iPhone
>
> On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:
>
> So rules Judge Richard Leon:
>
> https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30
>
> His rationale is that because HHS extended the exemption to churches *because
> their employees are unlikely to use contraception*, it does not satisfy 
> *rational
> basis* review for HHS to deny a comparable exemption to March for Life, a
> secular group whose employees allegedly would not use IUDs, ella and Plan B
> (because MfL refuses to hire employees who are not opposed to use of such
> methods of contraception).
>
> On first glance, I'm dubious.  HHS exempts churches not only because HHS
> assumes that most of their employees share their objections to the use of
> contraception, but also because HHS assumes that requiring payment for such
> coverage would burden the churches' religious exercise (or beliefs) --
> something that is not present in the case of March for Life.  As the
> agencies wrote when they first established the exemption:  "In the
> Departments' view, it is appropriate that HRSA, in issuing these
> Guidelines, takes into account* the effect on the religious beliefs of
> certain religious employers* if coverage of contraceptive services were
> required in the group health plans in which employees in certain religious
> positions participate."  Or as they wrote in their brief in this case:
>  "[T]he religious employer exemption serves the 'legitimate purpose' of
> 'limiting governmental interference with the exercise of religion' by
> religious institutions." (quoting *Amos*).  See also 78 Fed. Reg. at
> 39874 ("exemption respect[s] the religious interests of houses of worship
> and their integrated auxiliaries").
>
> Judge Leon also holds that as to two of MfL's employees who have
> *religious* objections to participating in insurance plans that cover the
> four methods in question, RFRA grants them an exemption notwithstanding 
> *Priests
> for Life*, because (and only because) their insurer is willing to offer
> them a plan that does not include those methods.  This holding doesn't have
> any effect on MfL as long as Judge Leon's equal protection judgment stands
> (because MfL will be entirely exempt, anyway).  But what would its effects
> be if the EPC ruling is overturned?  Not much as to the employees
> themselves, of course, because they won't use the contraception in any
> event.  But it would presumably deny the benefit to their dependents who
> might use those methods, including those aged 18-26.
>
> ___
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Re: Belated congratulations

[Arthur Spitzer]

Thanks!  90% of the great lawyering was by Heather.

Art Spitzer

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On Thu, Jun 18, 2015 at 9:39 PM, Eric Rassbach 
wrote:

>
>  To Dan Mach, Heaver Weaver, and Art Spitzer of the ACLU, as well as
> Anisha Singh and Manmeet Singh of United Sikhs. This important decision
> regarding the rights of observant Sikh Americans who wish to serve in the
> military represents some great lawyering:
>
>
>  https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1906-46
>
>
>
>
>
>
>
>
>
> ___
> 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
>
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>
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Re: "By the power vested in me . . . "?

[Arthur Spitzer]

It's not an entirely hypothetical discussion.  See D.C. Code § 2–1402.67
(part of the D.C. Human Rights Act):

All permits, licenses, franchises, benefits, exemptions, or advantages
issued by or on behalf of the government of the District of Columbia, shall
specifically require and be conditioned upon full compliance with the
[non-discrimination] provisions of this chapter; and shall further specify
that the failure or refusal to comply with any provision of this chapter
shall be a proper basis for revocation of such permit, license, franchise,
benefit, exemption, or advantage.


Art Spitzer

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*: this message is subject to monitoring by the NSA.*

On Thu, May 7, 2015 at 1:46 PM, James Oleske  wrote:

> Hypothetical Statute (building off of Marty's, but designed to raise
> Nelson's Hosanna-Tabor point more directly):
>
> Michigan passes a statute that says schools can only be licensed if they
> adhere to nondiscrimination conditions in their employment relations.
>
> If Michigan attempted to enforce those nondiscrimination conditions
> against Hosanna-Tabor with respect to its relations with its called
> teachers, would it run up against the unconstitutional conditions doctrine?
> If so, would the same be true of Marty's hypothetical statute?
>
> On a related note, Bob and Chip tackled some of the issues we're working
> through in their 2010 piece, Same-Sex Equality and Religious Freedom:
>
> "Although such a coercive policy is politically inconceivable, it could be
> designed in a constitutionally defensible way. For example, the government
> could treat the celebration of civil marriage as a public accommodation,
> and prohibit discrimination by providers of that service. Or, the
> government could impose a condition on its grant of the authority to
> solemnize marriages, requiring the celebrant to be willing to serve all
> couples. In response to fears of this character, the states that have
> enacted same-sex marriage legislation have provided explicit assurances
> that neither clergy nor religious communities will be forced to cooperate
> in these ways Lawyers and scholars share a common intuition that the
> First Amendment, as well as state constitutional guarantees, protect these
> categories of religious freedom, but thus far there has been little
> explanation of why this is so. Our analysis of other, less muscular claims
> of religious liberty will unfold more cleanly if we first explain the
> conventional wisdom that neither clergy nor faith communities can be
> directly coerced into celebrating weddings for anyone, same-sex couples
> included."
>
>
> http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp
> (pp. 282-84)
>
>
> - Jim
>
> On Thu, May 7, 2015 at 10:03 AM, Marty Lederman 
> wrote:
>
>> Perhaps the *couple *has an affirmative *due process *right to have the
>> state grant them a marriage license.  (That's one of the issues currently
>> before the Court.)  But even so, if the state can insist that they have
>> their wedding "solemnized" in order to obtain that license--something that
>> state laws apparently require, and a condition that I will for present
>> purposes assume to be constitutional -- do they have a fundamental right to
>> obtain the license even if they have not had the marriage "solemnized" by
>> one of the thousands of people who the state has licensed to perform that
>> function?  I'm skeptical.
>>
>> In any event, that's not the question I was addressing.  You had
>> suggested that the *ministers* have a *Free Exercise *right to be
>> licensed by the state to solemnize marriages--i.e., to be designated as one
>> of the persons whose officiating will be credited for purposes of a civil
>> marriage license -- even if they are unwilling to live by the
>> (nondiscrimination) conditions that our (completely hypothetical) state
>> might impose on its "solemnizing-official" designations.  That's the
>> argument I have trouble with.
>>
>> On Thu, May 7, 2015 at 12:36 PM, Nelson Tebbe 
>> wrote:
>>
>>>
>>>
>>>  Wow, that's interesting. I think vouchers are quite a bit different.
>>> Deb Widiss and I characterized civil marriage as a benefit in our piece in
>>> Penn. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594361. And I
>>> stand by our arguments there -- you're right that understanding civil
>>> marriage as a benefit can be useful for understanding some problems, like
>>> the question of equal access for same-sea couples. But there are strong
>>> arguments that access to civil marriage performed by clergy is a
>>> fundamental right. So that's one difference with school vouchers. Also,
>>> doctrinally, the statute you suggest would run up against Hosanna-Tabor, at
>>> least insofar as the clergy's actions are governed by theology. But I'm
>>> actively thinking about all of this right now and may well change my view.
>>>
>>>
>>>
>>> On May 7, 2015, at 12:10 PM, Marty Lederman 
>>> wrote:
>>>
>>>   Thanks, Nelson.  The

Re: law suit on behalf of Jesus

[Arthur Spitzer]

You're assuming He/She is foreign?


On Wed, May 6, 2015 at 1:57 PM, Volokh, Eugene  wrote:

>But what about the Ambassador Reception Clause?
>
>
>
>Eugene
>
> ___
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Re: Businesses don't really want to be free

[Arthur Spitzer]

I don't doubt that this may be true for many businesses.  So what?   A
person might suggest that it is evidence of the religious sincerity of the
lonely business-owner who does not want to be left without discretion.

Art Spitzer


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*: this message is subject to monitoring by the NSA.*

On Wed, Apr 8, 2015 at 10:53 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

> Barney Frank was in Austin this evening talking about his new book. Not
> surprisingly, Indiana and Arkansas came up. Not only did he emphasize the
> crucial role played by business in pushing back against religious
> conservatives, but he also made the very shrewd point that businesses often
> actually prefer to be left without discretion. If they are "free" to
> discriminate, then they're guaranteed to make enemies whatever their
> decision. If, on the other hand, the state bans discrimination, then the
> decision is out of their hands and people can't really get angry at
> businesses that are simply obeying the law. What is also clear, of course,
> is that big businesses no longer think that discrimination is profitable;
> indeed, the opposite is true (especially, I suspect, for most wedding
> photographers and wedding cake bakers), but what maximizes profits is not
> having to pay any potential costs from objecting customers for doing what
> they (now) want to do anyway.
>
> Sandy
>
> Sent from my iPhone
> ___
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messages to others.

Re: RFRAs, Non-profits and Abortion / Contraceptive services for Refugee Children

[Arthur Spitzer]

I don't know the facts, but the ACLU's statement asserts, contrary to the
Bishops' letter, that "Reports from workers interacting with these teens
indicate that, because of USCCB’s refusals, teens are not getting the care
they need. Reports also indicate that some organizations are using their
religious beliefs to force teens to leave their program, uprooting the teen
from familiar surroundings and the lifeline of their social worker, if they
need reproductive care."

This is only a FOIA case seeking documents from HHS, so I don't think it
has the potential to "test the limits of the federal RFRA as applied to
religious non-profits."  There may be a subsequent case that will have that
potential.

Art Spitzer



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*: this message is subject to monitoring by the NSA.*

On Tue, Apr 7, 2015 at 12:58 PM, Will Esser  wrote:

> Given the recent post discussions about RFRAs and religious accommodation
> carveouts for non-profits, I was interested to see the recent ACLU
> announcement (on, I note, April 3, Good Friday) about its FOIA lawsuit to "ask
> a federal court to order the federal government to release documents
> related to how groups that are awarded government funding contracts are
> restricting refugee and undocumented immigrant teenagers' access to
> reproductive health services, including contraception and abortion."
> https://www.aclu.org/reproductive-freedom/religious-organizations-obstruct-reproductive-health-care-unaccompanied-immigra
>
> As I understand the issue, in a nutshell, Catholic Charities and other
> faith-based organizations have for many years accepted government contracts
> to provide housing and related services for refugee children while they
> await various immigration hearings (including the possibility of
> deportation hearings).  The federal government recently introduced proposed
> interim rules that all contracting agencies, including religious
> non-profits, must provide the refugee children with health care services
> including emergency contraception and abortion services.
>
> The United States Conference of Catholic Bishops and other faith-based
> organizations objected to the proposed interim rules and argued, among
> other things, that an accommodation was required under the provisions of
> the federal RFRA.  One of the arguments the USCCB made is that the
> government cannot meet its burden under RFRA because the USCCB has been
> providing services to refugee children for many years "*without* the
> constraints that the interim final rule would create.  Yet there have been
> no reported problems in terms of services to clients.  The final rule
> therefore does not seem to remedy an actual problem or to address any
> actual past adverse impacts on clients served."  The text of the USCCB
> letter is here:
> http://www.usccb.org/about/general-counsel/rulemaking/upload/02-20-15-comments-UM.pdf
>
> This will be an interesting case to follow as it may test the limits of
> the federal RFRA as applied to religious non-profits, and may offer some
> guidance on how state RFRAs can address the same issue.
>
> Will
>
>
> Will Esser Charlotte, North Carolina
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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Re: state RFRA's and local anti-discrimination laws

[Arthur Spitzer]

This doesn't entirely answer Chip's question, but state laws often provide
compelling interests that would satisfy the federal RFRA, e.g., the state
law against murder vs. a religious claim of obligatory human sacrifice.   I
don't see why the answer would be different at the state vis-a-vis local
level, e.g. (to get away from discrimination issues, which skew
everything), a local ordinance requiring health inspections of food service
facilities vs. a religious claim that inspections of the church soup
kitchen are sacrilegious because G-d will protect the hungry homeless folks
from harm.

Art Spitzer


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*: this message is subject to monitoring by the NSA.*

On Mon, Mar 30, 2015 at 1:44 PM, Ira Lupu  wrote:

> One very important question I have never seen discussed is the
> relationship between a state RFRA (say, Texas or Indiana) and a local
> anti-discrimination ordinance (say, San Antonio or Indianapolis) that
> covers public accommodations and protects the LGBT population.  This is a
> common configuration; most RFRA states do NOT have state-wide LGBT laws re:
> public accommodations, but many have cities or counties with such laws.
> So, when the local wedding vendor refuses to sell to a same sex couple and
> is cited by the local Human Rights Commission for violating the public
> accommodations law, and the defense is state RFRA, how will the arguments
> play?  Can a local law ever present a "compelling interest" sufficient to
> defeat a state religious freedom law? If not, the outcome of these
> conflicts is pre-ordained; the vendor will win.  Or can the local interest
> be sufficiently compelling in that community to defeat the state RFRA
> defense? Does this depend on state-to-state generic principles of local
> government law?
>
> All thoughts welcome.
> --
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law, Emeritus
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> Co-author (with Professor Robert Tuttle) of "Secular Government, Religious
> People" ( Wm. B. Eerdmans Pub. Co., 2014))
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
>
> ___
> 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.
>
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Re: "City subpoenas pastors' sermons in equal rights ordinance case"

[Arthur Spitzer]

Yes, the Trans community definitely believes that people should be able to
use the restroom they believe is appropriate for themselves.  E.g.,
http://www.lambdalegal.org/know-your-rights/transgender/restroom-faq

Art Spitzer

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*: this message is subject to monitoring by the NSA.*

On Wed, Oct 15, 2014 at 11:03 AM, Volokh, Eugene 
wrote:

>I did a bit of looking, and saw that a Colorado Civil
> Rights Division panel interpreted a ban on “transgender status”
> discrimination to indeed conclude that people (in that case, children) who
> are biologically male but who self-identify as female are legally entitled
> to use women’s restrooms.  It thus seems that the claims that the Houston
> ordinance would have such an effect were at least defensible and possibly
> quite correct, unless I’m missing something here.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Allen Asch
> *Sent:* Wednesday, October 15, 2014 7:29 AM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: "City subpoenas pastors' sermons in equal rights ordinance
> case"
>
>
>
> Regarding your second question, I can tell you from my work as an ACLU
> activist helping  pass/implement the California law allowing equal access
> to sex segregated activities/facilities in schools, AB 1266, that I heard
> repeatedly that AB 1266 clarified but did not change existing California
> law, Cal Educ Code 220, which has similar language to the proposed Houston
> ordinance. You can see the author of AB 1266, Assemblymember Tom Ammiano,
> make this claim when he talked in committee about AB 1266, saying "Although
> current California law already protects students from discrimination in
> education based on sex and gender identity, many school districts are not
> in compliance with these requirements. AB 1266 clarifies existing law…" See
> https://www.youtube.com/watch?v=DA7r9bVpayQ
>
>
>
> Allen
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics 
> Sent: Tue, Oct 14, 2014 11:29 pm
> Subject: RE: "City subpoenas pastors' sermons in equal rights ordinance
> case"
>
>Got it, thanks very much!  Two questions:
>
>
>
>1.  Isn’t the response arguing that plaintiffs were
> dishonest in the petition itself, not just in public statements about the
> ordinance?
>
>
>
>2.  Under the ordinance, would employers indeed be able to
> exclude people who are biologically male but who self-identify as female
> from women’s restrooms?  I haven’t thought about this question in the past,
> and I’d love to hear what people know about how such bans on gender
> identity discrimination have been interpreted (or how plaintiffs or
> activists have sought to have them be interpreted).
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Allen Asch
> *Sent:* Tuesday, October 14, 2014 8:29 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: "City subpoenas pastors' sermons in equal rights ordinance
> case"
>
>
>
> Prof Volokh,
>
>
>
> You piqued my interest, so I checked out the "City of Houston's Response
> in Opposition to Plaintiff's Request for a Temporary Injunction" at
> http://lexpolitico.com/wp-content/uploads/2014/08/20140814-Response-in-Oppo.pdf
>
>
>
> I notice one of the arguments the City makes is that Plaintiffs have
> "unclean hands" because their petition signatures were gained by dishonest
> scare tactics about the equal rights ordinance ("Plaintiffs and their
> associates appear intentionally to have used falsehoods and taken wild
> liberties with the truth as they sought to frighten people into supporting
> and signing their referendum petition"). The argument alleges scare tactics
> about men being allowed in women's restrooms.
>
>
>
> Without supporting the use of those subpoenas myself, that argument
> about the scare tactics sounds like the likely source of the subpoena
> request for those sermons.
>
>
>
> I hope that helps,
>
>
>
> Allen Asch
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) <
> religionlaw@lists.ucla.edu>
> Sent: Tue, Oct 14, 2014 7:59 pm
> Subject: "City subpoenas pastors' sermons in equal rights ordinance case"
>
> Colleagues:  Does anyone know the theory on which the subpoenaed
> information is relevant here?
>
>
>
>
> http://www.chron.com/news/politics/houston/article/City-subpoenas-pastors-sermons-in-equal-rights-5822403.php
>
>
>
> Houston's embattled equal rights ordinance took another legal turn this
> week when it surfaced that city attorneys, in an unusual step, subpoenaed
> sermons given by local pastors who oppose the law and are tied to the
> conservative Christian activists that have sued the city.
>
> Opponents of the equal rights ordinance are ho

Re: Holt v. Hobbs Oral Argument

[Arthur Spitzer]

I also am not concerned that the Court will be insufficiently deferential
to security concerns in prisons and jails.  Recall that they recently
upheld, on security grounds, full-body strip-searches and visual
body-cavity searches for all persons being admitted to local jails, even
though that practice had long been held unconstitutional by almost every
circuit, and jails in most of the nation had been managing quite well for
decades without the practice.  *Florence v. Board of Chosen Freeholders*
(2012).

I suppose the interesting question is whether a person with a sincere
religious objection to being strip-searched would be entitled to an
exemption.  That's only half a joke.

Art Spitzer

*Warning*
*: this message is subject to monitoring by the NSA.*

On Tue, Oct 7, 2014 at 10:07 PM, Marc Stern  wrote:

>  A simple fact of prison litigation is that prison officials lie-or
> simply care little for the facts-when asserting concerns about security.
> When I was a law clerk, the states routinely filed canned briefs asserting
> grave and unavoidable security concerns , no matter what the reality
> was-and in one memorable case in defense of a practice( labeling prisoners
> by race) that the Supreme Court had even then long since condemned. One
> state commissioner of corrections once told a group of us that he was aware
> that prison security officials could not be relied on to fairly assess
> risks and the deputy commissioner of another flatly told me she know prison
> administrators routinely lied. That sort of paying fast and loose occurred
> in this case,but was caught by counsel with the skill, time, commitment and
> knowledge to discover the fraud on the court- luxuries pro se litigants
> often don't have. And even when they do, some judges will still invoke
> deference.
>
>  Prisons are not like other places, and things that seem innocent and
> harmless can be deadly weapons. Deference to prison officials therefore
> makes much sense- but only if prison officials can be counted on to tell
> the truth and deliver fair and honest assessments of risk.   Too many don't
> and courts should not ratify those malign  ‎practices by blindly deferring
> to prison officials. How to apply deference without judicial abdication is
> the hard question in this case, not the question of how long
>  ‎Is too long.
>  Marc‎ Stern
>  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
> network.
>*From: *Friedman, Howard M.
> *Sent: *Tuesday, October 7, 2014 9:03 PM
> *To: *Law & Religion issues for Law Academics
> *Reply To: *Law & Religion issues for Law Academics
> *Subject: *RE: Holt v. Hobbs Oral Argument
>
>  I think this case on its facts is likely to be easy for the Court
> because so many other states have found ways to accommodate beards.  That
> being the case, I fear that the Court may not be as careful as it should in
> formulating the strict scrutiny test under RLUIPA. Broadly speaking,
> prisons have put forward two kinds of justifications for refusals to
> accomodate religious beliefs-- security concerns (as in this case) and
> budgetary issues (e.g. in claims for kosher or Halal diets).  It seems to
> me that courts are fairly able to assess budgetary justifications. However
> I fear that they are less able to assess security concerns as they exist on
> the ground.  If the court imposes truly strict scrutiny when security is at
> issue, I fear that prisons may be unable to adequately deal with Racist,
> neo-Nazi, and similar groups that assert they are religious organizations.
> Currently a number of prisons are facing the question of whether Nations of
> Gods and Earths should be recognized as a religion or classified as a
> security threat group.  How much deference should be given to prison
> officials there?
>
>  Howard Friedman
>  --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie [
> mfailin...@hamline.edu]
> *Sent:* Tuesday, October 07, 2014 6:38 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Holt v. Hobbs Oral Argument
>
>   I haven't read all of the background materials, but it seems to me a
> little bizarre to worry about what one could hide in a 1/4, 1/2 or even 3
> inch beard given what one could hide in a typical prison uniform.  If
> uniforms are searched for contraband, why not beards?  Seems like it would
> be much easier and safer than a uniform search, unless there is some
> religious ban against someone touching one's beard.
>
>  And what about the value encouraging state to expend a little effort and
> creativity in meeting believers half-way by putting the state to its burden
> of proof on its interests? In Hennepin County, the jail created an
> inmate hijab for Muslim women that doesn't have any folds or places where
> contraband can be hidden.   To use the argument example, why couldn't a
> Sikh be issued a transparent turban designed to minimiz

Re: Hobby Lobby Question

[Arthur Spitzer]

I appreciate Steve's response, which I think demonstrates that he is
precisely rejecting the legitimacy (or perhaps the religiosity) of the
plaintiffs' beliefs.  The plaintiffs say that their religious beliefs
prohibit complicity with evil, and that signing a contract that makes
available certain chemicals or devices to others amounts to complicity with
evil, because of the use to which such chemicals or devices are most likely
to be put (terminating what plaintiffs believe is a human life).

If a court should not accept that assertion "without inquiry," then what
inquiry is it supposed to make?

Can a court evaluate and reject the religious belief that "complicity with
evil is sinful"?

Can a court evaluate and reject the religious belief that "terminating a
human life is evil"?

Can a court evaluate and reject the religious belief that "morning-after
pills terminate a human life"?

Can a court evaluate and reject the religious belief that "providing the
means for a person to obtain a chemical or device whose principal purpose
is to terminate a human life, and that is likely to be used for that
purpose, counts as complicity in terminating a human life"?

Is there some other inquiry the court should be making that I'm missing?

Art Spitzer
PS - My questions should not be taken to imply that I necessarily agree
with the majority opinion (not that anyone cares), and they certainly do
not represent the views of my employer.



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*: this message is subject to monitoring by the NSA.*


On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar  wrote:

> The court accepts without inquiry the assertion that the complicity with
> evil theory is the problem that leads to the substantial burden. It merely
> accepts the claim that the adherents cannot comply because of the
> complicity theory.  It then bootstraps that there would be costs of
> non-compliance.
> At the core the court buys the argument that an attenuated complicity can
> be the basis of a substantial burden.
>
> Sent from Steve's iPhone
>
>
> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:
>
> I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably
> requires all courts to simply accept the religious adherent’s claim that
> the burden is substantial."  The majority analyzed whether the burden was
> substantial and found it was because the ACA would impose millions of
> dollars of financial penalties on the plaintiffs if they did not comply.
> Slip op. at 32.  I don't think the Court tells us whether a $100 fine would
> have been a substantial burden.  I'm curious what in the opinion Steve
> points to in support of the proposition that courts may not evaluate the
> substantiality of a burden, especially considering that the Court did
> evaluate that question, as an empirical matter, in this case.
>
> Art Spitzer
>
>
> *Warning*
> *: this message is subject to monitoring by the NSA.*
>
>
> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
> wrote:
>
>> Brown eliminated the constitutional doctrine of separate but equal — in
>> the Brown decision just for education, but it was applied to all racial
>> classifications.  The 1964 Civil Rights Act accomplished much more, of
>> course, but the Brown decision matters a lot.
>>
>> So it is with numerous decisions.  Hobby Lobby’s acceptance of the
>> complicity with evil theory in this attenuated context and its ruling that
>> arguably requires all courts to simply accept the religious adherent’s
>> claim that the burden is substantial, could dramatically change the
>> landscape of RFRA interpretation federally and by example at the state
>> level.These underlying principles could also be restricted by later
>> decisions or expanded.  It is a very troubling expansion of RFRA beyond
>> what was intended originally.  But that is hardly unique to this bit of
>> legislation.
>>
>> I think it is a very bad decision, but not even in the top ten.
>>
>>--
>> Prof. Steven D. Jamar vox:  202-806-8017
>> Director of International Programs, Institute for Intellectual Property
>> and Social Justice http://iipsj.org
>> Howard University School of Law   fax:  202-806-8567
>> http://sdjlaw.org
>>
>>
>> "For all men of good will May 17, 1954, came as a joyous daybreak to end
>> the long night of enforced segregation. . . . It served to transform the
>> fatigue of despair into the buoyancy of hope."
>>
>>
>> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> ___

Re: Hobby Lobby Question

[Arthur Spitzer]

Sandy Levinson says, "Same-sex marriage is quite unlike these,
incidentally, in that the Court can, should it wish to, make it a
possibility nation-wide simply by the 'performative utterance' of declaring
that such marriages can’t be barred by states.  There will, even in
Oklahoma and North Dakota, be ministers willing to preside and civil
servants who will feel obligated to sell the marriage licenses.  It’s far
less complicated, in terms of changing the behavior of thousands upon
thousands low-visibility officials, than school segregation."

I must be missing something.  Does Sandy think that if the Supreme Court
declares state laws banning same-sex marriages unconstitutional, same-sex
couples living in remote corners of Texas or Virginia will have to travel
to Austin or Charlottesville to find a minister or county clerk willing to
marry them?  After Loving v. Virginia, were interracial couples who wished
to marry required to travel to miscegenation-friendly counties to get
married?  Does Sandy think they should have been?  It seems quite clear to
me that thousands of county clerks will be required to take the steps
necessary to create legal same-sex marriages, whether they like it or not.
And so it should be.  And the Court should not decline to make such a
ruling on the ground that it's "politically impossible."

Art Spitzer


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*: this message is subject to monitoring by the NSA.*


On Mon, Jun 30, 2014 at 10:20 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

>  Art raises an interesting point.  For better and worse, Brown in 1954
> did absolutely nothing, and Brown II settled for the (in)famous “all
> deliberate speed.”  It was the Civil Rights Movement, Lyndon Johnson, and
> Congress that fundamentally changed things, not the Supreme Court that in
> 1956 engaged in the disgraceful evasion of Naim v. Naim.  I’m not sure how
> much credit Roe should get for reforming American abortion law.  That’s the
> great question raised by Gerry Rosenberg’s book.  Same-sex marriage is
> quite unlike these, incidentally, in that the Court can, should it wish to,
> make it a possibility nation-wide simply by the “performative utterance” of
> declaring that such marriages can’t be barred by states.  There will, even
> in Oklahoma and North Dakota, be ministers willing to preside and civil
> servants who will feel obligated to sell the marriage licenses.  It’s far
> less complicated, in terms of changing the behavior of thousands upon
> thousands low-visibility officials, than school segregation.
>
>
>
> But I also want to emphasize that the utter cynicism is to suggest, while
> maintaining an iniquitous status quo, that the answer lies in Congress.
> The strongest argument for judicial intervention is indeed the argument of
> John Hart Ely that it is foolish to consign unpopular groups to legislative
> mercy.  That was, incidentally, what was so offensive about Frankfurter in
> 1962 saying that the folks in Memphis should “sear the consciences” of the
> Tennessee legislators that never in a million years would have voluntarily
> given up their illegitimate power as a result of malapportionment.  “Power
> corrupts,” as John P. Roche once put it, “and the prospect of losing power
> corrupts absolutely.”  So I don’t know how much we disagree after all.
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, June 30, 2014 8:51 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Hobby Lobby Question
>
>
>
> With respect, I think Sandy's response ("I think that it's utter cynicism
> to suggest possibilities that are politically impossible. The life of the
> law should be experience and not arid logical possibility") is
> unacceptable.  It was politically impossible to get southern states to
> integrate their public schools in 1954.  Did that make it constitutionally
> unnecessary?  It was politically impossible to get many states to allow
> abortions in 1973.  But it happened.  It is politically impossible to get
> Oklahoma (or Congress) to agree to same-sex marriage.  Does that make it
> constitutionally unnecessary?  "The life of the law should be experience,"
> and experience teaches that the nation obeys the law.  At least mostly, and
> at least so far.  And Congress can amend RFRA if The People don't like it.
>
> Art Spitzer
>
>
>   *Warning: this message is subject to monitoring by the NSA.*
>
>
>
> On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V <
> slevin...@law.utexas.edu> wrote:
>
> I think that it's utter cynicism to suggest possibilities that are
> politically impossible. 

Re: Hobby Lobby Question

[Arthur Spitzer]

I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably
requires all courts to simply accept the religious adherent’s claim that
the burden is substantial."  The majority analyzed whether the burden was
substantial and found it was because the ACA would impose millions of
dollars of financial penalties on the plaintiffs if they did not comply.
Slip op. at 32.  I don't think the Court tells us whether a $100 fine would
have been a substantial burden.  I'm curious what in the opinion Steve
points to in support of the proposition that courts may not evaluate the
substantiality of a burden, especially considering that the Court did
evaluate that question, as an empirical matter, in this case.

Art Spitzer


*Warning*
*: this message is subject to monitoring by the NSA.*


On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
wrote:

> Brown eliminated the constitutional doctrine of separate but equal — in
> the Brown decision just for education, but it was applied to all racial
> classifications.  The 1964 Civil Rights Act accomplished much more, of
> course, but the Brown decision matters a lot.
>
> So it is with numerous decisions.  Hobby Lobby’s acceptance of the
> complicity with evil theory in this attenuated context and its ruling that
> arguably requires all courts to simply accept the religious adherent’s
> claim that the burden is substantial, could dramatically change the
> landscape of RFRA interpretation federally and by example at the state
> level.These underlying principles could also be restricted by later
> decisions or expanded.  It is a very troubling expansion of RFRA beyond
> what was intended originally.  But that is hardly unique to this bit of
> legislation.
>
> I think it is a very bad decision, but not even in the top ten.
>
>--
> Prof. Steven D. Jamar vox:  202-806-8017
> Director of International Programs, Institute for Intellectual Property
> and Social Justice http://iipsj.org
> Howard University School of Law   fax:  202-806-8567
> http://sdjlaw.org
>
>
> "For all men of good will May 17, 1954, came as a joyous daybreak to end
> the long night of enforced segregation. . . . It served to transform the
> fatigue of despair into the buoyancy of hope."
>
>
> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
>
>
>
>
>
>
>
>
>
> ___
> 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.
>
___
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To subscribe, unsubscribe, change options, or get password, see 
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Re: Hobby Lobby Question

[Arthur Spitzer]

With respect, I think Sandy's response ("I think that it's utter cynicism
to suggest possibilities that are politically impossible. The life of the
law should be experience and not arid logical possibility") is
unacceptable.  It was politically impossible to get southern states to
integrate their public schools in 1954.  Did that make it constitutionally
unnecessary?  It was politically impossible to get many states to allow
abortions in 1973.  But it happened.  It is politically impossible to get
Oklahoma (or Congress) to agree to same-sex marriage.  Does that make it
constitutionally unnecessary?  "The life of the law should be experience,"
and experience teaches that the nation obeys the law.  At least mostly, and
at least so far.  And Congress can amend RFRA if The People don't like it.

Art Spitzer


*Warning*
*: this message is subject to monitoring by the NSA.*


On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

>  I think that it's utter cynicism to suggest possibilities that are
> politically impossible. The life of the law should be experience and not
> arid logical possibility.
>
>  Sandy
>
> Sent from my iPhone
>
> On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" <
> mark.scarbe...@pepperdine.edu> wrote:
>
>   With regard to Sandy’s comment that there isn’t a chance in hell of
> getting funding from Congress to cover these methods of contraception:
>
>
>
> Do we agree that a less restrictive means is available for purposes of
> RFRA and (where applicable) constitutional analysis, even if the government
> (including Congress) is for some reason unwilling to use it? The political
> difficulty (or impossibility) of getting agreement on implementing an
> approach does not make it unavailable; it just means that there is no
> consensus on using it. Do we agree on that point?
>
>
>
> On the question whether govt funding may be a less restrictive means:
>
>
>
> The majority opinion does suggest that the government could be required,
> if it seeks to advance its compelling interest, to incur a cost that is
> small compared to the cost of the entire program. A means of advancing that
> interest that requires the spending of money could be a less restrictive
> means – less restrictive of religious liberty – than a requirement that the
> individual or business incur the cost. See the discussion that begins at
> the top of page 41, and this excerpt from pp. 42-43:
>
>
>
> “The most straightforward way of doing this would be for the Government to
> assume the cost of providing the four contraceptives at issue to any women
> who are unable to obtain them under their health-insurance policies due to
> their employers’ religious objections. … It seems likely, however, that the
> cost of providing the forms of contraceptives at issue in these cases (if
> not all FDA-approved contraceptives) would be minor when compared with the
> overall cost of ACA. … If, as HHS tells us, providing all women with
> cost-free access to all FDA-approved methods of contraception is a
> Government interest of the highest order, it is hard to understand HHS’s
> argument that it cannot be required under RFRA to pay anything in order to
> achieve this important goal.
>
>  “We do not doubt that cost may be an important factor in the
> least-restrictive-means analysis, but both RFRA and its sister statute,
> RLUIPA, may in some circumstances require the Government to expend
> additional funds to accommodate citizens’ religious beliefs. Cf.
> §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur
> expenses in its own operations to avoid imposing a substantial burden on
> religious
>
> exercise.’). HHS’s view that RFRA can never require the Government to
> spend even a small amount reflects a judgment about the importance of
> religious liberty that was not shared by the Congress that enacted that
> law.”
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Levinson, Sanford V
> *Sent:* Monday, June 30, 2014 12:28 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
>
>
> This is a good question.  AS I read the opinion it tends to rely on the
> fact that the insurance providers will be required to provide the coverage
> “for free” (given that it will overall cost less to cover than would
> pregnancies), so that the government must allocate not a single new penny.
> If, on the other hand, a new appropriation, even of a penny, would be
> necessary, then we all know that there isn’t a chance in hell of that being
> voted by Congress.
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Hillel Y. Levin
> *Sent:* Monday, June 30, 2014 9:54 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Hobby Lobby 

Re: "Divisiveness"

[Arthur Spitzer]

Marty-

Like you, I had thought that "the law doesn't require HL to offer an
employee health insurance plan at all," and that that was an escape hatch
from its claimed religious problem. But from a recent news article it looks
like employers no longer have that option, as a realistic matter:

http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0

WASHINGTON — Many employers had thought they could shift health costs to
the government by sending their employees to a health insurance exchange
with a tax-free contribution of cash to help pay premiums, but the Obama
administration has squelched the idea in a new ruling. Such arrangements do
not satisfy the health care law
,
the administration said, and employers may be subject to a tax penalty of
$100 a day — or $36,500 a year — for each employee who goes into the
individual marketplace.

The ruling this month, by the Internal Revenue Service
,
blocks any wholesale move by employers to dump employees into the exchanges.
Am I missing something?

Art Spitzer



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*: this message is subject to monitoring by the NSA.*


On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman 
wrote:

> I agree with Mark's correction that the complaint of the Greens is not
> that their employees' use of contraceptive burdens their religion.
>
> But it's also not that they have to "buy insurance that specifically
> covers the drugs."  For thing, the law doesn't require HL to offer an
> employee health insurance plan at all.  For another, the Greens aren't
> shareholders, and therefore aren't "buying" anything.  Hobby Lobby, Inc.
> --as opposed to the Greens-- is contracting for an insurance plan -- but of
> course that plan is not made available to their employees gratis; it is a
> part of their compensation package, provided in exchange for their labor,
> just like wages.
>
> The nature of the way in which the Greens are alleged to be required to
> act in violation of any religious obligations, therefore, is not at all
> obvious.
>
>
> On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
>> Jon,
>>
>> I think you don't understand, or are ignoring, the point of view of the
>> Hobby Lobby parties. They don't object to employees buying what the Hobby
>> Lobby parties consider to be abortifacient drugs. I don't think they
>> monitor what their employees do with wages or would take any action against
>> employees who buy or use such drugs. They object to being required
>> themselves to take an action specifically related to abortion -- buying
>> insurance that specifically covers the drugs. You might object to buying a
>> gun for an employee, even though the recipient would be the one who uses
>> it. You might, if you were a pacifist, object to being drafted to serve as
>> an army medic or supply clerk, even though you would not be killing anyone
>> but merely be advancing the army's operations.
>>
>> I understand that some people object to this characterization, but it
>> doesn't move the discussion forward to just assume that it isn't the
>> position taken by the objectors in Hobby Lobby.
>>
>> Mark
>>
>> Mark S. Scarberry
>> Pepperdine University School of Law
>>
>> Sent from my iPad
>>
>> > On Jun 9, 2014, at 2:35 PM, "mallamud" 
>> wrote:
>> >
>> > There is some authority for not preferring religion over non-religion.
>> > I do not think religious people should get exemptions reasons not
>> > connected to the practice of their religion (church services, prayer,
>> > lighting candles, sacrificing chickens etc.) To me many requests sound
>> > like "I think it is wrong for religious reasons" and therefore other
>> > people should not engage in that behavior.  E.g. I will not pay my taxes
>> > because taxes pay for killing people.  No one is asking the owners of
>> > Hobby Lobby to engage in activities that they believe offend their
>> > religion; they are seeking not to pay employees in such a way that
>> > certain contraceptives would be covered.  The decision to use or not use
>> > the contraceptives is the employees'.  One difficulty is that the courts
>> > are loath to inquire into to the closeness of the connection of the
>> > claim to the religious belief.  But without limits exemptions will
>> > become legion.
>> >
>> > Exemptions usually involve some unfairness.  That would be mitigated if
>> > religious exemptions were limited to the actual practice of religion
>> > rather than attempts to impose beliefs on others through refusing to
>> > comply with general laws. Smith is a good example and, as we know, does
>> > not stop you from sacrificing chickens because people in the community
>> > are offended.  T

Re: United Church of Christ v. North Carolina - same-sex marriage

[Arthur Spitzer]

Under North Carolina law, would it be a misdemeanor for clergy to perform a
marriage ceremony that created a marriage valid in the eyes of the
religious denomination but did not purport to create a marriage valid as a
matter of civil law?

If the misdemeanor applied only to a marriage ceremony that purported to
create a marriage valid as a matter of civil law, would the problem
disappear, since a marriage performed without a state certificate
presumably would not purport to create a marriage valid as a matter of
civil law?






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*: this message is subject to monitoring by the NSA.*


On Tue, Apr 29, 2014 at 8:14 PM, Michael Peabody wrote:

> Greetings,
>
> Yesterday (4/28) the General Synod of the United Church of Christ ("UCC")
> sued the state of North Carolina in Federal court (link to complaint:
> http://uccfiles.com/pdf/complaint.pdf)  claiming that a constitutional
> amendment (Amendment One) prohibiting same-sex marriage is unconstitutional
> under the Free Exercise Clause.   They have also sued under a theory of
> expressive association, denial of due process, and denial of equal
> protection.
>
> North Carolina appears to be rather unique in that it potentially (if not
> in practice) makes it a misdemeanor for clergy to perform a same-sex
> marriage ceremony, so in addition to the potential harm to same-sex
> couples, there's a threat of harm to members of the clergy. (Misdemeanor is
> based on the fact that it's illegal to marry a couple without having an
> official certificate, and same-sex couples will never get an official
> certificate, ergo misdemeanor.)
>
> What makes this case particularly interesting is the free exercise
> argument, which seems to be virtually (or at least politically) unbeatable.
>  I can imagine a scenario where conservative churches bring their Bibles to
> the debate to argue that their version of the sacrament of marriage is
> correct, while progressive churches do the same thing, and the court is
> asked to decide whether one version of the sacrament is incorrect and shall
> not be practiced under pain of misdemeanor charges for the offending clergy
> member.  Or perhaps the court could cover the entire issue with a
> majoritarian overlay and claim that the voter-passed Amendment One trumps
> all competing claims, including free exercise claims.
>
> It reminds me of the California Supreme Court case that ended bans on
> interracial marriage (Perez v. Sharp -
> http://www.stanford.edu/~mrosenfe/Perez_v_Sharp_CA_1948.pdf).  In Perez,
> the petitioners argued that the state law violated their free exercise
> rights as Catholics by denying them the right to participate fully in the
> sacraments of their religion.  In this case, the UCC can argue that the
> state law violates their free exercise rights by denying same-sex couples
> (and the clergy who want to marry them) the right to participate fully in
> the sacraments of their religion.
>
> Is there any way that NC's Amendment One can survive this litigation?
>  What arguments could possibly be used to defeat UCC that aren't completely
> frightening?
>
> Michael Peabody
> Editor
> http://www.ReligiousLiberty.TV
>
>
>
> ___
> 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
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Re: Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

[Arthur Spitzer]

Or would the view of the United States be that this wireless network
services company, as a for-profit corporation, cannot have religious
beliefs and therefore cannot impose the religious beliefs of its owners or
managers on its employees?  ;-)

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*: this message is subject to monitoring by the NSA.*


On Tue, Mar 25, 2014 at 9:34 PM, Volokh, Eugene  wrote:

> An interesting lawsuit that Howard Friedman blogged about,
> and that I thought I'd pass along.  I assume that in this situation, the
> employee would win only if there were someone else who could have easily
> done the task instead of the plaintiff, yes?  I would think that, both as a
> matter of the Title VII religious accommodation rules and as a matter of
> the company's First Amendment rights, a company has to be able to express
> its views notwithstanding a speaker-employee's objections to conveying
> those views.
>
>
>
> Eugene
>
>
>
> *Feed:* Religion Clause
> *Posted on:* Tuesday, March 25, 2014 4:10 AM
> *Author:* Howard Friedman
> *Subject:* Fired Buddhist Employee Sues Claiming Failure To Accommodate
> Religious Beliefs
>
>
>
> Courthouse News 
> Serviceyesterday reported 
> on a Title VII  religious discrimination lawsuit filed
> in Texas federal district court by the former director of marketing
> communications for a wireless network services company. Plaintiff Jef
> Mindrup, a Buddhist, claims he was fired because he refused to comply with
> a request by the company's co-founder that he add Biblical verses to the
> company's daily newsletter. His lawsuit alleges that the company "fail[ed]
> to accommodate plaintiff on the basis of his religion by requiring him to
> proselytize the Christian religion, a religion other than his own."
>
>
> View 
> article...
>
> ___
> 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.
>
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Re: final thoughts on the importance/availability of contraception

[Arthur Spitzer]

I wonder if there's any use in trying to get agreement on what Notre Dame's
(and Little Sisters') argument *is*?  Greg Lipper characterizes it this
way, as do many others:

"In all events, we easily dismiss an objector's argument - akin to the
argument advanced by Notre Dame and other nonprofits - that he was
substantially burdened by the mere act of objecting because his objection
paves the way for someone to be drafted in his place."

But although Judge Posner did his damndest to prevent Notre Dame's lawyer
from explaining his client's position, I gather that is not Notre Dame's
argument.  If I understand it, Notre Dame's  argument is that it is
substantially burdened by submitting the government's form because that
form -- unlike, say, a letter addressed to the Secretary of HHS or a
complaint in a civil action or a newspaper op-ed -- affirmatively
authorizes an insurance administrator to provide contraception.

If that's difficult to understand, here's an analogy of my own invention:
Do I object to flipping a light switch on the wall? It depends on what the
switch is attached to.  If all it does it turn on a light bulb on the
ceiling, I have no objection.  But if it also closes a circuit that sets
off a bomb at Greg Lipper's office, then I object.  The government argues
that its form just turns on a light bulb.  Notre Dame and the Little
Sisters say it also sets off a bomb.

I don't know if that argument is factually true or false, but I think
that's the argument.  Does anyone think that's not actually what Notre Dame
and Little Sisters are arguing?

Then here's the harder part: if you tell me that flipping the light switch
will just turn on a light bulb on the ceiling, but that *if and only if I
flip the switch*, some other guy will set off the bomb, well, then, I still
won't flip the switch.  Am I just being irrational?

Art Spitzer
not speaking for my employer




On Tue, Feb 18, 2014 at 1:02 AM, Greg Lipper  wrote:

> I'll address Mark's points below.
>
> On Feb 18, 2014, at 12:21 AM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
> > I wonder if others (especially other "males") have the same negative
> reaction I do to the terminology Greg (Lipper, not Sisk) uses here. Men are
> described as "males." Women are described as "women." This seems to be
> common usage in some circles.
>
> I actually have no idea why one term or another would be considered to be
> more or less good/bad, but I'm happy to use the terms "men" and "females"
> if that is more acceptable to you...
>
> > With regard to the earlier point that some people who don't want to be
> forced to provide contraceptives/abortifacients/sterilizations also would
> oppose having the government provide them, which somehow undercuts their
> religious liberty claim:
>
> No, it undercuts the claim that there an "easy" alternative that would
> have avoided the need for the current regulations. And it suggests that
> these cases are about preventing women from using contraception - however
> the obtain it - and not about complicity in that decision.
>
> > I suppose most conscientious pacifists would oppose their government
> waging war. They don't want to engage in it personally, and we honor that,
> without complaining that they also use the political process to oppose war.
> If they lose in the political arena, we make them pay taxes even though the
> taxes will be used for the military, and for the most part they are willing
> to pay the taxes. But we don't make them fight.
>
> Putting aside my surprise that (many decades after the 1950s) we are
> comparing contraception to war, this analogy doesn't quite work. The proper
> analogy would be (a) someone objecting to fighting in the war, and saying
> that instead, the government can send a drone, and then (b) opposing
> legislation that would enable the government to pay for drones. One would
> rightly conclude from this behavior that the objector didn't want there to
> be a war (whether or not they were involved in it), just as one would
> conclude here that the plaintiffs in these cases don't want women to use
> contraception (whether or not they are involved in it).
>
> We don't make the objectors fight because we can still fight the war
> without them and we don't have to materially change the battle plan. But if
> we couldn't - if the war effort would suffer without the objectors, and if
> their absence would threaten the lives of other troops - I have no doubt
> that we would make them fight.
>
> (In all events, we easily dismiss an objector's argument - akin to the
> argument advanced by Notre Dame and other nonprofits - that he was
> substantially burdened by the mere act of objecting because his objection
> paves the way for someone to be drafted in his place).
>
> > If, after the political processes play themselves out, Congress requires
> us all to be taxed to provide contraceptives/etc., then the objectors here
> will pay whatever taxes they must pay (and we wouldn't give

Re: Closely-held corporations, owners of corporations, and RFRAs

[Arthur Spitzer]

Prof. Stephen Bainbridge, who teaches corporate law at UCLA, published a
short article on "reverse veil piercing" (i.e., piercing by the
corporation's owners) in the current issue of The Green Bag that gives some
additional context to this discussion.  It can be found here:
http://www.greenbag.org/archive/green_bag_tables_of_contents.html

Art Spitzer

*
Warning: the National Security Agency may be monitoring this communication.*


On Tue, Aug 6, 2013 at 10:42 AM, Volokh, Eugene  wrote:

> The distinctions offered in the first two paragraphs below
> might well represent a sensible moral judgment.  But I don’t see how it can
> affect the RFRA substantial burden analysis, if the *owners *sincerely
> consider that they are responsible to God for using slave labor, or paying
> for contraceptives, or having their stores open on the Sabbath.  I wouldn’t
> consider Thomas responsible for making war simply because he was doing the
> military-related manufacturing job that his employer assigned to him (even
> if I thought the war that his services were helping was unjust).  But *Thomas
> *thought that this behavior was against God’s will, and that was enough.**
> **
>
> ** **
>
> Now whether a corporation should have standing to raise
> these arguments, or whether they would have to be made through the
> corporations’ co-owners, is a separate question.  I think the success or
> failure of the arguments ought to ultimately rest on the burden being
> placed on real people, not on corporations – just as ultimately the
> soundness of all corporate law principles has to rest on their effects on
> real people.  But it’s possible that allowing corporate standing is a
> useful and effective means of protecting the owners’ religious freedom
> rights, just as it is a useful and effective means of protecting the
> owners’ property against taking without just compensation or deprivation of
> property without due process, or for that matter just as it is useful and
> effective in constructing contract law, tort law, and so on.  And in any
> event, in conducting this analysis we shouldn’t, I think, rest on *our 
> *judgments
> of what’s immoral complicity, but instead ask what are the *owners’*sincere 
> beliefs about religiously forbidden complicity.
> 
>
> ** **
>
> Eugene
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, August 06, 2013 6:58 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Closely-held corporations, owners of corporations, and
> RFRAs
>
> ** **
>
> Actually, in order to make the hypothetical analogous to these cases . . .
> well, it really can't be made analogous, because providing a health
> insurance plan that covers all recognized medical treatments without
> exception can't be analogized to choosing to use slave labor in any serious
> moral universe.  But even putting that aside . . .
>
> . . . one would have to posit a closely held corporation that for many
> years refuses to use slave labor . . . until the federal government
> requires *all* large employers to use slave labor, at which point no one
> would consider the owners of that corporation to be morally responsible,
> especially after the owners inveigh against the moral evil of the new law
> -- reasonable observers would properly direct their opprobrium to the
> government itself.
>
> Let me be clear:  I'm not saying the owners of these corporations do, or
> do not, have standing to bring RFRA claims based on legal obligations
> imposed on the corporations.  I haven't done enough research to have a view
> on the question.  In fact, the only "research" I've done at all is to read
> the various opinions on the question in the courts of appeals cases, which
> I recommend to you all.  (See, e.g, the Matheson and Bacharach opinions in
> Hobby Lobby.)  But there was a reason the majority in Hobby Lobby chose not
> to reach the question of the Greens' standing -- presumably because it
> raises difficult and thorny questions under corporations law.  Instead, the
> majority held that the corporation itself had standing based on an alleged
> burden on its own religious exercise -- and it's that holding that I find
> implausible.
>
> 
>
> On Tue, Aug 6, 2013 at 9:26 AM, Douglas Laycock 
> wrote:
>
> For folks having trouble with Eugene’s hypothetical, think about an
> activity that most secularists would also think is seriously wrong. Suppose
> I form a wholly owned corporation, and my corporation uses slave labor for
> hazardous work, with many deaths and injuries among the workers, in some
> developing country. When I’m exposed in the press and subjected to intense
> public criticism, I just say:  “It’s not me. It’s a corporation.”
>
>  
>
> I don’t think my critics would be the least bit mollified. They would
> still view me as morally responsible, as well t

Re: Liberty: A Vote or A Veto?

[Arthur Spitzer]

"Owners of for-profit companies have the freedom to vote their conscience,
to speak their mind, to persuade and petition and parade in the public
square. This free exercise of speech and religion does not give them the
right to unilaterally veto the rights of their employees."

I find the argument hard to understand. Does my employer "unilaterally
veto" my right to preventive health services (assuming I have such a right)
by refusing to pay for my gym membership, which (as a middle aged man) is
far more important to my health than contraception, and probably costs
about as much per month?  Does the government "unilaterally veto" my First
Amendment rights by refusing to pay for my website, or by refusing to give
me a free subscription to the Congressional Record?

I understand that a person who is employed full-time, by an employer that
has at least 50 employees, and that has a health-care plan that is not
grandfathered, has a statutory right to employer-provided contraception.
If what you're saying is that such a person's statutory right to free
contraception is "vetoed" by the employer refusing to provide it, that's
just a dramatic way of saying that the employer is refusing to provide it.

Speaking for myself and emphatically not for my employer.

Art Spitzer

*
Warning: the National Security Agency may be monitoring this communication.*


On Sun, Jun 16, 2013 at 2:51 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

>  Nate--
>
>  Very interesting piece.  I believe the "vote, not a veto" language
> originated in the writings of Rabbi Mordecai Kaplan who, departing from the
> Orthodox Jewish view that halacha [traditional Jewish law] was the sole
> standard for Jewish practice, said "the past has a vote, not a veto."  The
> analogy in the health care mandate situation, it seems to me, would be
> "religious conscience has a vote, not a veto."
>
>  Howard Friedman
>  --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Nathan C. Walker [
> n...@whosegodrules.com]
> *Sent:* Saturday, June 15, 2013 3:22 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Liberty: A Vote or A Veto?
>
>  Dear Religion & Law Colleagues,
>
>  I'm interested in your feedback about my article regarding the
> contraception mandate, "Liberty: A Vote or A Veto?" published by
> "Sightings" of the Martin Marty Center for the Advanced Study of Religion
> at the University of Chicago Divinity School.
>
>  Here's an excerpt:
>
>  * * * * *
>
>  Liberty is a vote not a veto.  Owners of for-profit companies have the
> freedom to vote their conscience, to speak their mind, to persuade and
> petition and parade in the public square. This free exercise of speech and
> religion does not give them the right to unilaterally veto the rights of
> their employees. Doing so would establish a de facto state religion, where
> corporations become the nation’s congregations and its owners the high
> priests.
>
>
>  * * * * *
>
>  I look forward to your input.
>
>  Cheers,
> Nate
>
>
>
>Nathan C. Walker,  co-editor of Whose God 
> Rules?
>  (Palgrave Macmillan 2011)
>   Foreword by Tony Blair with contributions by Alan Dershowitz, Martha
> Nussbaum,
>   Robert George, and Kent Greenawalt. Cornel West calls it "provocative
> and pioneering."
>
>
>   Resident Fellow, Harvard Divinity School, '13
>   Legal restrictions on religious expression
>
>
>   Doctoral Candidate, Columbia University, '14
>   Interdisciplinary study of law, education & religion
>   "Unveiling Freedom: Bans on Religious Garb."
>
>
>   nathan_wal...@mail.harvard.edu
>   Cell: (215) 701-9071
>   www.NateWalker.com 
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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Re: Go to church or go to jail

[Arthur Spitzer]

"Donn Baker, the attorney for Alred, said, 'My client goes to church every
Sunday. That isn’t going to be a problem for him.'”

I suppose sentencing a person who likes broccoli to eat broccoli falls
under the heading of harmless error.  But if he decides to stop going to
church at some point in the next ten years and they try to revoke him for
that violation, I hope he calls the ACLU.

Art Spitzer


On Tue, Nov 20, 2012 at 3:16 PM, Douglas Laycock wrote:

>
> http://www.jdjournal.com/2012/11/19/teen-convicted-of-manslaughter-sentenced-to-probation-and-church/
> 
>
> ** **
>
> Unconstitutional, but the only person with standing to complain isn’t
> complaining. And it may be that few defendants offered this deal would
> complain. Refusing, getting sent to prison, and attacking your sentence on
> the grounds of how it was arrived it, would be a costly and risky way to
> litigate.
>
> ** **
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
> ** **
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
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Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[Arthur Spitzer]

If that was Steve's point, then he was evading my question.  I said, "I'm
not saying such a statute would be unconstitutional. I'm just asking if the
burden would be different."

Art

On Sun, Sep 30, 2012 at 10:22 PM,  wrote:

> Steve's point, I believe, was simply that there is no constitutional right
> to hold a particular job or conduct a particular business, or business at
> all.
> That has been settled for decades, has it not?  Religious believers
> sometimes have to make life choices that are narrower than others might
> choose,
> because of their faith.  Is the point here that there is a constitutional
> right to avoid making such choices?
>
>
>  Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> hamilto...@aol.com
>
>
> -Original Message-
> From: Arthur Spitzer 
> To: Law & Religion issues for Law Academics 
> Sent: Sun, Sep 30, 2012 10:11 pm
> Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate
>
>  I find Steve Jamar's post ("No one needs to be an employer") puzzling.
> Could Congress enact a statute providing "observant Roman Catholics (or
> Moslems, or Jews, or Seventh Day Adventists, or Mormons) may not be
> employers"?
>
> Would such a statute be different, in its burden on such people, from a
> statute saying "all employers must do *X*, when* X* is something that
> observant Roman Catholics (or Moslems, or Jews, or Seventh Day Adventists,
> or Mormons) cannot do?
>
> I'm not saying such a statute would be unconstitutional. I'm just asking
> if the burden would be different.
>
> Art Spitzer
>
>
> On Sun, Sep 30, 2012 at 9:50 PM, Steven Jamar wrote:
>
>> How about an employer being exempt from buying insurance, but then paying
>> a tax that goes into a pool for the government to buy group insurance for
>> those employees.  How is that substantively different from just requiring
>> the insurance benefit in the first place?  And yet this sort of tax seemed
>> ok to Mark.  I don't see how this really insulates the employer from the
>> complicity in evil through paying for it.  Is the "agreement" (coerced
>> agreement is agreement?) that different?
>>
>>  Isn't the proper agreement the one between the employer and society
>> that lets the employer exploit the economic system and all of its supports
>> in exchange for doing business within the rules of commerce to be followed
>> by everyone?  That agreement may be one with the devil, but no one is
>> making the person agree to it.  No one needs to be an employer.
>>
>>  Steve
>>
>>
>>   --
>> Prof. Steven D. Jamar vox:  202-806-8017
>> Associate Director, Institute for Intellectual Property and Social
>> Justice http://iipsj.org
>> Howard University School of Law   fax:  202-806-8567
>> http://iipsj.com/SDJ/
>>
>>
>>  "The aim of education must be the training of independently acting and
>> thinking individuals who, however, see in the service to the community
>> their highest life achievement."
>>
>>  Albert Einstein
>>
>>
>>
>>
>>
>> ___
>> 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.
>>
>
>  ___
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> Please note that messages sent to this lar

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[Arthur Spitzer]

Huh?

On Sun, Sep 30, 2012 at 10:15 PM, Steven Jamar wrote:

Status based vs. belief based.
>


>
> On Sep 30, 2012, at 10:10 PM, Arthur Spitzer wrote:
>
> I find Steve Jamar's post ("No one needs to be an employer") puzzling.
> Could Congress enact a statute providing "observant Roman Catholics (or
> Moslems, or Jews, or Seventh Day Adventists, or Mormons) may not be
> employers"?
>
> Would such a statute be different, in its burden on such people, from a
> statute saying "all employers must do *X*, when* X* is something that
> observant Roman Catholics (or Moslems, or Jews, or Seventh Day Adventists,
> or Mormons) cannot do?
>
> I'm not saying such a statute would be unconstitutional. I'm just asking
> if the burden would be different.
>
> Art Spitzer
>
>
> On Sun, Sep 30, 2012 at 9:50 PM, Steven Jamar wrote:
>
>> How about an employer being exempt from buying insurance, but then paying
>> a tax that goes into a pool for the government to buy group insurance for
>> those employees.  How is that substantively different from just requiring
>> the insurance benefit in the first place?  And yet this sort of tax seemed
>> ok to Mark.  I don't see how this really insulates the employer from the
>> complicity in evil through paying for it.  Is the "agreement" (coerced
>> agreement is agreement?) that different?
>>
>> Isn't the proper agreement the one between the employer and society that
>> lets the employer exploit the economic system and all of its supports in
>> exchange for doing business within the rules of commerce to be followed by
>> everyone?  That agreement may be one with the devil, but no one is making
>> the person agree to it.  No one needs to be an employer.
>>
>> Steve
>>
>>
>>--
>> Prof. Steven D. Jamar vox:  202-806-8017
>> Associate Director, Institute for Intellectual Property and Social
>> Justice http://iipsj.org
>> Howard University School of Law   fax:  202-806-8567
>> http://iipsj.com/SDJ/
>>
>>
>> "The aim of education must be the training of independently acting and
>> thinking individuals who, however, see in the service to the community
>> their highest life achievement."
>>
>>
>> Albert Einstein
>>
>>
>>
>>
>>
>> ___
>> 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.
>
>
>
> --
> Prof. Steven D. Jamar vox:  202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law   fax:  202-806-8567
> http://iipsj.com/SDJ/
>
> "Nonviolence means avoiding not only external physical violence but also
> internal violence of spirit. You not only refuse to shoot a man, but you
> refuse to hate him."
>
>
> Martin Luther King, Jr.
>
>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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Re: Court Rejects Religious Liberty Challenges To ACA Mandate

[Arthur Spitzer]

I find Steve Jamar's post ("No one needs to be an employer") puzzling.
Could Congress enact a statute providing "observant Roman Catholics (or
Moslems, or Jews, or Seventh Day Adventists, or Mormons) may not be
employers"?

Would such a statute be different, in its burden on such people, from a
statute saying "all employers must do *X*, when* X* is something that
observant Roman Catholics (or Moslems, or Jews, or Seventh Day Adventists,
or Mormons) cannot do?

I'm not saying such a statute would be unconstitutional. I'm just asking if
the burden would be different.

Art Spitzer


On Sun, Sep 30, 2012 at 9:50 PM, Steven Jamar  wrote:

> How about an employer being exempt from buying insurance, but then paying
> a tax that goes into a pool for the government to buy group insurance for
> those employees.  How is that substantively different from just requiring
> the insurance benefit in the first place?  And yet this sort of tax seemed
> ok to Mark.  I don't see how this really insulates the employer from the
> complicity in evil through paying for it.  Is the "agreement" (coerced
> agreement is agreement?) that different?
>
> Isn't the proper agreement the one between the employer and society that
> lets the employer exploit the economic system and all of its supports in
> exchange for doing business within the rules of commerce to be followed by
> everyone?  That agreement may be one with the devil, but no one is making
> the person agree to it.  No one needs to be an employer.
>
> Steve
>
>
>--
> Prof. Steven D. Jamar vox:  202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law   fax:  202-806-8567
> http://iipsj.com/SDJ/
>
>
> "The aim of education must be the training of independently acting and
> thinking individuals who, however, see in the service to the community
> their highest life achievement."
>
>
> Albert Einstein
>
>
>
>
>
> ___
> 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
>
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> wrongly) forward the messages to others.
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Re: #1 - school officials qualified immunity; #2 - digitally recording community college class

[Arthur Spitzer]

A defendant who is denied qualified immunity can take an interlocutory
appeal. A plaintiff whose claim against a defendant is dismissed based on
qualified immunity cannot take an interlocutory appeal.  Sorry.

Art Spitzer
ACLU

On Tue, Aug 28, 2012 at 1:25 PM, b...@jmcenter.org  wrote:

> **
>
> Howard Friedman has reported on Margaret Smith v. State of Arizona -- a
> case in Phoenix, AZ, involving an instructor substituting her theology and
> that of the Westminster Fellowship for a study of good and evil of the
> great philosophers from Plato to present. The instructor is also using the
> Christian Apologetics methodology. (Disclosure: I counseled Ms. Smith prior
> to leaving the American Humanist Association in November 2010.)
>
>
>
> Question #1: I have recommended to Ms. Smith's counsel that they file and
> interlocutory appeal regarding the dismissal of certain school officials on
> the basis of qualified immunity because the judge held that Establishment
> Clause law was/is not well settled at the higher education level. I believe
> that the law is well established at least since Edwards v. Aquillard (1987)
> when the Supreme Court said: "Of course, the "academic freedom" of teachers
> to present information in public schools, and students to receive it, is
> broad. But it necessarily is circumscribed by the Establishment Clause.
> "Academic freedom" does not encompass the right of a legislature to
> structure the public school curriculum in order to advance a particular
> religious belief." Citing Epperson v. Arkansas (1968). I have listened to
> the entire recordings of the Philosophy 101 course taken by Ms. Smith. Were
> not talking about an interjection of a religious thought here and there,
> but the entire class is based on the instructor's use of Christian
> Apologetics and the Christian theology of the instructor (and Surendra
> Gangadeean/Westminster Fellowship). *Do you guys think that "the law" is
> well established sufficiently to defeat qualified immunity?*
>
>
>
> Question #2: The one year statute of limitations ran out on my original
> client, Barry Scheckner, in the above matter and Ms. Smith continued the
> case. This semester, Mr. Scheckner enrolled in Philosophy 101 at Scottsdale
> Community College. The instructor is aware that Mr. Scheckner filed the
> original grievance at Paradise Valley Community College (as the instructor
> is apparently a member of Westminster Fellowship, as well as the one
> involved in Ms. Smith's case). During Monday's class, the instructor at
> Scottsdale Community College security remove Mr Scheckner from class,
> possibly for digitally recording the class after the instructor said that
> he does not permit recording the class. *Question: Can a professor
> prohibit the recording of his/her class?* (Note: Arizona's statute only
> requires on party to consent to the recording.)
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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Re: What religion is an 8-day-old?

[Arthur Spitzer]

As an empirical matter, that ("the presumption of religion as good is folly
for the vulnerable") may or may not be true.  But when acting in the legal
world, isn't it a presumption mandated by the Constitution?  The
presumption of freedom of speech as good may also be folly for the
vulnerable, but the Constitution instructs judges to assume it to be true.
No?

Art Spitzer



On Tue, Jul 10, 2012 at 10:27 AM, Marci Hamilton  wrote:

> As long as it is a case-by-case analysis, I am on board.  But I think the
> presumption of religion as good is folly for the vulnerable.
>
> Marci
>
> On Jul 10, 2012, at 10:10 AM, Andrew M M Koppelman <
> akoppel...@law.northwestern.edu> wrote:
>
> > I said that the value of religion sometimes outweighs other
> considerations.  I didn't say it always does so.  Marci has compiled some
> mighty persuasive horror stories showing that the balance is often struck
> with excessive deference to religion.  But that doesn't answer the
> circumcision question.  In that context, it's doubtful whether the child is
> harmed at all, and the religious values on the other side are substantial.
> > 
> > From: religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of hamilto...@aol.com [
> hamilto...@aol.com]
> > Sent: Monday, July 09, 2012 10:36 AM
> > To: religionlaw@lists.ucla.edu
> > Subject: Re: What religion is an 8-day-old?
> >
> > With all due respect to Andrew, but in complete seriousness, religion is
> often not a good thing even under the law, and often a deadly and
> permanently
> > disfiguring or disabling thing for children, the disabled, and
> emotionally disabled adults.  A focus on religion as a "good thing" rather
> > than a focus on the best interest of the child is precisely what has led
> to the deep suffering of far too many children.   I find it
> > astonishing that anyone would still be  talking in this era in these
> generalities to protect religion when it is harming children.
> >
> > Now, if one wants to argue that religion is good when it is not harming
> the vulnerable, that is a different topic, but it has nothing
> > to do with the circumcision debate that has gone on on this thread,
> which has revolved basically around a fact question: is it
> > harmful, even though a fair amount of theory has surrounded this fact
> discussion.
> >
> > Having said that, I also agree that much of this discussion has had an
> unreal quality to it, but mainly because of my original
> > point that these issues are best described and analyzed under a best
> interest of the child analysis, case-by-case, and simply
> > not amenable to these theoretical generalities.  And under our
> pre-existing criminal and tort laws.  Those are the laws that have
> > held religious organizations and leaders (e.g., Msgr. Lynn) to account
> for the cover up of serial child predators to protect religious
> > identity, wealth, and power.  These civil laws are the main reason we
> have any justice in this field.  This law has not treated religion
> > as "valuable" or "good" but rather as a no-good defense to harm.
>  (Except in a diminishing number of states.)   And it is no
> > argument in response that no religious groups believe in child sex
> abuse.  That is not true, e.g., Tony Alamo (yes, it's a cult, still a
> religion);
> > FLDS, and the many religious organizations who have theological tenets
> requiring the cover up of abuse which then multiplies the
> > number of victims by enabling predators.
> >
> > There are some legal areans where religion has been treated as "good,"
> e.g., NY state law on land use.  But it is dangerous
> > to legal analysis to take them at face value.  As religious land use has
> changed and expanded, however, this presumption has become
> > increasingly difficult to defend.
> >
> > Marci
> >
> >
> > Marci A. Hamilton
> > Paul R. Verkuil Chair in Public Law
> > Benjamin N. Cardozo School of Law
> > Yeshiva University
> > 55 Fifth Avenue
> > New York, NY 10003
> > (212) 790-0215
> > hamilto...@aol.com
> >
> >
> > -Original Message-
> > From: Andrew M M Koppelman 
> > To: Law & Religion issues for Law Academics 
> > Sent: Mon, Jul 9, 2012 10:42 am
> > Subject: RE: What religion is an 8-day-old?
> >
> > This discussion is fascinating, but it has a curiously unreal quality,
> because everyone seems to want, in typically lawyerly fashion, to subsume
> under some broad and generally applicable principle a practice that is in
> fact unique and exceedingly unlikely to generate analogous cases.  This is
> another case where I think it's helpful to recognize that American law
> treats religion as valuable, in a way that sometimes outweighs other
> considerations.  I elaborate in my forthcoming book:
> http://www.hup.harvard.edu/catalog.php?isbn=9780674066465.  If religion
> is a good thing, and two of the major religions of America practice
> circumcision, then we have a strong

Re: Religious exemptions and child sexual abuse

[Arthur Spitzer]

I've just read *Gibson v Brewer*, 952 SW.2d 23 (Mo.1997).  If that's the
poster child for why RFRAs are bad, it's not much of a poster.  In the
first place, it didn't involve a RFRA at all, just the First Amendment,
with which we're stuck for better or for worse.

First, motions to dismiss claims of battery, negligent infliction of
emotional distress, and intentional infliction of emotional distress
against the priest were denied by the lower courts, and these decisions
were not reviewed by the Missouri Supreme Court.

the court did dismiss claims of negligent hiring or ordination of clergy,
negligent failure to supervise clergy, negligent infliction of emotional
distress by clergy, and independent negligence by the diocese on First
Amendment grounds.  Some of those rulings may have been too broad.

But it allowed a claim of intentional failure to supervise clergy to go
forward, rejecting the diocese's First Amendment defense.

It also dismissed a respondeat superior claim against the diocese, based on
ordinary principles of Missouri respondeat superior law that would apply to
any employer.  Missouri respondeat superior law appears to be narrower
than, e.g., DC law, where the claim probably would have been allowed to
proceed, but that has nothing to do with religion.   Likewise, it found no
First Amendment bar to a claim of intentional infliction of emotional
distress by the diocese, but dismissed that claim because the allegations
of the complaint did not state a claim under state law.

It would be interesting to know what happened on remand to the claims
against the priest and the claim against the diocese for intentional
failure to supervise.

Art Spitzer





On Thu, Jun 14, 2012 at 11:45 AM, Volokh, Eugene wrote:

> Anecdotal evidence and surmise is all we have for most
> laws – it’s all we have for the proposition that, for instance, having
> RFRAs actually increases religious freedom; it’s not like we have social
> science or criminal statistics to support that.  And social science and
> criminal statistics are especially unlikely to be available for child
> sexual abuse by the clergy, which is for obvious reasons hard to measure
> accurately, and which is numerically rare enough that random variation can
> easily swamp any slight effects of a RFRA or employer tort liability.  To
> be sure, I think that social science evidence, when it’s available and when
> it’s properly gathered and analyzed, can be very helpful in making policy
> decisions.  But we often find ourselves having to make such decisions even
> without such evidence.
>
> ** **
>
> Eugene
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *lawyer2...@aol.com
> *Sent:* Thursday, June 14, 2012 6:21 AM
> *To:* religionlaw@lists.ucla.edu
>
> *Subject:* Re: Religious exemptions and child sexual abuse
>
> ** **
>
>  
>
>  
>
> *Do we know of any social science or criminal statistics that supports a
> notion that jurisdictions with RFRA or upheld constitutional defenses to
> employer liability have a higher incidence of child sexual abuse (or, for
> that matter, that incidents of child sexual abuse are higher in religious
> settings than settings, such as public schools, where these legal arguments
> regarding employer liability are inapplicable)...or are we left with
> anecdotal evidence, if not surmise?*
>
>  
>
> *--Don Clark*
>
> *  Nationwide Special Counsel*
>
> *  United Church of Christ*
>
>  
>
> In a message dated 6/13/2012 11:14:28 P.M. Central Daylight Time,
> vol...@law.ucla.edu writes:
>
> Folks:  I think that, if we soften the rhetoric and get
> more concrete, we could arrive at the following:
>
> ** **
>
> 1.  There’s been a debate about whether religious freedom
> protections insulate churches from lawsuits for negligent hiring, negligent
> supervision, and negligent retention in child sex abuse cases (I’ll call
> this “employer negligence” for short, though some courts have treated the
> different theories differently).
>
> ** **
>
> 2.  Many church lawyers, faced with a lawsuit trying to
> hold a church liable for crimes by some of its clergy, have indeed asserted
> such defenses.
>
> ** **
>
> 3.  In some cases, those defenses have been successful,
> not because religious freedom is seen a defense to a sex abuse charge as
> such, but because it’s seen as a defense to an employer negligence claim.*
> ***
>
> ** **
>
> 4.  These defenses have generally been based on
> constitutional non-entanglement arguments, on the theory that secular
> courts shouldn’t be in the business of deciding whether a decision to hire
> or not hire a minister is “reasonable,” but they might in principle also be
> strengthened by a Sherbert/Yoder regime, such as that created by RFRAs or
> similar constitutional ame

Re: Religious exemptions and child sexual abuse

[Arthur Spitzer]

Marci - I don't believe you've stated the facts of a single case. I'd say
the same thing if you were a man.
Art

On Thu, Jun 14, 2012 at 7:27 AM, Marci Hamilton  wrote:

I'm not sure why stating the facts in these cases is "rhetoric"   I
> sincerely hope it is not because a woman is pointing out the facts rather
> than a man.  This last statement also is not rhetoric but an honest
> observation.
>
>
___
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Re: Defeat of RFRA constitutional amendment in North Dakota

[Arthur Spitzer]

And does it work?


On Wed, Jun 13, 2012 at 10:58 PM,  wrote:

> I used to think that religious groups using the First Amendment as a
> defense in child sex abuse cases
> was breathtaking.  It is just a fact.
>
>  Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> hamilto...@aol.com
>
>
> -Original Message-
> From: Lawyer2974 
> To: religionlaw 
> Sent: Wed, Jun 13, 2012 10:27 pm
> Subject: Re: Defeat of RFRA constitutional amendment in North Dakota
>
>  *The sweeping generalities of these statements are breathtaking*
> **
> *-Don Clark*
> * Nationwide Special Counsel*
> * United Church of Christ*
>
>  In a message dated 6/13/2012 8:30:15 P.M. Central Daylight Time,
> hamilto...@aol.com writes:
>
> It opens the door to churches using RFRA as a defense to discovery,
> liability, and penalties in chid sex abuse
> cases.  And that means less deterrence.   Their lawyers embrace the First
> Amendment and RFRAs to avoid responsiblity for child sex abuse all the time.
>
>  Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> hamilto...@aol.com
>
>
> -Original Message-
> From: Lawyer2974 
> To: religionlaw 
> Sent: Wed, Jun 13, 2012 5:21 pm
> Subject: Re: Defeat of RFRA constitutional amendment in North Dakota
>
>  *RFRA opens the door to child sex abuse or medical neglect?  Really?!*
> **
> *--Don Clark*
> *  Nationwide Special Counsel*
> *  United Church of Christ*
>
>  In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time,
> hamilto...@aol.com writes:
>
> The truth is that gay rights and child protection communities went all out
> in North Dakota.  Most Americans when they understand that a RFRA opens the
> door to discrimination or child sex abuse or medical neglect quickly cool
> on the extremism of a RFRA.   The difference is public education
>
>  Marci
>
> On Jun 13, 2012, at 4:39 PM, "Douglas Laycock" 
> wrote:
>
>NARAL and Planned Parenthood spent a lot of money in a small market to
> defeat this. They did not spend that kind of money in Alabama, so far as I
> know. There have been shrill opponents in of state RFRAs in various
> legislatures, but I am not aware of this kind of effort by NARAL or Planned
> Parenthood.
>
> Why now and not before? The polarization over sexual morality is the
> larger cause, and the pending religious liberty claims specifically about
> contraception and emergency contraception are the most immediate and
> obvious cause. NARAL and Planned Parenthood now view religious liberty as a
> bad thing, because it empowers the enemy and puts outside limits on their
> agenda.
>
> Shameless plug: I wrote about this in general terms, pre North Dakota, in
> Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L.
> Rev. 407 (2011):
>
>
> http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88&id=417&collection=usjournals&index=journals/udetmr
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>  434-243-8546
>
>  *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *Vance R. Koven
> *Sent:* Wednesday, June 13, 2012 4:23 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Defeat of RFRA constitutional amendment in North Dakota
>
> Behind NARAL's many inaccuracies lies a hint of what I believe may be the
> sociological basis for answering Eugene's question. What follows is purely
> speculative on my part, so just treat it as a hypothesis.
>
> The initial RFRA push was, speaking broadly, in line with a sense by
> evangelical Christians that their agendas, of various types, were
> threatened by secularists ascendant in Washington and among other political
> elites.That was then and this is now.
>
> Apart from liberal Connecticut and Catholic-dominated Rhode Island, most
> of the state RFRA enactments were in fairly conservative, heartland states.
> Since a lot of other states have achieved the same effect by judicial
> decision or existing constitutional provisions, the leftovers have to be
> looked at as a discrete grouping. The cross-hatched states, with the
> exception of New Hampshire, are all liberal, secularist places where you
> would expect *Smith* to be popular among policy-makers and not totally
> anathema to voters.
>
> The remaining states without any RFRA-like policies but that haven't
> firmly declared themselves as following *Smith*, with the exceptions of
> California, Hawaii and Vermont, are also mostly conservative heartland
> states, but they now have a different actuating fear, which I think is the
> fear (rational or not) of Islamic demands for religious-cultural exceptions
> from generally ap

Re: Defeat of RFRA constitutional amendment in North Dakota

[Arthur Spitzer]

"Their lawyers embrace the First Amendment ... to avoid responsiblity for
child sex abuse all the time."  So should we repeal the First Amendment?
Do courts accept these arguments?

Art Spitzer


On Wed, Jun 13, 2012 at 9:28 PM,  wrote:

> It opens the door to churches using RFRA as a defense to discovery,
> liability, and penalties in chid sex abuse
> cases.  And that means less deterrence.   Their lawyers embrace the First
> Amendment and RFRAs to avoid responsiblity for child sex abuse all the time.
>
>  Marci
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> hamilto...@aol.com
>
>
> -Original Message-
> From: Lawyer2974 
> To: religionlaw 
> Sent: Wed, Jun 13, 2012 5:21 pm
> Subject: Re: Defeat of RFRA constitutional amendment in North Dakota
>
>  *RFRA opens the door to child sex abuse or medical neglect?  Really?!*
> **
> *--Don Clark*
> *  Nationwide Special Counsel*
> *  United Church of Christ*
>
>  In a message dated 6/13/2012 3:55:26 P.M. Central Daylight Time,
> hamilto...@aol.com writes:
>
> The truth is that gay rights and child protection communities went all out
> in North Dakota.  Most Americans when they understand that a RFRA opens the
> door to discrimination or child sex abuse or medical neglect quickly cool
> on the extremism of a RFRA.   The difference is public education
>
>  Marci
>
> On Jun 13, 2012, at 4:39 PM, "Douglas Laycock" 
> wrote:
>
>NARAL and Planned Parenthood spent a lot of money in a small market to
> defeat this. They did not spend that kind of money in Alabama, so far as I
> know. There have been shrill opponents in of state RFRAs in various
> legislatures, but I am not aware of this kind of effort by NARAL or Planned
> Parenthood.
>
> Why now and not before? The polarization over sexual morality is the
> larger cause, and the pending religious liberty claims specifically about
> contraception and emergency contraception are the most immediate and
> obvious cause. NARAL and Planned Parenthood now view religious liberty as a
> bad thing, because it empowers the enemy and puts outside limits on their
> agenda.
>
> Shameless plug: I wrote about this in general terms, pre North Dakota, in
> Sex, Atheism, and the Free Exercise of Religion, 88 U. Detroit Mercy L.
> Rev. 407 (2011):
>
>
> http://heinonline.org/HOL/Page?handle=hein.journals/udetmr88&id=417&collection=usjournals&index=journals/udetmr
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law
> University of Virginia Law School
> 580 Massie Road
> Charlottesville, VA  22903
>  434-243-8546
>
>  *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *Vance R. Koven
> *Sent:* Wednesday, June 13, 2012 4:23 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Defeat of RFRA constitutional amendment in North Dakota
>
> Behind NARAL's many inaccuracies lies a hint of what I believe may be the
> sociological basis for answering Eugene's question. What follows is purely
> speculative on my part, so just treat it as a hypothesis.
>
> The initial RFRA push was, speaking broadly, in line with a sense by
> evangelical Christians that their agendas, of various types, were
> threatened by secularists ascendant in Washington and among other political
> elites.That was then and this is now.
>
> Apart from liberal Connecticut and Catholic-dominated Rhode Island, most
> of the state RFRA enactments were in fairly conservative, heartland states.
> Since a lot of other states have achieved the same effect by judicial
> decision or existing constitutional provisions, the leftovers have to be
> looked at as a discrete grouping. The cross-hatched states, with the
> exception of New Hampshire, are all liberal, secularist places where you
> would expect *Smith* to be popular among policy-makers and not totally
> anathema to voters.
>
> The remaining states without any RFRA-like policies but that haven't
> firmly declared themselves as following *Smith*, with the exceptions of
> California, Hawaii and Vermont, are also mostly conservative heartland
> states, but they now have a different actuating fear, which I think is the
> fear (rational or not) of Islamic demands for religious-cultural exceptions
> from generally applicable laws. This fear directly offsets the fears of
> evangelical Christians, and is probably shared by a good number of them.
> NARAL's reference to domestic violence and child abuse look, in that
> context, like code words for the domestic-relations aspects of Sharia.
> Obviously, no RFRA statute immunizes domestic violence, but if NARAL said
> in so many words what it thought the voters really wanted to hear, its
> anti-Islamic thrust would be too obvious.
>
>  ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change op

Re: Defeat of RFRA constitutional amendment in North Dakota

[Arthur Spitzer]

I received a celebratory e-mail message from NARAL this morning that may
help explain the result:

*North Dakota voters defeated Measure 3, the anti-choice ballot
initiative.*What an amazing win!

North Dakota voters understood that freedom of religion is already
protected in the U.S. Constitution. North Dakotans understood that this
measure was dangerous. For example, it could have allowed a man to claim
that domestic-violence and child-abuse laws don’t apply to him because his
religion tells him he has the right to discipline his wife and children as
he sees fit.

As we celebrate this victory, we cannot forget that Measure 3 is part of a
much larger and dangerous strategy to take away women’s rights.

*Remember the all-male panel that railed against birth control? The groups
and politicians behind that panel also backed Measure 3. They’re
pouring in millions
of dollars to enact their extreme agenda to take away key rights and
choices from women. *

How can we counter this kind of money? One answer – people power.

We won in North Dakota because of one-on-one conversations. We win tough
elections when neighbors talk to each other and have serious conversations
about the direction our opponents want to take this country. We sent our
staff to the state to knock on doors and meet with voters at community
festivals and other public events. In addition, we organized phone banks
with other pro-choice groups that contacted hundreds of voters.

*My challenge to you is to bring up the attacks on women’s freedom and
privacy with your friends.* Starting the conversation is the first step in
getting people fired up to stop attempts to take away women’s ability to
make the choices that are best for them and their families
Art Spitzer


On Wed, Jun 13, 2012 at 11:06 AM, Volokh, Eugene wrote:

I was wondering whether list members had thoughts on the
> defeat of the RFRA constitutional amendment in North Dakota, see
> http://www.thedickinsonpress.com/event/article/id/58889/.  Relatedly, do
> people have a sense for why the RFRA enactment movement, which seemed so
> successful for a while – a constitutional amendment in Alabama, and
> statutes in 15 other states, Arizona, Idaho, and New Mexico in the West,
> Connecticut, Pennsylvania, Rhode Island in the North East, Florida,
> Louisiana, South Carolina, Tennessee, Texas, and Virginia in the South and
> Southwest, and Illinois, Missouri, and Oklahoma in the Midwest – seems to
> have fizzled?  (Note that Alaska, Indiana, Kansas, Maine, Massachusetts,
> Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and
> Wisconsin have adopted the Sherbert/Yoder model under their state
> constitutions, and New York has adopted a model that’s less protective than
> Sherbert/Yoder but more protective than Smith.  See the map below, though
> that’s from before the Kansas decision adopting the Sherbert/Yoder model.)
> 
>
> ** **
>
> Thanks to Howard Friedman of the Religion Clause blog for
> the pointer.
>
> ** **
>
> Eugene
>
> ** **
>
>
>
> ___
> 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.
>



-- 
**Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
Tel. 202-457-0800
www.aclu-nca.org 
artspit...@gmail.com


*See Something - Say Something!
If you see a violation of civil liberties, call the ACLU!*
___
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: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

[Arthur Spitzer]

I'm calling the screenwriters guild ASAP.


On Sun, Jun 10, 2012 at 10:56 PM, Paul Finkelman
wrote:

> I think you are right, which makes me wonder about this case; also you
> would think the recruit would have been told about the beard policy at the
> beginning of his training;
> but hey, maybe this is an elaborate scheme to make him a cop who can
> really go underground as a guy who is mad at the police?
>
> 
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>
> 518-445-3386 (p)
> 518-445-3363 (f)
>
>
> paul.finkel...@albanylaw.edu
>
>
> www.paulfinkelman.com
>   --
> *From:* Arthur Spitzer 
> *To:* "b...@jmcenter.org" ; Law & Religion issues for
> Law Academics 
> *Sent:* Sunday, June 10, 2012 10:44 PM
>
> *Subject:* Re: Report: NYPD fires Orthodox Jew recruit for refusing to
> trim beard
>
> You'd think the NYPD would want at least one officer who would have the
> ability to go undercover in the large NYC bearded orthodox Jewish community.
>
> Art Spitzer
>
> On Sun, Jun 10, 2012 at 10:29 PM, b...@jmcenter.org wrote:
>
> **
> Joel, I'm not clear what your point is other than an Orthodox Jew was
> fired because he did not follow regulations. The article that you linked
> states: "Today there are at least two dozen Orthodox-Jewish police officers
> working for the NYPD." However, it doesn't mention whether any of those
> police officers have beards longer than 1mm (which is very short). It would
> seem to me that if NYPD regulations were enforced as to them, then you have
> an Employment Div. v. Smith -- neutral rules of general applicability
> situation. If the regulations weren't enforced as to some or all of the two
> dozen current police officers, then a number of claims may be available to
> the fired academy individual for wrongful termination.
>
> Bob Ritter
> Jefferson Madison Center for Religious Liberty
> A Project of the Law Office of Robert V. Ritter
> Falls Church, VA
> 703-533-0236
>
> On June 10, 2012 at 5:54 AM Joel Sogol  wrote:
>
>   An Orthodox Jew who was weeks away from becoming a New York City police
> officer said he has been kicked out of the police academy for refusing to
> trim his beard.
> Former recruit Fishel Litzman of Monsey was fired Friday after multiple
> confrontations with the department over the length of his whiskers, he
> told the Daily 
> News<http://www.nydailynews.com/new-york/hasidic-nypd-recruit-fired-beard-article-1.1092499>
> .
>
>
> http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite
>
>
> Joel L. Sogol
> Attorney at Law
> 811 21st Avenue
> Tuscaloosa, Alabama  35401
> ph (205) 345-0966
> fx  (205) 345-0971
> jlsa...@wwisp.com
>
> Ben Franklin observed that truth wins a fair fight -- which is why we have
> evidence rules in U.S. courts.
>
>
>
>
>
> ___
> 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.
>
>
>
>
> --
> **Arthur B. Spitzer
> Legal Director
> American Civil Liberties Union of the Nation's Capital
> 4301 Connecticut Avenue, N.W., Suite 434
> Washington, D.C. 20008
> Tel. 202-457-0800
> www.aclu-nca.org 
> artspit...@gmail.com
>
>
> *See Something - Say Something!
> If you see a violation of civil liberties, call the ACLU!*
>
> *Confidentiality Notice*
> * *This message is being sent by a lawyer.  It is intended exclusively
> for the individual(s) to whom it is addressed.  This communication may
> contain information that is privileged, confidential or otherwise legally
> protected from disclosure.  If you are not a named addressee then you are
> not authorized to read, print, retain, copy or disseminate this message or
> any part of it.  If you have received this message in error, please notify
> the sender immediately by e-mail and delete all copies of this message.
> Thank you.
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailm

Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

[Arthur Spitzer]

You'd think the NYPD would want at least one officer who would have the
ability to go undercover in the large NYC bearded orthodox Jewish community.

Art Spitzer

On Sun, Jun 10, 2012 at 10:29 PM, b...@jmcenter.org  wrote:

> **
>
> Joel, I'm not clear what your point is other than an Orthodox Jew was
> fired because he did not follow regulations. The article that you linked
> states: "Today there are at least two dozen Orthodox-Jewish police officers
> working for the NYPD." However, it doesn't mention whether any of those
> police officers have beards longer than 1mm (which is very short). It would
> seem to me that if NYPD regulations were enforced as to them, then you have
> an Employment Div. v. Smith -- neutral rules of general applicability
> situation. If the regulations weren't enforced as to some or all of the two
> dozen current police officers, then a number of claims may be available to
> the fired academy individual for wrongful termination.
>
>
>
> Bob Ritter
>
> Jefferson Madison Center for Religious Liberty
>
> A Project of the Law Office of Robert V. Ritter
>
> Falls Church, VA
>
> 703-533-0236
>
>
> On June 10, 2012 at 5:54 AM Joel Sogol  wrote:
>
>   An Orthodox Jew who was weeks away from becoming a New York City police
> officer said he has been kicked out of the police academy for refusing to
> trim his beard.
>
> Former recruit Fishel Litzman of Monsey was fired Friday after multiple
> confrontations with the department over the length of his whiskers, he
> told the Daily 
> News
> .
>
>
>
>
> http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite
>
>
>
>
>
> Joel L. Sogol
>
> Attorney at Law
>
> 811 21st Avenue
>
> Tuscaloosa, Alabama  35401
>
> ph (205) 345-0966
>
> fx  (205) 345-0971
>
> jlsa...@wwisp.com
>
>
>
> Ben Franklin observed that truth wins a fair fight -- which is why we have
> evidence rules in U.S. courts.
>
>
>
>
>
>
> ___
> 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.
>



-- 
**Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
4301 Connecticut Avenue, N.W., Suite 434
Washington, D.C. 20008
Tel. 202-457-0800
www.aclu-nca.org 
artspit...@gmail.com


*See Something - Say Something!
If you see a violation of civil liberties, call the ACLU!*

*Confidentiality Notice*

* *This message is being sent by a lawyer.  It is intended exclusively for
the individual(s) to whom it is addressed.  This communication may contain
information that is privileged, confidential or otherwise legally protected
from disclosure.  If you are not a named addressee then you are not
authorized to read, print, retain, copy or disseminate this message or any
part of it.  If you have received this message in error, please notify the
sender immediately by e-mail and delete all copies of this message.  Thank
you.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
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Re: Bus Driver and Women's Interests/ Was Settlement or extortion?

[Arthur Spitzer]

Marci -

Just 4 hours ago, I thought you agreed that "If it's 5 to 10 minutes
[delay], and the system does not have to bear additional cost of hiring
additional drivers to accommodate this one, it seems like a good
accommodation."  Now you say that accommodation is "inappropriate in certain
circumstances, and one of them is transportation."  Will the real Marci
please stand up?  Is there some operative principle here?  Why should, e.g.,
transportation be categorically excluded, if an accommodation can easily be
made?

Art



On Tue, Apr 26, 2011 at 9:09 PM,  wrote:

>  Eugene -- I was agreeing with you, I believe.  I wasn't describing Title
> VII law, but rather what it should be. It should recognize the principle
> that accommodation is unnecessary and even  inappropriate in certain
> circumstances, and one of them is transportation.  Right now, the secular
> courts must consider undue hardship.  That often means there need be no
> accommodation.  But my view is consonant with yours that they shouldn't have
> to do that, either.
>
> Marci
>
>
>
>
> In a message dated 4/26/2011 6:42:35 P.M. Eastern Daylight Time,
> vol...@law.ucla.edu writes:
>
> If one can show that there’s an undue hardship on the employer or its
> customers stemming from the employee’s behavior (perhaps because the
> employee starts aggressively questioning the customers, which makes them
> understandably annoyed), then no accommodation is required.  But if the
> employee simply asks the employer to dispatch calls for rides to Planned
> Parenthood to a different driver (and the system already requires customers
> to say, when they make the call, where they’re going), I don’t see how
> secular courts can reject the Title VII claim on “none of your business”
> grounds.
>
>
>
> ___
> 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.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
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Re: Bus Driver and Women's Interests/ Was Settlement or extortion?

[Arthur Spitzer]

Yes, and if we allow one conscientious objector to be excused from the
draft, pretty soon we won't be able to get anyone to serve in the Army.

Your crystal ball was manufactured at a different factory from mine.  TWA v.
Hardison was decided 34 years ago, and we have not yet achieved Balkanization.
Perhaps it's worth trying accommodation for another couple of generations,
and then see where we are?

Art


On Tue, Apr 26, 2011 at 4:46 PM,  wrote:

>  If it's 5 to 10 minutes, and the system does not have to bear additional
> cost of hiring additional drivers to accommodate this one, it seems like a
> good accommodation.  But it will only work if you have only a small number
> of drivers who need accommodation, and I don't think you can keep the
> numbers small.
>
> Obviously, I have been skeptical throughout this thread that such an
> accommodation is either affordable or feasible for a transit system.  I
> stand by that.  Back to my slippery slope: there is no principled basis on
> which to give this driver accommodation but not the driver who believes
> contraception is a sin and so refuses to drive to Planned Parenthood 
> *and*every pharmacy.  Or who believes that unmarried pregnant women are a 
> sin, so
> refuse to drive such a woman to the store or the doctor (note the similarity
> to the claims by landlords that their religious beliefs require them to
> discriminate against unmarried mothers).  Or who believe that homosexuality
> is a sin and so refuse to transport two men or two women for a dinner date,
> or to a chapel to be married.   Or who don't believe in the death penalty
> and, therefore, refuse to drive a prosecuting attorney to the sentencing
> phase of a capital case.  Every one of these passengers is seeking to be
> transported to a legal activity, and there are no limits to the number of
> religious objections to every activity on earth.  That is why in this
> settlement, he had to agree not to be employed by the transportation agency
> in the future.  It cannot work.
>
> The better rule in this scenario is one that requires the
> government/employer to be neutral and generally applicable with respect to
> all of their drivers and passengers, and requires the driver to be neutral
> and generally applicable with respect to all of his or her passengers.
> Eugene did not ask me, but I would argue in favor of no Title VII or
> constitutionally-based right for a driver of public transportation.
>
> To put my ultimate view in a nutshell--The destination and intent of the
> passenger should be none of the government's or the driver's business.  Once
> it becomes the driver's business, we are sliding toward Balkanization, which
> is captured as follows:  "I will not be associated with you if you are going
> to engage in religious conduct in conflict with my religious beliefs."  Or,
> worse, "You are impure and sinful, and, therefore, I cannot have you in my
> vehicle."
>
> Marci
>
>
> In a message dated 4/26/2011 4:26:30 P.M. Eastern Daylight Time,
> artspit...@gmail.com writes:
>
> So, Marci, do you think it does harm to the women who want to go to Planned
> Parenthood, or harm to the public interest, if the women have to wait an
> extra 5 or 10 minutes for driver #2 to pick them up?  I'm not asking about 2
> or 3 hours.
>
> Art
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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> private.  Anyone can subscribe to the list and read messages that are
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> wrongly) forward the messages to others.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
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Re: Bus Driver and Women's Interests/ Was Settlement or extortion?

[Arthur Spitzer]

So, Marci, do you think it does harm to the women who want to go to Planned
Parenthood, or harm to the public interest, if the women have to wait an
extra 5 or 10 minutes for driver #2 to pick them up?  I'm not asking about 2
or 3 hours.

Art



On Tue, Apr 26, 2011 at 4:05 PM,  wrote:

>  Thanks to Paul for his thoughtful response to my longer post from this
> morning.  I'm not sure we are on different pages given his example below.
>
> For those who have not read my work, I have frequently said that
> accommodation that does not harm others is appropriate and desirable.  I
> have never written that accommodation is always wrong.  That is a caricature
> of my views.  In fact, I have praised accommodations with no victims or that
> benefit the public good, e.g., peyote exemptions, the exemption of
> sacramental wine during Prohibition, etc.
>
> Where I differ from those who think that accommodation is almost always a
> public good is in my refusal to assume that because something is demanded by
> a religious believer it is automatically good.  Often it is not.  That
> equation is a false one.  It is akin to the frequent failure of my
> interlocutors to remember that I am deeply religious, and certainly not
> anti-religious.
>
> My focus is on moving the discourse to talk about the larger picture for
> every accommodation instead of the focus on the demands of the believer.  I
> am interested in ordered liberty, whether that is a sum or a picture or
> both.  It is my conviction that the mechanistic thinking and unexamined
> presuppositions that factor into so much accommodation discourse need to be
> challenged.
>
> The public interest should always enter into the discussion, no?  So Paul's
> example below cannot be answered with a "yes" or a "no."  If we are
> fortunate enough to have enough people to put their lives on the line in a
> war, then I see no downside to conscientious objectors who do only office
> work.  But what happens when the background facts change and we need every
> able-bodied adult to fight or the country is at extreme risk?  Same
> question, different answer I would think.
>
> Marci
>
> In a message dated 4/26/2011 11:57:56 A.M. Eastern Daylight Time,
> phorw...@hotmail.com writes:
>
> But if we agree that society has a legitimate interest in its armed forces,
> and the conscientious objector is interfering with this legitimate interest
> by refusing to serve in the armed forces, wouldn't we be obliged to conclude
> that he or she must serve?
>
>
>
> ___
> 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
>
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> private.  Anyone can subscribe to the list and read messages that are
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>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
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*Confidentiality Notice***
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Re: "Settlement or extortion?" and antidiscrimination law (and tortlaw) more generally

[Arthur Spitzer]

Marci,

Yesterday you said, "In a word, extortion."  But I'm delighted to hear that
you now think the bus driver's settlement was only wrong, and not
extortionate.

Art


On Tue, Apr 26, 2011 at 1:53 PM,  wrote:

> Actually, Art, that is about as wrong a description as there could be of my
> views.
>
> Sandy started us w/ an either/or choice.  Extortion is strong.   I'm
> content w/ wrong.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -Original Message-
> From: Arthur Spitzer 
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Tue, 26 Apr 2011 13:15:26
> To: Law & Religion issues for Law Academics
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Subject: Re: "Settlement or extortion?" and antidiscrimination law (and
> tort
>law) more generally
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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> private.  Anyone can subscribe to the list and read messages that are
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> private.  Anyone can subscribe to the list and read messages that are
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> wrongly) forward the messages to others.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
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*Confidentiality Notice***
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Re: "Settlement or extortion?" and antidiscrimination law (and tort law) more generally

[Arthur Spitzer]

Eugene asks, "What is it about this particular case that triggers people not
just to complain about the plaintiff’s position, but to call his and his
lawyers’ actions 'extortion?'"

I think the actual answer is quite simple, and has nothng to do with legal
theories.  People are not upset when people with whom they sympathize get
settlements for legally marginal claims; they are upset when people with
whom they do not sympathize get settlements for legally marginal claims.  I
think the people who labeled the lawsuit in this case extortion would not
call it extortion if a woman were fired by a private employer for displaying
a pro-choice bumper sticker on her desk, and she sued for wrongful
discharge, and the employer's insurance company settled for $21,000, even
though the law of the relevant state was very unlikely to support the
woman's claim.  Call me cynical.

Art Spitzer



On Tue, Apr 26, 2011 at 11:23 AM, Volokh, Eugene wrote:

>  Here’s one thing that has puzzled me about the “settlement or
> extortion?” thread.  Many critics of tort law and employment law – largely
> conservatives and libertarians – have long argued that our legal system
> often leads to unmeritorious claims being settled to avoid risk and to save
> litigation costs.  If Walter Olson (author of *Litigation Explosion*,
> which criticized American tort law, and *Excuse Factory*, which criticized
> American employment law) were here, he’d probably say something like this:
>
>
>
>   1.  The Title VII reasonable accommodation requirement
> embodies a deliberately vague “undue hardship” / “reasonable accommodation”
> standard for liability.  (Justice Scalia might cheer him on, making his
> “rule of law as the law of rules” argument.)  This is an open invitation to
> disagreement among the parties about what the law requires, and to
> unpredictable jury decisionmaking.
>
>
>
>   2.  Our legal system has overgenerous discovery provisions,
> which make litigation more expensive.
>
>
>
>   3.  Courts have interpreted Title VII to provide asymmetrical
> fee-shifting, so that losing employers must pay prevailing plaintiffs’
> attorney fees, but losing plaintiffs almost never have to pay the prevailing
> employers’ attorney fees.  Compared to either the system the reformers often
> prefer, which is loser pays, or to our normal American Rule of no
> fee-shifting, this asymmetrical system creates a further incentive for
> plaintiffs to bring weak claims, and for employers to settle such claims.
>
>
>
>   We’ve been shouting about this for decades, Olson might say,
> but the legal establishment – and especially liberals – have largely
> condemned and rejected our arguments.  What is it about this particular case
> that triggers people not just to complain about the plaintiff’s position,
> but to call his and his lawyers’ actions “extortion”?  And unless we come up
> with some special rule that’s unfavorable to people with objections to
> abortion, shouldn’t we think more broadly about whether our system is
> broken, and about whether we should cut back on the scope of liability, the
> vagueness of liability, the procedures that make litigation costly, and the
> incentives to bring weak claims?
>
>
>
>   Eugene
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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> 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.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
artspit...@gmail.com

*Confidentiality Notice***
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Re: Settlement or extortion?

[Arthur Spitzer]

In most litigation by employees, or ex-employees, or passengers against this
transit system, It's likely that the transit system has the strong upper
hand by way of its much deeper pocket (to mix metaphors wildly).  So I'm not
shedding tears over its unwillingness to fight this case.  It was a business
decision, not a political capitulation.  If the transit system paid $21K to
settle a slip and fall broken hip, none of us would care, even if the
alleged negligence was quite dubious.

Now, if the transit system had been smart enough to call Planned Parenthood
when it received this complaint, I suspect Paul Clement's former law firm
would have been happy to take up the defense, pro bono, and give ACLJ a run
for its money.

Art Spitzer



On Mon, Apr 25, 2011 at 8:58 PM, Volokh, Eugene  wrote:

>I would ask the city attorney whether there is generally
> another driver to whom such rare requests could be referred.  If there is,
> then the case would be much like the nurse cases, as well as the postal
> worker / draft registration cases (plus I suspect quite a few other such
> cases involving other accommodation claims).  But if there isn’t, then it
> would be an undue hardship to accommodate this, so the city should fight the
> case.
>
>
>
>Of course, it costs money to fight the case, and if the city
> doesn’t have the money, then that’s a tough situation.  But that sounds like
> an argument for Congress to repeal the reasonable accommodation provisions,
> or to institute a loser-pays system.  I might support either of those as a
> policy matter, but that’s not the law right now.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sanford Levinson
> *Sent:* Monday, April 25, 2011 4:11 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Settlement or extortion?
>
>
>
> Eugene asks a fair question.  I confess I’m not on top of the relevant case
> law (as I suspect he is).  I’m responding as a potential juror or judge who
> would be disinclined to be accommodating in any instance where a substitute
> could not quickly and easily be found to take the place of the claimant.
> Indeed, were this a USPS case, I wouldn’t allow any accommodation at all
> with regard to someone who refused to deliver, say, The Atheist Monthly,
> etc.
>
>
>
> I am curious what Eugene would advise the city attorney, if asked for a
> disinterested prediction of the odds of victory (before a judge, in order to
> eliminate the wild card of a local jury).
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene
> *Sent:* Monday, April 25, 2011 6:07 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Settlement or extortion?
>
>
>
>Sandy:  Can you explain, please, exactly why you think the
> bus driver has a sure loser case, given that nurses who refuse to help with
> abortions – even if just to sterilize the equipment – and IRS agents who
> refuse to deal with abortion-related nonprofits have won their cases?  I’m
> not saying the two cases are indistinguishable; I’m just wondering what
> distinction is so open-and-shut that we should view the case as clearly
> “dubious” enough to justify “outrage.”  Title VII has been read as requiring
> “reasonable accommodation,” sometimes even when that involves refusing to do
> things that would normally be part of one’s job duties (e.g., to show up
> Saturdays, to help in abortions, to help process draft registration forms,
> etc.).  Maybe that’s an excess of modern “antidiscrimination” law, but that
> seems to be the law.
>
>
>
>Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sanford Levinson
> *Sent:* Monday, April 25, 2011 3:51 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Settlement or extortion?
>
>
>
> I am curious whether there will be any public outrage about this, in the
> way that I suspect there would be if, say, the city paid out $21,500 (in
> order simply to avoid litigation that could undoubtedly be won) to an
> atheist who made an equally dubious claim.  (I confess I see no
> circumstances under which the bus driver deserves “accommodation,” any more,
> to return to a much earlier discussion, than I would allow a postal worker
> to refuse to deliver unpalatable mail.
>
>
>
> I wonder, incidentally, if the ACLJ is making any money off this
> settlement, or do they handle such cases pro bono?
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com
> *Sent:* Monday, April 25, 2011 5:44 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Settlement or extortion?
>
>
>
> Art may well be right about insurance counsel.
>
>
>
> But to the merits

Re: Settlement or extortion?

[Arthur Spitzer]

Sorry, I meant to say "99.9%" not ".999%."

On Mon, Apr 25, 2011 at 8:13 PM, Arthur Spitzer wrote:

> I was responding only to your language about an employee being able to do
> "most" of his or her job.  This driver surely was able to do .999% of his
> job.  I agree that there's a line somewhere.  And wherever it is, I think it
> should be in the same place for a bus driver whose views we find picky as
> for a Quaker whose views we find refined.
>
> Art
>
>
>
>
> On Mon, Apr 25, 2011 at 8:05 PM, Brownstein, Alan <
> aebrownst...@ucdavis.edu> wrote:
>
>> The math in my example is that a lot more people will want rides to the
>> local hospital than to Planned Parenthood and there will often be far
>> greater need for them to get there quickly. (Are you seriously arguing that
>> we should accommodate the beliefs of a cab driver who refuses to take any
>> woman passenger to the hospital because of the .01 percent possibility they
>> will receive religiously problematic treatment.) And if we are talking about
>> a .01% chance that a trip may lead to locations where religiously
>> inappropriate conduct may occur, hospitals are only the tip of the iceberg.
>>
>>
>>
>> Because of Planned Parenthood’s association with abortions, I can
>> understand the driver’s concern – even though the great majority of trips to
>> Planned Parenthood do not involve abortions. But there has to be some limit
>> here. A hospital employee who does not want to clean instruments used for
>> abortion procedures has a legitimate claim to accommodation to my mind. An
>> employee who will not clean instruments that have a .01% chance of being
>> used during an abortion is a lot harder case for me. At some point an
>> accommodation requires assigning the employee to a different job.
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
>> *Sent:* Monday, April 25, 2011 4:45 PM
>>
>> *To:* Law & Religion issues for Law Academics
>> *Subject:* Re: Settlement or extortion?
>>
>>
>>
>> I'm not following the math.  Assume 1% of dispatches are to the hospital.
>> Our religious driver would then have no problem doing 99% of his job.
>> Surely that qualifies as "most of what the driver would be required to do."
>>
>> Art
>>
>> On Mon, Apr 25, 2011 at 7:34 PM, Brownstein, Alan <
>> aebrownst...@ucdavis.edu> wrote:
>>
>> But that argument hurts the case for a religious accommodation, doesn’t
>> it. Under that analysis, a driver could refuse to drive women to the only
>> hospital in the area because there is some chance that they would receive
>> treatment prohibited by his faith. An accommodation only makes sense if most
>> of what the driver would be required to do would not violate his beliefs.
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
>> *Sent:* Monday, April 25, 2011 4:26 PM
>>
>>
>> *To:* Law & Religion issues for Law Academics
>>
>> *Subject:* Re: Settlement or extortion?
>>
>>
>>
>> On the question whether the driver knew why the passengers were going to
>> Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy
>> lines, even if he were accurately assured that there was only a .01% chance
>> that his bullet would hit a person.
>>
>> Art
>>
>>
>> ___
>> 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.
>>
>>
>>
>>
>> --
>> Arthur B. Spitzer
>> Legal Director
>> American Civil Liberties Union of the Nation's Capital
>> 1400 20th Street, N.W., Suite 119
>> Washington, D.C. 20036
>> Tel. 202-457-0800
>> Fax 202-452-1868
>> www.aclu-nca.org
>> a...@aclu-nca.org
>> artspit...@gmail.com
>>
>> *Confidentiality Notice*
>>
>> This message is being sent by a lawyer.  It is intended exclusively for
>> the individual(s) to whom it is addresse

Re: Settlement or extortion?

[Arthur Spitzer]

I was responding only to your language about an employee being able to do
"most" of his or her job.  This driver surely was able to do .999% of his
job.  I agree that there's a line somewhere.  And wherever it is, I think it
should be in the same place for a bus driver whose views we find picky as
for a Quaker whose views we find refined.

Art



On Mon, Apr 25, 2011 at 8:05 PM, Brownstein, Alan
wrote:

> The math in my example is that a lot more people will want rides to the
> local hospital than to Planned Parenthood and there will often be far
> greater need for them to get there quickly. (Are you seriously arguing that
> we should accommodate the beliefs of a cab driver who refuses to take any
> woman passenger to the hospital because of the .01 percent possibility they
> will receive religiously problematic treatment.) And if we are talking about
> a .01% chance that a trip may lead to locations where religiously
> inappropriate conduct may occur, hospitals are only the tip of the iceberg.
>
>
>
> Because of Planned Parenthood’s association with abortions, I can
> understand the driver’s concern – even though the great majority of trips to
> Planned Parenthood do not involve abortions. But there has to be some limit
> here. A hospital employee who does not want to clean instruments used for
> abortion procedures has a legitimate claim to accommodation to my mind. An
> employee who will not clean instruments that have a .01% chance of being
> used during an abortion is a lot harder case for me. At some point an
> accommodation requires assigning the employee to a different job.
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, April 25, 2011 4:45 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Settlement or extortion?
>
>
>
> I'm not following the math.  Assume 1% of dispatches are to the hospital.
> Our religious driver would then have no problem doing 99% of his job.
> Surely that qualifies as "most of what the driver would be required to do."
>
> Art
>
> On Mon, Apr 25, 2011 at 7:34 PM, Brownstein, Alan <
> aebrownst...@ucdavis.edu> wrote:
>
> But that argument hurts the case for a religious accommodation, doesn’t it.
> Under that analysis, a driver could refuse to drive women to the only
> hospital in the area because there is some chance that they would receive
> treatment prohibited by his faith. An accommodation only makes sense if most
> of what the driver would be required to do would not violate his beliefs.
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, April 25, 2011 4:26 PM
>
>
> *To:* Law & Religion issues for Law Academics
>
> *Subject:* Re: Settlement or extortion?
>
>
>
> On the question whether the driver knew why the passengers were going to
> Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy
> lines, even if he were accurately assured that there was only a .01% chance
> that his bullet would hit a person.
>
> Art
>
>
> ___
> 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.
>
>
>
>
> --
> Arthur B. Spitzer
> Legal Director
> American Civil Liberties Union of the Nation's Capital
> 1400 20th Street, N.W., Suite 119
> Washington, D.C. 20036
> Tel. 202-457-0800
> Fax 202-452-1868
> www.aclu-nca.org
> a...@aclu-nca.org
> artspit...@gmail.com
>
> *Confidentiality Notice*
>
> This message is being sent by a lawyer.  It is intended exclusively for the
> individual(s) to whom it is addressed.  This communication may contain
> information that is privileged, confidential or otherwise legally protected
> from disclosure.  If you are not a named addressee then you are not
> authorized to read, print, retain, copy or disseminate this message or any
> part of it.  If you have received this message in error, please notify the
> sender immediately by e-mail and delete all copies of this message.  Thank
> you.
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change o

Re: Settlement or extortion?

[Arthur Spitzer]

I'm not following the math.  Assume 1% of dispatches are to the hospital.
Our religious driver would then have no problem doing 99% of his job.
Surely that qualifies as "most of what the driver would be required to do."

Art


On Mon, Apr 25, 2011 at 7:34 PM, Brownstein, Alan
wrote:

> But that argument hurts the case for a religious accommodation, doesn’t it.
> Under that analysis, a driver could refuse to drive women to the only
> hospital in the area because there is some chance that they would receive
> treatment prohibited by his faith. An accommodation only makes sense if most
> of what the driver would be required to do would not violate his beliefs.
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, April 25, 2011 4:26 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Settlement or extortion?
>
>
>
> On the question whether the driver knew why the passengers were going to
> Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy
> lines, even if he were accurately assured that there was only a .01% chance
> that his bullet would hit a person.
>
> Art
>
>
>
> ___
> 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.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
artspit...@gmail.com

*Confidentiality Notice***
**

* *This message is being sent by a lawyer.  It is intended exclusively for
the individual(s) to whom it is addressed.  This communication may contain
information that is privileged, confidential or otherwise legally protected
from disclosure.  If you are not a named addressee then you are not
authorized to read, print, retain, copy or disseminate this message or any
part of it.  If you have received this message in error, please notify the
sender immediately by e-mail and delete all copies of this message.  Thank
you.
___
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: Settlement or extortion?

[Arthur Spitzer]

OK, would a Quaker take a job assembling M-1 rifles, even if accurately
assured that fewer than 1 in 1000 ever fires a shot that hits a person?

Art



On Mon, Apr 25, 2011 at 7:30 PM, Sanford Levinson
wrote:

> I wonder why Mark believes that “a reasonably high percentage of women who
> go to PP go there for abortions,” unless “reasonably high” means >0.  The
> Quaker analogy strikes me as completely inapt, since the Quaker would be the
> direct agent of the harm inflicted by a hit.  Does even the modern (i.e.,
> highly conservative) Catholic Church view taking a passanger to PP as part
> of one’s general job driving a cab or a bus as complicity with abortion?
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, April 25, 2011 6:26 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Settlement or extortion?
>
>
>
> On the question whether the driver knew why the passengers were going to
> Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy
> lines, even if he were accurately assured that there was only a .01% chance
> that his bullet would hit a person.
>
> Art
>
>
> On Mon, Apr 25, 2011 at 7:15 PM, Scarberry, Mark <
> mark.scarbe...@pepperdine.edu> wrote:
>
> If I’m reading the facts correctly, the plaintiff lost his job. If the
> plaintiff turned down the dispatch as soon as he received it, and if the
> Transportation System other drivers available for dispatch (so that it
> easily could have dispatched a different driver to take the passengers to
> the Planned Parenthood facility), then there could be a claim that he was
> entitled to an accommodation.
>
>
>
> With regard to Marci’s point that they may have been going there to protest
> PP, you have to consider whether you would want the bus driver to ask them
> why they wanted to go to PP. After all, a reasonably high percentage of
> women who go to PP go there for abortions, and it would seem to be an
> infringement on the passengers’ privacy for the bus driver to ask them if
> that was their reason.
>
>
>
> So far I’ve been assuming that the driver turned down the assignment at the
> time he was dispatched and that other drivers could have been dispatched
> with little delay or inconvenience. If, on the other hand, after being
> dispatched, he actually picked up the passengers but then (either on
> learning their exact destination or on noting that one of them seemed to be
> pregnant) refused to take them to their destination, then requiring them to
> wait for another bus and requiring the Transportation System to dispatch a
> second bus would exceed the bounds of any reasonable accommodation.
>
>
>
> The possibility of the driver winning the case may have been low, but he
> did suffer real harm by being fired. It seems possible that the case was not
> frivolous, that a reasonable defendant (or its insurance company) might
> offer a settlement, and that the settlement might reasonably considered not
> to be extortion.
>
>
>
> Mark Scarberry
>
> Pepperdine
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sanford Levinson
> *Sent:* Monday, April 25, 2011 3:51 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Settlement or extortion?
>
>
>
> I am curious whether there will be any public outrage about this, in the
> way that I suspect there would be if, say, the city paid out $21,500 (in
> order simply to avoid litigation that could undoubtedly be won) to an
> atheist who made an equally dubious claim.  (I confess I see no
> circumstances under which the bus driver deserves “accommodation,” any more,
> to return to a much earlier discussion, than I would allow a postal worker
> to refuse to deliver unpalatable mail.
>
>
>
> I wonder, incidentally, if the ACLJ is making any money off this
> settlement, or do they handle such cases pro bono?
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com
> *Sent:* Monday, April 25, 2011 5:44 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Settlement or extortion?
>
>
>
> Art may well be right about insurance counsel.
>
>
>
> But to the merits--  Even under TRFRA--where is the substantial burden
> here?  The vast majority of Planned Parenthood's services have nothing to do
> with abortion, no one forced him to become a bus driver, and he has no
> religious belief that he need be a bus driver.
>
>
>
> This 

Re: Settlement or extortion?

[Arthur Spitzer]

I think Marci is misunderstanding the facts. As I read the news clip, this
driver was specifically dispatched to take these passengers to Planned
Parenthood.  He was not driving a bus route.

Art Spitzer



On Mon, Apr 25, 2011 at 7:24 PM,  wrote:

>  That is actually inaccurate.  The vast majority of what Planned
> Parenthood does involves day-to-day gyn care for poor women, as well as
> contraceptive counseling.  A small percentage involves abortion.
>
> In any event, I was not suggesting that the bus driver should ask, but
> rather that no bus driver has a right to ask any passenger where they are
> headed once they get off the bus.
>
> Mark--are you seriously suggesting that there should be spare drivers
> available via dispatch for any driver who has a passenger heading to a
> destination where the passenger might engage in a practice that might
> violate the driver's beliefs?  Once the system must accommodate this driver,
> which I think, again is absurd, it must accommodate all religious drivers,
> no?  What about the Islamic driver who does not believe that women should
> wear bathing suits or bikinis, and refuses to drive women to Macy's?   There
> is no principled dividing line between the 2 believers.
>
> Marci
>
> In a message dated 4/25/2011 7:17:16 P.M. Eastern Daylight Time,
> mark.scarbe...@pepperdine.edu writes:
>
> After all, a reasonably high percentage of women who go to PP go there for
> abortions, and it would seem to be an infringement on the passengers’
> privacy for the bus driver to ask them if that was their reason.
>
>
>
> ___
> 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.
>



-- 
Arthur B. Spitzer
Legal Director
American Civil Liberties Union of the Nation's Capital
1400 20th Street, N.W., Suite 119
Washington, D.C. 20036
Tel. 202-457-0800
Fax 202-452-1868
www.aclu-nca.org
a...@aclu-nca.org
artspit...@gmail.com

*Confidentiality Notice***
**

* *This message is being sent by a lawyer.  It is intended exclusively for
the individual(s) to whom it is addressed.  This communication may contain
information that is privileged, confidential or otherwise legally protected
from disclosure.  If you are not a named addressee then you are not
authorized to read, print, retain, copy or disseminate this message or any
part of it.  If you have received this message in error, please notify the
sender immediately by e-mail and delete all copies of this message.  Thank
you.
___
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: Settlement or extortion?

[Arthur Spitzer]

On the question whether the driver knew why the passengers were going to
Planned Parenthood, I believe a Quaker would refuse to fire a rifle at enemy
lines, even if he were accurately assured that there was only a .01% chance
that his bullet would hit a person.

Art



On Mon, Apr 25, 2011 at 7:15 PM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> If I’m reading the facts correctly, the plaintiff lost his job. If the
> plaintiff turned down the dispatch as soon as he received it, and if the
> Transportation System other drivers available for dispatch (so that it
> easily could have dispatched a different driver to take the passengers to
> the Planned Parenthood facility), then there could be a claim that he was
> entitled to an accommodation.
>
>
>
> With regard to Marci’s point that they may have been going there to protest
> PP, you have to consider whether you would want the bus driver to ask them
> why they wanted to go to PP. After all, a reasonably high percentage of
> women who go to PP go there for abortions, and it would seem to be an
> infringement on the passengers’ privacy for the bus driver to ask them if
> that was their reason.
>
>
>
> So far I’ve been assuming that the driver turned down the assignment at the
> time he was dispatched and that other drivers could have been dispatched
> with little delay or inconvenience. If, on the other hand, after being
> dispatched, he actually picked up the passengers but then (either on
> learning their exact destination or on noting that one of them seemed to be
> pregnant) refused to take them to their destination, then requiring them to
> wait for another bus and requiring the Transportation System to dispatch a
> second bus would exceed the bounds of any reasonable accommodation.
>
>
>
> The possibility of the driver winning the case may have been low, but he
> did suffer real harm by being fired. It seems possible that the case was not
> frivolous, that a reasonable defendant (or its insurance company) might
> offer a settlement, and that the settlement might reasonably considered not
> to be extortion.
>
>
>
> Mark Scarberry
>
> Pepperdine
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sanford Levinson
> *Sent:* Monday, April 25, 2011 3:51 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Settlement or extortion?
>
>
>
> I am curious whether there will be any public outrage about this, in the
> way that I suspect there would be if, say, the city paid out $21,500 (in
> order simply to avoid litigation that could undoubtedly be won) to an
> atheist who made an equally dubious claim.  (I confess I see no
> circumstances under which the bus driver deserves “accommodation,” any more,
> to return to a much earlier discussion, than I would allow a postal worker
> to refuse to deliver unpalatable mail.
>
>
>
> I wonder, incidentally, if the ACLJ is making any money off this
> settlement, or do they handle such cases pro bono?
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com
> *Sent:* Monday, April 25, 2011 5:44 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Settlement or extortion?
>
>
>
> Art may well be right about insurance counsel.
>
>
>
> But to the merits--  Even under TRFRA--where is the substantial burden
> here?  The vast majority of Planned Parenthood's services have nothing to do
> with abortion, no one forced him to become a bus driver, and he has no
> religious belief that he need be a bus driver.
>
>
>
> This reminds me of the Muslim cab drivers in Minneapolis who refused to
> pick up passengers at the airport who were carrying closed bottles of
> alcohol (think: people bringing wine in from France).  The City at first
> gave an accommodation and then woke up and realized that you cannot have a
> workable taxi system that permits drivers to pick and choose among
> passengers.  (NY figured that out a long time ago)  The case was
> particularly ironic, because area imams announced that there is no religious
> prohibition for Muslims that forbids carrying someone else's closed alcohol.
>
>
>
> The slippery slope here is really slippery, and should have led defense
> counsel to dig in their heels in my view.  It was none of the driver's
> business what the women were doing.  For all he knew, they were going to PP
> to protest abortion.  Presumably, he would have approved of that, and would
> have happily driven them to carry out that viewpoint.  So what is his
> "right"?  Does he have a right  to question passengers and drop them off at
> locations where they will do that with which he agrees, but to balk if they
> are going to engage in conduct he disapproves of?  It is absurd.
>
>
>
> Marci
>
>
>
>
>
> In a message dated 4/25/2011 6:26:34 P.M. Eastern Daylight Time,
> artspit...@aol.com writes:
>
> I suspect the [Texas] Capital Area Rural Transpo