RE: Does exemption from antidiscrimination law for all religious organizations violate the Washington Constitution?

[Brownstein, Alan]

I assume the argument under the federal Establishment Clause would be that this 
accommodation goes too far and imposes an unacceptable burden on third parties. 
And a similar argument could be made under state law. Courts, of course, have 
not been clear as to how far is too far. Given the size of the non-profit 
sector of the economy, carving out an exception from all anti-discrimination 
laws for all religious NGOs, for all job functions, could certainly limit the 
job opportunities for members of protected classes. Does the Washington 
exemption extend to all religious non-profits for all job functions?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Monday, October 24, 2011 9:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Does exemption from antidiscrimination law for all religious 
organizations violate the Washington Constitution?

Interesting issue. Is it essentially an argument that a statutory 
antidiscrimination law *must* exactly track the "naked" constitutional 
requirements? Presumably, if the exemption under the statute is too broad, a 
plaintiff can make a direct constitutional claim. Would it suffice for the 
state to argue that the likelihood of success against a religious 
organizational defendant (which, along with other nonprofit organizations, 
benefits in many states from very low limits of liability) is remote enough 
that the state is justified in withholding whatever administrative machinery is 
put in place by the statute?

Vance
On Wed, Oct 19, 2011 at 7:21 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
Washington antidiscrimination law, 
http://apps.leg.wa.gov/rcw/default.aspx?cite=49.60.040, categorically exempts 
"any religious or sectarian organization not organized for private profit."  In 
Donelson v. Providence Health & Services-Washington, 2011 WL 4899911 (E.D. 
Wash. Oct. 14), plaintiff - who alleged that she was fired because of her 
disability - argues that this exemption violates article I, section 11 of the 
Washington Constitution, because it unconstitutionally discriminates in favor 
of religious institutions.  The district court has ordered the parties to state 
their positions on whether it should certify the question to the Washington 
Supreme Court.

Eugene

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--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Brownstein, Alan]

I agree that the substance of what the KKK says and stands for makes my example 
striking and sui generis. But my hypothetical had two elements. The second part 
is that the teacher was the recruitment officer of the local chapter.

How would you evaluate this situation, Eugene. The teacher is the recruitment 
officer of the “Gays are Abominations  Society” which expresses horribly 
negative views about gays and lesbians. He teaches Seventh graders, 12 years 
olds. He uses his social networking pages as a recruitment tool and accepts 
past and present students as “friends.”  (But he doesn’t recruit on school 
grounds or invite his students to be his “friends” while on school grounds.)

Are there we lines we can draw that allow restrictions on this kind of 
expressive conduct without creating a foundation for punishing anything a 
teacher says on his face book page that the principal, school board or local 
community does not like? Just as all speech expressed with passion incites 
(Brandeis and Holmes), all speech expressed with passion invites and recruits 
in some sense.

Alan






From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 19, 2011 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

The KKK example is interesting, but I think it works because 
it’s so striking:  Our initial reaction is that surely the KKK teacher can be 
fired, but I think that reaction is partly driven by the judgment that the KKK 
teacher is so sui generis.  Shouldn’t we sacrifice this little bit of teacher 
freedom, in order to prevent racial tension at the school?

Now perhaps the answer is yes, but that answer is especially 
appealing only to the extent that this is indeed a sui generis scenario.  Once 
this decision becomes used as a precedent for punishing teachers for saying 
that they’re disgusted by same-sex marriage, then we’re talking about a 
considerably broader speech restriction.  And if this extension of the KKK hypo 
by analogy works, where will it stop?  What if the teacher didn’t say “I almost 
threw up” and “cesspool,” but simply said that same-sex marriages were sinful 
(which he did say) or evil?

The danger, it seems to me, is that the emerging rule – certainly as 
practically understood and internalized by speakers, but also as applied by 
government employers – would end up being that all criticism of same-sex 
marriage or of homosexuality could lead to government discipline.  (After all, 
the analogy between such criticism and the Buell statement is closer than the 
analogy between the KKK organizer hypo and the Buell statement.)  And that 
brings up the question I asked:  How should we then consider the value of the 
restricted speech to speakers and to society, in applying the Pickering 
balance, if indeed the speech restriction tends to deter government employee 
speech on one side of such a topic?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, August 19, 2011 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

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RE: Teacher suspended for anti-same-sex-marraige Facebook post

[Brownstein, Alan]

Mark raises valid concerns.  The questions Steve asks seem to be Tinker 
questions. I think the Tinker “material disruption” standard almost unavoidably 
creates some risk of a heckler’s veto. It also is implicitly biased against 
unpopular speech which challenges conventional orthodoxy because such speech is 
far more likely to be disruptive than conventional messages expressing 
generally accepted viewpoints.

It may be that these weaknesses in Tinker have to be accepted because of the 
school’s legitimate need to maintain order in an institutional setting 
involving hundreds of minors. But these concerns suggest that we should be wary 
of extending a Tinker like standard to expression by adults expressed outside 
of the school environment.

Still, that wariness may have some limits. If a teacher in a racially 
integrated school with a history of racial incidents was the recruitment 
officer for the local KKK chapter and used social networking as a recruitment 
tool, would the school be justified in refusing to renew his contract?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Friday, August 19, 2011 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post

There is much to be said for Steve’s point of view.

On the other hand, consider the implications. What about a teacher whose blog 
severely criticizes creationists (“I want to puke when I hear that Gov. Perry 
wants to have schools teach creationism) or who says that religion sickens him 
or who says that anyone who supports the Iraq war or that 911 was a US plot to 
justify invading Afghanistan and Iraq etc.? Doesn’t this also lead to a 
heckler’s veto, in which students who don’t like the teacher’s point of view 
will protest and then it will be claimed that the Pickering/Connick analysis 
justifies taking action against the teacher?

How would this work in the context of academic freedom in a university?

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
Malibu, CA 90263
(310) 506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, August 19, 2011 5:41 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post

Doesn't this call for a straightforward Pickering/Connick analysis? I'm 
assuming Garcetti wouldn't apply, unless the teacher used Facebook to 
communicate officially with students. I lean strongly in favor of protecting 
the teacher's speech which, crude as it was, was clearly on a matter of public 
concern. So isn't the key inquiry whether the employer can demonstrate that 
this particular speech was harmful to the good order and discipline of the 
school? Seems to me there would be lots of facts we'd need to know. Was the 
post readable by anyone or just the teacher's Facebook friends? What's the 
climate for gay students at the school? Could it be argued that this post 
realistically (without the fuss caused by the suspension itself) would have 
caused harm to gay students or disrupted the school generally?

Steve Sanders
University of Michigan Law School

On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
Any thoughts on this?

http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/

Lake County Schools Communications Officer Chris Patton said school officials 
received a complaint Tuesday about the content on Mount Dora High School 
teacher Jerry Buell's personal Facebook page  CNN affiliate Central Florida 
News 13 reported that a status post on it said, "I'm watching the news, eating 
dinner, when the story about the New York okaying same sex unions came on and I 
almost threw up."

Patton would not confirm the content of the post, but he said Lake County 
officials are taking the matter very seriously.
"We began to review the code of ethics violations immediately and yesterday 
afternoon temporarily reassigned the teacher pending the outcome of the 
investigation," Patton told CNN Thursday

The newspaper said that in the same July 25 post, Buell said same-sex marriages 
were part of a "cesspool" and were a "sin." ...

Buell, a teacher for more than 26 years [and a former “teacher of the year”], 
served as the Social Studies Department chair at Mount Dora and taught American 
history and government, according to the high school's website
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RE: The Two Forms of "Ministerial Exception" Cases -- a Query

[Brownstein, Alan]

I’m sorry I may have misunderstood your earlier comments, Marty.  But I still 
have some misgivings about your position. My problem with point 1 is that I 
think the reason a law requiring the ordination of female priests is an easy 
case is because the example involves the ordination of clergy – not because of 
freedom of association concerns. I’m not sure there are many real world 
analogies here. If we were talking about some other profession (other than 
clergy) in which thousands of people attended educational institutions, 
received degrees, and earned their livelihood  and the institutions hiring 
those professionals (as well as the educational programs that trained them) 
asserted the freedom of association right to deny certain individuals  
admission to  the educational programs and to refuse to hire those individuals 
as professionals because of their race, gender, or disability, I think that 
would be a hard case. It’s an easy case because we are talking about religion 
and the training and hiring of clergy.

Whether the state can demonstrate a compelling state interest under RFRA (or 
Dale) depends, of course, on whether the courts consider prohibiting race, 
gender, or disability discrimination in the context of hiring clergy to be a 
compelling state interest. I suspect that one might prefer a ministerial 
exception in these cases to the strict scrutiny review required by RFRA for the 
same reason that Justices Black and Douglas concurred in Brandenburg v. Ohio 
rather than joining the majority opinion.  Based on history, Black and Douglas 
worried that the application of strict scrutiny might not always be all that 
strict in cases where speech was considered to be particularly worrisome or 
unpopular. I have read RFRA decision where the “strict scrutiny”  applied was 
far from rigorous.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, August 17, 2011 9:03 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query

I'm sure it must be a function of my lack of clarity, but I think Alan has 
misunderstood the points I was trying to make about
RFRA and Dale, which were simply these:

1.  Even construed *narrowly* -- and believe me, I do not favor an expansion of 
Dale -- these, and other statutory exemptions, will be far more than sufficient 
to deal with the "parade of horribles," such as Rick's hypo of a state trying 
to require ordination of a female priest (something that no legislature in our 
lifetime would ever consider, let alone impose).

2.  In a case such as this, if a defendant cannot make the showing necessary 
under RFRA or Dale, what is the normative or practical case for application of 
a ME immunity?  That is to say, why shouldn't the school at the very least have 
to satisfy those standards?

Sent from my iPhone

On Aug 17, 2011, at 11:34 AM, "Brownstein, Alan" 
mailto:aebrownst...@ucdavis.edu>> wrote:
Whatever the merits of, or problems with, the ministerial exception may be in 
this or other cases , I don't see how Dale and RFRA adequately respond to the 
issues raised in these cases. First, if one takes Justice Alito's dissenting 
opinion in Martinez seriously, even the conservative Justices on the Court 
aren't sure what Dale means and don't read it to mean what it pretty clearly 
says. Moreover, it is not clear to me that Dale extends to paid employment at 
all non-profit organizations. Nor is it clear to me that I would prefer a broad 
reading of Dale to a limited acceptance of the ministerial exception. Some of 
the arguments I have read arguing against the ministierial exception because of 
the protection Dale provides to associational freedom would do far more damage 
to civil rights laws than the ministerial exception ever could.

As for RFRA, this is an inadequate substitute for the ministerial exception for 
the same reason that RFRA is an inadequate substitute for the meaningful 
protection of free exercise rights. RFRA can be amended, repealed, or 
overridden by subsequent statutes at the legislature's discretion. Decisions 
that go to the core of religious freedom and identity, as the most narrow 
understanding of the ministerial exception clearly does, require constitutional 
protection.

Alan


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RE: The Two Forms of "Ministerial Exception" Cases -- a Query

[Brownstein, Alan]

Whatever the merits of, or problems with, the ministerial exception may be in 
this or other cases , I don't see how Dale and RFRA adequately respond to the 
issues raised in these cases. First, if one takes Justice Alito's dissenting 
opinion in Martinez seriously, even the conservative Justices on the Court 
aren't sure what Dale means and don't read it to mean what it pretty clearly 
says. Moreover, it is not clear to me that Dale extends to paid employment at 
all non-profit organizations. Nor is it clear to me that I would prefer a broad 
reading of Dale to a limited acceptance of the ministerial exception. Some of 
the arguments I have read arguing against the ministierial exception because of 
the protection Dale provides to associational freedom would do far more damage 
to civil rights laws than the ministerial exception ever could.

As for RFRA, this is an inadequate substitute for the ministerial exception for 
the same reason that RFRA is an inadequate substitute for the meaningful 
protection of free exercise rights. RFRA can be amended, repealed, or 
overridden by subsequent statutes at the legislature's discretion. Decisions 
that go to the core of religious freedom and identity, as the most narrow 
understanding of the ministerial exception clearly does, require constitutional 
protection.

Alan



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Marty Lederman [lederman.ma...@gmail.com]
Sent: Wednesday, August 17, 2011 7:28 AM
To: Law & Religion issues for Law Academics
Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query

Thanks again, Rick.  I'm interested in what others have to say, so I'll just 
offer two quick reactions:

1.  True enough, as many of you know, I'm no fan of Dale -- but my point is 
simply that once that doctrine and RFRA (not to mention other statutory 
exemptions and the prohibition on courts deciding questions of religious truth) 
are available, why is there a need for a ministerial exception, at least in 
this sort of case?

2.  As for your hypo -- "What, then, prevents a state government from imposing 
liability on, say, a (hypothetical) conservative Protestant congregation that 
refuses to hire a woman, because she is a woman, as its minister (assuming it 
can do so without entangling itself in “religious” questions)?" --

I think it proves my point quite nicely:  First of all, few if any statutes 
would try to regulate such a purely internal church decision -- presumably, 
e.g., it's covered by the title VII BFOQ exception.  But assuming 
hypothetically that a statute did facially prohibit the church from adhering to 
its rule that only men may be ministers, I have absolutely no doubt that the 
church would be entitled to en exemption under or RFRA or Dale -- likely both.  
See OSG Br. at 31; Perich Br. at 35-36.



On Wed, Aug 17, 2011 at 10:15 AM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Dear Marty,

I’m not sure about how you’ve constructed the “run of the mill” and “not one of 
those sorts of cases” categories – because I think it seems to make an awful 
lot depend simply on what the government has chosen to identify as a prohibited 
ground of decision, and it seems to de-emphasizes the nature of the position / 
relationship at issue – but let’s put that aside.  As I see it, for purposes of 
thinking about what a commitment to religious freedom entails, before we get to 
what you call the “court’s basic function [of] determin[ing] whether the 
prohibited consideration motivated the action”, there is the question whether 
the action in question is part of the selection and application by a religious 
community of its criteria for religious ministers.  As I read your second 
paragraph, you are open to the possibility that “perhaps” a ministerial 
exception is warranted – but only perhaps – even in the kinds of cases 
described in that paragraph.  For me, though, it is bedrock – of the “The 
Sedition Act of 1798 was inconsistent with an attractive understanding of the 
Freedom of Speech” variety – that an exception is required in such cases.  But, 
I won’t belabor the claim here, because I know you want to get others’ 
reactions.

With respect to your last question, though, about Dale and RFRA.  Both do, as 
you suggest, provide some protections for the decisions of religious 
communities, when they act as employers.  Still, they are not (in my view) 
sufficient.  Two quick thoughts:  First, I am not sure I know what Dale really 
stands for, and I’m not confident that everyone who is arguing “Dale is enough” 
believes that Dale was rightly decided.  Let’s assume, as many of us on this 
list probably believe, that Dale is wrong (because, say, it confused 
discriminatory “conduct” with “speech”).  What, then, prevents a state 
government from imposing liability on, say, a (hypothetical) conservative 
Protestant congregation that refuses to hire a woman, because she is

RE: Hosanna-Tabor and the "Ministerial Exception"

[Brownstein, Alan]

I haven't given the question a lot of thought, but it would seem to me that 
that the "limits of the state police powers" argument would probably be 
grounded on a secular purpose requirement. Government cannot interfere with the 
decision to hire or fire someone as clergy for exclusively and intrinsically 
religious reasons (e.g. G-d would prefer the church to appoint candidate A 
rather than candidate B; Candidate A is a better spiritual leader for the 
congregation) Beyond that, when the state asserts a rational health, safety, 
general welfare or moral justification for its actions, it is hard for me to 
see how the "limits of the state powers" arguments comes into play.  Then, I 
think, we are in the world of institutional-competence / no-entanglement / 
interest-balancing / arguments for shielding the church against state power.

Whether a lack of secular purpose analysis would give you a different answer 
than the institutional-competence / no-entanglement / interest-balancing / 
analysis in some real world circumstances would probably depend  on how the 
secular purpose requirement is interpreted and enforced.

Were you thinking that there are situations where the state lacks regulatory 
power to intrude into church decisions even though the state has a rational 
health, safety, general welfare or moral purpose for its actions.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Tuesday, August 16, 2011 10:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the "Ministerial Exception"

Dear Alan,

I don't think I was getting to the level of distinct rules; I was just trying 
to separate out (or, at least distinguish) two ways of thinking about the 
problem.  My "gut"-level sense is that, in practice, the 
institutional-competence / no-entanglement / interest-balancing / "is an 
exemption warranted, all things considered?" approach will usually yield (what 
I would regard as) the right answer in those (rare) circumstances when we are 
dealing with the limits (not the advisability of exercising) the state's police 
powers.  What do you think?

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://www.mirrorofjustice.blogs.com/>
Law, Religion, and Ethics<http://lawreligionethics.net/>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, August 16, 2011 1:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the "Ministerial Exception"

Just to make sure that I am understanding Rick's argument correctly. Rick, are 
you suggesting that there are two constitutional rules regarding "church 
autonomy." One rule calls for the evaluation of institutional competence, 
no-entanglement, and general interest balancing issues as to which some form of 
balancing is necessary and appropriate. A second rule involves a limited class 
of circumstances as to which the state simply lacks power to regulate the 
decision at issue. And at least part of what distinguishes rule 1 from rule 2 
is that the line drawn for rule 2 is not determined  by evaluating the 
institutional competence, no-entanglement and general interest balancing issues 
that determine the content of rule 1.

(Actually, I suppose there would be three rules. Rule 3 would apply the holding 
of Employment Division v. Smith to religious institutions in those 
circumstances in which the "autonomy" of religious institutions receives no 
protection against neutral laws of general applicability.)

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Tuesday, August 16, 2011 9:57 AM
To: Law & Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the "Ministerial Exception"

Dear colleagues,

For what it's worth (disclosure:  I helped on an amicus brief, for the 
church-school, in the H-T case), and with respect to Marci's statement that 
those of us who contend that "church autonomy" is a crucial dimension of 
religious freedom through law are claiming "immunity from the law [for 
religious communities] because they are religious."  As I see it, the claim is 
one about the limits of secular, political authority, and not only about 
carve-outs (the shapes and existence of which are determined by 
interest-balancing) from otherwise applicable police powers.

As I "hear" the debate, it seems to me that those of us who think &quo

RE: Hosanna-Tabor and the "Ministerial Exception"

[Brownstein, Alan]

Just to make sure that I am understanding Rick's argument correctly. Rick, are 
you suggesting that there are two constitutional rules regarding "church 
autonomy." One rule calls for the evaluation of institutional competence, 
no-entanglement, and general interest balancing issues as to which some form of 
balancing is necessary and appropriate. A second rule involves a limited class 
of circumstances as to which the state simply lacks power to regulate the 
decision at issue. And at least part of what distinguishes rule 1 from rule 2 
is that the line drawn for rule 2 is not determined  by evaluating the 
institutional competence, no-entanglement and general interest balancing issues 
that determine the content of rule 1.

(Actually, I suppose there would be three rules. Rule 3 would apply the holding 
of Employment Division v. Smith to religious institutions in those 
circumstances in which the "autonomy" of religious institutions receives no 
protection against neutral laws of general applicability.)

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Tuesday, August 16, 2011 9:57 AM
To: Law & Religion issues for Law Academics
Subject: RE: Hosanna-Tabor and the "Ministerial Exception"

Dear colleagues,

For what it's worth (disclosure:  I helped on an amicus brief, for the 
church-school, in the H-T case), and with respect to Marci's statement that 
those of us who contend that "church autonomy" is a crucial dimension of 
religious freedom through law are claiming "immunity from the law [for 
religious communities] because they are religious."  As I see it, the claim is 
one about the limits of secular, political authority, and not only about 
carve-outs (the shapes and existence of which are determined by 
interest-balancing) from otherwise applicable police powers.

As I "hear" the debate, it seems to me that those of us who think "church 
autonomy" is part of religious freedom are saying two complementary but 
distinct things (I'm putting aside questions regarding what we say about lines 
of cases, particular Clauses, etc.):  First, in some cases, there are good 
reasons - having to do with institutional competence, the no-entanglement rule, 
interest-balancing, etc. -- to limit the role of the secular political 
authority in resolving and regulating disputes between "ministers" and 
religious communities (acting as employers).  Who "counts" as a minister?  
Which religious communities are covered?  What are the best procedures to 
employ in order to operationalize the "good reasons" mentioned above?  These 
and others are questions that, as I think Paul and Marci have both said, 
involve balancing, trade-offs, predictions, etc.

But, at least for me, there is another thing that is being said, and should be 
said:  It's not all or only about balancing.  In my view, the 
ministerial-exception debate is a reminder that, at some point, the state's 
interests, and its power, should run out.  This is not a claim about 
"immunity", or special-purpose carve-outs from the application of otherwise 
applicable public authority; it is a claim that there are some things (not that 
many, I am inclined to think, but some) the state lacks the power to regulate.  
So, the reason why a court could not tell a Roman Catholic bishop that he had 
to confer the sacrament of Holy Orders on a person whom  that Bishop did not 
think was suitable is not because the Church's religious-freedom interests 
somehow "outweigh" the interests of the person demanding the sacrament and / or 
the interests of the state in vindicating either that person's interests or its 
own (whatever they might be), thereby warranting, all things considered, an 
exemption.  It is, instead, that a government constitutionally committed to 
religious freedom is / should be one that lacks, and does not claim, the 
authority to supervise the Bishop's decision in this matter.

Again, I am inclined to think that most of the time, when we talk about 
religious freedom, we are talking about, and it makes sense to talk about, the 
costs and benefits of exemptions from otherwise justifiable police-power 
regulations.  But I also think it makes sense - even if we rarely want or need 
to invoke - the limits-of-secular-power dimension of the religious-freedom 
conversation.

Best,

Rick



Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN page

Blogs:

Prawfsblawg
Mirror of Justice
Law, Religion, and Ethics

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RE: Widmar v. Vincent redux, though in a traditional public forum?

[Brownstein, Alan]

While school facilities may be used on Sunday most often by Christian religions 
for worship services, they can and are used by other faiths on Sunday for 
religious purposes other than worship. My synagogue, for example, used the 
local high school on Sunday for religious school classes for many years.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, August 15, 2011 10:13 AM
To: Law & Religion issues for Law Academics
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

thanks, Marc.  Sorry about that -- the opinion states that the fact that 
"school facilities are principally available for public use on Sundays results 
in an unintended bias in favor of Christian religions."


On Mon, Aug 15, 2011 at 1:00 PM, Marc Stern 
mailto:ste...@ajc.org>> wrote:
The rule in bronx household is that schools can be rented whenever not in use. 
They are less frequently in use on sundays, but lots of schools can be rented 
on Saturday or Friday nights.
Marc


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RE: Widmar v. Vincent redux, though in a traditional public forum?

[Brownstein, Alan]

I suppose I'm somewhere between Marty and Eugene on this issue. I think Eugene 
is correct that Widmar and Good News Club largely resolve this issue - at least 
an appellate court would be justified in concluding that they controlled the 
question.

The distinction that Marty draws, however, is a critical one. If laws 
discriminating against religious conduct -- ritual, worship or practice - 
standing alone will be construed to be laws directed at speech for free speech 
doctrine purposes because there is some expressive dimension to these 
activities, then statutory religious accommodations that exempt religious 
exercise must also be construed to be laws directed at speech and subject to 
the same standard of review applied to laws that discriminate against religious 
expression.

However, there may be five justices on the Court who would support a version of 
free speech doctrine that requires reviewing laws that discriminate against 
religious expression more rigorously than laws that favor religious expression 
(and in doing so discriminate against non-religious expression.)

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, August 15, 2011 8:02 AM
To: Law & Religion issues for Law Academics
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?

I suppose I should have written "religious worship services standing alone."  
If I recall correctly, the premise of the CTA2 decision in Bronx Household is 
that if -- unlike in Widmar -- a state generally treats religious expression 
and nonreligious expression equally, and imposes a restriction only on 
religious worship services, not because of the content or viewpoint of those 
services, but because they are functionally unlike any of the other permitted 
uses, the Widmar/Good News line of cases does not govern the case.  I doubt the 
SCOTUS will buy it, but that's the theory.
On Mon, Aug 15, 2011 at 10:30 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
I agree entirely that it matters what grounds the state gives, 
and grounds 1 and 2 might well have been adequate - but as Marty points out, 
the state's grounds were not either 1 or 2, but simply that the group was 
engaging in religious worship.

But as to whether Widmar protects religious worship services as 
such seemed to be answered "yes" by Widmar itself.  The unresolved question, as 
I understand it, is whether in a nonpublic forum (or a limited public forum), 
where content discrimination is allowed but viewpoint discrimination as not, a 
"religious worship" vs. "nonworship religious speech" line could be drawn.  But 
given the Widmar precedent for a designated public forum, why wouldn't the 
exclusion of religious worship be a fortiori unconstitutional in a traditional 
public forum?

Eugene

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RE: The religious exemptions in the new NY same-sex marriage law

[Brownstein, Alan]

Eugene has to be right on this. Surely a Jewish organization can refuse to hire 
members of Jews for Jesus, no matter how much they insist that they are Jewish. 
On the other thread about religious identity and the tenets of religious 
belief, I assumed that a private religious group permitted to  engage in 
religious discrimination could exclude members of a class as long as they 
defined the class by conduct inconsistent with their faith at least to some 
extent.

In any case, I read the provision of the new law below to suggest that 
religious organizations can discriminate against same-sex couples to the same 
extent that they can discriminate against people of other faiths. Am I mistaken 
about that? Do other members of the list believe it means something else and 
serves a different purpose? And how do they interpret the last phrase "or from 
taking such action as is calculated by such organization to promote the 
religious principles for which it is established or maintained."

Alan





2. Notwithstanding any state, local or municipal law or rule, regulation, 
ordinance, or other provision of law to the contrary, nothing in this article 
shall limit or diminish the right, pursuant to subdivision 8 eleven of section 
two hundred ninety-six of the executive law, of any religious or denominational 
institution or organization, or any organization operated for charitable or 
educational purposes, which is operated, supervised or controlled by or in 
connection with a religious organization, to limit employment or sales or 
rental of housing accommodations or admission to or give preference to persons 
of the same religion or denomination or from taking such action as is 
calculated by such organization to promote the religious principles for which 
it is established or maintained.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, June 26, 2011 1:49 PM
To: Law & Religion issues for Law Academics
Subject: RE: The religious exemptions in the new NY same-sex marriage law

   Surely they must be able to – just as Lutherans could decide 
who’s really Protestant enough for them, or Christians can decide that Mormons 
aren’t really Christians – since otherwise secular courts would have to decide 
the “true” boundaries of Judaism, which I take it that they can’t do.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Sunday, June 26, 2011 12:38 PM
To: Law & Religion issues for Law Academics
Subject: RE: The religious exemptions in the new NY same-sex marriage law

Query:  Can Orthodox Jews who run assisted living facilities deny that Reform 
or Conservative Jews are “co-religionists” (because, among other things, they 
ordain gays and lesbians and allow same-sex marriage), or are “they” stuck with 
“us,” whether they like it or not?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, June 26, 2011 2:21 PM
To: Law & Religion issues for Law Academics
Subject: Re: The religious exemptions in the new NY same-sex marriage law

A very small, peripheral point:  Chip writes that under current NY law, "if a 
religious organization owns and operates an assisted living facility, and it 
excludes occupants on religious grounds, and it preaches against same-sex 
intimacy, it probably would be free to exclude same-sex partners."

I have no idea what the existing NY religious exemption looks like -- perhaps 
it simply exempts religious organizations from the antidiscrimination rules for 
assisted living facilities generally, in which case Chip's example is surely 
correct.  But if, instead, such organizations only have an exemption to favor 
*coreligionists,* as under title VII -- i.e., in Chip's words, to "exclude 
occupants on [certain] religious grounds," namely, that they are not 
coreligionists -- and *if* such an organization permits only its own 
coreligionists to live in the facilities (unlikely but not inconceivable), then 
it likely could not exclude same-sex partners who are of the favored religion.  
The coreligionists exception, that is to say, is not a license to discriminate 
on the basis of other prohibited criteria (race, sex, sexual orientation, etc.) 
merely because such discrimination is religiously motivated -- it only permits 
discrimination in favor of coreligionists.
On Sun, Jun 26, 2011 at 10:44 AM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
Whatever the current law in NY is, this doesn't change it.  So if a religious 
organization owns and operates an assisted living facility, and it excludes 
occupants on religious grounds, and it preaches against same-sex intimacy, it 
probably would be free to exclude same-sex partners.  Their marital status 
wouldn't change this.  I very much doubt t

RE: 5th Circuit en banc oral argument in the "candy cane case"

[Brownstein, Alan]

In these school speech cases, indeed in all speech cases, it is important to 
recognize that compelled speech doctrine and doctrine dealing with the 
regulation of speech are distinct frameworks and have very little to do with 
each other. Because government can ban obscenity does not mean that it can 
compel people to express obscenity and, of course, because the government 
cannot compel people to express obscenity does not mean that government cannot 
ban obscenity. Similarly because government can restrict partisan political 
speech in a nonpublic forum does not mean that government can compel the 
expression of partisan political speech in a nonpublic forum. And, of course, 
because government cannot compel the expression of partisan political speech in 
a nonpublic forum does not mean that government cannot restrict partisan 
political speech in a nonpublic forum.

Once the regulation of speech is disentangled from compelled speech concerns, 
determining the level of free speech protection that should be afforded to six 
year olds participating in school sponsored activities at a public elementary 
school should be less complicated.

The age and lack of maturity of the student, the fact that the speech occurs in 
a school sponsored activity, the original understanding (see Justice Thomas' 
opinion in Morse), American historical experience over the last two centuries, 
bedrock conservative principles about federalism and separation of powers 
principles limiting the intrusive overreaching of federal judges into matters 
that should be reserved for local control, and the reality that free speech 
norms make it difficult to limit the scope of doctrine (so that the protection 
of speech that we consider benign and appropriate, but our neighbor considers 
offensive and inappropriate will require the protection of speech that we 
consider offensive and inappropriate but our neighbor considers perfectly 
acceptable) -- all point in the same direction. 


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, May 26, 2011 4:36 PM
To: Law & Religion issues for Law Academics
Subject: 5th Circuit en banc oral argument in the "candy cane case"

Thought the list might be interested in the en banc oral arguments in the 
so-called "candy cane case" from earlier this week:

http://www.ca5.uscourts.gov/OralArgRecordings/09/09-40373_5-23-2011.wma

Paul Clement and Ken Starr split time on plaintiffs' side. School district had 
been arguing that elementary schoolchildren have no free speech rights at all, 
but was in full backpedal at the argument. At argument the school district 
argued that elementary schoolchildren do have a First Amendment "right to 
remain silent" but not much more than that.
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RE: Religious accommodation and "accomplice" objections

[Brownstein, Alan]

I think Eugene's analysis is extremely helpful and thoughtful. I would add just 
three points.


1.   In many situations, the rationale for not doing something that by 
itself is not technically wrongful is the idea one's conduct may be 
misperceived  by others as participating in or acquiescing to sinful behavior. 
The rabbinical argument I have heard for not eating chicken with milk is that 
other people may see you eating "meat" with milk and not realize that you are 
eating chicken. You appear to be violating the prohibition even though you 
technically (and biblically) are not doing so, and other people may be 
influenced by your conduct. I'm not persuaded by this argument. I don't eat 
cheeseburgers but I do eat turkey and cheese sandwiches. But I understand the 
reasoning for it.


2.   In a strange way, the non-logical nature of some individuals' 
religious beliefs is what makes religious accommodation possible. We can think 
seriously about accommodating the objector's refusal to take passengers to a 
shooting range or to Planned Parenthood - even though most people visiting the 
range will not use firearms illegally or immorally and most people visiting 
Planned Parenthood are not going there to obtain an abortion - because the 
objector has singled out particular facilitating acts as unacceptable. But 
consider what happens if we insist on what might seem to be a logical extension 
of the objector's beliefs (to us) and argue "If you will not drive X to Y 
because there is a low percentage chance that doing so will facilitate sinful 
conduct, then you also should refuse to drive X to A, B, C, D, and F because 
those trips create a similar possibility that the passenger will engage in  
sinful behavior when he or she arrives at their destination." A driver who will 
not take passengers to a broad range of destinations, however, is more 
burdensome to accommodate than a driver who will not take passengers to one 
destination. Generalizing the objector's beliefs through a secular analysis 
makes it much more difficult to provide a reasonable accommodation that will 
not unduly burden others.


3.   For many religious people, religion is relational. Beliefs and 
practices are based on a relationship with G-d. We have no trouble recognizing 
that human relationships are not always linear, objective, or logical. It 
should not be that difficult for us to recognize that this is true for the 
relationship underlying many religious beliefs as well.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, April 26, 2011 9:04 AM
To: Law & Religion issues for Law Academics
Subject: Religious accommodation and "accomplice" objections

   In many religious accommodation controversies, the claimants 
object to doing something because they think such an act would make them 
accomplices to sin.  The bus driver / Planned Parenthood case is one example; 
another is some landlords' objection to renting to unmarried couples (or 
couples in a same-sex romantic relationship); and of course the Supreme Court's 
Thomas case, involving someone who refused to work in munitions production is 
another.

   In such cases, I often hear arguments that the objector's worry 
about being an accomplice is unreasonable.  He can't really know that the 
people he's helping are actually going to sin, one argument goes.  His actions 
aren't really helping the sin in any serious way, another argument goes.  He's 
not being told to actually do anything sinful, a variation goes.

   It seems to me that these responses to the objection are 
misguided, at least if the claimant sincerely believes that his actions do make 
him an accomplice in his understanding of his religion.  (The responses are 
perfectly plausible as attempts to persuade the objector, but I'm assuming here 
the objector is unpersuaded.)

   1.  To begin with, I don't see how a person's religious views of 
accomplice responsibility can be judged by secular standards, and rejected if 
they are seen as "unreasonable" or "ludicrous" under secular standards, any 
more than his other religious views can be so judged.  The notion that you 
can't eat milk together with chicken might seem quite unreasonable to many 
people, especially given that the asserted foundation for it is the prohibition 
on cooking a young goat in its mother's milk.  But religious views don't need 
to be reasonable to be protected.  A religious accommodation argument can be 
rejected (assuming we have an underlying legal rule providing for some such 
accommodations) because the belief is not sincerely held, or because granting 
an exemption is too costly for the employer or for the government.  But I don't 
think it can be rejected on the grounds that we aren't persuaded by the 
claimant's theory of accomplice responsibility, any more than it can be 
rejected 

RE: Settlement or extortion?

[Brownstein, Alan]

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 
mailto: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> 
[mailto: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


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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<http://www.aclu-nca.org>
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RE: Settlement or extortion?

[Brownstein, Alan]

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


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RE: A John Paul Stevens puzzle

[Brownstein, Alan]

I have always thought, as Marty suggests, that free speech concerns carried 
much of the water in Texas Monthly and help to explain Stevens' brief opinion 
in Boerne. But I'm not sure that's the whole story. I believe Justice Stevens 
envisioned a fairly active role for the Court in reviewing discretionary 
religious accommodations. (Indeed, I'm writing an article about that as we 
speak.) In Cutter v. Wilkinson, in rejecting an Establishment Clause challenge, 
the Court included a list of caveats as to how RLUIPA would have to be applied 
to withstand an as-applied challenge. Stevens joined that opinion, perhaps 
because it made clear that some applications of the statute would extend too 
far, or raise concerns about religious equality, or otherwise violate 
Establishment Clause requirements.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, April 11, 2011 5:29 AM
To: Law & Religion issues for Law Academics
Subject: Re: A John Paul Stevens puzzle

Note JPS's examples -- a museum and an art gallery.  His objection might be 
styled as an EC concern, but I think what's doing most of the work is actually 
the speech and assembly clauses of the First Amendment.  He's suggesting what 
is implied in, e.g., Heffron and the opinions in Texas Monthly -- namely, that 
otherwise permissible religious accommodations might be constitutionally 
problematic to the extent they result in content- or speaker-based preferences 
with respect to speech, assembly, and petition.  Bill Marshall and Chip Lupu, 
among others, have long argued that many applications of RFRA/RLUIPA might 
raise such problems under the other clauses of the First Amendment.  Of course, 
avoiding such serious constitutional questions of impermissible discrimination 
might also be a compelling interest that would justify the government rejecting 
the accommodation in the first place, under the terms of the statute, thereby 
avoiding the need to determine whether RFRA or RLUPA violates the First 
Amendment.

Because ingesting hoasca tea is generally not activity that is otherwise 
protected by the First Amendment, the same concern did not arise in O Centro.

On Mon, Apr 11, 2011 at 8:08 AM, Andrew Koppelman 
mailto:akoppel...@law.northwestern.edu>> wrote:
In Boerne v. Flores, Justice Stevens declared that the Religious Freedom
Restoration Act was unconstitutional as applied to the states because it
violated the establishment clause.  "If the historic landmark on the hill in
Boerne happened to be a museum or an art gallery owned by an atheist, it
would not be eligible for an exemption from the city ordinances that forbid
an enlargement of the structure. Because the landmark is owned by the
Catholic Church, it is claimed that RFRA gives its owner a federal statutory
entitlement to an exemption from a generally applicable, neutral civil law.
Whether the Church would actually prevail under the statute or not, the
statute has provided the Church with a legal weapon that no atheist or
agnostic can obtain. This governmental preference for religion, as opposed
to irreligion, is forbidden by the First Amendment."  Yet in Gonzales v. O
Centro, he joined a unanimous Court in applying RFRA to limit the reach of
federal law, without a whisper about the establishment clause.

Any speculations about how these decisions can be reconciled?


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RE: IIED applied to speech that violates a content-neutral restriction

[Brownstein, Alan]

IIED liability is certainly content-based and that creates a presumption of 
unconstitutionality that has to be overcome.  (I think that is true of 
telephone harassment laws as well.)  So one question is whether protecting 
mourners is a sufficiently important interest to outweigh this free speech 
concern in this circumstance. I believe that it is.

I also agree with Eugene and Marty (up to a point) that the risk of viewpoint 
discrimination is the strongest argument against allowing an IIED claim in this 
limited circumstance. Appellate courts could limit the risk of the tort being 
used abusively against particular defendants to some extent by reviewing jury 
findings de novo (as is appropriate in a free speech case) and developing rules 
regarding damages - as it has done in defamation cases.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, March 04, 2011 3:33 AM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: Re: IIED applied to speech that violates a content-neutral restriction

So, Chip, for what it's worth, I read Snyder to reserve this question, not to 
decide it.  (The question being same facts -- IIEF claim where "ultimate 
thrust" of speech is to the public on matters of public concern -- but 
violation of content-neutral TPM restrictions.)  Predictive answer?  Not sure.  
I tend to think Eugene is correct, up to a point:  There is one important 
paragraph in the opinion indicating that the jury's outrageousness 
determination is too susceptible to viewpoint hostility to be used as the basis 
for liability:


The jury here was instructed that it could hold Westboro liable for intentional 
infliction of emotional distress based on a finding that Westboro's picketing 
was "outrageous." "Outrageousness," however, is a highly malleable standard 
with "an inherent subjectiveness about it which would allow a jury to impose 
liability on the basis of the jurors' tastes or views, or perhaps on the basis 
of their dislike of a particular expression." Hustler, 485 U. S., at 55 
(internal quotation marks omitted). In a case such as this, a jury is "unlikely 
to be neutral with respect to the content of [the] speech," posing "a real 
danger of becoming an instrument for the suppression of . . . 'vehement, 
caustic, and some- times unpleasan[t]' " expression.  Bose Corp., 466 U. S., at 
510 (quoting New York Times, 376 U. S., at 270). Such a risk is unacceptable; 
"in public debate [we] must tolerate insulting, and even outrageous, speech in 
order to provide adequate 'breathing space' to the freedoms protected by the 
First Amendment." Boos v. Barry, 485 U. S. 312, 322 (1988) (some internal 
quotation marks omitted). What Westboro said, in the whole context of how and 
where it chose to say it, is entitled to "special protection" under the First 
Amendment, and that protection cannot be overcome by a jury finding that the 
picketing was outrageous.

Two caveats about this paragraph, however.  First, we don't know how many 
Justices share this concern.  This comes right out of Justice Kagan's 
questioning (and her First Amendment scholarship), and so I'd say that she and 
the Chief, at a minimum, think that this is an important aspect of the 
constitutional problem.  (I wouldn't be surprised to learn that she offered the 
paragraph.)  How many others?  Remains to be seen.  Second, I think a majority 
of Justices would conclude that this constitutional concern is fatal to IIED 
claims, if at all, only w/r/t speech with a public "ultimate thrust" -- they 
won't prohibit IIED speech claims altogether, when it's a classic case of a 
one-on-one insult, notwithstanding the subjective discretion of the jury.

Moreover, even as to "public" speech, it's hard to say how many Justices will 
think the "outrageousness" determination is problematic in your hypo, where the 
speaker has violated the TPM rules.  In such a case, they might be comforted by 
the likelihood that such violation itself is a sufficient source of the 
"outrageousness," thereby ameliorating the risk of viewpoint discrimination in 
the "outrageousness" verdict.  (Note the qualifier "and where it chose to say 
it" in the paragraph.)

In sum -- 


On Fri, Mar 4, 2011 at 1:06 AM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   I think a content-neutral ban on picketing immediately outside a 
funeral would likely be constitutional, see Frisby v. Schultz.  But I think 
applying IIED liability to speech that violates such a content-neutral ban 
would be content-based, and thus likely unconstitutional, by analogy to Carey 
v. Brown.  Just as allowing some picketing but forbidding other picketing, 
based on content, is presumptively unconstitutional, so is imposing a modest 
fine for some picketing but allowing $5 million liability for other picketing 
would be presumptively unconstitutional.  And an "outrageousness" stan

RE: "Harassment"

[Brownstein, Alan]

I can't speak for Marty, but Chip is correct regarding my position regarding 
the constitutionality of an IIED claim arising out of a funeral protest that 
violated a valid, content-neutral time place and manner law. Vik Amar and I 
take this position in an article, "Death, Grief, and Freedom of Speech: Does 
the First Amendment  Permit Protection Against the Harassment and Commandeering 
of Funeral Mourners" in the Funerals, Fire & Brimstone symposium issue of 
Cardozo Law Review de novo. Like Chip, we would be far more uncertain about an 
IIED claim without a valid time and place law that provided guidance to 
protestors as to "where they had no right to be." Perhaps there should be an 
exception for public figures. But maybe the First Amendment wouldn't be turned 
upside down if a former Secretary of State was attending the funeral of his son 
or daughter and protestors were told they could not come closer than 100 or 200 
feet to the grieving parent to tell him (or her) that they were thanking G-d 
for his child's death.

Courts would still have to carefully monitor the application of the tort to 
expressive activities. Not every violation of a time, place and manner law can 
be the basis of an IIED claim. I think death and mourning at funerals is 
sufficiently different and deserving of special respect that a claim might be 
permitted in this narrow circumstance.

Eugene is clearly correct that we have no working operational definition of 
harassment and the term is often used imprecisely and inconsistently. But the 
Court discusses preventing harassment as part of its justification for 
upholding the content neutral speech regulations at issue in Frisby and Hill v. 
Colorado. It is vague and indeterminate, but there is a sense that certain 
expressive activities in particular locations and circumstances are so 
deliberately and unacceptably hurtful and disruptive of the target's ability to 
do things of special value (obtaining medical care, finding refuge in the 
sanctity of one's home, and, here, mourning the death of family and friends at 
funeral services) that they can be prohibited -- notwithstanding the fact that 
the speech is on a matter of public concern. Because harassment is so hard to 
define, we are often better off protecting victims from it through formally 
neutral time, place and manner regulations instead of anti-harassment laws. The 
clarity and generality of the time, place, and manner law outweighs the 
lilihood that the law may be prohibiting more speech than is necessary to 
accomplish its anti-harassment objective. But no one really believes that these 
time, place, and manner regulations are going to be applied without regard to 
the content of the speech being expressed. (Who thinks anti-residential 
picketing laws will be applied against friends and neighbors standing in front 
of a person's home holding signs that say "Happy Anniversary.")

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, March 03, 2011 5:13 PM
To: Law & Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: Re: "Harassment"

It sounds like Marty Lederman and Alan Brownstein both think that the Phelps 
(carrying the same signs as in the Snyder case) would have no First Amendment 
defense to an IIED suit that arose from their protesting immediately in front 
of a building in which a funeral service was being held, especially if a valid, 
content-neutral state law prohibited such protests (that is, a time and place 
law).   And it sounds like Eugene thinks they would have a valid First 
Amendment defense to tort liability on those facts.  Am I assessing those 
positions correctly?  I think the Court left that question open (the case I put 
would have the Phelps "where they had no right to be" if the time/place law is 
valid).  I think I side with what I am assuming is the Lederman-Brownstein 
position, but I'm not sure, and I'd be interested to read more. (I'm even less 
certain about the right result if there were no such time/place law, but the 
protest was right in the face of the mourners at the funeral service.)

On Thu, Mar 3, 2011 at 7:55 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   I don’t think “harassment” is a sufficiently well-defined legal 
term to be helpful here.  To be sure, it is defined – though vaguely and very 
broadly – in hostile environment harassment law, but that definition isn’t 
applicable here.  There’s also telephone harassment law, but that is (rightly) 
limited to speech that is said to a particular unwilling person, and not to 
other, potentially willing, listeners.  And occasionally one has 
anti-“harassment” orders, which tend to be pretty vaguely defined.  One way or 
the other, I don’t think that the term “harassment,” given its many 
definitions, each of which is not terribly clear (except po

RE: Snyder v. Phelps

[Brownstein, Alan]

I have no particular problem with Eugene's conclusion that the speech at issue 
is a matter of public concern or his statement that the fact that the speech 
uses a particular person as an example does not make the speech less 
constitutionally protected. Indeed, I think most speech in a traditional public 
forum to a general audience (other than false statements of fact or categories 
of unprotected speech) is fully protected even if it is on a matter of private 
concern.

I think that the fact that the speech refers to a particular individual is 
relevant (but certainly not dispositive) to whether it can be understood as 
targeting that individual and harassment. If sufficient facts support the 
characterization of the speech as targeting and harassing the individual 
referred to, I think that such speech can be sanctioned even if it is a matter 
of public concern. The facts did not support such a characterization of the 
Phelps' speech in this case. If they did, I think the speech could be 
sanctioned as harassment even if it was speech on a matter of public concern. 
See my example of telephone harassment.

Eugene, do you think that the fact that speech is on a matter of public concern 
immunizes it from sanction as harassment? If the Phelps clan picketed Mr. 
Snyder's  home and followed him around whenever he stepped foot on a public 
sidewalk for the week before and the week after his son's funeral, brandishing 
the same signs they held up in this case, could we punish such conduct as 
harassment? How much of a role does the fact that speech is on a matter of 
public concern play in deciding whether the expressive activity can be punished 
as harassment without violating the First Amendment?

Alan



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, March 03, 2011 1:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Snyder v. Phelps

   It seems to me that the speech in Snyder was speech that was 
both on a broad topic, and used a particular person as an example (and the 
occasion for the speech).  That of course is utterly routine - many news 
stories, for instance, talk about crime, risks to health, government 
misconduct, and so on, using specific incidents as examples and occasions for 
the speech.  And those incidents often involve tragic things happening to 
private persons.  My sense is that such concrete "news hooks" are considered 
necessary in journalisms.

   I don't think that this can be enough to make the speech less 
constitutionally protected.  See, e.g., Florida Star v. B.J.F., where the Court 
concluded that the general story was on a matter of public concern (crime, even 
though it was just a small item on one crime, with no express connection to 
broader discussions), and that this was so even though it used the name of the 
crime victim.  Likewise here, it seems to me.

   The Phelpses believe that God is retaliating against America for 
its sin of tolerating homosexuality, and that this retaliation - including the 
violent death of American soldiers - will continue until we change our 
policies.  That strikes me as a ridiculous position; but it is surely speech on 
a matter of public concern.  And including a specific example of someone who 
died allegedly because of our sins can't, I think, make this speech on a matter 
of private concern any more than focusing on someone who died from lung cancer 
(whether as a result of smoking or second-hand smoke) or from HIV strips a 
broad discussion of the dangers of smoking or sexual promiscuity or anal 
intercourse of its public-concern status.

   Eugene
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RE: Snyder v. Phelps

[Brownstein, Alan]

I admit to being confused by the emphasis in the Court's opinion on the 
question of whether the speech at issue was a matter of public concern or not. 
The primary issue in the case in my judgment involved targeting and harassment. 
I assume that derogatory statements about a class of people defined by race, 
religion, sexual orientation or other characteristics can be construed to be 
matters of public concern. I have also assumed, however, that such statements 
can be restricted as harassment or made the basis of civil liability if they 
are directed at a targeted individual in an inappropriate manner. The fact that 
someone hates everyone in your class and not just you doesn't transform the 
harassing nature of speech. If Church members had called Snyder at his home 
before and after the funeral and told the grieving Dad "Thank God for dead 
soldiers" or "God Hates you", I think that would have been actionable. It would 
still be actionable if the statements were generalized to say "God hates people 
like you."

Conversely, if I stood up on a soapbox and said that one of my colleague who I 
identified by name was a horrible person and that G-d hated him, and that I 
would be happy if terrible things happened to him, I would think that was 
speech on a matter of private concern, but it would still be fully protected 
speech.

The extent to which speech involves a public figure or is a matter of public 
concern plays some role in deciding whether expressive activities are 
actionable or not - but isn't the key issue here when, where, and how this 
hurtful message was communicated. The funeral of a President may involve a 
different analysis than the funeral of a private citizen. But here, I think the 
fact that the protestors were 1000 feet away from the funeral, were standing 
where they were told to stand by the police, and could not be seen by the 
mourners carries the lion's share of the weight in supporting the Court's 
conclusion. The conclusion that the expression of racism, homophobia and other 
forms of bigotry is speech on a matter of public concern is secondary.

(For the record, the idea that someone who travels thousands of miles to hold a 
demonstration as close to a funeral service as they can get to hold up a sign 
saying "Thank God for dead soldiers" is not referring to  the soldier being 
buried is pretty unpersuasive. They may be referring to other deceased soldiers 
as well - but that does not change the fact that they are referring to Snyder's 
son.)

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, March 02, 2011 4:23 PM
To: Ira Lupu
Cc: Law & Religion issues for Law Academics; CONLAWPROFS professors
Subject: Re: Snyder v. Phelps

Perhaps.  Or perhaps those signs might refer, like most of the other messages, 
to the government and its agents more generally.  And perhaps that would be 
good enough reason to immunize such statements -- because there is a likelihood 
they were on matters of public concern, and would be understood as such by a 
(forgive me) "reasonable observer."  At least that would be a rationale -- one 
that would limit the holding so that it did not apply to speech unambiguously 
about a private figure (an issue that could be reserved).

But what Roberts writes is this:  "Even if a few of the signs-such as "You're 
Going to Hell" and "God Hates You"-were viewed as containing messages related 
to Matthew Snyder or the Snyders specifically, that would not change the fact 
that the overall thrust and dominant theme of Westboro's demonstration spoke to 
broader public issues."

This appears to suggest that speech can't be the source of IIED liability if 
its "overall thrust" is with respect to broader public issues, even if certain 
of its constituative statements are only about "non-public-figure" targets.
On Wed, Mar 2, 2011 at 7:13 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
It's not at all obvious that "You're Going to Hell" and "God Hates You" refers 
to  Mr. Snyder (the father), or to his deceased son, or to anyone in 
particular.  Perhaps the "You" in these messages refers to anyone who supports 
gay rights, or the Roman Catholic Church.  So Isn't there an echo here of NYT 
v. Sullivan, where (as I recall, perhaps erroneously) the Court did not remand 
because a jury could not reasonably find that the NYT ad was "of and 
concerning" Sullivan?
On Wed, Mar 2, 2011 at 6:45 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
The most troubling (or at least undefended) part of the majority opinion is why 
the particular signs specifically about Snyder and arguably not on a matter of 
public concern - namely, "You're Going to Hell" and "God Hates You" - should be 
immunized merely because the "overall thrust" of the collective messages was on 
matters of public concern.  (Get ready to teach your students the "overall 
thrust" doctrine.  Akin to the "taken 

RE:

[Brownstein, Alan]

Eric writes,

"What if the government ran a free arbitration/mediation service along the 
lines of the AAA? Would it be discrimination by a government actor to enforce 
any of the provisions described?  I don't think any of these things earn the 
ambiguous and generally pejorative term "discrimination," but if they do it is 
not constitutionally-barred "discrimination" but constitutionally-protected 
"discrimination.""

Unless I misunderstand Eric's point here, I think this example provides much 
more support to Eugene's position than it does to Eric's argument. If the 
government administered an arbitration/mediation service in which the 
arbitration services were paid with public funds, I would think it is 
unconstitutional for the state administrator to comply with the clients' demand 
that he appoint only Muslim arbitrators to resolve a specific dispute. If the 
government administered a state funded tutorial service for children, I don't 
believe that it could comply with parental demands that it provide them a tutor 
of a particular faith. I think a similar argument could be raised with regard 
to court appointed counsel. If the government contracts with private actors to 
provide public services to beneficiaries, the fact that the beneficiaries may 
prefer to receive services from a person of one faith or another does not 
permit the government to discriminate on the basis of religion in complying 
with that request.

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Eric Rassbach [erassb...@becketfund.org]
Sent: Tuesday, January 04, 2011 11:20 AM
To: Law & Religion issues for Law Academics
Subject: RE:

I had taken Eugene to be saying that even in the absence of a dispute over 
whether a particular arbitrator was Muslim or not, a civil court could not, 
acting as an arbitral authority, carry out an arbitral provision appointing a 
Muslim as an arbitrator because that would violate the rule against 
entanglement. Leaving to one side Eugene's separate objection about 
discrimination, it sounds like from the response below that we are actually in 
agreement on the following points re entanglement: (1) if there is a dispute 
over whether a particular arbitrator is Muslim or not, then the court cannot 
act (i.e. it cannot appoint an arbitrator over one party's objection) because 
that would force it to decide a religious question; and (2) if there is no 
dispute over whether a particular arbitrator is a Muslim, the civil court may 
enforce the Muslim arbitrator provision because it does not have to decide a 
religious question to do so. Please correct me if I am wrong about this.

Perhaps the misunderstanding was rooted in what it means to "enforce" a 
contract. I would view a court as "enforcing" a contract when it orders 
performance, even in the absence of any dispute between the parties over how it 
is to be performed. I take Eugene's comment below to mean that what he means by 
"enforce" is what I would call "enforce against".

The other possible reason for the confusion is the extremely unusual (perhaps 
unique) circumstance of a court allowing itself to be appointed a supervising 
arbitral authority pursuant to a private agreement. That means that the court 
is actually wearing two hats: the civil court enforcing the contract, and the 
arbitral authority working within the rules of the private arbitral agreement. 
Those are two different kinds of "enforcement." (And as Mark's and Steve's 
comments have intimated, whatever one thinks about the underlying principles, 
using this particular case as a guide to setting public policy would be 
wrongheaded, since very few courts are going to allow themselves to be 
dragooned into arbitration work based on a provision in a private contract.)

What remains is Eugene's separate argument that it is discrimination violating 
the First Amendment and the Equal Protection Clause to say to a potential 
arbitrator, you aren't Muslim so I am not appointing you arbitrator, in 
accordance with the parties' agreement (expressed either via contract or 
stipulation). First, I think this fact scenario is pretty unlikely, as it 
requires several layers of hypothetical to reach it. But even if it did come to 
pass, I don't think this is a very strong point because the government actor is 
merely carrying out the wishes of the private parties who are in complete 
agreement. Government actors are allowed to (and routinely do) make 
distinctions among religious groups in accordance with private citizens' 
undisputed wishes, not just with respect to chaplains, but also with respect to 
prisoner religious requests, religious corporate activity, recognition of 
religious holidays like Christmas or Diwali, child custody arrangements, etc. 
Government actors need not deny the anthropological/sociological truth that 
citizens have religious worldviews in order to interact with them

RE: Military chaplains

[Brownstein, Alan]

I don't know about military chaplains (and I know this is a bit of a 
digression), but there is an interesting case before the 9th Circuit involving 
prison chaplains, McCollum v. CA Dept. of Corrections. Plaintiff, a Wiccan who 
applied to be a prison chaplain and was rejected, alleges that California 
prisons will only hire individuals of five faiths as chaplains: Catholic, 
Protestant, Jewish, Moslem, and Native American. He also argues that there are 
more Wiccans in California prisons than adherents of some of the other faiths 
for whom chaplains have been appointed.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, January 03, 2011 5:22 PM
To: Law & Religion issues for Law Academics
Subject: Military chaplains

Does anyone actually know the current appointment system for military 
chaplains? A fairly high ranking officer told me that they no longer have 
quotas by denomination, as a result of litigation; that was either held 
unconstitutional or they agreed in a settlement to abandon it.  The special 
problems of the military and its chaplains authorizes the government to do many 
things it could not otherwise do, but I'm not sure that appointing officers on 
the basis of religion is still one of them.

On Mon, 3 Jan 2011 16:09:29 -0800
 Steve Sanders  wrote:
>To say that military and prison chaplains get special treatment under First 
>Amendment law isn't to explain why that should be so or why it should be 
>restricted to that context. With chaplains, the govt appoints people based on 
>specific religious qualifications to attend to the specific needs of an 
>identifiable group.   Under the hypo we're dealing with here it seems to me 
>that's all the court is being asked to do. If it isn't objectionable in one 
>context, why is it in another?
>
>On Jan 3, 2011, at 1:31 PM, "Volokh, Eugene"  wrote:
>
>>One difficulty is that we don't have much law on what constitutes a BFOQ 
>> where religion is concerned.  But I think military (and prison) chaplaincy 
>> cases are generally treated very differently under the First Amendment than 
>> other kinds of cases, as to a wide range of First Amendment doctrines -- the 
>> ban on religious discrimination, the ban on religious decisions by the 
>> government, the ban on government funding of religious practice, and more.  
>> So I'm not sure the BFOQ analysis would be that helpful here, or that those 
>> cases are generalizable outside the military/prison context.
>>
>>Eugene
>>
>>> -Original Message-
>>> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
>>> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
>>> Sent: Monday, January 03, 2011 3:28 PM
>>> To: Law & Religion issues for Law Academics
>>> Cc: Law & Religion issues for Law Academics
>>> Subject: Re: May American court appoint only Muslim arbitrators,
>>> pursuant to an arbitration agreement?
>>>
>>>
>>> Is someone applying for a military chaplaincy required or expected
>>> to have some religious qualification or membership in a religious
>>> order? Could a nonbeliever who nonetheless has an extensive academic
>>> knowledge of religion sue for discrimination if she's denied such 
>>> employment?
>>>
>>> On Jan 3, 2011, at 1:11 PM, "Volokh, Eugene"  wrote:
>>>
   I'm not sure whether BFOQ doctrine as to religion helps us much
 as to the
>>> First Amendment analysis.  That private entities aren't barred from
>>> discriminating based on religion in some contexts doesn't
>>> necessarily tell us, I think, that the government has an equally free hand.

   Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Monday, January 03, 2011 12:53 PM
> To: religionlaw@lists.ucla.edu
> Subject: RE: May American court appoint only Muslim arbitrators,
> pursuant
>>> to
> an arbitration agreement?
>
> I recognize this isn't an employment discrimination case, but is
> the constitutional problem eased if the religion of the
> arbitrators could be considered a bona fide occupational
> qualification?  We recognize constitutional exceptions for those, right?
>
> Per Marc's question, presuming the contract was otherwise valid
> under state law, it's not clear to me that merely appointing
> arbitrators who are qualified according to the terms of a contract
> amounts to a court "applying sharia law."  Evidently it's the
> arbitration panel, not the court, that is called on to apply
> sharia law in the course of interpreting the contract.
>
> Generally, the whole point of arbitration is to avoid the courts
> as much as possible through a private, extrajudicial mechanism for
> settling disputes.  Parties typically agree on arbitrators without
> the involv

RE: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement?

[Brownstein, Alan]

Eugene writes,
 " By the way, what do you think about a state university administering a 
privately funded scholarship for "Christian students"?"

Just to clarify your point, Eugene - Is the distinction you are drawing one 
that distinguishes between government resources being allocated by private 
decision makers on the basis of religion and a government actor allocating 
private resources on the basis of religion. So for example  - if to avoid 
overcrowding in the courts, the government financed arbitration panels to 
resolve contract disputes and the parties agreed to select arbitrators of a 
particular faith to hear their dispute, that would not be a problem. But if a 
judge chooses arbitrators based on religious belief who will be paid by the 
parties (according to the terms of the arbitration clause in their contract), 
that would create a constitutional problem.

Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, January 03, 2011 2:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators, pursuant to an 
arbitration agreement?

I wrote:


  I'm no great fan of the more expansive readings of Shelly.  But 
when a government actor is deciding who gets a particular (lucrative) position 
based on that person's religion, it seems to me that state action is eminently 
present, or more specifically that the government actor is discriminating based 
on religion in presumptive violation of the Free Exercise Clause and the First 
Amendment.  To be sure, the government actor isn't motivated by religious 
animus; it's just trying to enforce a contract.  But it is still deliberately 
treating people different from other people based on whether they are Muslims 
or not.  (When the court just enforces an arbitration conducted by a private 
party, there is not such discrimination by a government entity, even if the 
private party discriminates based on religion or sex in selecting the 
arbitrators.)

Nathan Oman writes:

Why say that the government is discriminating on the basis of religion if it is 
simply apply neutral principles of contract law.  I understand that there is a 
question as to whether the contract can be enforced using merely neutral 
principles, but that isn't your argument here.  Rather, I take it that your 
objection rests on a non-discrimination principle.  Where is the discriminatory 
legal principle at issue?


  I don't see a discriminatory legal principle at issue here.  But 
I see a discriminatory decision by a judge:  I will not appoint Joe Schmoe as 
an arbitrator, because he is not Muslim.  To be sure, the judge is just 
enforcing a contract.  But he is still a government actor, allocating a 
particular post based on religion.  That he is just doing that in enforcing a 
contract does not, I think, prevent his discriminatory conduct from being state 
action.

  By the way, what do you think about a state university 
administering a privately funded scholarship for "Christian students"?

  Eugene
___
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RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

I agree with Michael for the most part and certainly with his statement that 
expressions of religious faith are not analogous to expressions of racial 
subordination. But I'm not sure if he is suggesting that there is a difference 
between a uniform that stated "I am not a Pentecostal" and a uniform that 
stated "I am a Pentecostal." If everyone wears the latter statement on their 
uniform, I would think the clear message is that no members of other faiths or 
non-believers work for that employer and that prospective employees who are 
unwilling to make such an affirmation should not apply for employment. I agree 
that religious statements expressing other messages may be much less 
problematic and indicative of discrimination and that requesting an 
accommodation is an easier route to pursue.

Alan 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Tuesday, December 21, 2010 1:47 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols

Alan's examples of uniform language expressing racial discrimination or 
hostility seem more than sufficient to establish a conventional disparate 
treatment claim since the evident purpose and effect of the language is to 
discourage African-Americans from working for the employer.  Similarly, an 
employer who required employees to wear a uniform that said "No Jews work here" 
or "I am not a Pentecostal"  
should expect to incur disparate treatment liability for religious 
discrimination.

Perhaps the employer who requires his employees to display a religious message 
also intends to discourage members who do not share that faith from working for 
him; if so, the employer is indeed liable for disparate treatment.  But I would 
not be so quick to draw that inference from a more positive religious message; 
expressions of religious faith generally are not analogous to expressions of 
racial subordination.  In the event, if I am a Jewish employee who objects to 
wearing an expression of Christian faith as a burger joint employee, I don't 
have to prove that the purpose of the message is religious subordination; all I 
have to do is request an accommodation.  701(j) eliminates the need to identify 
either the purpose or likely effect employees and applicants of a religious 
message; all the objector needs is a sincere religious objection to its 
expression in circumstances that permit a reasonable accommodation.

Mike


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu    954.262.3835 (fax)



Quoting "Brownstein, Alan" :

> I don't know enough about employment discrimination law to discuss   
> whether there is any case law to support my analysis (certainly   
> Michael is far more knowledgeable in this area of law than I am).   
> But as a normative manner, I would argue that a work requirement   
> that in essence tells employees to publicly disclaim their faith   
> discriminates on the basis of religion. The uniform requirements I   
> mentioned in my last post would fit that description.  If we were   
> discussing race discrimination, I would probably argue that   
> requiring all employees to wear uniforms that state "No   
> African-Americans work here," or "I am not an African-American"   
> would also be discriminatory. Since there is no duty to accommodate   
> with regard to race, I assume those who disagree would have to argue  
>  that these requirements do not constitute race discrimination. I   
> find that conclusion troubling.
>
> As for the other questions, requiring an employee to drive a truck   
> with a sign on it that is generally understood to communicate the   
> employer's religious message might invoke a duty to accommodate --   
> but I would anticipate that the accommodation would result in a   
> change in the employee's duties -- not the covering of the sign. If   
> an employee works for a company that produces or distributes   
> products to be used for religious rituals, wine for Passover,   
> candles for religious services , and other products -- most requests  
> for accommodation will constitute an undue hardship on the employer.
>
> Alan
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu   
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh,   
> Eugene
> Sent: Tuesday, December 21, 2010 11:19 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Federal regulators apparently force bank to take down   
> religioussymbols
>
>   I apprecia

RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

I don't know enough about employment discrimination law to discuss whether 
there is any case law to support my analysis (certainly Michael is far more 
knowledgeable in this area of law than I am). But as a normative manner, I 
would argue that a work requirement that in essence tells employees to publicly 
disclaim their faith discriminates on the basis of religion. The uniform 
requirements I mentioned in my last post would fit that description.  If we 
were discussing race discrimination, I would probably argue that requiring all 
employees to wear uniforms that state "No African-Americans work here," or "I 
am not an African-American" would also be discriminatory. Since there is no 
duty to accommodate with regard to race, I assume those who disagree would have 
to argue that these requirements do not constitute race discrimination. I find 
that conclusion troubling.

As for the other questions, requiring an employee to drive a truck with a sign 
on it that is generally understood to communicate the employer's religious 
message might invoke a duty to accommodate -- but I would anticipate that the 
accommodation would result in a change in the employee's duties -- not the 
covering of the sign. If an employee works for a company that produces or 
distributes products to be used for religious rituals, wine for Passover, 
candles for religious services , and other products -- most requests for 
accommodation will constitute an undue hardship on the employer.

Alan 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 21, 2010 11:19 AM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols

I appreciate Michael's thoughtful and detailed response.  But it sounds 
like his approach, then, is different from Alan's, since Alan apparently would 
treat some such cases as disparate treatment cases (yes?).  If so, Alan, what 
would you think about the Las Cruces, Mogen David, or "There Is No God" on 
uniforms, cars, burger wrappers, and so on?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Michael Masinter
> Sent: Tuesday, December 21, 2010 11:12 AM
> To: religionlaw@lists.ucla.edu
> Subject: RE: Federal regulators apparently force bank to take down 
> religioussymbols
> 
> As always, Eugene asks good questions.
> 
> Religious discrimination claims can take several forms -- disparate 
> treatment,  failure to accommodate, and in addition harassment and 
> disparate impact.
> 
> I am not familiar with any case that treats an employer's mandated 
> expression of religious (dis)belief as disparate treatment since such 
> a rule, uniformly applied to all similarly situated employees, would 
> be disparate treatment only if it were adopted for the purpose of 
> discouraging employees or applicants of a particular faith from 
> applying or continuing to work.  So I would expect any claim relating 
> to compelled expression to arise as a reasonable accommodation claim.
> I suppose compelled expression could be part of a religious harassment 
> claim, but religious harassment claims are rare given the high burden 
> (severe or pervasive) that claimants face.  Facing that higher burden, 
> a sensible employee or her lawyer would surely prefer a reasonable 
> accommodation claim.  Disparate impact claims raise even more 
> difficult issues respecting classwide impact and preclude recovery of 
> damages, so I wouldn't expect to see one of those either.
> 
> My sense is that neither the Las Cruces employee nor the Mogen David 
> employee is entitled to an accommodation relating to vehicles or 
> stationery.  The city seal and Mogen David emblem identify the 
> employer; since no reasonable observer would see them as the compelled 
> expression of belief, I'd expect a court to hold that requiring the 
> employer to forego their use at the request of a religious believer 
> would impose an undue hardship on the conduct of the employer's 
> business.
> 
> It's worth noting that section 702(a) of Title VII exempts religious 
> corporations, associations, and societies from the prohibition against 
> religious discrimination, and therefore from any duty of religious 
> accommodation.  Although courts have struggled to work out a standard 
> for identifying employers entitled to the religious corporation 
> exemption that is both faithful to the intent of its drafters and 
> consistent with the establishment clause, all of the competing 
> standards impose a de facto requirement that the employer be organized 
> as a not for profit business even while insisting that the form of the 
> organization is only part of the analysis.  Townley Engineering lost 
> on its claim to a religious corporation exemption for precisely that 
> reason.
> 

RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

I always assumed, although I admit without much reflection, that the duty to 
accommodate operated in parallel to the duty not to discriminate. Thus, if a 
religious organization is exempted from the prohibition against religious 
discrimination, it is also exempt from any duty to accommodate. (Of course, 
many religious organizations do not discriminate on the basis of religion in 
hiring for many positions and do accommodate employees of others faiths to the 
extent that they can reasonably to do so.)

A commercial business like In-N-Out Burger is prohibited from discriminating on 
the basis of religion in hiring and is subject to a duty to accommodate.  I 
don't know a lot about the division of labor in these kinds of fast food 
operations, but one possible accommodation for an employee whose religious 
beliefs precluded the distribution of religious messages of other faiths would 
be to transfer that individual to food preparation rather than distribution. 

I can imagine some commercial operations in which accommodations would be 
clearly impractical. If an non-Jewish employee accepts a job in a business that 
makes and sells menorahs, for example, it would be difficult to accommodate 
religious beliefs that prevent him from participating in the creation or 
distribution of items used in the religious rituals of other faiths.

There is probably a continuum here. If that is correct, what belongs near the 
prohibited discrimination or required accommodation pole of the continuum. 
Eric, may a fast food employer require employees to wear uniforms that affirm 
"There is no God" or "Jesus Christ is my Lord and Savior" without accommodating 
religious employees who ask to be exempted from this requirement?

Alan

  

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Monday, December 20, 2010 5:09 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols


Alan --

Does your analysis below apply equally to religious organizations and 
non-religious organizations?

One example I think would be interesting in the latter category is In-N-Out 
Burger, which prints Bible references (e.g. "John 3:16") on every piece of food 
packaging. What sort of accommodation would an employee who had religious 
objections to the Bible references be entitled to?  Although In-N-Out is 
clearly for-profit, it also has at least some religious purposes.

Eric


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
Sent: Monday, December 20, 2010 2:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take   down
religioussymbols

I think Doug is correct that there is a religious accommodation claim here. 
Maybe there is a hostile work environment argument as well. But I was thinking 
of a claim that falls somewhere in between these two conventional frameworks.

I have no problem with Erik's comment that competing truth claims of different 
religions are not intrinsically offensive to members of other faiths. Of 
course, some religious truth claims are offensive to members of other faiths, 
see e.g., anti-Catholic and anti-Jewish religious statements by some  clergy of 
other faiths which were fairly common in years past. But let's put that issue 
aside.

It isn't clear to me that discriminatory conduct has to communicate an 
invidious message. An employer may not intend to communicate an offensive 
message if he requires employees to display religious symbols on their desk (or 
uniforms) that communicate a message that is starkly inconsistent with the 
beliefs of other faiths. If it is common knowledge, and the employer knows, 
that overwhelmingly the members of other faiths would find that to be  an 
unacceptable condition of employment, I think that one may argue that this a 
discriminatory work requirement. Wouldn't a requirement that everyone has to 
display a sign stating "There is no God"  on their desk discriminate against 
religious employees -- or a sign saying "Jesus Christ is my Lord and Savior" 
discriminate against non-Christian employees?

The requirement may not be unacceptable to all members of other faiths -- but 
that is true for hostile work environments and religious accommodation claims 
as well.

The issue arises in a different form and context in Charitable Choice 
legislation where it is sometimes suggested that the refusal to hire employees 
of faiths other than the faith of the religious employer is not religious 
discrimination because it is not intended to communicate an invidious message.  
I think that view is mistaken as well.

Alan

__

RE: No religious advertisements on municipal buses

[Brownstein, Alan]

I don't know if Michael's equation of political ads and religious ads 
necessarily works. I'm pretty confident that there are lower court cases where 
the exclusion of political speech was considered to be content discrimination, 
not viewpoint discrimination (but I would have to look to find them.). There is 
also commentary questioning whether the exclusion of political speech from a 
nonpublic forum or limited public forum would receive the same rigorous 
standard of review applied to the exclusion of religious speech from such 
locations.

Alan

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Masinter
Sent: Monday, December 20, 2010 12:13 PM
To: religionlaw@lists.ucla.edu
Subject: RE: No religious advertisements on municipal buses

The problematic case is Lehman v. City of Shaker Heights; if a city can ban 
political ads from a bus, presumably it can also ban religious ads, though it 
may matter whether the ads are inside or outside the bus (inside in Lehman).  
But I would have joined the Lehman dissenters, and I am not confident that 
either the views of Justice Blackmun for the plurality or Justice Douglas would 
prevail today.


Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)



Quoting "Corcos, Christine" :

> Fort Worth.  See here.   
> http://www.nytimes.com/2010/12/17/us/17brfs-atheist.html?partner=rss&e
> mc=rss
>
>  I think it may be a reaction to part of a campaign (linked to a   
> similar campaign in Canada) that is continuing the "Good Without   
> God" campaign that was launched last year.  See here.
> http://atheistbus.ca/
>
> See the Atheist bus website here. http://www.atheistbus.org.uk/
>
> Christine Corcos
> Associate Professor of Law
> Paul M. Hebert Law Center, Louisiana State University Associate 
> Professor, Women's and Gender Studies Program LSU A&M
> 324 Law Building
> 1 East Campus Drive
> Baton Rouge LA 70803
> tel: 225/578-8327
> fax: 225/578-3677
> home page: http://faculty.law.lsu.edu/ccorcos
> Feminist Law Professors (http://feministlawprofessors.com/)
> Law and Humanities Blog (http://lawlit.blogspot.com/) Law and Magic 
> Blog  (http://lpcprof.typepad.com/law_and_magic_blog/)
> Media Law Blog (http://lawprofessors.typepad.com/media_law_prof_blog/)
> email: christine.cor...@law.lsu.edu
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu   
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,  
> Alan
> Sent: Monday, December 20, 2010 1:35 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: No religious advertisements on municipal buses
>
>
> I saw a newspaper story a few days ago (I'm sorry, but I don't   
> recall all the details) reporting that a city prohibited all   
> religious advertising on buses because people were annoyed with   
> advertisements expressing a message by Atheists suggesting that   
> there is no G-d. Wouldn't that regulation constitute   
> unconstitutional viewpoint discrimination under Rosenberger and Good  
>  News Club? I have serious problems with some of the Court's   
> decisions that characterize discrimination against religious   
> expressive activities as viewpoint discrimination. But if that's the  
> rule, it would certainly seem to apply in this case as well.
>
> Alan Brownstein
> UC Davis School of Law
> ___
> To post, send message to Religionlaw@lists.ucla.edu To subscribe,   
> unsubscribe, change options, or get password, see   
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed   
> as private.  Anyone can subscribe to the list and read messages that  
>  are posted; people can read the Web archives; and list members can   
> (rightly or wrongly) forward the messages to others.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see   
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed   
> as private.  Anyone can subscribe to the list and read messages that  
>  are posted; people can read the Web archives; and list members can   
> (rightly or wrongly) forward the messages to others.
>



___
To post, send message to Religionlaw@lists.ucla.edu T

RE: No religious advertisements on municipal buses

[Brownstein, Alan]

I saw a newspaper story a few days ago (I'm sorry, but I don't recall all the 
details) reporting that a city prohibited all religious advertising on buses 
because people were annoyed with advertisements expressing a message by 
Atheists suggesting that there is no G-d. Wouldn't that regulation constitute 
unconstitutional viewpoint discrimination under Rosenberger and Good News Club? 
I have serious problems with some of the Court's decisions that characterize 
discrimination against religious expressive activities as viewpoint 
discrimination. But if that's the rule, it would certainly seem to apply in 
this case as well. 

Alan Brownstein
UC Davis School of Law
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

ance 
> because some companies include in their corporate symbols items that 
> some people may find offensive based on membership in various groups, 
> whether the symbols are religious, allegedly racially offensive, and 
> so on - consider the litigation over Sambo's Restaurants, or the use 
> of American Indian symbols, or other things that might well be a part 
> of company logos, displayed on compa
 ny
>vehicles, and so on.)
>
>   By the way, some jurisdictions ban discrimination based on 
> political affiliation, and of course government entities are generally barred 
> by the First Amendment from certain kinds of discrimination based on 
> political affiliation.  Would requiring all employees to display company 
> symbols that are opposed by one or another political party constitute 
> forbidden political affiliation discrimination?
>
>   Eugene
>
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, 
>Alan
>Sent: Friday, December 17, 2010 4:36 PM
>To: Law & Religion issues for Law Academics
>Subject: RE: Federal regulators apparently force bank to take down 
>religioussymbols
>
>Do you think there is a discrimination issue as well as an accommodation issue 
>in cases like this, Eugene. Suppose a bank in a southern state insists that 
>all employees have confederate flags on their desks or work stations? Does an 
>African-American employee have a claim under Title VII? What about displays 
>that proclaim the superiority or virtue of the "white" race?
>
>Alan
>
>___
>To post, send message to Religionlaw@lists.ucla.edu To subscribe, 
>unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private. 
> Anyone can subscribe to the list and read messages that are posted; people 
>can read the Web archives; and list members can (rightly or wrongly) forward 
>the messages to others.

Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

Do you think there is a discrimination issue as well as an accommodation issue 
in cases like this, Eugene. Suppose a bank in a southern state insists that all 
employees have confederate flags on their desks or work stations? Does an 
African-American employee have a claim under Title VII? What about displays 
that proclaim the superiority or virtue of the "white" race?

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 4:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols

It's possible that the question has not arisen, and that if a 
non-Christian employee objected to having an item displayed on his workstation, 
the bank would accommodate him.

It's not clear to me, by the way, that a non-Christian employee would find such 
a display objectionable, if it appears to be part of the overall décor, and is 
thus likely to be seen by patrons as the bank's message and not the employee's. 
 After all, what is in one sense "the employee's" desk or workstation is also 
in another sense "the bank's" desk or workstation.  (I take it, though, that 
for Title VII religious accommodation purposes the threshold question would be 
whether the employee sincerely believes that it is religiously improper for him 
to work at a workstation that has a particular religious symbol attached to it.)

Incidentally, for a similar issue that arose as to free speech, rather than 
religious accommodation, see Cotto v. United Technologies Corp., 251 Conn. 1 
(1999), holding that an employee had no "freedom from compelled speech" right 
to refuse to have an American flag on his workstation.  (Connecticut by statute 
extends First Amendment restrictions to private employers.)

Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Friday, December 17, 2010 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols

The Bank President's message is also confusing. He is quoted as stating that 
"The bank publishes a Bible verse on its website and tellers display crosses 
and other Christian-themed items in their workplace." Does that mean that 
non-Christian employees are required to display crosses and other Christian 
symbols and messages from their desks  and workstations?


Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 3:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols


Very interesting, thanks!  But I'm a bit confused by the Kansas 
City Fed chairman's statement, 
http://www.kansascityfed.org/publicat/newsroom/2010pdf/press.release.12.17.pdf 
.  It suggests that the regulation "does not apply to jewelry or other personal 
items displayed in the workplace"; but the materials, especially on the Web 
site, don't seem like "personal items" - they seem like statements from the 
bank management itself.  Is the claim that employees may put up their own 
decorations and statements, but that the bank can't put up decorations and 
statements endorsed by the management?  Or is it something else?



Eugene



 FOR IMMEDIATE RELEASE CONTACT: Tim Todd

December 17, 2010 816/881-2308

timothy.t...@kc.frb.org<mailto:timothy.t...@kc.frb.org>

STATEMENT FROM FEDERAL RESERVE BANK OF KANSAS CITY

PRESIDENT TOM HOENIG

"The Federal Reserve's interactions with supervised institutions are subject to 
strict confidentiality. However, we have become aware of substantial confusion 
and misinformation related to the Federal Reserve Bank of Kansas City and one 
of the banks it regulates in Oklahoma. The Federal Reserve Bank of Kansas City 
and the bank are working cooperatively and closely to clarify this issue.

"There have been references made to Regulation B (12 CFR 202 et. seq.), which 
implements the Equal Credit Opportunity Act, and prohibits discriminatory 
creditor practices. Regulation B, as interpreted by the Board of Governors of 
the Federal Reserve System, does not apply to jewelry or other personal items 
displayed in the workplace.

"As the regional headquarters for the nation's central bank, the Federal 
Reserve Bank of Kansas City's officers, management and staff recognize the 
critical importance of community banks and the freedom under which they can 
serve their communities by providing financial services and fair access to 
credit."
As the regional headquarters of the nation's cen

RE: Federal regulators apparently force bank to take down religioussymbols

[Brownstein, Alan]

The Bank President's message is also confusing. He is quoted as stating that 
"The bank publishes a Bible verse on its website and tellers display crosses 
and other Christian-themed items in their workplace." Does that mean that 
non-Christian employees are required to display crosses and other Christian 
symbols and messages from their desks  and workstations?


Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 3:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols


Very interesting, thanks!  But I'm a bit confused by the Kansas 
City Fed chairman's statement, 
http://www.kansascityfed.org/publicat/newsroom/2010pdf/press.release.12.17.pdf 
.  It suggests that the regulation "does not apply to jewelry or other personal 
items displayed in the workplace"; but the materials, especially on the Web 
site, don't seem like "personal items" - they seem like statements from the 
bank management itself.  Is the claim that employees may put up their own 
decorations and statements, but that the bank can't put up decorations and 
statements endorsed by the management?  Or is it something else?



Eugene



 FOR IMMEDIATE RELEASE CONTACT: Tim Todd

December 17, 2010 816/881-2308

timothy.t...@kc.frb.org

STATEMENT FROM FEDERAL RESERVE BANK OF KANSAS CITY

PRESIDENT TOM HOENIG

"The Federal Reserve's interactions with supervised institutions are subject to 
strict confidentiality. However, we have become aware of substantial confusion 
and misinformation related to the Federal Reserve Bank of Kansas City and one 
of the banks it regulates in Oklahoma. The Federal Reserve Bank of Kansas City 
and the bank are working cooperatively and closely to clarify this issue.

"There have been references made to Regulation B (12 CFR 202 et. seq.), which 
implements the Equal Credit Opportunity Act, and prohibits discriminatory 
creditor practices. Regulation B, as interpreted by the Board of Governors of 
the Federal Reserve System, does not apply to jewelry or other personal items 
displayed in the workplace.

"As the regional headquarters for the nation's central bank, the Federal 
Reserve Bank of Kansas City's officers, management and staff recognize the 
critical importance of community banks and the freedom under which they can 
serve their communities by providing financial services and fair access to 
credit."
As the regional headquarters of the nation's central bank, the Federal Reserve 
Bank of Kansas City and its branches in Denver, Oklahoma City and Omaha serve 
the seven states of the Tenth Federal Reserve District: Colorado, Kansas, 
Nebraska, Oklahoma, Wyoming, northern New Mexico and western Missouri. The Bank 
participates in setting national monetary policy, is responsible for 
supervising and regulating numerous commercial banks and bank holding 
companies, serves as the bank for the U.S. government and for commercial banks, 
and provides other payment services to depository institutions.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kevin Pybas
Sent: Friday, December 17, 2010 3:31 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Federal regulators apparently force bank to take down 
religioussymbols

This story from the Oklahoma City newspaper indicates that the Federal Reserve 
has changed its position about the bank and the items in question.

http://newsok.com/feds-relent-on-oklahoma-banks-display-of-christian-themed-items/article/3524584?custom_click=headlines_widget


Kevin Pybas


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, December 17, 2010 3:09 PM
To: Law & Religion issues for Law Academics
Subject: Federal regulators apparently force bank to take down religioussymbols

Any thoughts on this story?  See also Sen. Inhofe & Rep. Lucas's response, at 
http://inhofe.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=f5d51d96-f7ff-cb88-e863-3b8dfc32eacc


http://www.koco.com/r/26162860/detail.html

A small-town bank in Oklahoma said the Federal Reserve won't let it keep 
religious signs and symbols on display.
Federal Reserve examiners [who came for a regularly scheduled inspection visit] 
deemed a Bible verse of the day, crosses on the teller's counter and buttons 
that say "Merry Christmas, God With Us." ... inappropriate. The Bible verse of 
the day on the bank's Internet site also had to be taken down
Specifically, the feds believed, the symbols violated the discouragement clause 
of Regulation B of the bank regulations. According to the clause, "...the use 
of words, symbols, models and other forms of communication ... express, imply 
or sugges

RE: Billing controversial speakers for security costs incurred by city: 1st Am violation?

[Brownstein, Alan]

There is a more commonplace example of a policy that makes houses of worship of 
unpopular faiths pay additional fees because of the reaction of neighbors to 
their activities. Many cities require all landowners, including houses of 
worship, to sign indemnity agreements as a condition to the government 
considering changes to their conditional use permit or other land use 
regulations. The agreement requires the house of worship to indemnify the city 
for the cost of reviewing the house of worship's proposal (including city staff 
time at hearings), any costs the city may incur in defending itself against a 
lawsuit if the permit is granted, and any damages the city may pay if its 
decision is held to be unlawful. Obviously, the more local opposition that 
exists to the house of worship's proposals (at least some of which may be 
predicated on opposition to the faith of the congregation seeking the permit), 
the greater will be the costs to the city in evaluating the proposal and the g!
 reater the costs to the house of worship. 

Are these indemnification agreements constitutional under Forsyth County v. 
Nationalist Movement when they are applied to land uses engaging in First 
Amendment protected activity?

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, September 17, 2010 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Billing controversial speakers for security costs incurred by 
city: 1st Am violation?

I would think that under Forsyth County v. Nationalist Movement (1992), 
security fees that are based partly on the risk of violent reaction based on 
the content of the speech are unconstitutional.  That case held this even as to 
parades on public streets, and even when the fee was capped at $1,000 per day; 
here the bill they're talking about would be $200,000.  I can't see why there'd 
be a less speech-protective result as to conduct on private property.

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Friday, September 17, 2010 3:29 PM
> To: Law & Religion issues for Law Academics
> Subject: Billing controversial speakers for security costs incurred by 
> city: 1st Am violation?
> 
> It is reported that the city of Gainesville, Florida is planning to 
> bill Terry Jones for the costs of providing security for his church 
> and the surrounding neighborhoods in light of his announced plan to 
> burn a Quran. See 
> http://www.cnn.com/2010/US/09/17/florida.quran.pastor/index.html?hpt=T
> 2.
> 
> 
> I have not followed the cases dealing with imposition of security 
> costs on controversial speakers. It seems Jones typically has spoken 
> on his church's property, and has not held the kind of rally or parade 
> with respect to which it might be more reasonable to bill the speaker 
> for security costs (and trash pickup, etc.). But, as I said, I haven't 
> followed the relevant cases. Perhaps someone on the list would have 
> some insight here. Of course, one way to shut up controversial 
> speakers would be to make their speech very expensive in this way.
> 
> Mark Scarberry
> Pepperdine
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RE: N.J. public transit employee fired for blasphemy

[Brownstein, Alan]

Race discrimination is distinct from religious discrimination in United States 
constitutional jurisprudence. But race discrimination does not always mean the 
same thing in some other countries that it means here. In some countries, race 
discrimination involves discrimination against indigenous people and may be 
more closely analogized to the way we conceptualize discrimination against 
Native Americans as opposed to discrimination against African Americans. In 
that context, discrimination involves a clash of culture -- not exactly like 
religious discrimination, but not exactly like race discrimination in the 
American context either.

I think religious discrimination is still sufficiently distinctive that it 
should be recognized under its own categorical frame of reference, as Eric 
suggests.. But my experience teaching in other countries has made me more 
cautious about assuming that concepts like race discrimination will always mean 
the same thing in countries with very different histories and cultures.

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Friday, September 17, 2010 2:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy


Another reason the racism line of cases may not apply is that race and religion 
are different. Religious expression always involves an element of disagreement 
with others. Taking any position on religious matters automatically entails 
disagreeing with several other religious viewpoints. Racial difference by 
contrast does not entail inherent disagreement about viewpoints. 

If I can harp on the defamation of religions issue one more time, this is one 
of the major problems with the defamation of religions initiative. It seeks to 
put religious disagreement into the same category as religious discrimination; 
insulting Mohammed (which includes disagreement that he is a messenger from 
God) is made equivalent to using racial epithets. Every time the UN addresses 
the topic, it puts it under the category of racial discrimination, not freedom 
of religion or belief.

Eric



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RE: N.J. public transit employee fired for blasphemy

[Brownstein, Alan]

Eric is certainly correct that the First amendment protects the expression of 
ideas -- even if they have the tendency to make audience members so angry that 
will react violently to the speech. European countries are far less protective 
of speech. 

The connection between other kinds of speech and criminal conduct can get more 
complicated and can't be fully captured by the idea of incitement. But that's 
another topic.

Alan



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, September 16, 2010 11:34 AM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy



The issue Alan raises has come up in the debate over "defamation of religions" 
because many European countries have laws regarding incitement to racial or 
religious hatred, many of which were designed during the post-war period to 
respond to Nazi tactics against Jewish Germans.  These incitement laws would 
have trouble being applied in the US unless they qualified under Brandenburg.

But I don't think what we are talking about with respect to defamation of 
religions, or burning the Koran or Talmud (apparently Pastor Jones wanted to 
burn both) is really "incitement."  There is a big difference between (1) A 
saying to B "C is evil, C should be killed"and then B goes out and tries to 
kill C; and (2) A saying to B "your religious beliefs are wrong" and B responds 
by trying to kill A (or innocent third parties C or D, if they happen to be 
closer).

Situation (1) is what is typically meant by incitement and is a lot closer to 
conspiracy to commit a crime; one can envision some scenarios where A could be 
held liable. Situation (2) is what French law calls "provocation"; under French 
law (and several other Continental legal systems) such a provocation might give 
grounds for tort liability but it would not justify B's retaliating with 
violence.  I don't see how in situation (2), even when B predictably riots and 
kills innocent third parties C or D, A can be held responsible for B's actions. 
B is the agent at fault, not A. 

There are also some interesting parallels to the crime-facilitating speech 
issue that Eugene has written about, though I have not really thought those 
through.



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
Sent: Thursday, September 16, 2010 1:24 PM
To: Law & Religion issues for Law Academics
Subject: RE:  N.J. public transit employee fired for blasphemy

While I believe that desecrating sacred objects is protected speech, I'm not 
sure that I'm persuaded by the argument that the critical issue is whether the 
response of the audience to speech is "justifiable" or not. In the South, 100 
years ago, spreading a false statement that an African-American had attacked or 
threatened a white woman would have been understood to risk provoking a violent 
assault  on the African-American. Is the speaker's knowingly false statement 
protected speech in that case because lynching is never justified. I think 
there are many situations in which expressing a false statement will 
predictably provoke acts of violence against an innocent person. I'm not 
convinced that all such statements are protected speech because the acts of 
violence are unjustified.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, September 16, 2010 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy


Part of the problem with the analogy is that rushing out of the theater when 
someone shouts "Fire!" is a justifiable response by those in attendance.  If 
the shouter is telling the truth about the fire, then they ought to try to get 
out, and no one is to blame. If the shouter is not telling the truth--there is 
no fire--then he is to blame for crying wolf and can be held responsible.

By contrast, killing someone or burning down an embassy in Jordan is not a 
justifiable response to the publication of a cartoon insulting Mohammed in 
Denmark.  Perhaps the reaction is predictable, but the publisher cannot be 
blamed for the reaction, regardless of his intent in publishing it.

This issue has come up in the context of the Organisation of the Islamic 
Conference's "defamation of religions" push at the United Nations. (I should 
disclose that the Becket Fund has been adamantly opposed to this initiative 
from its inception -- see e.g. http://www.becketfund.org/files/87155.pdf.)  
Part of the argument for a rule of international law allowing states to 

RE: N.J. public transit employee fired for blasphemy

[Brownstein, Alan]

I agree that my examples do little to resolve the burning of sacred texts 
question or reactions to true statements or statements of opinion. I just 
wanted to make the point that the justifiability of the audience's response 
shouldn't control the analysis.

I think there is a question as to whether the communication of true information 
can make a speaker vulnerable to liability. If a KKK leader states that his men 
will assault anyone who insults a white woman and X knows this and truthfully 
reports such an incident and the threatened  assault occurs, can X be subject 
to either civil or criminal liable. But it is off topic.

Alan Brownstein



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, September 16, 2010 11:12 AM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy

As I understand it, there has been some debate about this issue (though 
generally as to lost business and social opportunities, not as to violence) in 
libel law.  For instance, as I understand it there has been some controversy 
about whether falsely claiming someone is black is defamatory; more recently, 
the same matter came up with regard to false claims that someone is gay.  
Should the likelihood that people will shun someone because of such 
allegations, even if the court thinks it's wrong for them to do so, suffice to 
allow recovery?  There's a split of authority on that, if I recall.

But it seems to me that this question, interesting as it is, arises 
chiefly as to knowingly false statements of fact precisely because those 
statements are independently unprotected, at least when said about a particular 
person.  (For instance, even if they are not defamatory, they may still be 
actionable as false light invasion of privacy.)  I realize that this is what 
Eric's explanation of the "falsely shouting fire" example involved, so I'm not 
faulting Alan for taking that up.  But I just don't think that this analysis 
tells us much when it comes to the reactions to true statements, or to 
statements of opinion.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Thursday, September 16, 2010 10:25 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: N.J. public transit employee fired for blasphemy
> 
> While I believe that desecrating sacred objects is protected speech, 
> I'm not sure that I'm persuaded by the argument that the critical 
> issue is whether the response of the audience to speech is 
> "justifiable" or not. In the South, 100 years ago, spreading a false 
> statement that an African-American had attacked or threatened a white 
> woman would have been understood to risk provoking a violent assault  
> on the African-American. Is the speaker's knowingly false statement 
> protected speech in that case because lynching is never justified. I 
> think there are many situations in which expressing a false statement 
> will predictably provoke acts of violence against an innocent person. 
> I'm not convinced that all such statements are protected speech because the 
> acts of violence are unjustified.
> 
> Alan Brownstein
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Thursday, September 16, 2010 9:31 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: N.J. public transit employee fired for blasphemy
> 
> 
> Part of the problem with the analogy is that rushing out of the 
> theater when someone shouts "Fire!" is a justifiable response by those 
> in attendance.  If the shouter is telling the truth about the fire, 
> then they ought to try to get out, and no one is to blame. If the 
> shouter is not telling the truth--there is no fire--then he is to blame for 
> crying wolf and can be held responsible.
> 
> By contrast, killing someone or burning down an embassy in Jordan is 
> not a justifiable response to the publication of a cartoon insulting 
> Mohammed in Denmark.  Perhaps the reaction is predictable, but the 
> publisher cannot be blamed for the reaction, regardless of his intent in 
> publishing it.
> 
> This issue has come up in the context of the Organisation of the 
> Islamic Conference's "defamation of religions" push at the United 
> Nations. (I should disclose that the Becket Fund has been adamantly 
> opposed to this initiative from its inception -- see e.g. 
> http://www.becketfund.org/files/87155.pdf.)  Part of the argument for 

RE: RLUIPA anniversary event

[Brownstein, Alan]

I hope ACS is planning on putting the program on line or making a tape of it. A 
lot of us out of the area would like to have access to it.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of eric treene
Sent: Thursday, September 16, 2010 10:29 AM
To: 'Law & Religion issues for Law Academics'
Subject: RLUIPA anniversary event

For those list participants near DC, ACS is hosting an interesting RLUIPA 
anniversary panel next week, featuring at least four list participants.  For 
those not near DC, seeing Marci, Doug, Marc, and Roman on the same panel 
debating this issue may be worth a plane ticket.

Eric Treene

___


The American Constitution Society for Law and Policy invites you to attend:

 
RLUIPA 10 YEARS LATER
 
President Clinton signed the Religious Land Use and Institutionalized Persons 
Act into law on September 22, 2000. Fast forward a decade later, we as a 
society are still debating the meaning of religious freedom in a pluralistic 
democracy. Most recently, we have seen the American fabric fray around the 
siting of an Islamic community center in downtown Manhattan, not far from the 
where the World Trade Center stood.

As we look back at the 10 years since RLUIPA was passed, what has the law 
achieved? Where hasn't it lived up to the expectations of those who fought for 
its enactment?  Which harms predicted by its opponents have come to pass? Which 
haven't?
 
On September 21, 2010, a panel of experts, including academics and 
practitioners in the field, will discuss these and other related questions on 
the occasion of RLUIPA's 10th anniversary.

The program will be held from 12:30 - 2:30 and will feature:
 
. Opening Remarks: Assistant Attorney General Thomas E. Perez, U.S.
Department of Justice, Civil Rights Division

. Introduction: David Lachmann, Chief of Staff, House Subcommittee
on the Constitution, Civil Rights, and Civil Liberties

. Panel:

oMarci Hamilton, Paul R. Verkuil Chair in Public Law, Cardozo School of
Law

oDouglas Laycock, Armistead M. Dobie Professor of Law and Horace W.
Goldsmith Research Professor of Law, University of Virginia School of Law

oElizabeth Merritt, Deputy General Counsel, National Trust for Historic
Preservation

oMarc Stern, Associate General Counsel, American Jewish Committee 

oRoman Storzer, Partner, Storzer & Greene
 
 

Register Now! http://www.acslaw.org/node/16871 

Lunch will be provided at 12:00, with program to begin at 12:30.

Tuesday, September 21, 2010
Rayburn House Office Building, Room 2226 Independence Avenue and South Capitol 
Street Washington, DC 20003
 
 
 


___
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RE: N.J. public transit employee fired for blasphemy

[Brownstein, Alan]

While I believe that desecrating sacred objects is protected speech, I'm not 
sure that I'm persuaded by the argument that the critical issue is whether the 
response of the audience to speech is "justifiable" or not. In the South, 100 
years ago, spreading a false statement that an African-American had attacked or 
threatened a white woman would have been understood to risk provoking a violent 
assault  on the African-American. Is the speaker's knowingly false statement 
protected speech in that case because lynching is never justified. I think 
there are many situations in which expressing a false statement will 
predictably provoke acts of violence against an innocent person. I'm not 
convinced that all such statements are protected speech because the acts of 
violence are unjustified.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Thursday, September 16, 2010 9:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: N.J. public transit employee fired for blasphemy


Part of the problem with the analogy is that rushing out of the theater when 
someone shouts "Fire!" is a justifiable response by those in attendance.  If 
the shouter is telling the truth about the fire, then they ought to try to get 
out, and no one is to blame. If the shouter is not telling the truth--there is 
no fire--then he is to blame for crying wolf and can be held responsible.

By contrast, killing someone or burning down an embassy in Jordan is not a 
justifiable response to the publication of a cartoon insulting Mohammed in 
Denmark.  Perhaps the reaction is predictable, but the publisher cannot be 
blamed for the reaction, regardless of his intent in publishing it.

This issue has come up in the context of the Organisation of the Islamic 
Conference's "defamation of religions" push at the United Nations. (I should 
disclose that the Becket Fund has been adamantly opposed to this initiative 
from its inception -- see e.g. http://www.becketfund.org/files/87155.pdf.)  
Part of the argument for a rule of international law allowing states to 
suppress "defamation of religion" is that Muslims cannot restrain themselves 
from acting violently when they perceive an insult to their religion. This 
approach deprives individual Muslims of their dignity as moral agents and 
treats them as inherently unreasonable and thus unaccountable for their 
actions.  Unfortunately Justice Breyer's analogy could be interpreted (whether 
he meant it to or not) to partake in this approach.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Conkle, Daniel O. [con...@indiana.edu]
Sent: Thursday, September 16, 2010 11:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE:  N.J. public transit employee fired for blasphemy

In an interview with George Stephanopolous, Justice Breyer has suggested that 
burning the Koran conceivably might not be protected by the First Amendment at 
all.  According to Breyer, "Holmes said it doesn't mean you can shout 'fire' in 
a crowded theater . . . .  Well, what is it?  Why?  Because people will be 
trampled to death.  And what is the crowded theater today?  What is the being 
trampled to death? . . .  It will be answered over time in a series of cases 
which force people to think carefully."

http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html

Surely this cannot be unprotected speech, can it?  Wouldn't that amount to a 
global heckler's veto whenever speech triggers or threatens a sufficiently 
violent reaction?  And wouldn't such a doctrine effectively reward - and thus 
encourage - such violence or threats thereof?

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 15, 2010 8:06 PM
To: Law & Religion issues for Law Academics
Subject: N.J. public transit employee fired for blasphemy


The New York Daily News, 
http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html,
 reports:



[Derek Fenton, t]he protester who burned pages from the Koran outside a planned 
mosque near Ground Zero has been fired from NJTransit, sources and authorities 
said Tuesday



"Mr. Fenton's public actions violated New Jersey Transit's code of ethics," an 
agency statement said.



"NJ Transit concluded that Mr. Fenton violated his trust as a state employee 
and therefore [he] was dismissed." ...



Fenton was an assistant t

RE: World Vision wins at 9th Circuit in religion-based firing case

[Brownstein, Alan]

The most interesting aspect of the decision, at least to me, is Judge 
Kleinfeld’s alternative to OScannlain’s test. Although he couches his analysis 
in more normative terms, Kleinfeld seems to be primarily concerned with the 
impact of the exemption on people of other faiths who will be denied valuable 
employment opportunities if the exemption is construed broadly to include 
institutions like religiously affiliated hospitals.   Reserving high paying 
jobs for members of one’s own faith may be analogized to other religious 
exemptions that provide significant secular benefits to the religious 
individuals or institutions that claim them. As many commentators have noted, 
these are the hardest discretionary exemptions to justify or defend.

Alan Brownstein
UC Davis School of Law

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Monday, August 23, 2010 6:05 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: World Vision wins at 9th Circuit in religion-based firing case

While it is a win for World Vision, the opinion reveals some really deep 
disagreements about the scope of the statutory provision in question.  Again, 
we’re talking about the language in Title VII that lifts the ban on religious 
discrimination for “a religious corporation, association, educational 
institution, or society . . .”

The two judges in the majority offer quite different tests for applying this 
language, though they end up agreeing that World Vision qualifies.  The dissent 
offers a third test, which basically says that religious groups should only 
qualify for this exemption if they are “organized for the dissemination of 
religious doctrine.”  Slip op at 12586 (Berzon, J., dissenting); see also slip 
op. at 12597 (“If we were [free from earlier Ninth Circuit precedent] . . . I 
would suggest that we ask only whether the primary activity of a purportedly 
religious organization consists of voluntary gathering for prayer and religious 
learning.”).

This would exclude almost all religious organizations outside of the most 
formal (i.e., churches, temples, mosques, etc.).   And if you read the opinion, 
it’s clear that Judge Berzon means to exclude virtually all religious social 
service agencies.  Here’s what I think is the telling paragraph:

Ultimately, I am convinced that . . . World Vision is not a religious 
corporation, association, or society within the meaning of [the statute].  
Instead, World Vision’s purpose and daily operations are defined by a wide 
range of humanitarian aid that is, on its face, secular.  Although World Vision 
maintains that “Christian witness” is “integrated in” these activities, World 
Vision’s definition of “Christian witness” encompasses all humanitarian acts, 
from digging a well to providing food and water to the hungry.  So this 
circular argument leads nowhere.  Only the personal religious beliefs of World 
Vision staff differentiate these humanitarian acts from the “ministry” that 
could, as World Vision concedes, be provided by people of all faiths or no 
faith.  In short, World Vision is nothing like a church, but resembles in its 
primary activities a wide range of charitable organizations.

Best,
Chris
___
Christopher C. Lund
Assistant Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

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RE: Perry v. Schwarzenegger - Effect of Religious Beliefs

[Brownstein, Alan]

Marci,

I agree that there are substantial reasons why the Court then (and a court now) 
would think that the state has important interests in prohibiting polygamy. I 
thought that Lisa was referring to more than the Reynolds case in her post. I 
certainly was referring to more than Reynolds in mine. I think the Court’s 
“decisions” during this period include cases such as Davis v. Beason and The 
Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United 
States as well as Reynolds.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, August 09, 2010 10:24 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

Alan-- It is my view that those who are not "proud" of the Reynolds decision 
are reading it both ahistorically and without proper attention to the Court's 
description of the evils of polygamy.  The Court made clear that the 
patriarchal principle is tantamount to despotism, and the practice of polygamy 
in history and around the world now prove that it contains more than a tendency 
to the suppression of women's rights and children's welfare.  That is why the 
UN has taken up the practice as a violation of women's rights. This is one of 
the Court's first gender equality decisions.  Reading these cases solely 
through the lens of religion distorts the decision and suppresses the actual 
civil rights issues being addressing by the neutral and generally applicable 
laws against polygamy in every state and then the Territories.  Which is to say 
that I agree with you that the issues with respect to polygamy are quite 
distinct from the issues of excluding gay partners from being married.

Marci


In a message dated 8/9/2010 1:04:01 P.M. Eastern Daylight Time, 
aebrownst...@ucdavis.edu writes:
I doubt that there are many scholars who are proud of the Court’s decisions 
during this period.

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RE: Perry v. Schwarzenegger - Effect of Religious Beliefs

[Brownstein, Alan]

I doubt that there are many scholars who are proud of the Court's decisions 
during this period. For contemporary purposes, I would think the issue of 
polygamy plays out this way. If there is no important, non-religious state 
interests in prohibiting polygamy, opposition to constitutionally mandated free 
exercise protection and RFRA like religious liberty statutes by those who are 
morally opposed to polygamy can be justified in part by concerns that 
protecting religious liberty will protect religiously-motivated polygamy. If 
there are important, non-religious state interests in prohibiting polygamy, 
arguments against protecting religious liberty out of concern that it will 
result in the protection of polygamy should not serve as a basis for rejecting 
religious liberty protection. And, of course, for similar reasons, arguments 
relating to polygamy should have no persuasive force as a justification for 
prohibiting same-sex marriage.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist
Sent: Monday, August 09, 2010 8:58 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs

Of course, the courts had no problem with this type of discrimination when it 
outlawed polygamy and took the assets of the Mormon church.  :-)

On 8/9/2010 8:12 AM, Steve Sanders wrote:
Well, it was a finding of fact (suppored by evidence) in this particular case, 
not a legal holding.  Moreover, the context is the plaintiffs' arguments that 
Prop 8 was inappropriately enacted in part on the basis of religious beliefs; 
not that religious beliefs were part of the debate, which is of course 
acceptable, but rather that Prop 8 effectively enacts religious doctrine in 
order to abridge 14th Amendment rights.  No one familiar with Prop 8 -- least 
of all its proponents -- thought it was merely about some sort of secularly 
motivated discrimination.  So I don't see that the judge could or should have 
simply avoided the question.  Even if such a finding of fact were problematic 
for free exercise, as Will suggests, the enactment of religiously motivated 
discrimination seems to me more problematic from the standpoint of 
establishment.




--

Lisa A. Runquist

Runquist & Associates

Attorneys at Law

17554 Community Street

Northridge, CA 91325

(818)609-7761

(818)609-7794 (fax)

l...@runquist.com

http://www.runquist.com









IRS Circular 230 Notice



To ensure compliance with requirements imposed by the IRS, we inform you that 
any U.S. tax advice contained in this communication is not intended or written 
to be used, and cannot be used by any taxpayer, for the purpose of avoiding 
U.S. tax penalties.






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RE: Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views

[Brownstein, Alan]

I intended my caveats to be general suggestions, not as concerns that might 
necessarily apply to the Augusta State student in this case.  The fact that her 
clinical performance was satisfactory would certainly be strong evidence that 
the first caveat was satisfied. The second caveat is less clear. A situation 
implicating it may not have arisen in her clinical work to date.

Alan
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist
Sent: Thursday, July 29, 2010 2:09 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Augusta State University student sues school over requirement that 
she undergo "remediation" due to her religious views

Alan - Are not your caveats are satisfied by the fact that her clinical 
performance was apparently satisfactory?

BTW, there have been clients that I, as an attorney, have declined to 
represent, as it has been obvious to me that, because their goals were so 
diametrically opposed to mine, I would not be able to adequately represent them 
(such as people who want to spay and neuter all dogs, and ultimately do away 
with all pet ownership).  I rarely have that problem with religious 
organizations, however, as long as they are sincere in their beliefs.

Lisa


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RE: Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views

[Brownstein, Alan]

I think Lisa Runquist draws an important distinction that clarifies the issue 
and its resolution. Excluding someone from professional education suggests that 
their beliefs, or more precisely  the influence of their beliefs on their 
behavior, prevents them from providing competent professional services in 
almost any circumstance. The religious beliefs at issue in some cases may 
disqualify a person from being hired for certain counseling positions – but 
there may be other opportunities for which their beliefs do not pose a barrier 
to the successful performance of their duties. Dismissal from professional 
school seems premature and unjustified in such circumstances.

In the counseling context, I might offer two tentative caveats (tentative 
because I have so little expertise relating to this profession). First, it may 
be that being a successful counselor requires the practitioner to be able to 
distance themselves from the beliefs of the client at least to some extent. If 
that is the case (and I emphasize “if” here), then there may be reason to 
dismiss a student who is completely incapable of separating her own views from 
the needs of her client. There may be quasi-counseling  jobs that person may 
fulfill, but she cannot be certified as counselor under professional standards.

The second caveat is that the student must be willing to abide by accepted 
clinical requirements – which may require the temporary subordination of her 
beliefs to avoid harm to the client. The  situations described in these cases 
presume that an openly gay or lesbian client seeks counseling and the counselor 
chooses to refer that client to another counselor because her religious beliefs 
would interfere with the provision of counseling services to that individual. 
In situations where such referrals are easily arranged, that seems like a 
win-win decision. The counselor and client will be better off if the client 
sees a different counselor.

In some cases, however, the client’s homosexuality (or other personal 
characteristic that the counselor cannot affirm because of her religious 
beliefs) may not be disclosed until several counseling sessions have been 
completed. It may be that in such a circumstance, it is still desirable for the 
client to transition to a different counselor. But clinical requirements 
designed to protect the client may preclude any abrupt transfer of 
responsibilities. If a student indicated that even in such situations, she 
would not be able to subordinate her beliefs even temporarily in order to 
protect the mental health of her client – the professional school may have 
reason to dismiss the student from its program.

Alan Brownstein







From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Lisa A. Runquist
Sent: Thursday, July 29, 2010 8:41 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Augusta State University student sues school over requirement that 
she undergo "remediation" due to her religious views

On 7/28/2010 3:23 PM, Lisa A. Runquist wrote:
If the person completed all of the requirements to obtain a degree, the degree 
should be granted, regardless of their religious beliefs.  That would include 
allowing someone to graduate from medical school, even if they do not believe 
in blood transfusions or abortions.  And they should be able to obtain a degree 
from the counselor education program if, as appears to be the case in this 
situation, both the academic showing and the clinical performance are adequate.

The question of obtaining licensing is a second matter, although again, if the 
person is otherwise qualified, that person should be granted a license -- e.g. 
if the person passes the bar exam, is of good moral character, etc., then he or 
she should be able to become a lawyer, regardless of his or her religious 
beliefs.

Then comes the bottom line question which is being incorrectly posed as the 
answer to the first:  Can and should that person be hired for a particular 
position?  But this is a third and totally separate question.  Clearly if the 
person is unable to perform the functions of the job, he or she should not be 
hired.  And if the person insists on interjecting religion into a non-religious 
workplace, they probably would be fired from most jobs (for good cause).  But 
that does not mean the person would not be a good counselor in other 
situations.  Many religious organizations provide counselors for their 
constituents; these people want counseling from someone with strong moral 
standards rather than from someone who has no moral standards at all, or 
standards that are far different from theirs.  Why should we deny them the 
ability to hire counselors with similar religious beliefs, by refusing to allow 
said person(s) to graduate, and/or to be licensed?  This clearly does not mean 
everyone will want to or should use that counselor, just as not everyone will 
want a counselor who is unwilling to hold fast t

RE: Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views

[Brownstein, Alan]

If the student is committed to fulfilling her professional responsibilities, 
notwithstanding her religious beliefs, as Richard Esenberg suggests, I would 
think the university's position is hard to defend. There may be some beliefs 
that are so intrinsically in conflict with the competent performance of one's 
professional responsibilities that they disqualify a person from being 
certified to serve in that profession. But that is a heavy burden for a 
professional school to satisfy.  Would the belief that a particular religion is 
the one true faith, and that adherents of other faiths are misguided in their 
beliefs and practices, disqualify students from becoming lawyers, doctors, 
therapists or law professors? What about the belief that all religions are 
false and that the adherents of all faiths hold irrational beliefs that distort 
their lives?

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Esenberg, Richard
Sent: Wednesday, July 28, 2010 6:22 AM
To: Law & Religion issues for Law Academics
Subject: RE: Augusta State University student sues school over requirement that 
she undergo "remediation" due to her religious views

Perhaps there are facts not reported in the article, but it's not clear to me 
how she has refused "to implement the standards of her profession" unless the 
standards of the profession require her not to believe what she does about 
homosexuality or, if she does, never to express those beliefs.



Perhaps the "standard" is the idea that she not express her personal views 
about the morality of a client's behavior while counseling the client. Putting 
aside whether that really is - or ought to be - a standard of the counseling 
profession, there is nothing in the report suggesting that she would do so. 
Based on the brief filed in support of her motion for a preliminary 
injunction,
 the student has said that she understands the "difference between personal 
beliefs and how a counseling situation should be handled and "the need to 
reflect clients' goals and to allow them to work toward their own solutions 
..." She says that she would not impose her views on her clients, although she 
also says that if she is asked "to affirm" conduct that she believes to be 
immoral (mentioning homosexuality and the decision to have an abortion), she 
would not.



In fact, the "standard" that she is said to be violating is her subjective 
belief that her moral views are true. She was apparently told that it is 
unethical for her to be " not truly accepting that others can have different 
beliefs and values that are equally valid as your own" and for her to "think 
certain people should act in accordance with your moral values, and/or that 
your beliefs are in some way superior to those of others." (emphasis in 
original)



It seems quite clear from the materials cited in the brief that her 
continuation in the program required her to change her beliefs. A public 
university seems to be taking the position that a student must sincerely 
embrace a form of moral relativism in order to remain in a graduate program.





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RE: Fifth Circuit holds that Texas RFRA mandates exemption from school hair-length restriction

[Brownstein, Alan]

Doug's article is worth the plug. Too many commentators think about fundamental 
rights in terms of the availability of exits for those who feel their rights 
are abridged in local communities. An equally important issue is the impact of 
burdens on entry to communities.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, July 21, 2010 8:37 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Fifth Circuit holds that Texas RFRA mandates exemption from school 
hair-length restriction

Shameless plug:  Why Voting With Your Feet Is No Substitute for Constitutional 
Rights, 32 Harv. J. L. & Pub. Pol'y 29 (2009).

People move for all sorts of reasons, and they should not have to subordinate 
all those other reasons to a search for a jurisdiction that will not oppress 
them.

Quoting Christopher Lund mailto:ed9...@wayne.edu>>:

> I finally got to read this case and I think it may deserve some broader
> attention.
>
>
>
> The case starts with a Native American family that wanted to move to
> Needville, Texas.  But they don't want to move without a promise from the
> public school district that their son would be able to wear his hair long
> in class, as their religious beliefs demand.   The school district
> initially denies his claims on the merits, but then reconsiders and says
> it won't consider the request until (1) the family moved to Needville and
> (2) the son enrolled in school.   The family moves, the son enrolls, and
> the school district then denies the accommodation on the merits, leading
> to the lawsuit.
>
>
>
> This is the part that struck me.  I remember there being a discussion,
> maybe on this listserv, about how the Establishment Clause (especially
> Engel and Schempp) opened the doors for religious minorities to live in
> whatever state or city they wanted.  This case makes the companion point
> about Free Exercise: Letting localities set their own rules regarding
> religious accommodations may have affects all the way down to where
> religious minorities are able to live.  If religion is sufficiently
> important to them, they may find themselves unable to take that distant
> job or live near that ailing relative (however attractive those things may
> be).
>
>
>
> The rest of the case is also worth a read.  The school district's basic
> problem is that it won't exempt A.A. from the prohibition on long hair,
> but it already exempts more than half the student body-namely girls (all
> of them).  That makes the health-and-safety arguments hard to make,
> although I did like the argument that the school district has a compelling
> interest in avoiding "gender confusion" (A.A. had "twice been mistaken for
> a girl while at school").
>
>
>
> Best,
>
> Chris
>
>
>
> From: 
> religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu]
>  On Behalf Of Volokh, Eugene
> Sent: Friday, July 09, 2010 5:32 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: Fifth Circuit holds that Texas RFRA mandates exemption from
> school hair-length restriction
>
>
>
> A.A. v. Needville Indep. School Dist.,
> http://www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-20091-CV0.wpd.pdf,
> decided today by a 2-1 vote (Higginbotham joined by Wiener, with Jolly
> dissenting):
>
>
>
> A Native American boy and his parents challenge a school district's
>
> requirement that he wear his long hair in a bun on top of his head or in a
> braid
>
> tucked into his shirt. We agree with the district court that the
> requirement
>
> offends a sincere religious belief and hold it invalid under Texas law.
>
>
>
>



Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
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RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit

[Brownstein, Alan]

I have always assumed - and Bob can clearly tell me if I am way off base - that 
when Bob uses the term "jurisdictional" in discussing Establishment Clause 
issues, he is referring to what others might call "structural" constitutional 
constraints, such as the separation of power rules, which are considered to be 
nonwaivable and not subject to interest balancing in their application.

I am not sure whether Bob believes that categorical or definitional interest 
balancing has a role to play in determining what these Establishment Clause 
rules should be and only rejects interest balancing in the application of the 
rules in specific cases or whether he believes that  structural/jurisdictional 
Establishment Clause doctrine is derived exclusively from more abstract 
principles.

Alan Brownsteijn

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, July 20, 2010 7:01 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit

Bob, this may be a dumb question and you may have an easy answer for me.  But 
if you're not referring to subject-matter jurisdiction, I'm having trouble 
understanding what you mean when you call this "jurisdictional" in a more 
general sense.  I understand that jurisdictional defects can be 
nonwaivable-that parties don't have to plead them, courts have an independent 
obligation to consider them, even final judgments are void if they were present 
when litigated.  But my understanding is all of that only follows from problems 
with subject-matter jurisdiction.  Even a lack of personal "jurisdiction" can 
be waived, for example.  So I guess what I'm asking is this.  Once you concede 
that we're not talking about subject-matter jurisdiction, doesn't the legal 
claim that this is nonwaivable become quite hard to argue?  Is there precedent 
to say that problems other than subject-matter jurisdiction are nonwaivable?

Regarding Eric's point, a case that helped me was Arbaugh v. Y & H Corp., 546 
U.S. 500 (2006), where the Court held that the 15-employee requirement in Title 
VII did not go to subject-matter jurisdiction.  The Court was unanimous, and 
Eric perfectly summarizes its logic: Title VII is a federal law; therefore 
there is presumptively subject-matter jurisdiction pursuant to 28 U.S.C. § 
1331; and nothing in Title VII explicitly says that the 15-employee requirement 
was meant to be a jurisdictional limitation on that.   Arbaugh also talks for a 
bit about the problem of "drive-by jurisdictional rulings"-the bad habit of 
courts saying that something is barred for lack of jurisdiction when they 
really just mean that there's no valid claim on the merits-which may be exactly 
the sort of thing to which Eric was referring.

Best,
Chris

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Robert Tuttle
Sent: Monday, July 19, 2010 9:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit

In reply to Eric, I don't mean "jurisdictional" in the sense of subject matter 
jurisdiction - and I think courts are usually wrong to dispose of ministerial 
employment cases on a motion to dismiss -- facts are always needed, if nothing 
other than to determine whether the position is ministerial.  By 
jurisdictional, I mean only that the exception isn't subject to waiver or 
interest balancing, but that only suggests that its source is in the 
Establishment Clause rather than Free Exercise/RFRA, etc.  Michael Masinter's 
point about the sexual harassment cases is well-taken, and as you all know the 
courts have not applied the ministerial exception in that context, because the 
claims do look more like assault than disputes over qualifications/performance. 
 But I don't think it matters whether or not the congregation claims that 
race/gender/age discrimination are matters of doctrine - the point is that the 
state can't set qualifications for ministry, or step into determine whether the 
minister has performed acceptably (as in a claim of pretext).

Bob
On Mon, Jul 19, 2010 at 8:33 PM, eric treene 
mailto:etre...@comcast.net>> wrote:
The jurisdictional point has always puzzled me as well.  A large number of the 
court decisions, roughly half I would say, call the ministerial exception 
jurisdictional. But can that be right?  It is "jurisdictional" in a conceptual 
sense-there are things that properly belong to the authority of the state and 
things that belong to religious bodies.  But the same could be said of any 
entanglement under the Establishment Clause.  When we say that a court does not 
have the competency to decide matters of religious doctrine in property 
disputes, we aren't saying that it isn't a court of competent jurisdiction, are 
we?  Has anyone ever seen this jurisdictional argument applied to entanglement 
no

RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

[Brownstein, Alan]

I admit  that I don't see why the desire to reduce, mitigate, or spread the 
costs of religious accommodation must be grounded on some judgment about the 
impropriety of the accommodation.

If the justification and scope of the ministerial exemption (as mandated by the 
constitution) is determined in part by the burdens imposed by the exemption on 
third parties as well as the religious liberty interests at stake for the 
religious institution, mechanisms that reduce the burden on third parties might 
be considered part of the constitutional analysis. That kind of interest 
balancing approach doesn't seem to me to be to be one that is intrinsically 
inappropriate for religious liberty cases.

If we are talking about discretionary accommodations for religious 
institutions, there is even more of a justification for mitigating the costs of 
the accommodation to third parties. Why shouldn't the legislature care about 
reducing or spreading the costs of the decisions that it makes to protect 
religious liberty?

If we created a constitutional or legislative exemption that permitted 
newspaper editors to sexually harass their staff (although I can't imagine why 
we would want to do so), I think it would be desirable to require some notice 
to individuals accepting such employment of this reality.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Esenberg, Richard
Sent: Monday, July 19, 2010 4:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

I'm not sure why, absent some judgment about the impropriety of the ministerial 
exemption, one would think that employees and potential employees are somehow 
entitled to disclosure about the way in which constitutional doctrine might 
frustrate what they  (perhaps erroneously) to be their statutory rights. Why, 
indeed, not require reporters to tell persons who may qualify as public 
officials or figures about the way in which constitutional doctrine may impair 
what they might otherwise regard to be their legal protection from defamation? 
Even if we are especially concerned about employees, why not require that they 
be told, for example, that the presumed right of white employees to be free of 
race based decision-making could be compromised should circumstances justify 
race conscious remedies under current doctrine?

One argument might be that, if we recognize a ministerial exception, religious 
organizations are being granted some unique exemption from generally applicable 
laws. Putting apart whether that could ever be an accurate description of the 
current constitutional landscape, it is not clearly so. Associational rights, 
such as those of the Boy Scouts, might also warrant an exemption from otherwise 
applicable discrimination laws.

Going beyond that, why does the potential frustration of the expectations of 
employees stemming from a failure to appreciate the law of free exercise or of 
legislative solicitude for religious organizations deserve special attention?  
Most of us who don't hail from social circles riddled with lawyers know, for 
example,  that the concept of at-will employment comes as a shock to the 
average man or woman on the street. Most have no idea that the right of free 
speech that they understand to exist does not  protect them from private 
employers.

In fact, it is not at all clear that persons who accept positions that might 
qualify as "ministerial" are  likely to be ignorant of the ways in which free 
exercise might be thought to justify exemption from certain legal requirements 
in some unique way that justifies qualifying statutory or constitutional rights 
on disclosure. They may very well be more, rather than less,  likely to know 
the legal landscape.

To place a unique burden on religious organizations raises questions of 
government neutrality as a matter of policy, free exercise and establishment in 
the sense of avoiding both endorsement and disapproval of religion.

Rick Esenberg
Marquette University Law School
Eckstein Hall 253B
1215 W. Michigan Avenue
Milwaukee, WI 53201
(o) 414-288-6908
(m)414-213-3957
(f)  414-288-6975
Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715
Blogs: 
www.sharkandshepherd.blogspot.com
 http://law.marquette.edu/facultyblog/
You can access my papers at: 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Monday, July 19, 2010 8:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit

Friends -- with respect to Marci's suggestion that religious entities be 
required to inform people in ministerial positions about the fact that such 
entities have a constitutional right to h

RE: A real-life on-campus example

[Brownstein, Alan]

Just to make sure I understand your argument, Chip. Is it your position that 
reasonableness is the appropriate standard of review in this case with regard 
to the CLS freedom of association claims because CLS associational freedom will 
not be substantially burdened by the Hastings policy? Or is there another 
reason why you believe a reasonableness standard of review is appropriate in 
this case and your analysis of the magnitude of the burden goes to the 
application of the standard. Are you analogizing the review of freedom of 
association claims challenging a broadly applicable policy to the review of 
content discrimination claims in a designated limited public forum?

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Thursday, May 13, 2010 8:11 AM
To: Law & Religion issues for Law Academics; hamilto...@aol.com; Esenberg, 
Richard
Subject: RE: A real-life on-campus example

Marc Stern is overstating the holding of Gilmore.  Most of the opinion is about 
a state action question -- whether the city is complicit in the segregation of 
certain facilities.  With respect to those private entities or groups with 
which the city is not so complicit, Gilmore has a brief passage at the end of 
the opinion recognizing their freedom of private association, and concluding 
that they cannot be excluded by an injunction from the right to participate in 
recreational activities in a public park.

But Hastings is not running a park where children come to play.  It has created 
a limited public forum, with access to various communications facilities.  Its 
rules have to be non-discriminatory and reasonable in light of the forum's 
purposes.  The all-comers policy is certainly non-discriminatory. We're arguing 
about whether it's reasonable (there might have been an argument about whether 
it was pretextual, but the parties' stipulation seems to eliminate that 
argument completely.)  Some of us on this list think the policy is quite 
reasonable; it is not likely to disturb any group's message, because of the 
incentives of mutual respect and forebearance, but it leaves open the 
possibility of challenge to a group's message.  A law school might reasonably 
see that openness to challenge -- and the imposition of a corresponding duty to 
include all-comers -- as a healthy and necessary quality in a student 
organization. The fact that students are only at the school for three years m!
 ak!
es this even more reasonable; the next cohort of students may want a different 
kind of CLS.  They can show up and challenge, or (more likely, if the local CLS 
views are entrenched) form their own student organization.  CLS wants the right 
to exclude, but it has real trouble demonstrating a tangible harm (rather than 
a harm "in principle") from its inability to do so for  purposes of access to 
the forum.

One argument for unreasonableness that seems to me out of bounds is that CLS 
national has an unwaivable statement of faith.  If Hastings CLS can't comply 
with that, that's a problem between the national and the local affiliate, but 
that's not a problem for Hastings LS.  Likewise if the national ACLU, or any 
other national organization, does not like the local Hastings chapter policy on 
some issue.

 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Thu, 13 May 2010 09:35:34 -0400
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" 
>)
>Subject: RE: A real-life on-campus example  
>To: ,"Law & Religion issues for Law Academics" 
>,"Esenberg, Richard" 
>
>
>Nothing CLS has said challenges Hastings' duty to enforce rules against
>its own discrimination on the basis of inter alia sexual orientation or
>religion. As Gilmore v. City of Montgomery holds, however, a city's duty
>not to engage itself in (there racial) discrimination ) does not
>authorize it to deny non-exclusive access to public spaces to groups
>that engage in such discrimination. The Court held there that to enforce
>non-discrimination rules against such private groups (schools!) would
>deny the segregation academies freedom of association. Why isn't Gilmore
>controlling here?
>Marc Stern 
>
>-Original Message-
>From: religionlaw-boun...@lists.ucla.edu
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
>hamilto...@aol.com
>Sent: Thursday, May 13, 2010 9:19 AM
>To: Esenberg, Richard; Law & Religion issues for LawAcademics
>Subject: Re: A real-life on-campus example
>
>Of course the marketplace works as I described it especially in the US.
>Groups thrive and shrivel and respond to and interact with the culture
>and if they cannot adapt to broadbased moral and social changes by
>changing their beliefs an

RE: A real-life on-campus example

[Brownstein, Alan]

A quick response, Doug. With regard to my example about individuals, I agree 
that this is the most problematic example, but I'm not sure what the argument 
would be that precludes an individual from challenging an anti-discrimination 
law as viewpoint discriminatory. (A law that protected individuals holding left 
wing political views from discrimination, but failed to provide comparable 
protection to individuals holding right wings views would be viewpoint 
discriminatory, wouldn't it?)

As to categories, if there were only two categories - houses of worship and 
commercial institutions - life would be a lot simpler. But there is a lot 
between these two categories and I think the world of religiously, culturally, 
politically, or socially affiliated non-profits raises a lot of complicated 
problems.

But basically, I think my disagreement with you comes down to this. I certainly 
agree that if Title VII required a synagogue to hire a Baptist as a rabbi, that 
would be unconstitutional (as well as idiotic).  But I would not be arguing 
that it is unconstitutional because it violates the free speech clause 
prohibition against viewpoint discrimination because Title VII doesn't prohibit 
discrimination on political grounds. Would you?

I have considerably sympathy for the CLS freedom of association argument 
(although I worry about how far such an argument might extend.) But I continue 
to believe that extending the "religion is a viewpoint of speech protected by 
the free speech clause prohibition against viewpoint discrimination" argument 
is fraught with perils.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Wednesday, May 12, 2010 10:11 AM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

Alan, you are assuming that any individual could make this claim, and I agree 
that that sounds problematic.

But at the level of groups organized around a viewpoint, the distinction is 
fundamental. The Hastings written policy was that groups could enforce their 
ability to organize around political viewpoints but could not enforce their 
ability to organize around religious viewpoints. That is viewpoint 
discrimination.

It is also a category mistake.  The civil rights laws prohibited religious 
discrimination with a view to the commerical world.  Congress never meant to 
require Baptist rabbis and atheist church elders.  A ban on religious 
discrimination as applied to a religious organization is as idiotic as a ban on 
political discrimination as applied to a political party.  Hastings has 
borrowed the Congressional list of protected categories and applied it in a 
wholly inappropriate context.

Quoting "Brownstein, Alan" :

> I'm sorry to be late joining this thread, but I thought that the
> argument in the CLS brief that Hastings engaged in viewpoint
> discrimination by prohibiting groups from discriminating against
> individuals on religious grounds, while permitting discrimination on
> political grounds, made no sense to me. This is, after all, a pretty
> common distinction that is drawn in many civil rights statutes. I
> appreciate the need for religious accommodations in many of these
> statutes, but I never thought that if Title VII did not have the
> exemption for religious organizations that currently exists that the
> law would be unconstitutional because it is viewpoint discriminatory.
>
> Moreover, the implications of this argument are problematic to say
> the least. CLS seemed to arguing that it was legitimate, even
> praiseworthy, for nonreligious clubs to be prohibited from
> discriminating on the basis of religion, even though no clubs were
> prohibited from discriminating on political grounds. If
> distinguishing between religious and political discrimination is
> viewpoint discrimination prohibited by the free speech clause,
> wouldn't it also be viewpoint discrimination if the Hastings policy
> allowed the CLS to discriminate against liberals, while prohibiting
> the Marxist Club from discriminating against Christians. Indeed,
> would it not be unconstitutional viewpoint discrimination to ever
> protect individuals against discrimination based on religious beliefs
> without also prohibiting discrimination based on political belief?
> Why couldn't a nonreligious individual who has strong political
> convictions argue that a law providing individuals who hold (and
> express) religious beliefs more protection than he receives against
> discrimination based on his political beliefs is unconstitutional
> viewpoint discrimination.
>
> Is this really a road we want to go down?
>
> Alan Brownstein
>
>
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry,
&

RE: A real-life on-campus example

[Brownstein, Alan]

I'm sorry to be late joining this thread, but I thought that the argument in 
the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting 
groups from discriminating against individuals on religious grounds, while 
permitting discrimination on political grounds, made no sense to me. This is, 
after all, a pretty common distinction that is drawn in many civil rights 
statutes. I appreciate the need for religious accommodations in many of these 
statutes, but I never thought that if Title VII did not have the exemption for 
religious organizations that currently exists that the law would be 
unconstitutional because it is viewpoint discriminatory.

Moreover, the implications of this argument are problematic to say the least. 
CLS seemed to arguing that it was legitimate, even praiseworthy, for 
nonreligious clubs to be prohibited from discriminating on the basis of 
religion, even though no clubs were prohibited from discriminating on political 
grounds. If distinguishing between religious and political discrimination is 
viewpoint discrimination prohibited by the free speech clause, wouldn't it also 
be viewpoint discrimination if the Hastings policy allowed the CLS to 
discriminate against liberals, while prohibiting the Marxist Club from 
discriminating against Christians. Indeed, would it not be unconstitutional 
viewpoint discrimination to ever protect individuals against discrimination 
based on religious beliefs without also prohibiting discrimination based on 
political belief? Why couldn't a nonreligious individual who has strong 
political convictions argue that a law providing individuals who hold (and 
express) religious beliefs more protection than he receives against 
discrimination based on his political beliefs is unconstitutional viewpoint 
discrimination.

Is this really a road we want to go down?

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, May 11, 2010 10:21 AM
To: Law & Religion issues for Law Academics
Subject: RE: A real-life on-campus example

Hastings' initial policy prevented CLS from "discriminating" on religious 
grounds but did not prevent political groups from "discriminating" on political 
grounds. (As Michael McConnell's brief pointed out, with quotes from, if I 
remember correctly, Larry Tribe, Justice Brennan, and Justice O'Connor, the 
ability to choose those who determine an expressive association's message is 
integral to the freedom of expressive association and constitutive of the 
expressive associational group; considering it to be discrimination in the way 
we ordinarily use that term is a category error.) Probably because it realized 
that such a policy was indefensible, Hastings tried to switch to an all-comers 
policy that supposedly would apply to all groups. That all comers policy is the 
one Doug is referencing as being egregiously unconst as to both political and 
religious groups. The record seems to support the view that Hastings continued 
to apply its original policy against CLS, along with the all-comers policy, 
though one could argue that the latter encompasses the former. The record also 
shows no enforcement of the all comers policy against groups, including 
Hastings Outlaw, that had provisions in their constitutions requiring officers 
to support the group's mission.

Mark Scarberry
Pepperdine

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, May 11, 2010 10:06 AM
To: Law & Religion issues for Law Academics
Subject: RE: A real-life on-campus example

Doug may very well be right, but I must say that plowing through the oral 
argument didn't highlight the difference between CLS and, say, the Young 
Democrats.  If Hastings is indeed selecting out religious groups for special 
"all comers" non-discrimination with regard to eligibility for leadership 
positions, then I agree it's a no brainer.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, May 11, 2010 12:01 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

CLS does not claim that it should be treated differently from political groups. 
 Hastings' written rule treated religious groups differently, because it 
prohibited religious discrimination but did not prohibit political 
discrimination. The only groups that could not organize around a viewpoint were 
religious group.  It's all comers rule is egregiously unconstitutional as to 
political groups as well as to religious groups.


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RE: A real-life on-campus example

[Brownstein, Alan]

I'm sorry to be late joining this thread, but I thought that the argument in 
the CLS brief that Hastings engaged in viewpoint discrimination by prohibiting 
groups from discriminating against individuals on religious grounds, while 
permitting discrimination on political grounds, made no sense to me. This is, 
after all, a pretty common distinction that is drawn in many civil rights 
statutes. I appreciate the need for religious accommodations in many of these 
statutes, but I never thought that if Title VII did not have the exemption for 
religious organizations that currently exists that the law would be 
unconstitutional because it is viewpoint discriminatory.

Moreover, the implications of this argument are problematic to say the least. 
CLS seemed to arguing that it was legitimate, even praiseworthy, for 
nonreligious clubs to be prohibited from discriminating on the basis of 
religion, even though no clubs were prohibited from discriminating on political 
grounds. If distinguishing between religious and political discrimination is 
viewpoint discrimination prohibited by the free speech clause, wouldn't it also 
be viewpoint discrimination if the Hastings policy allowed the CLS to 
discriminate against liberals, while prohibiting the Marxist Club from 
discriminating against Christians. Indeed, would it not be unconstitutional 
viewpoint discrimination to ever protect individuals against discrimination 
based on religious beliefs without also prohibiting discrimination based on 
political belief? Why couldn't a nonreligious individual who has strong 
political convictions argue that a law providing individuals who hold (and 
express) religious beliefs more protection than he receives against 
discrimination based on his political beliefs is unconstitutional viewpoint 
discrimination.

Is this really a road we want to go down?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, May 11, 2010 10:21 AM
To: Law & Religion issues for Law Academics
Subject: RE: A real-life on-campus example

Hastings' initial policy prevented CLS from "discriminating" on religious 
grounds but did not prevent political groups from "discriminating" on political 
grounds. (As Michael McConnell's brief pointed out, with quotes from, if I 
remember correctly, Larry Tribe, Justice Brennan, and Justice O'Connor, the 
ability to choose those who determine an expressive association's message is 
integral to the freedom of expressive association and constitutive of the 
expressive associational group; considering it to be discrimination in the way 
we ordinarily use that term is a category error.) Probably because it realized 
that such a policy was indefensible, Hastings tried to switch to an all-comers 
policy that supposedly would apply to all groups. That all comers policy is the 
one Doug is referencing as being egregiously unconst as to both political and 
religious groups. The record seems to support the view that Hastings continued 
to apply its original policy against CLS, along with the all-comers policy, 
though one could argue that the latter encompasses the former. The record also 
shows no enforcement of the all comers policy against groups, including 
Hastings Outlaw, that had provisions in their constitutions requiring officers 
to support the group's mission.

Mark Scarberry
Pepperdine

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson
Sent: Tuesday, May 11, 2010 10:06 AM
To: Law & Religion issues for Law Academics
Subject: RE: A real-life on-campus example

Doug may very well be right, but I must say that plowing through the oral 
argument didn't highlight the difference between CLS and, say, the Young 
Democrats.  If Hastings is indeed selecting out religious groups for special 
"all comers" non-discrimination with regard to eligibility for leadership 
positions, then I agree it's a no brainer.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, May 11, 2010 12:01 PM
To: religionlaw@lists.ucla.edu
Subject: RE: A real-life on-campus example

CLS does not claim that it should be treated differently from political groups. 
 Hastings' written rule treated religious groups differently, because it 
prohibited religious discrimination but did not prohibit political 
discrimination. The only groups that could not organize around a viewpoint were 
religious group.  It's all comers rule is egregiously unconstitutional as to 
political groups as well as to religious groups.

Quoting Sanford Levinson :

> I can't figure out exactly why religious groups deserve to be treated
> differently from, say, the young Democrats or Republicans or the
> Sierra Club.  The Constitution says not that we have to treat
> religion differently, but, rather, that we have to keep engaging in
> an endles

RE: Factual Clarification re CLS

[Brownstein, Alan]

Eugene's examples are all pretty powerful. They also demonstrate the arguably 
very weak utility of limited public forum doctrine for protecting freedom of 
association. Cases like Widmar and Good News Club are distinguishable because 
the Court has made it clear that limited public forum parameters cannot be 
viewpoint discriminatory. There is no Supreme Court case law (at least to my 
recollection) that prohibits the creation of a limited public forum that 
restricts access in a way that limits associational freedom.

I think that an all purpose, completely open, designated public forum should be 
treated just like a traditional public forum. I would argue that this rule 
would prohibit conditioning access on a group's waiving its associational 
freedom rights. But once we are in the world of limited public forums, the 
issue becomes much more complicated. We have a constitutional framework for 
reviewing viewpoint discriminatory, content discriminatory, and content neutral 
restrictions on access to a limited public forum. But what is the framework for 
reviewing a limited public forum that is defined in a way that burdens 
associational freedom? Is the freedom to determine the voting members of an 
organization more important than the freedom to express one's views on a 
particular subject. Content discriminatory regulations restrcting speech in a 
limited public forum are upheld under very deferential review.

It may very well be that a limited public forum that controls access through 
restrictions on associational freedom is of far less value to expressive groups 
than a more open forum. But state institutions are permitted to create limited 
public forums that are only of marginal use to speakers, just as they are 
permitted not to create a limited public  forum in the first place. What state 
institutions cannot do is to eggregiously distort public debate -- hence the 
prohibition against viewpoint discrimination. The best argument for CLS is that 
restrictions on the right of groups to determine their voting members distort 
debate as opposed to weakening debate.

Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, May 11, 2010 6:53 AM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

Rick Duncan writes:  "Consider this alternative description: Hastings is 
attempting to create a designated limited public forum for all student groups 
that are willing to waive their right to expressive association by being open 
to include all comers as members, including those who would detract from the 
group's expressive purposes Why is this condition on expressive association 
not an unconstitutional condition?"

I think the answer is that it's just a constitutionally permissible 
decision not to subsidy constitutionally protected activity.  Consider some 
examples:

A state is attempting to subsidize a wide range of medical care, but 
not for abortions.  If you want an abortion, get it with your own money.  
Constitutional.

A state is allowing a wide range of medical care in its hospitals, but 
not abortions.  If you want an abortion, get it on your private property.  
Constitutional.

A state is attempting to subsidize public education, but not private 
education.  If you want private education, get it with your own money.  
Constitutional.

The federal government is attempting to create a designated public 
forum -- a subsidy administered through 501(c)(3) tax deductions for charitable 
contributions -- for pretty much all nonprofit speakers, but only those who 
don't use tax-exempt money for constitutionally protected electioneering, even 
though this detracts from the group's expressive purpose.  If you want to 
electioneer, do it with unsubsidized funds.  Constitutional.

A university is attempting to create a designated public forum for all 
student groups that are run by students, but not those who exercise their right 
to expressive association by being run chiefly by outsiders, even when their 
expressive purpose would be better served by being run by outsiders (e.g., if 
the group belongs to an ideological movement that stresses central control by a 
church, or operation by the community or some subset of the community rather 
than by students).  If you want to associate in a way that is run by outsiders, 
do it with your own money and your own property.  Constitutional, right?

A university is attempting to create a designated public forum for all 
student groups that organize themselves democratically, but not those who 
exercise their right to expressive association by organizing themselves in a 
way in which the group is dominated by one student leader, even when their 
expressive purpose would be better served by being run nondemocratically.  If 
you

RE: Factual Clarification re CLS

[Brownstein, Alan]

Mark's helpful post provides a thoughtful response to my earlier question -- 
but in doing so, it raises another question about the potential scope of the 
Court holding in the CLS case.

In my view, the forum that Hastings created was essentially a designated public 
forum, not a designated limited public forum. As such, it had to be open to 
everyone on pretty much the same terms as a traditional public forum. On that 
understanding, I think one can argue that a student group's right of 
associational freedom extends not only to the power to determine who may serve 
as group leaders or be counted as voting members. It would also extend to 
determining who may participate in group events and discussions as well.

Mark's response suggests that the forum Hastings created was more of a 
designated limited public forum than a designated public forum. It has 
parameters designed to serve a particular purpose --  "to promote a diversity 
of viewpoint among groups for the benefit of the entire student body." Assuming 
that this is a legitimate parameter to impose on a limited public forum, 
Hastings may deny access to the forum to groups that do not fit within the 
forum's parameters. A group that excluded students from participating in events 
and discussions would fail to satisfy the forum's requirements and could be 
denied access to it.

What troubles me about this argument is that it depends so much on the nature 
and parameters of the forum that Hastings or some other university or law 
school chooses to create. That leads me to this question: If the parameters of 
the forum a university creates may permit the university to restrict a student 
group's associational freedom with regard to controlling access to its events 
and discussions, might one argue that different parameters -- say parameters 
designed to create internal dialogue and discussion within student groups -- 
would permit the university to restrict a student group's associational freedom 
with regard to choosing its own leaders and voting members. I understand the 
argument one might make that Hastings did not in fact create such a forum so 
the possibility that it, or another university, could do so would not preclude 
a decision favoring  CLS in this litigation. But this analysis would make a CLS 
victory of relatively limited value. A different university, creating a more 
limited forum for a different purpose, would not be bound by the decision.

For the CLS case to apply more broadly, the Court would have to conclude that a 
university cannot constitutionally create a designated limited public forum 
that denies access to groups that impose restrictions on who may serve as 
leaders or be counted as voting members. That holding raises the question of 
why a university should be prohibited from creating this kind of limited public 
forum because of the burden it imposes on associational freedom, but may create 
a limited public forum requiring all groups seeking access to it to open their 
events and discussions to everyone -- notwithstanding the burden such 
requirements impose on associational freedom.

Mark quite fairly notes that he has not yet considered this question. He also 
notes that the Court does not need to reach it to decide the CLS case. I think 
that is correct. But I also think that the more the Court's decision in the CLS 
case is based on the specific purpose for, and parameters of, the forum 
Hastings created, the more limited will be the scope and applicability of its 
holding and analysis.

Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Monday, May 10, 2010 3:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: Factual Clarification re CLS

Alan’s question is (as always) a fair one.

I’d say that the government’s (Hastings Law School’s) interest in having the 
message promoted by the groups in its forum available to all students is quite 
consistent with allowing those groups to have their own points of view, free 
from being taken over by a hostile majority. The claim that a group should be 
allowed to close its meetings to non-adherents is thus at least “one step 
beyond”* the claim that it should be able to have standards for those who set 
its agenda and speak its message. In other words, because the explicit purpose 
of the forum is to promote a diversity of viewpoint among groups for the 
benefit of the entire student body, requiring groups to allow any student to 
hear the messages put forward by the group helps to advance the purpose of the 
forum. I suppose this would be similar to saying that the student group in 
Rosenberger would have to allow any student to have a copy of its magazine, but 
would not have to allow any student to become an editor of the magazine.

To the extent that participation in discussion by students who are 
non-adherents is consistent with the putting forwa

RE: Factual Clarification re CLS

[Brownstein, Alan]

I understand that the facts of CLS v. Martinez case are limited to voting 
membership and eligibility for leadership positions. But if the foundation of 
the CLS claim is that it is being required to sacrifice its freedom of 
association rights to obtain access to a designated public forum, why wouldn't 
those associational freedom rights also extend to deciding to who may attend 
meetings and participate in discussions?

Just asking.

Alan Brownstein
UC Davis School of Law

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com
Sent: Monday, May 10, 2010 2:42 PM
To: icl...@law.gwu.edu; religionlaw@lists.ucla.edu
Subject: Re: Factual Clarification re CLS

Ira Lupu writes:


In a law school, there is certainly a rational basis for coming down on the 
side of non-exclusivity as a condition of access to the forum and its 
privileges -- among other things, all-comers increases the likelihood of 
dynamic exchange of views, something a law school may legitimately value.  CLS 
is not a church, and neither is Outlaw, and yet (if Hastings prevails) both 
will wind up with (only) the members sympathetic to their respective purposes.

But isn't that purpose fully served by requiring that campus groups allow all 
comers to attend meetings and participate in discussions?  Does voting 
membership or eligibility for leadership positions further serve that purpose?

And campus groups are not only discussion groups.  Quite often they are action 
groups as well.  For example, a CLS group and an Outlaw group at GWU may both 
want to present testimony at a DC Council hearing on a same-sex marriage bill.

Art Spitzer

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RE: CLS v. Martinez and the hiring question

[Brownstein, Alan]

While one can never know what the Supreme court will do with a case, I see no 
serious connection between CLS v. Martinez and the question of whether 
religious organizations that receive government funds to provide social 
services can discriminate on the basis of religion in hiring employees to staff 
those programs. If Hastings College of Law contracted with CLS to provide 
general tutoring services in first year classes and CLS refused to hire tutors 
who did not adhere to its statement of faith, you would have a case on point. 
In Martinez, Hastings neither sponsors nor endorses the activities of 
registered student organizations and provides these student group access to 
facilities and support for the purpose of creating an opportunity for the 
expression of diverse viewpoints. No one is hired to provide educational 
services to students. The CLS brief begins with the sentence "This case 
involves a public law school's exclusion of a group of religious law students 
from a forum for speech."

This isn't just the wrong tree. It's an entirely different forest.

Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ted Olsen
Sent: Tuesday, March 30, 2010 2:00 PM
To: Law & Religion issues for Law Academics
Subject: CLS v. Martinez and the hiring question

So I was planning to write something up about the ramifications CLS v. 
Martinez
 might have for the longstanding debate over whether federally funded religious 
groups (World 
Relief,
 World 
Vision)
 should be forced to hire employees that disagree with the organizations' 
statements of faith (or, alternatively worded, should be allowed in hiring to 
discriminate on the basis of religion).

It seems likely to me that a major reason the White House and DOJ haven't said 
anything about this is because this case was coming and would significantly 
determine the answer to the question.

BUT since CLS is placing a fair bit of emphasis on university's place as 
"peculiarly a marketplace of ideas," I suppose the court could decide this in a 
way that would have little bearing on hiring at, say, Catholic Charities, World 
Vision, or Samaritan's Purse.

Am I barking up the wrong tree? Is CLS just a higher ed access to "campus 
forum"/funds case? Or is this the antidiscrimination rules vs. religious 
identity battle so many have been waiting for?

Ted Olsen
Managing Editor, News & Online Journalism
Christianity Today
http://www.christianitytoday.com/ct/
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RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

Figuring out the just how far picketers can be kept from a funeral, assuming 
they can be kept some distance away at all), is going to be hard to determine, 
as Eugene suggests. I might argue that the distances addressed in Frisby and 
Madsen are distinguishable in at least one sense. In both cases the area in 
which speech could be legitimately restricted was based pretty exclusively on 
place parameters. Because there are special privacy interests inherent in one's 
home, residential picketing can be restricted to a limited extent. There was no 
suggestion in Frisby that the privacy interests of the captive audience changed 
significantly with time. 

Picketing at a funeral implicates time as well as place. There is a certain 
period of time, during the funeral, when the mourners are uniquely vulnerable 
and deserve special respect for their privacy. Restrictions on picketing at a 
cemetery targeting a gravesite after the funeral is over might require a 
different analysis and have to be reduced in scope or perhaps rejected 
entirely. Conversely, the state might be justified in restricting picketing at 
a greater distance that was accepted in Frisby during the relatively brief time 
the funeral takes place.

It is also often the case that cemeteries are generally very open spaces where 
visual lines of sight extend for a significant distance.

Alan Brownstein 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, March 11, 2010 10:08 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I appreciate Alan's arguments, but let me probe the Frisby v. Schultz 
analogy a bit:  The Court stressed in Frisby that the law was constitutional 
partly because it left open ample alternative channels, including the ability 
to march through the neighborhood.  And Madsen v. Women's Health Center struck 
down a ban on picketing (albeit contained in a content-neutral injunction 
rather than a content-neutral ordinance) within 300 feet of a residence.  
Finally, Frisby followed Carey v. Brown, which struck down a content-based 
residential picketing ban, and Frisby stressed the neutrality of the Brookfield 
ordinance in distinguishing Carey.

So this suggests that, even when it comes to content-neutral 
restrictions (as opposed to the content-based one involved in this case), 
Frisby doesn't justify a restriction on speech that's some distance from the 
funeral; where the line would be drawn is hard to tell, but it seems that 1000 
feet is pretty far outside the line.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Wednesday, March 10, 2010 11:43 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Cert. granted in Snyder v. Phelps.
> 
>   As always, Eugene raises good points and asks good questions. He is
> correct that I would not consider speech expressed on a web site to be 
> covered by
> my analysis.
> 
>   As to the question of whether it is possible that some attendees might 
> be
> open to the protestor's message, a court is going to have to reach some
> conclusion about the social reality of the situation. In Frisby v. Shultz, for
> example, the Court concluded that residential picketers "generally do not 
> seek to
> disseminate a message to the general public, but to intrude upon the targeted
> resident and to do so in an especially offensive way." Perhaps a similar
> conclusion about the social reality of the situation might apply to picketers 
> at a
> funeral.
> 
>   The Court went on to say in Frisby that "even if some such picketers 
> have
> a broader communicative purpose, their activity nonetheless inherently and
> offensively intrudes on residential privacy." I take that language to means 
> that the
> Court will balance what it believes is the picketers' relatively limited 
> interest in
> communicating to the general public against the egregious and offensive means
> they employ in targeting homeowners (in Frisby) or mourners at a funeral (in 
> this
> case) in order to communicate that public message.
> 
>   Of course, Frisby involves a content-neutral speech regulation, not a
> content-based penalty. Justifying civil liability based on the content of a 
> speaker's
> message raises more serious free speech concerns. But Frisby involves a
> content-neutral regulation of speech that almost always communicates a 
> negative
> message. (Not too many people picket in front of someone's home to express
> compliments to the homeowner.) Perhaps there is less analytic distance in 
&g

RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

As always, Eugene raises good points and asks good questions. He is 
correct that I would not consider speech expressed on a web site to be covered 
by my analysis.

As to the question of whether it is possible that some attendees might 
be open to the protestor's message, a court is going to have to reach some 
conclusion about the social reality of the situation. In Frisby v. Shultz, for 
example, the Court concluded that residential picketers "generally do not seek 
to disseminate a message to the general public, but to intrude upon the 
targeted resident and to do so in an especially offensive way." Perhaps a 
similar conclusion about the social reality of the situation might apply to 
picketers at a funeral. 

The Court went on to say in Frisby that "even if some such picketers 
have a broader communicative purpose, their activity nonetheless inherently and 
offensively intrudes on residential privacy." I take that language to means 
that the Court will balance what it believes is the picketers' relatively 
limited interest in communicating to the general public against the egregious 
and offensive means they employ in targeting homeowners (in Frisby) or mourners 
at a funeral (in this case) in order to communicate that public message.

Of course, Frisby involves a content-neutral speech regulation, not a 
content-based penalty. Justifying civil liability based on the content of a 
speaker's message raises more serious free speech concerns. But Frisby involves 
a content-neutral regulation of speech that almost always communicates a 
negative message. (Not too many people picket in front of someone's home to 
express compliments to the homeowner.) Perhaps there is less analytic distance 
in these cases between content-based and content-neutral regulations than is 
true in other cases involving generic time, place, and manner regulations.

Alan Brownstein





-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, March 10, 2010 9:25 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I appreciate Alan's points (though I probably disagree with him on the 
bottom line), and they might have been relevant to picketing in front of the 
funeral.  But here, as Alan's first sentence acknowledges, liability was based 
partly on the Web site and partly on speech a thousand feet from the funeral.  
I take it that Alan agrees that the first class of speech wouldn't be covered 
by his theory.

But beyond this, let me ask:  I take it that some of the attendees at 
the funeral -- for instance, the decedent's comrades in arms -- might indeed be 
open to the proposition that God disapproves of America's tolerance for 
homosexuality, and that God rightly retaliates against America because of that. 
 Those are certainly not my views, but I can certainly imagine a considerable 
number of people, including fellow soldiers, having them (though only a tiny 
fraction would actually express them on the occasion of the funeral).  
Presumably some of those fellow soldiers, even if upset by the speech, might 
thus be "potentially willing" to hear it (especially since a funeral tends to 
draw many attendees, and not just a very small circle), just as some of the 
residents of Skokie might have been anti-Semites even while many others were 
Jews.  To what extent should that be relevant under Alan's analysis?

Eugene

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RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

By egregiously hurtful, I intended to suggest expressive conduct that is 
hurtful in ways that exceed the more common discomfort people experience when 
they are confronted with offensive and disturbing speech in a public venue. As 
I recall, the Nazi march in Skokie was through the main public streets of the 
town. I don't doubt that this conduct caused distress and anger to the Jewish 
residents of Skokie. But I believe that Nazi pickets rejoicing in the death of 
Jews and insulting the mourners at Jewish funerals would cause a special kind 
of harm to people who are uniquely vulnerable at the time. 


Chip is right that public speech targeting particular victims is protected 
expression. Targeting in private may be proscribed (as in telephone harassment 
laws.) Restrictions on targeting in public are harder to justify. The Phelps 
case involves targeting in public that is egregiously hurtful because of the 
place and time that it occurs and the vulnerability of its victims. It turns at 
least in part on the idea that there is something different about funerals as 
activities, cemeteries as locations, and mourners as people and that free 
speech doctrine can take that difference into account. If that idea is 
mistaken, and speech targeting mourners at a funeral is not considered 
especially egregious expressive conduct, than the case is more easily resolved.

As an aside, the Phelps crew has added Jews to the groups it hates. Recent 
protests take place outside synagogues and Jewish organizations. It is hard to 
argue that they are not targeting Jews in doing so.

Alan Brownstein



Chip Lupu wrote,

The penultimate sentence of Alan's message ("Although there are important 
limiting facts in this case that distinguish it from a clearer “picketing at a 
funeral case,”  at its core this case raises the question of whether speakers 
can choose a location for their offensive speech that  targets their victims in 
an egregiously hurtful way when alternative sites for communicating their 
message to the public are equally accessible and at least as likely to be heard 
by potentially willing listeners") evokes for me the planned march by the 
American Nazi party in Skokie, Illinois in the 1970's.  But in that case, there 
was reason to believe that the Nazi Party really wanted to reach (and frighten) 
the Jews of Skokie as well as reach others.  In Snyder, is there any reason to 
think that Phelps and his crew wanted to reach the Snyder family (and other 
funeral-goers) at all?  Perhaps the inclusion by Phelps of anti-Catholic as 
well as anti-gay messages suggests that the answer is yes.


Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


 Original message 
>Date: Tue, 9 Mar 2010 13:13:32 -0800
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" 
>)
>Subject: RE: Cert. granted in Snyder v. Phelps.  
>To: Law & Religion issues for Law Academics 
>
>   Eugene notes an important distinction (between
>   targeted speech and public speech) and I agree with
>   a lot of what he says. But I still find this case to
>   be a difficult one that lies somewhere between the
>   dissent in Pacifica and the situation in Rowan. If
>   making sure that people who are potentially willing
>   to receive the speaker's message have an opportunity
>   to do so is our primary concern, restricting
>   picketing at a funeral allows the speaker the
>   freedom to communicate his message everywhere else
>   in the city through any medium that is available to
>   communicate public messages. The choice of the
>   funeral as the side for expression does not maximize
>   the likelihood that the speech will be heard by
>   potentially willing listeners. It probably does the
>   reverse. It does maximize the offense and injury the
>   speech will cause to the targeted audience.
>
>
>
>   I think that bans on public broadcasting as in
>   Pacifica are far more restrictive of speech to a
>   willing audience than restricting speech at
>   funerals. I agree with Eugene that speech on a labor
>   picket line should be more protected than telephone
>   calls to strikebreakers, but that is in part because
>   the picket line directly addresses the people the
>   union is trying to reach for legitimate, persuasive
>   reasons - those who do business with the targeted
>   company.  "I'm glad your strikebreaker son  is dead"
>   signs at a strikebreaker's funeral would be a harder
>   case for me.
>
>
>
>   Although there are important limiting facts in this
>   case that distinguish it from a clearer "picketing
>   a

RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

Eugene notes an important distinction (between targeted speech and public 
speech) and I agree with a lot of what he says. But I still find this case to 
be a difficult one that lies somewhere between the dissent in Pacifica and the 
situation in Rowan. If making sure that people who are potentially willing to 
receive the speaker's message have an opportunity to do so is our primary 
concern, restricting picketing at a funeral allows the speaker the freedom to 
communicate his message everywhere else in the city through any medium that is 
available to communicate public messages. The choice of the funeral as the side 
for expression does not maximize the likelihood that the speech will be heard 
by potentially willing listeners. It probably does the reverse. It does 
maximize the offense and injury the speech will cause to the targeted audience.

I think that bans on public broadcasting as in Pacifica are far more 
restrictive of speech to a willing audience than restricting speech at 
funerals. I agree with Eugene that speech on a labor picket line should be more 
protected than telephone calls to strikebreakers, but that is in part because 
the picket line directly addresses the people the union is trying to reach for 
legitimate, persuasive reasons - those who do business with the targeted 
company.  "I'm glad your strikebreaker son  is dead" signs at a strikebreaker's 
funeral would be a harder case for me.

Although there are important limiting facts in this case that distinguish it 
from a clearer "picketing at a funeral case,"  at its core this case raises the 
question of whether speakers can choose a location for their offensive speech 
that  targets their victims in an egregiously hurtful way when alternative 
sites for communicating their message to the public are equally accessible and 
at least as likely to be heard by potentially willing listeners. I'm still 
thinking about the answer to that question.

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 09, 2010 11:36 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

I've thought some about the problem, and my view is that there is a 
substantial difference between speech that is said just to a particular person 
who one is sure is not interested in hearing the message, and speech that is 
said to a broader group that might well include willing listeners.  The former 
speech is likely to have at most modest value, at least to the listener; the 
latter speech might have considerably more value.  That's a rough cut, and 
there might be a different result as to, for instance, speech to political 
candidates or political officials (see, e.g., the U.S. v. Popa telephone 
harassment case from the D.C. Circuit several years ago).  And there might be 
some contexts where the listener would have to say no, and the speaker would 
thus get one bite at the apple, rather than having liability be imposed even 
for the first approach on the theory that the speaker must have known the 
listener was uninterested.  But I think some such distinction is necessary, and 
is in fact doing the work here.

One reason I think so flows from playing out this hypothetical in 
other contexts.  Say, for instance, that union members call strikebreakers to 
tell them what scum the strikebreakers are; I'm pretty sure that this would 
rightly be restrictable under telephone harassment statutes, at least after the 
recipients say "stop calling me" and perhaps even before.  Cf. Rowan v. U.S. 
Post Office Dep't, upholding householders' powers to stop further mailings to 
their homes.  But I take it that the same speech said on the picket line would 
be protected.  The difference, I think, is that at least some people who see 
the speech might be willing listeners (even if many of the target audience are 
not).  Barring the speech to protect the unwilling listeners would interfere 
with speech to the willing listeners; barring telephone harassment would not, 
precisely because it is heard just by the unwilling listener.

The same is true even for speech that isn't particularly offensive 
because of its content.  If someone calls to tell me to repent and accept 
Jesus, and I tell him to stop calling me, I think the law can give my request 
legally binding effect (again, see Rowan).  But billboards and demonstrations 
to that effect must be protected, even if I can't avoid seeing the message.

Perhaps I'm wrong here; but I do think that Rowan supports such a 
distinction, and that the distinction is the best defense both for Rowan and 
for telephone harassment law.  Justice Brennan's FCC v. Pacifica dissent 
likewise supports such a distinction:  "In Rowan, the Court upheld a statute, 
permitting householders to require that mail advertisers stop sending them lewd 
or offensive materia

RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

Suppose someone called the grieving father on the phone and told him how happy 
the caller was to learn that his son was dead because that demonstrated G-d's 
anger over United States tolerance of homosexuality etc. Would that be 
actionable as IIED or, alternatively, telephone harassment? Either action would 
necessarily be content-based. Would it make any difference if the caller 
notified the press that they were placing such calls and received media 
attention for doing so?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Monday, March 08, 2010 12:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Cert. granted in Snyder v. Phelps.

Aren't we running issues together? The question of whether liability attaches 
for picketing at a funeral (assuming the statute creates a tort right of 
action)is different than the question of whether the First Amendment  allows 
damages  for later comments no matter how offensive on the internet.
Second, the invasion of privacy here raises free speech issues which have been 
controversial since Time v Hill,which is whether a right to privacy exists in 
people who are ,voluntarily or not, in the public eye.
Third, the question outrageous conduct may be a facially neutral rule,but 
inevitably in practice it involves subjective content based judgments. Would a 
jury have found  that Snyder's' right to be free of outrageous conduct was 
violated by pickets bearing signs blaming Cheney for their son's death? if 
not,then isn't viewpoint discrimination inherent in the tort?
I really don't know how this case should be decided,but it seems more 
complicated than the discussion so far.The case also should raises the question 
of whether,and if and if so when, bruised feeling ought to count for much in 
the context of regulating  public debate.
Marc Stern



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, March 08, 2010 1:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert. granted in Snyder v. Phelps.
The state could regulate all picketing by positive law such as a statute or a 
regulation, so long as it were content neutral, right?  But can't use an 
established tort to accomplish the same thing in a much smaller set of cases?  
Is that your point Eugene?

What is being regulated by the tort:  outrageous invasion of privacy.  Isn't 
that content neutral?

Does a secondary effects analysis play here at all?  The tort isn't targeting 
speech per se, nor the content of the speech in terms of the topic -- just the 
deleterious effects of it in a very limited circumstance.

On another plane, should the Constitution protect this sort of conduct at all?  
And if not, is the distinction between a tort based claim used as a regulation 
and a legislative enactment or regulatory rule sufficiently meaningful to 
justify different results?

Steve

On Mon, Mar 8, 2010 at 1:34 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   My fear is that the Justices might just think the decision below is 
wrong; the cert petition only alleged a split with a Sixth Circuit case that 
upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly 
suggests) is quite different from the content-based decision in this case.

   Nonetheless, there is a good deal of tension in lower court cases as to 
whether the IIED tort is unconstitutional only when the claim is brought by a 
public figure based on speech on matters of public concern, or also when it's 
brought by a private figure.  I'm not sure that there's a square split among 
circuit cases and state supreme court cases, but I think there is plenty of 
disagreement among appellate cases generally, and possibly a square split that 
the clerk found, even if the petition didn't allege it.

   Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Ira 
> (Chip) Lupu
> Sent: Monday, March 08, 2010 10:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
>
> The 4th Circuit held, on First Amendment grounds, that the state could not 
> attach
> tort liability (intentional infliction of emotional distress, intrusion upon 
> seclusion,
> and civil conspiracy) to the protests engaged in by Phelps and others near the
> funeral of the deceased soldier, or to the later-posted comments on Phelps
> website.  Is there a Circuit split on cases of this sort?  I am wondering 
> what led
> four (or more) Justices to vote for a cert grant in this case (especially in 
> light of
> what seems to be the well-recognized state power to create content-neutral and
> viewpoint-neutral regulations abou

RE: Cert. granted in Snyder v. Phelps.

[Brownstein, Alan]

I have no idea what the Justices are thinking about this issue. But it is worth 
noting that in Hill v. Colorado, some of the dissenting justices argued that it 
would be better for free speech purposes for a state to adopt a narrower 
ordinance that singles out harassment or other expressive activities that may 
be constitutionally restricted as opposed to a broader, content neutral statute 
that prohibits some clearly protected speech. Of course, that approach would 
require the Court to come up with a constitutionally acceptable definition of 
harassment -- something the Court has never done and has avoided in the past 
(e.g. it never grants cert. to telephone harassment cases.)

It is also true, as Eugene suggests, that Intentional Infliction of Emotional 
Distress is very much a speech-based tort and that we have nothing like the 
guidance as to how courts are to address free speech concerns involving this 
cause of action that we have in defamation cases.

Alan Brownstein



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, March 08, 2010 10:34 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Cert. granted in Snyder v. Phelps.

My fear is that the Justices might just think the decision below is 
wrong; the cert petition only alleged a split with a Sixth Circuit case that 
upheld a content-neutral funeral picketing ordinance, which (as Chip implicitly 
suggests) is quite different from the content-based decision in this case.

Nonetheless, there is a good deal of tension in lower court cases as to 
whether the IIED tort is unconstitutional only when the claim is brought by a 
public figure based on speech on matters of public concern, or also when it's 
brought by a private figure.  I'm not sure that there's a square split among 
circuit cases and state supreme court cases, but I think there is plenty of 
disagreement among appellate cases generally, and possibly a square split that 
the clerk found, even if the petition didn't allege it.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
> Sent: Monday, March 08, 2010 10:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Cert. granted in Snyder v. Phelps.
> 
> The 4th Circuit held, on First Amendment grounds, that the state could not 
> attach
> tort liability (intentional infliction of emotional distress, intrusion upon 
> seclusion,
> and civil conspiracy) to the protests engaged in by Phelps and others near the
> funeral of the deceased soldier, or to the later-posted comments on Phelps
> website.  Is there a Circuit split on cases of this sort?  I am wondering 
> what led
> four (or more) Justices to vote for a cert grant in this case (especially in 
> light of
> what seems to be the well-recognized state power to create content-neutral and
> viewpoint-neutral regulations about picketing in close proximity to a funeral
> service).
> 
> 
> Ira C. Lupu
> F. Elwood & Eleanor Davis Professor of Law
> George Washington University Law School
> 2000 H St., NW
> Washington, DC 20052
> (202)994-7053
> My SSRN papers are here:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
> 
> 
>  Original message 
> >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST)
> >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman
> )
> >Subject: Cert. granted in Snyder v. Phelps.
> >To: religionlaw@lists.ucla.edu
> >
> >   Though not framed by the Court as raising a question
> >   of religious liberty, this case will be of interest
> >   to those concerned with issues related`to religious
> >   speech.  From ScotusBlog:  "The Supreme Court,
> >   taking on the emotionally charged issue of picketing
> >   protests at the funerals of soldiers killed in
> >   wartime, agreed Monday to consider reinstating a $5
> >   million damages verdict against a Kansas preacher
> >   and his anti-gay crusade. . . .  The funeral
> >   picketing case (Snyder v. Phelps, et al., 09-751)
> >   focuses on a significant question of First Amendment
> >   law:  the degree of constitutional protection given
> >   to private remarks made about a private person,
> >   occurring in a largely private setting.  The family
> >   of the dead soldier had won a verdict before a jury,
> >   but that was overturned by the Fourth Circuit Court,
> >   finding that the signs displayed at the funeral in
> >   western Maryland and later comments on an anti-gay
> >   website were protected speech.   The petition for
> >   review seeks the Court’s protection for families
> >   attending a funeral from “unwanted” remarks or
> >   displays by protesters."
> >
> >   Jeffrey Shulman
> >
> >   Jeffrey Shulman
> >   Associate Professor
> >   Legal Research and Writing
> >   Georgetown University Law Center
> >
> >

RE: Religious exemptions and preferences for the religious over the nonreligious

[Brownstein, Alan]

I would only add two caveats to Doug's point. First, in some cases (although 
not this one), it may be possible for the religious liberty claimant to give up 
what I call the surplus secular benefit he  receives when a religious liberty 
accommodation that coincides with self interest is granted. In that case, the 
granting of an accommodation may be permissible. Second, this general problem 
helps to demonstrate why Justice Scalia's creation of a hybrid rights analysis 
to distinguish Wisconsin v. Yoder in the Smith case was so wrongheaded. One 
area where religious liberty accommodations are particularly inappropriate is 
conduct that constitutes the exercise of a fundamental right. Religious 
individuals cannot be provided preferences with regard to their freedom of 
speech, right to vote, right to marry, right to have children or other areas of 
protected conduct.

Alan Brownstein
UC Davis School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, March 02, 2010 1:30 PM
To: Law & Religion issues for Law Academics; Volokh, Eugene
Cc: 'Law & Religion issues for Law Academics'
Subject: Re: Religious exemptions and preferences for the religious over the 
nonreligious

I have always said that if your religious claim aligns too closely with self 
interest, you will lose, and that is the right result even if it is sometimes 
an unfortunate result.  My standard classroom example has been conscientious 
objection to paying taxes, but this may become the new standard example.

The court may write the opinion in a variety of ways.  It find the claim 
insincere, or it may find that the claim invites many similar claims that will 
be insincere, or it may find a compelling interest in not trying to adjudicate 
all thsoe claims, or it may say that allowing such a claim discriminates 
against people of other faiths and nonbeleivers who can't make the same claim, 
or it may even recognize that allowing such a claim creates pressure to 
convert.  In terms of substantive neutrality, the impact on secular 
self-interest changes incentives for every married prisoner -- and in the tax 
example, for substantially the whole adult population.  These incentive effects 
may collectively be much greater than the burden on religious practice of those 
who would genuinely qualify with a sincere claim.

Quoting "Volokh, Eugene" :

>In Henderson v. Hubbard, 2010 WL 599886 (E.D. Cal.
> Feb. 18), a prison inmate claimed that the denial of conjugal visits
> with his wife violated RLUIPA and the Free Exercise Clause because he
> believes that "as a Muslim, he is required to engage in sexual
> relations with his wife."  Assume that his belief is sincere; I
> suppose it might well be; and let's even set aside whether the
> exception was justified under strict scrutiny.  (The court didn't
> reach that, because it rejected the claim on statute of limitations
> grounds.)
>
>Instead, assume that a prison decided to grant this
> exemption from the generally applicable ban on conjugal visits, on
> its own judgment or as a matter of state law.  Would such an
> exemption limited to religious objectors be constitutionally
> permissible?  Or would it be an undue preference for the religious
> over the nonreligious, and on top of that one that pressures people
> into claiming religious beliefs and participating in religious
> practices in order to do that?  (I assume that the incentive to claim
> religious beliefs posed in this case is much greater than the
> incentive to sit through a graduation prayer present in Lee v.
> Weisman.)
>
>Eugene
>



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

[Brownstein, Alan]

If it isn't too inappropriate to mention my own work here, Leslie Jacobs and I 
have a short chapter on the head scarf debate in our book, Global Issues in 
Freedom of Speech and Religion (Thomson/West). The book is a compilation of 
edited cases and commentary and includes 160 pages of materials from, or 
relating to,  8 or 9 different countries and the European Court  dealing with a 
broad range of church-state issues.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, October 04, 2009 1:49 PM
To: Law & Religion issues for Law Academics
Subject: Comparative Law of Religious Liberty

I would like to add a comparative unit to my Religion and the Constitution 
class. Can anyone on the list recommend materials covering, say, the French 
approach to non-establishment? Is there an article or a case or two that I 
could assign my students to give them some insights into the French approach to 
non-establishment (perhaps something good on the head scarf issue)? Off list 
responses are fine.

Thanks.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902

"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)




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RE: Evaluating candidates based on their religious views

[Brownstein, Alan]

I don't doubt that there is a line here, but I'm having a lot of trouble 
drawing it.  Is the critical fact that voters are rejecting individuals one at 
a time while discriminatory policies operate more generally (sort of a 
distinction between administrative and legislative action)? And are we only 
talking about voters rejecting individuals who work directly for the 
government? What about voter rejection of individual contracts with suppliers 
of goods because of the supplier's race or religion? What about government 
grants? Would it be constitutional to require that every grant a state provided 
to a non-profit organization must be subject to voter approval even though that 
results in the consistent rejection of grants to faith-based organizations 
representing minority religions? What about referenda reviewing land use 
decisions? Would there be a constitutional problem if the voters continually 
rejected zoning for the houses of worship of minority faiths while they 
approved similar zoning requests for the houses of worship of more popular 
faiths?

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Tuesday, September 22, 2009 1:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: Evaluating candidates based on their religious views

I suspect that the analysis here is based on something even more fundamental 
than constitutional law, which is republican government theory. Since in a 
republican polity the people *are* sovereign, constitutional analysis is 
limited to the institutions and processes the people select to effect their 
chosen governmental structure. Therefore, although a constitution can specify 
that organs of state can determine qualification to vote, and what sorts of 
things voters can do directly (e.g. referendums), the direct powers and the 
limitations on the powers of governmental bodies have to be driven by the 
sovereign public. One example of how this plays out is in amendments: assuming 
one follows the methodology prescribed by the constitution, a constitutional 
amendment can't itself be "unconstitutional." All of which is a long way of 
saying that Eugene is specifically right that if the people wanted the 
institutions of government to be able to limit the motivations on which voters 
can vote, the constitution would have to specify that pretty clearly as a 
limitation on popular sovereignty.

The difference between collusively voting for or against someone based on 
religion (or any other criterion) and collusively voting to enact a law that 
only people fulfilling a particular criterion are eligible for a position, is 
the difference between direct sovereign conduct and the manipulation of 
governmental institutions. Since the constitution describes how the latter can 
be done, failing to do it that way makes the action subject to constitutional 
attack. Contrast a collusive vote (if this were possible) to amend the 
constitution to require the same thing that the putative law would require, and 
that would be (at least legally) unassailable.

Vance
On Tue, Sep 22, 2009 at 3:28 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

   The last question reminds me of Justice Powell's dissent in 
Branti v. Finkel, where he pointed out that "The voters of Rockland County are 
free to elect their public defender and assistant public defenders instead of 
delegating their selection to elected and appointed officials. Certainly the 
Court's holding today would not preclude the voters, the ultimate "hiring 
authority," from choosing both public defenders and their assistants by party 
membership. The voters' choice of public officials on the basis of political 
affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor 
may any incumbent contend seriously that the voters' decision not to reelect 
him because of his political views is an impermissible infringement upon his 
right of free speech or affiliation. In other words, the operation of 
democratic government depends upon the selection of elected officials on 
precisely the basis rejected by the Court today."



   Yet that didn't carry the day, presumably because voters - the 
sovereign - are entitled to make election decisions on bases that government 
officials may not use in appointment decisions.  This may be especially 
unappealing when the basis is race or religion, as opposed to ideology, but I 
think the underlying constitutional analysis must be similar:  The voters' 
choice of public officials on any basis the voters please, and not just 
ideology, is democracy.  Surely if, to borrow from Ricci, black voters give 
preference to black candidates over more qualified white or Hispanic candidates 
- for any office, high or low - that is no constitutional violation.



   Eugene



Alan Brownstein writes:



I don't have a satisfactory analysis of this issue

RE: Evaluating candidates based on their religious views

[Brownstein, Alan]

I don't have a satisfactory analysis of this issue either, but there are lots 
of interesting hypos that push the edge of the envelope. Two examples:

Would the primary of a political party limited to candidates of a particular 
faith be constitutional?

By analogy to the firefighter's Title VII case from last term. The names of the 
top ten candidates for promotion to Captain or other leadership positions in 
the fire department (the candidates who scored highest on the exams and tests 
used for promotions) are submitted to the voters for approval. All candidates 
of a particular religion (or race) are regularly rejected by the electorate, 
even if they have the highest scores. Are these promotion decisions 
constitutional?

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, September 22, 2009 10:23 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Evaluating candidates based on their religious views

I haven't come to a truly satisfactory analysis of this, but my 
tentative judgment is that the right to elect or defeat a candidate based on 
any reason the voters please to use - including race, religion, sexual 
orientation, or anything else - is an irreducible minimum of democratic 
sovereign power.  A law enacted for improper reasons might be struck down 
because its enforcement would violate the Constitution; but the voters' 
selection of a candidate, it seems to me, has to be understood as final.  An 
inquiry into the voters' views wouldn't be so much "ugly" as a usurpation of 
the sovereign's power to choose who is to speak for the sovereign.

Does that still leave some underenforced constitutional norm here, 
that the voters are obligated to follow even if no court can enforce it?  I 
don't think so; it seems to me that voters in this respect are entirely 
unconstrained.  There's no constitutional text that seems to me to constrain 
them, nor is there any history supporting an interpretation of ambiguous text.  
In particular, voting against someone for bad reasons does not, in my view, 
deny the losing candidate any constitutionally protected liberty or property 
without due process, nor deny him equal protection of the law, chiefly for the 
reasons I mentioned above.  The Religious Test Clause, it seems to me, isn't 
properly understood to apply to voters' religious judgments.  And it would take 
some very explicit text, it seems to me, to deny the voters the right - whether 
or not the denial is enforceable - to exercise their sovereign power in 
choosing their representatives.

Again, I realize that some of the distinctions here are far from 
robust, and others may have a different view of the irreducible minimum of 
democracy than I do.  But this is my tentative view, and I suspect it is also 
what animates both popular and judicial opinions on the matter.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, September 22, 2009 10:14 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Evaluating candidates based on their religious views

I have a basic question that goes to Professor Volokh's assumption below (i.e., 
"I assume that there's no constitutional prohibition (judicially enforceable or 
not) on voters considering anything they please about this candidate.").   
There may be a settled answer to this that he or others can fill me in on.  If 
so, sorry to waste peoples' time.

Let's imagine two situations:

(1) A majority of voters in state A together agree that they do not want 
candidate B as governor because of his atheistic beliefs.  They vote as a block 
against him, and B loses the election as a result.

(2) A majority of voters in state A together agree that they do not want 
candidate B as governor because of his atheistic beliefs.  They vote as a block 
to pass a referendum amending the state's Constitution to bar atheists from the 
governor's office.  B wins the election, but is excluded from the office 
because of the referendum.

Professor Volokh, I assume you would think that (1) is constitutional, while 
(2) is not?   That despite their similarities, there is state action in the 
second, but not the first.   Is it because the referendum is on the official 
books?  Is it because the referendum applies to more than candidate B?  Is it 
because the referendum impairs the rights of voters as well as candidates?

Alternatively, what about the claim that both (1) and (2) are unconstitutional, 
but that  the prohibition in (1) is not judicially enforceable, due to the 
truly difficult and ugly inquiries it would require into issues of intent and 
causation.   A difference would be that, under this second theory, voters would 
have a constitutional obligation (though again not judicially enforced) to vote 
for candidates for religion

RE: EEOC says Catholic College Discriminated by Removing Contraceptive

[Brownstein, Alan]

I know it is shifting the focus of the discussion, but one way to think about 
the broader issue here is to ask if there is a way to protect the religious 
liberty of Catholic institutions that do not want to subsidize coverage for 
prescription contraceptives in the health plans they provide to their employees 
and also make sure that women employees receive equal prescription drug 
coverage.

Government might be able to play a more positive role here in addition to or as 
an alternative to a finding of gender discrimination.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter
Sent: Monday, August 17, 2009 1:31 PM
To: religionlaw@lists.ucla.edu
Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive

Contraceptives prevent pregnancy, and only women get pregnant.   
Denying contraceptive coverage to men does not expose men to  
pregnancy, but denying coverage to women does expose women to  
pregnancy.  Cpngress enacted the PDA because pregnancy uniquely  
burdens women in the workplace.  As I noted earlier, that still leaves  
the question of whether preventing the burden of pregnancy falls  
within the intended scope of the PDA, but answering that question does  
not hinge whether men can use contraceptives, prescription or otherwise.

Michael R. Masinter  3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu954.262.3835 (fax)

Quoting Perry Dane :

> This point might have been made by someone else already, but
> I'll venture ahead anyway:
>
> I'm not sure we need to accept the premise that Belmont Abbey
> is guilty of sex discrimination here.  The EEOC determination found
> that "By denying prescription contraception drugs, Respondent (the
> college) is discriminating based on gender because only females take
> oral prescription contraceptives"  "By denying coverage, men are not
> affected, only women."   The obvious analogy implicit here is to the
> sort of pregnancy discrimination at issue in Gilbert, which Congress
> has (rightly) determined to be a form of sex discrimination.
>
> But this case is different.  Belmont Abbey can credibly argue
> that its policy would be to refuse to pay for any contraceptive,
> regardless of whether the contraceptive is being taken by men or women.
>  That this policy affects men and women is not the product of biology,
> as it was in Gilbert, but of independent policy decisions made by other
> institutions to treat women's contraceptives, but not men's
> contraceptives, as prescription items.
>
> To put it another way:  When General Electric argued in the
> Gilbert case that it was discriminating against pregnancy, not against
> women, that would rightly strike most observers as a laughable, or at
> least unduly formalistic, proposition.  But when Belmont Abbey argues
> that it is discriminating against contraception, not against women,
> that seems to me to be neither laughable nor formalistic.
>
> Consider this analogy:  Imagine a pacifist landlord who refuses
> to rent to "combat soldiers."  Is that a form of discrimination against
> men merely because another institution (the U.S. Congress) has made an
> independent policy decision not to allow women to be combat soldiers?
> (For purposes of the hypo, put aside the fact that many women do de
> facto serve in combat.)
>
> Or imagine a landlord right next to a single-sex college who
> refuses to rent to "college students."  Is that a form of sex
> discrimination merely because the college has, of its own accord and as
> its right, chosen to be single-sex?
>
> Now, these situations might, I guess, set up some sort of
> "disparate impact" claim, but that seems to me to require a more
> complicated analysis; in Bemont Abbey's case, it might leave more room
> for the operation of religious conscience or RFRA.
>
> Perry
>
>
>
> ***
> Perry Dane
> Professor of Law
>
> Rutgers University
> School of Law  -- Camden
> 217 North Fifth Street
> Camden, NJ 08102
>
> d...@crab.rutgers.edu
> Bio: www.camlaw.rutgers.edu/bio/925/
> SSRN Author page: www.ssrn.com/author=48596
> Academia.edu page: http://rutgers.academia.edu/PerryDane
>
> Work:   (856) 225-6004
> Fax:   (856) 969-7924
> Home:   (610) 896-5702
> ***
>
>
> ___
> 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 ca

RE: Francis Collins and Acceptable Criticisms

[Brownstein, Alan]

I agree with Art to the extent that his post is limited to specific beliefs 
that are in fact antithetical to the satisfactory performance of a particular 
job – that is, beliefs as to which there may be either secular or religious 
sources. But there are other variations of the problem.


1.   The contention that religious beliefs per se, that is, the belief that 
some things have happened or will happen that can’t be explained by science and 
have theological explanations, is itself a basis for disqualifying a person for 
a job requiring a commitment to, and expertise in, science.

2.   The contention that some unconventional and idiosyncratic religious 
beliefs disqualify a person for a leadership position, not because they are 
antithetical in some direct way to the requirements of the position, but 
because they cast doubt on the person’s judgment or on the way that they 
distinguish truth from falsehood.

This leaves open the question of exactly what it means for a belief to be 
antithetical to the performance of a particular job. On that issue I would 
think it is clear that common monotheistic beliefs are not antithetical to the 
satisfactory, indeed the exemplary, performance of high level positions in 
science and virtually every other field.

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com
Sent: Friday, August 07, 2009 7:42 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Francis Collins and Acceptable Criticisms

[I sent this last night but it doesn't seem to have reached the list so I'm 
trying again, slightly edited.]

The courts have told us that a statute that coincides with a religious belief, 
and that may have been enacted by legislators whose votes were influenced by 
their personal religious beliefs, is not thereby an establishment of religion.  
E.g., Harris v. McRae (no tax funding for abortions).  Why shouldn't the same 
principle apply here?  If a person's openly held beliefs or public statements 
are actually antithetical to the requirements of a particular job, then that 
person should not have to be hired or retained in that job.  Whether the 
beliefs or statements at issue arise from the person's religion or from some 
other source should be irrelevant.  If I won't defend someone's legal right to 
utter blasphemy, then the ACLU could reasonably refuse to hire me as a First 
Amendment litigator, regardless of whether my refusal to do so arises from my 
religious belief that blasphemy (and the defense of blasphemy) is a sin, or 
from my purely secular belief that the world would be a better place if people 
were legally prohibited from casting aspersions on other people's religious 
beliefs.

I therefore don't see how denying a job to a person who holds beliefs that are 
antithetical to the requirements of the job constitutes a religious test.

I think the argument that this is a religious test assumes that “no religious 
test shall ever be required as a qualification” includes the meaning “no 
secular test shall ever be required as a qualification if it would have a 
disparate impact on people of some religion,” which seems dubious to me.  Is it 
a “religious test” to require that a Public Health Service nurse be willing and 
able to give vaccinations, which (I'm assuming for the sake of making the 
point) means that a Christian Scientist can't get that job?

Whether a person's beliefs are actually antithetical to the requirements of a 
particular job depends a lot on the job.  I don't care if an NIH file clerk 
believes that the germ theory of disease is a false invention of Satan, 
intended to mislead people into vainly trying to cure illness with medicine 
rather than with prayer -- as long as that belief doesn't cause him to misfile 
charts.  But I think such a belief should disqualify a person from being the 
head of NIH, because such a belief is very likely to skew decisions that are 
within the power of that job.  (And this remains true even though it's possible 
that in 200 years the germ theory will have been displaced by a more 
sophisticated understanding of illness. We can't live 200 years in the future.)

Of course, it's the government's option whether to assert or to disregard such 
a disqualification.  There's nothing unlawful about appointing a person who 
doesn't believe in germs to be the head of NIH, any more than it's unlawful to 
appoint a person who doesn't believe in regulating Wall Street to be the head 
of the SEC, or unlawful to appoint a person who believes that “when the 
President does it, it's not against the law” to be the Attorney General.

Art Spitzer (speaking personally; I don't think the ACLU has expressed any view 
about the appointment of Dr. Collins)



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RE: Francis Collins and Acceptable Criticisms

[Brownstein, Alan]

I think Mark is clearly right when he talks about generally recognized 
religious doctrines in part because we know as an empirical matter that 
individuals who hold these beliefs are capable of engaging in first rate 
scientific work, practicing medicine with great skill, and doing all kinds of 
other work that requires scientific knowledge and expertise.

Eugene's question focuses on less conventional and less common religious 
beliefs, however. One answer to the problem of the individual who holds 
uncommon religious beliefs who is nominated to a position of authority is that 
we can look at the individual's life and accomplishments as a check on our 
concern about his religious beliefs being inconsistent with the position to 
which he has been appointed. Typically leadership positions are offered to 
people with considerable experience and accomplishments in their field. If 
unconventional religious beliefs have not interfered with their professional 
responsibilities and accomplishments for 25 years or so, there seems little 
reason to believe that they would suddenly become inconsistent with their 
ability to preform their professional responsibilities when appointed to a 
leadership position.

I think the harder question is whether unconventional religious beliefs should 
preclude an individual from entry level positions when the individual's beliefs 
(in the abstract) may seem inconsistent with the responsibilities they would 
assume in the position they are seeking and we have no track record to offset 
such concerns. The answer to that question may be contextual -- depending for 
example on the consequences of the individual's failure to perform his job in a 
competent way.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Thursday, August 06, 2009 5:06 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law 
Academics
Subject: RE: Francis Collins and Acceptable Criticisms

If scientists want public support for their effort -- support that I for one am 
happy to give even if it means taxes are somewhat higher than they otherwise 
would be -- then scientists need to show that they do not consider most of us 
to be fools. If belief in the basic traditional doctrines of the majority faith 
in the US disqualifies one from leading a scientific effort because it somehow 
shows that the person cannot be trusted to do honest science, then science is, 
in Dickens' phrase "a ass -- a idiot." (Mr. Bumble in Oliver Twist, speaking 
not of science but of the law.) There have been many very distinguished 
scientists who have had such beliefs, and I think it is bigotry to disqualify 
such persons from scientific positions. Or perhaps we now should discard the 
results of the human genome project, because Francis Collins led the effort, 
and of course the results cannot be reliable.

A scientist might reasonably ask whether a candidate for such a position would 
use methodological naturalism in carrying out his or her duties. I doubt that 
Francis Collins ever thought that God would send a miracle to make up for 
sloppy treatment of DNA samples, or that he set up a program to look for hidden 
biblical messages in the base sequences of human DNA. But naturalism as a 
method is far different from naturalism as a belief system; to require 
naturalism as a belief system is indeed to impose a religious test.

Mark Scarberry
Pepperdine


From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 8/6/2009 4:35 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Francis Collins and Acceptable Criticisms

I appreciate Eric’s suggestion, but I wonder whether it works.  I 
take it that the response to “But all our instruments show that there’s no 
elephant or turtle down there” would be the same as the response to “But all 
our experience with medicine tells us that there can’t be a virgin birth or a 
resurrection” – “Well, this is a special miracle that can’t be tested with your 
instruments / that doesn’t fit with our experience.”  I’m not sure one can 
easily distinguish the two.

But even if one does draw the line that Eric suggests, say the 
person says “The world used to rest on the back of four elephants, which rest 
on a turtle.  But not long ago that changed, and that’s why our instruments 
can’t perceive this now.”  Would our view of the person’s general 
trustworthiness really change, on the grounds that now he’s saying something 
that isn’t currently testable with current observations?

Likewise, the quantum mechanics rationale doesn’t strike me as 
working, either.  If it turned out that an NIH candidate believes in werewolves 
(perhaps with some religious explanation), and explains his belief on the 
grounds that there’s a probability, howe

RE: Wisconsin convicts parents for denial of medical treatment

[Brownstein, Alan]

I find much of what Marci argues here persuasive, but get stuck on the question 
of what constitutes abuse.  If you are my age (let's just say over 55 to 
generalize the point) and grew up in a working class or lower middle class 
neighborhood, the norm was that kids got smacked around a lot when their 
parents thought they misbehaved.  I don't defend the practice and didn't follow 
my  parents  and their parental cohorts example in raising my own children.  
But I wouldn't characterize all these parents as child abusers either.

I don't doubt that we know more about the consequences of child raising 
practices now than we did then and normative standards certainly change over 
time. But some of the older members on the list may experience some dissonance 
in having the environment we and our peers grew up in characterized as abusive.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Tuesday, August 04, 2009 2:35 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Wisconsin convicts parents for denial of medical treatment

Vance--  Literally hundreds of studies by psychiatrists and others have shown 
that there is a clearly marked tendency for abused children to have severe 
problems in adulthood, including substance abuse, likelihood of suicide, and 
difficulties with close relationships, among other problems.  These are 
statistical studies that are the type routinely relied upon by, e.g., the 
insurance industry to set risk.  Do you dispute this set of relationships?

Of course, any one individual may not follow the trend, and, thus, the Ted 
Bundy example hardly disproves the tendency.  Now, all of this is coming out of 
science, not voodoo magic, and if you have any regular contact with individuals 
who have suffered abuse, you can confirm this for yourself anecdotally.

Essentially we are having the nature vs nurture debate, and of course both are 
important and relevant.  But if there are ways to create better conditions so 
that we have fewer adults with problems, it is irrational for society to ignore 
those possibilities.

With respect to where we started, this argument is hardly needed, right?  
Surely there is no question that the death of a child from a treatable ailment 
is a serious loss to society and should be prevented.  And the way to prevent 
such deaths is to deter parents from permitting a child to die or be disabled 
regardless of the parents' beliefs.

Marci


-Original Message-
From: Judith Baer 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Aug 4, 2009 10:09 am
Subject: RE: Wisconsin convicts parents for denial of medical treatment
Vance Koven wrote:

Many more people than those who are on death row (of whom there are virtually 
none any more) suffered treatment that we might reprehend or say was or was 
tantamount to child abuse, yet did not become killers, rapists, etc. There is 
obviously something *else* involved in the equation that either has not been 
adequately studied or that Marci is omitting from her argument.

Conceded, Vance. (I considered responding "yeah, yeah, yeah" but thought better 
of it.) But what if we change the topic from the causes of violent crime to the 
ways to stop it?
Judy Baer

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RE: A Concrete Example

[Brownstein, Alan]

Whoops. This was supposed to be a hypothetical rather than a description. 
Please substitute "if" for "when".  The sentence should read "That argument is 
much harder to make if courts repeatedly insist that regulations which disfavor 
some architectural style (or expressive religious activity) constitute 
prohibited viewpoint discrimination."

As for the "contribution that land use planning provides to the larger public 
good," once again we are stuck with the contrast between abstractions and 
specifics. I have no doubt that there is a lot of important, useful, and fair 
land use planning out there. I also think that favoritism, NIMBYism, arrogance, 
prejudice, ignorance, and poor judgment on the part of local government actors 
and local constituencies sometimes influences land use decisions.

Of course, local governments often do the right thing. But sometimes they 
unreasonably burden free speech rights, equal protection principles, 
establishment clause requirements, abortion rights, property rights, and 
procedural due process rights, and sometimes those unreasonable burdens are the 
result of land use decisions. Courts do not and should not always defer to 
these decisions. Similarly, local governments do not always unreasonably burden 
religious liberty. But when they do, there ought to be constitutional or 
statutory mechanisms available to remedy those situations.

Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, June 24, 2009 9:43 AM
To: religionlaw@lists.ucla.edu
Subject: Re: A Concrete Example

In a message dated 6/23/2009 7:46:39 P.M. Eastern Daylight Time, 
aebrownst...@ucdavis.edu writes:
But that argument is much harder to make when courts repeatedly insist that 
regulations which disfavor some architectural style (or expressive religious 
activity) constitute prohibited viewpoint discrimination. Given that 
background, I would think a law that provides preferential protection to such a 
style would be constitutionally problematic and subject to challenge.
Alan-- surely this is an overstatement.  On this theory, places like Savannah, 
Georgia, where the land use laws assiduously preserve an architectural look are 
unconstitutional.  Or how about historic Boston or Philadelphia?  What about 
Capitol Hill in DC?  The problem with this way of thinking is that it does not 
take into account the entrenched fact of land use planning, and the 
contribution that land use planning provides to the larger public good.

The issue here echoes the problems that are now endemic in residential 
neighborhoods with RLUIPA in place.  RLUIPA was passed with no respect or 
deference to local communities in shaping their residential and other goals.  
It is antithetical to civil society.  The members of Congress completely 
ignored the long-settled constitutional doctrine that the federal courts and 
government are supposed to defer to local determinations with respect to land 
use.

Marci


Make your summer sizzle with fast and easy 
recipes for the grill.
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RE: A Concrete Example

[Brownstein, Alan]

Eric asks a good question. I don't know anything about architecture but my 
guess is that we would conclude that the message communicated by architectural 
resources is often incidental to the reason we are protecting them (e.g. we 
protect older examples of the architecture but not more contemporary examples). 
I think that argument can be made with regard to the expressive content of some 
religious practices.  If anyone is interested I could offer some examples.
But that argument is much harder to make when courts repeatedly insist that 
regulations which disfavor some architectural style (or expressive religious 
activity) constitute prohibited viewpoint discrimination. Given that 
background, I would think a law that provides preferential protection to such a 
style would be constitutionally problematic and subject to challenge.
The argument is also much harder to make when the physical manifestation of 
what is being regulated constitutes a conventional means of expressing ideas, 
such as a book or a song or an expressive meeting, as opposed to physical 
manifestations which are not typically understood to be conventionally 
expressive in nature, such as  a spotted owl or a pond.
Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
Sent: Tuesday, June 23, 2009 4:01 PM
To: Law & Religion issues for Law Academics; hamilto...@aol.com; 
layco...@umich.edu
Subject: RE: A Concrete Example

I thought everyone would be interested in Prof. Hamilton's op-ed on Barr and 
Potter, which seems inspired at least in part by the discussion here:
http://writ.lp.findlaw.com/hamilton/20090623.html
I like Prof. Lund's metaphor because it gets at the point of RFRA, RLUIPA, the 
state RFRAs, the UDHR, the ICCPR etc.: placing value on the autonomy of the 
human conscience and the physical manifestations thereof.  Those physical 
manifestations may sometimes also be expressive, but they also have value 
completely apart from their expressive or nonexpressive nature.
That's why having a law protecting the manifestations of conscience is not such 
a strange thing in the land use context.  Through land use laws we protect (and 
thereby attribute value to) wetlands, endangered species, historic and 
archaeological resources, and many other goods, often through overriding 
federal or state level statutes.  Some of these other protected goods also 
happen to have expressive content (e.g. many historic and architectural 
resources).  Do we think that the statutes protecting those goods should be 
invalidated because the government doesn't at the same time protect all 
analogous forms of expression?
Eric

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Tuesday, June 23, 2009 12:32 PM
To: hamilto...@aol.com; layco...@umich.edu
Cc: religionlaw@lists.ucla.edu
Subject: A Concrete Example

I also intended to respond as well, although Doug as usual put it better than I 
would have.

Here's a cute example I thought of when reading the case.  Maybe it even 
relates to what we're talking about.  I like scuba diving, and had been 
pressuring my wife to go.  She had various fears: fears that the oxygen supply 
would run out, fear of the bends - and fear that the seal on the mask would 
fail 50 feet down (that's the factual connection to Potter and why I thought of 
it).

I tried to convince her that her fears were totally unreasonable, that the risk 
of a scuba diving accident was zero.  It didn't work.  She knew it wasn't true; 
it couldn't be true.  And I realized the problem was not that she was 
overestimating the risk.  The problem was that she thought the value of a scuba 
dive was zero.  And if you think the value of a scuba dive is zero, then a 
one-in-a-billion chance of a scuba accident would make the whole thing not 
worth it.

I think my wife's mindset toward scuba is similar to the mindset of some toward 
religious liberty.  If I entirely don't get Islam and am unwilling to try, 
maybe I won't really appreciate the harm to Muslim firefighters in having to be 
clean-shaven.  Implicitly at least, I'll put a zero value on it, and then any 
chance of a horrific consequence will be enough to outweigh the religious 
claim.  There may be a one-in-a-thousand chance that beards affect the wearing 
of the mask at all, and a one-in-a-million chance that any such effect would 
cause injury.  I still would bar the claim - and it really doesn't matter what 
the numbers are, as long as they are nonzero or there's a nonzero probability 
of them being nonzero.  And that's not discriminatory animus; that's not even 
irrational, given its premises.  But it is indeed premised on the assumption, 
tacit and thus unobservable in the federal reporters, that religious liberty 
has no value.  I think RFRA was meant to disrupt that assumption, and rightly 
so in my opinion.

Best,
Chris

P.S.  This should be 

RE: "A Bible study group and a book club are not treated the same"

[Brownstein, Alan]

Good point, Mark. I think statutes like the one reviewed in Texas Monthly that 
facially discriminate in favor of religious speech are going  to be struck 
down. A more generic religious liberty statute, like a state RFRA, is more 
complicated.

Let's suppose a city is told that it can not enforce its zoning ordinance 
against a Bible study group because of a state RFRA. Then a book club 
challenges the application of the zoning ordinance to its activities on the 
grounds that Bible study groups had been held to be exempt from the zoning 
ordinance under RFRA. One could argue that a court could resolve this dispute 
by refusing to allow the city to enforce the zoning ordinance against the book 
club without giving the RFRA statute a narrow construction. But is that the 
best result? Now other cities in the state have to figure out how the state 
RFRA applies to their content neutral laws that regulate speech and the extent 
to which exempting religious speech from those laws under RFRA requires them to 
grant additional exemptions to other speakers. It might make more sense to 
construe the RFRA law not to require exemptions for religious speech.

As an aside, I might add that when California was considering a state RFRA law, 
proponents of the law conceded that it would not apply to content neutral 
speech regulations in part because such applications would be 
unconstitutional.The contrary argument, that RFRA would require the state and 
cities to privilege religious speech, was a very hard sell politically.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Saturday, June 20, 2009 11:18 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"

Or perhaps to strike down the refusal to extend the exemption to relevantly 
similar nonreligious speech (though I suppose Texas Monthly may be in some 
tension with that approach)?

Mark Scarberry
Pepperdine

  _

From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan
Sent: Sat 6/20/2009 9:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"



I agree with Mark that Smith allows the political process to deal with 
religious exemptions -- as long as those exemptions do not violate any other 
constitutional guarantee. It may well be that the state has a choice as to how 
it can respond to a claim that it discriminates in favor of religious speech. 
Instead of standing by the discriminatory exemption -- which would require a 
court to invalidate it -- it could generalize the exemption to apply to all 
expressive meetings. But if the state refuses to extend the exemption, doesn't 
that require a Court to subject the exemption to strict scrutiny and, 
presumably, to strike it down?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Saturday, June 20, 2009 6:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"

If Smith is going to be used to justify a constitutional prohibition on 
religious exemptions, then it is even worse than I thought. But the point of 
Smith, as I understand it, is precisely to allow the political process to deal 
with requests for political exemptions. To the extent that land use laws 
applied in a supposedly neutral way would prevent religious groups from 
meeting, it seems that the granting of an exemption by the local government 
would be permitted by Smith. Whether the granting of such an exemption then 
would require that similar non-religious group meetings would need to be 
permitted is an interesting question that could affect the outcome of the 
political process with respect to allowing exemptions for religious meetings 
but should not invalidate such exemptions. At least that's my initial take.

Mark Scarberry
Pepperdine

  _

From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan
Sent: Sat 6/20/2009 5:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"



If we had a constitutional regime that confers special protections for 
non-expressive religious exercise against neutral laws of general 
applicability, the issue of how to treat expressive religious exercise would 
require some difficult line drawing and analysis. But since Smith controls the 
meaning of the free exercise clause, there is no special federal constitutional 
protection for religious exercise -- whether it is expressive or not. Under 
this regime a statute that confers spe

RE: "A Bible study group and a book club are not treated the same"

[Brownstein, Alan]

I agree with Mark that Smith allows the political process to deal with 
religious exemptions -- as long as those exemptions do not violate any other 
constitutional guarantee. It may well be that the state has a choice as to how 
it can respond to a claim that it discriminates in favor of religious speech. 
Instead of standing by the discriminatory exemption -- which would require a 
court to invalidate it -- it could generalize the exemption to apply to all 
expressive meetings. But if the state refuses to extend the exemption, doesn't 
that require a Court to subject the exemption to strict scrutiny and, 
presumably, to strike it down?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Saturday, June 20, 2009 6:25 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"

If Smith is going to be used to justify a constitutional prohibition on 
religious exemptions, then it is even worse than I thought. But the point of 
Smith, as I understand it, is precisely to allow the political process to deal 
with requests for political exemptions. To the extent that land use laws 
applied in a supposedly neutral way would prevent religious groups from 
meeting, it seems that the granting of an exemption by the local government 
would be permitted by Smith. Whether the granting of such an exemption then 
would require that similar non-religious group meetings would need to be 
permitted is an interesting question that could affect the outcome of the 
political process with respect to allowing exemptions for religious meetings 
but should not invalidate such exemptions. At least that's my initial take.

Mark Scarberry
Pepperdine

  _

From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan
Sent: Sat 6/20/2009 5:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: "A Bible study group and a book club are not treated the same"



If we had a constitutional regime that confers special protections for 
non-expressive religious exercise against neutral laws of general 
applicability, the issue of how to treat expressive religious exercise would 
require some difficult line drawing and analysis. But since Smith controls the 
meaning of the free exercise clause, there is no special federal constitutional 
protection for religious exercise -- whether it is expressive or not. Under 
this regime a statute that confers special protection for expressive religious 
exercise is going to confront serious and unavoidable establishment clause and 
free speech clause issues, isn't it?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu]
Sent: Friday, June 19, 2009 9:05 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: "A Bible study group and a book club are not treated the same"

Let's see ... speech is fully protected, but religious speech is even more 
fully protected, indeed advantaged.Can that be right?  Yes, if the Free 
Exercise Clause confers special protections for religious speech exercise -- a 
not implausible theory.  Yet I have always thought that the non-establishment 
clause could justify greater or additional limitations on religious speech.  
Could both be true?  I don't see any reason why not since the two religious 
clauses are often, though not always, at war with one another because they 
serve two distinct purposes.

Randy Bezanson

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 19, 2009 10:05 AM
To: Law & Religion issues for Law Academics
Subject: "A Bible study group and a book club are not treated the same"

I haven't read the whole opinion yet, but in my skim I was struck by 
this line:

"The trial court appears to have been troubled that an operation which 
can be and often is conducted for purely secular purposes could be entitled to 
increased protection from government regulation if conducted for religious 
reasons. But TRFRA guarantees such protection. Just as a Bible study group and 
a book club are not treated the same, neither are a halfway house operated for 
religious purposes and one that is not. Under Smith, the Free Exercise Clause 
does not require strict scrutiny for religious activity affected by neutral 
laws of general application,66 but TRFRA imposes the requirement by statute."

Is it clear that it's constitutional, given the Free Speech Clause and 
the Establishment Clause, and the position of 6 of the votes in Texas Monthly 
v. Bul

RE: On reflection, I realize that the Texas Monthly lineup can't be dispositive of the book club vs. Bible study group issue, but I still wonder about the Free Speech Clause issue

[Brownstein, Alan]

I appreciate Doug's point but I'm not sure that I'm persuaded by it. To begin 
with it is not clear to me that high value speech can be preferred to lesser 
protected speech like commercial speech -- particularly if both kinds of speech 
cause the same kind of a problem. In the Cincinnati case (I forget its full 
name) where the city prohibited commercial news racks, but not news racks for 
traditional newspapers, the Court invalidated the discriminatory burden imposed 
on commercial speech. I'm not sure that if an Amway meeting and a Bible study 
group both equally caused a lot noise in a residential neighborhood that a city 
could prohibit the former but not the latter (in the interest of maintaining a 
quieter neighborhood). 

But my primary concern is that a state RFRA doesn't discriminate between high 
value speech and low value speech. It discriminates between one viewpoint of 
high value speech, religious speech, and all other speech -- whether it is high 
value, low value, or somewhere in between. Why isn't this the exact flip side 
of a zoning ordinance that permits all kinds of house meetings except Bible 
study groups? The answer can't be that in one case a viewpoint is favored and 
in the other case it is discriminated against because the Court has been clear 
that favoring or disfavoring a viewpoint is equally unconstitutional. To put it 
another way, it seems to me that an exemption for religious speech alone is 
intrinsically viewpoint discriminatory and could be challenged on its face -- 
without regard to the value of the speech expressed by the complaining party. 
Does anyone think that Texas Monthly should have come out differently if the 
suit challenging the tax exemptions for religious publ!
 ications or periodicals was brought by Playboy magazine?

Let me be clear here that I have serious concerns about the apparent ease with 
which the Court has determined that religious speech constitutes a viewpoint of 
speech and its willingness to treat religious expressive activities as speech 
for free speech purposes rather than as religion for free exercise purposes. 
But having taken those steps, I don't think the Court can easily avoid the 
consequences of those decisions.

Alan Brownstein

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Saturday, June 20, 2009 6:45 PM
To: religionlaw@lists.ucla.edu
Subject: RE: On reflection, I realize that the Texas Monthly lineup can't   
be dispositive of the book club vs. Bible study group issue, but I  still   
wonder about the Free Speech Clause issue

High value speech can and is given more protection than low value speech.  
Religious and political speech get more protection than commercial speech 
(which can be regulated as misleading, whether or not false); commercial speech 
gets more protection than pornographic speech (which almost certainly can be 
kept indoors and away from nonconsenting audiences); pornographic speech gets 
more protection than child pornography or obscenity.

So suppose the Supreme Court of Texas implements its rule giving special 
protection to religious speech -- more protection than other high value speech 
gets.  But the plaintiff who wants to challenge that special treatment is a 
commercial advertiser, or a pornographer.  I don't think that plaintiff wins.  
There may be viewpoint discrimination, but it is not discrimination within a 
relevant category.  It is not religious preferred over political, or nonracial 
fighting words preferred over racial fighting words.  It is a preference for 
one category of high value speech being challenged by one category of low value 
speech.  And I think the judicial reaction would be that of course religious 
speech can be given more protection than commercial or pornographic speech.

I don't think these problems affect the book club, but some judges might; the 
book club is a marginal example.  But I think a book club is speech about 
serious ideas (we surely don't want judges saying it depends on the quality of 
the books), and therefore high value speech and entitled to complain about 
getting less favorable treatment than other high value speech.  I can also well 
imagine courts being troubled by the viewpoint discrimination claim; we have a 
favored viewpoint but no apparent disfavored viewpoint.  But I don't think that 
should change the result either.

But if I were going to challenge the special protection for religious speech, I 
would try to find a better plaintiff than a book club.  Maybe on Justice 
Hecht's hypothetical, I would have to make do with the book club, but it 
doesn't seem to me to be the most appealing plaintiff.  That's all I meant to 
say.







Quoting "Brownstein, Alan" :

> I'm not sure I understand D

RE: "A Bible study group and a book club are not treated the same"

[Brownstein, Alan]

If we had a constitutional regime that confers special protections for 
non-expressive religious exercise against neutral laws of general 
applicability, the issue of how to treat expressive religious exercise would 
require some difficult line drawing and analysis. But since Smith controls the 
meaning of the free exercise clause, there is no special federal constitutional 
protection for religious exercise -- whether it is expressive or not. Under 
this regime a statute that confers special protection for expressive religious 
exercise is going to confront serious and unavoidable establishment clause and 
free speech clause issues, isn't it?

Alan Brownstein 

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu]
Sent: Friday, June 19, 2009 9:05 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: "A Bible study group and a book club are not treated the same"

Let's see ... speech is fully protected, but religious speech is even more 
fully protected, indeed advantaged.Can that be right?  Yes, if the Free 
Exercise Clause confers special protections for religious speech exercise -- a 
not implausible theory.  Yet I have always thought that the non-establishment 
clause could justify greater or additional limitations on religious speech.  
Could both be true?  I don't see any reason why not since the two religious 
clauses are often, though not always, at war with one another because they 
serve two distinct purposes.

Randy Bezanson

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 19, 2009 10:05 AM
To: Law & Religion issues for Law Academics
Subject: "A Bible study group and a book club are not treated the same"

I haven't read the whole opinion yet, but in my skim I was struck by 
this line:

"The trial court appears to have been troubled that an operation which 
can be and often is conducted for purely secular purposes could be entitled to 
increased protection from government regulation if conducted for religious 
reasons. But TRFRA guarantees such protection. Just as a Bible study group and 
a book club are not treated the same, neither are a halfway house operated for 
religious purposes and one that is not. Under Smith, the Free Exercise Clause 
does not require strict scrutiny for religious activity affected by neutral 
laws of general application,66 but TRFRA imposes the requirement by statute."

Is it clear that it's constitutional, given the Free Speech Clause and 
the Establishment Clause, and the position of 6 of the votes in Texas Monthly 
v. Bullock, for the law to treat Bible study groups better than book clubs?

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, June 19, 2009 7:58 AM
To: religionlaw@lists.ucla.edu
Subject: Texas RFRA

The Supreme Court of Texas has unanimously given the Texas RFRA its intended 
meaning to provide real protection for exercises of religion.  Barr v. City of 
Sinton, Link to opinion below.  The case involves a religious halfway house in 
a small town in South Texas.  The city made no serious effort to prove a  
compelling interest in closing the halfway house; its main argument seemed to 
be that there was no burden because the halfway house could leave town, and 
that that Texas RFRA should not apply to zoning anyway.
Most of the opposition to Texas RFRA was from neighborhood associations worried 
about land use.  The lead sponsor in the House told me that if people got the 
idea that this meant that black churches could locate in white neighborhoods, 
the bill would be dead.  The compromise was to provide that cities would have 
no less land use authority than they had had under federal law on March 17, 
1990 (the day before Smith.)  The land use folks claimed that Sherbert and 
Yoder had never applied to them; the bill's supporters claimed that Sherbert 
and Yoder had been a generally applicable test that applied to all regulation, 
including land use regulation.  The state supreme court just resolved that 
argument in favor of the bill's supporters.
http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
___
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RE: On reflection, I realize that the Texas Monthly lineup can't be dispositive of the book club vs. Bible study group issue, but I still wonder about the Free Speech Clause issue

[Brownstein, Alan]

I'm not sure I understand Doug's reference to high-value speech and the lack of 
a viewpoint associated with the book club's speech. The viewpoint at issue is 
that of the Bible study group. The Court has repeatedly held that 
discrimination against religious clubs and meetings constitutes viewpoint 
discrimination so discrimination in favor of those same clubs and meetings has 
to constitute viewpoint discrimination as well. And once we are dealing with 
viewpoint discrimination, strict scrutiny applies regardless of the "low" value 
of the speech at issue. Viewpoint discrimination is prohibited within 
categories of unprotected speech, while regulating speech in a non-public 
forum, and with regard to what would be constitutional time, place, and manner 
regulations of expression except that the regulation singles out a particular 
viewpoint for favorable treatment.

Am I missing something here?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Friday, June 19, 2009 8:59 AM
To: religionlaw@lists.ucla.edu
Subject: Re: On reflection, I realize that the Texas Monthly lineup can't   
be dispositive of the book club vs. Bible study group issue, but I still
wonder about the Free Speech Clause issue

That example troubled me too.  The book club doesn't have the strongest free 
speech claim; it's hard to identify a viewpoint associated with a book club; 
it's may be neither political nor religious; it has no historical status as an 
institution of particular First Amendment concern.  But it involves serious 
speech, and there is a lot of appeal to a rule of neutrality among all 
high-value speech.

Quoting "Volokh, Eugene" :

> On reflection, I realize that the Texas Monthly lineup can't be
> dispositive of the book club vs. Bible study group issue (given that
> the Brennan/Marshall/Stevens opinion distinguished
> removal-of-substantial-burden cases), but I still wonder about the
> Free Speech Clause issue.
>
> Eugene
>



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

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Snowbowl decision

[Brownstein, Alan]

I think the discussions of Snowball and Marci's post reflect two very different 
kinds of religious liberty issues. Marci, and others who express concerns about 
religious liberty exemptions, often focus on situations where the state has a 
very strong interest in denying the exemptions that are sought.  I have no 
doubt that some claims for religious exemptions should be and will be denied 
and understand why people would support a standard of review that permits such 
denials to be upheld if they are challenged.

I, and others on this list who criticize Smith and support some form of 
meaningful review of neutral laws of general applicability that substantially 
burden religious practice, focus on situations where exemptions are denied for 
trivial and unpersuasive reasons (assuming that one accepts that the burdening 
of religious exercise constitutes a serious cost) or invidious or 
discriminatory motives. Marci's position is, I think, that these situations are 
rare and that they can always be satisfactorily resolved through political 
channels without the need for judicial intervention.  I believe these 
situations are more common, that they are not always successfully resolved 
politically, and that the burden of resolving them politically has its own 
problems and consequences.

But whether one agrees with my assessment or not on this latter issue, this 
issue has little if anything to do with the first  issue - religious liberty 
claims that conflict with important state interests that may justify their 
denial. The merits of one's position on the first issue do not respond to or 
serve as a counterpoint to the second issue.

The Ninth circuit standard in Snowball, in my judgment, precludes RFRA review 
when government takes away or prevents access to physical things that have 
religious significance or are needed for religious exercise. That can be land, 
a religious object, or even the human body. By focusing on coercion through 
penalties, Snowball ignores the other powers that government may exercise that 
interfere with religious freedom by using, controlling or preventing access to 
the physical world. If a state prison refuses to deliver rosary beads that are 
sent to an inmate and returns them to the sender, no one is ordered to act in a 
way that is inconsistent with his faith or punished for his religious practice. 
If an autopsy is performed in violation of a family's religious beliefs, no one 
is ordered to act in a way that is inconsistent with his faith or punished for 
his religious practice. If sacred land is desecrated,  no one is ordered to act 
in a way that is inconsistent with his faith or punished for his religious 
practice. I think these situations are concrete. The fact that some of them may 
seem unusual to many people simply reflects the reality that they involve the 
religious beliefs of faiths with fewer members - which is one of the reasons 
why they are more likely to be ignored or considered inconsequential by 
government.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, June 15, 2009 11:32 AM
To: jb...@politics.tamu.edu; religionlaw@lists.ucla.edu
Subject: Re: Snowbowl decision

After thinking more about Judy's comment, it hit me that the discussion of 
Snowbowl really seems surreal to me.The Snowbowl claim was esoteric, shall 
we say?  I don't doubt sincerity, but when one compares a claim to have 
artificial snow made of a certain type of water against child abuse, it is 
jarring.  There are lots of decisions far more troubling.   Take, for example, 
the Wis Supreme Court's decision in Pritzlaff (rejecting tolling of statutes of 
limitations for victims of clergy based on the First Amendment but no other 
victims) remain standing, the issue seems precious.  I raise the clergy abuse 
issue because it is being litigated over and over again, with real world 
consequences.  And now that the Latter-Day Saints have joined the Catholic 
Church in Oregon in heavily lobbying against statute of limitations reform for 
child sex abuse victims, I guess we know who has serious problems in this 
context and why the issue is not going away anytime soon

Tom mentions Mockaitis.  Would Mockaitis have been decided differently under 
the Snowbowl reasoning, if taken in the context of the 9th Cir's precedents in 
general on the burden issue?  For me, the Mockaitis decision goes way too far, 
seeming to say that there is an impregnable privilege around confession that 
might even extend to situations where a member of the clergy knows about a 
murder or incest that is going to happen in the future.  But that is I suppose 
a question of government interest rather than burden?

Anyway-- I'm interested in other concrete examples of  practices that should be 
protected that would not be under the Snowbowl rule(This request has no 
time limit-- I've been waiting several mon

RE: Snowbowl decision

[Brownstein, Alan]

As someone who joined Tom and other law professors in filing the amicus brief 
supporting the cert. petition in this case, I agree with Tom that there may be 
religious liberty consequences for Christians as well as the members of other 
faiths if the 9th Circuit's RFRA standard is applied broadly and rigorously.

Another way to write an article that would make this decision relevant to 
Christians might be to use it as a vehicle for discussing why Christians should 
be concerned about the abridgment of religious liberty of people who hold 
beliefs that Christians believe to be false.

Alan Brownstein
UC Davis School of Law

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Friday, June 12, 2009 11:12 AM
To: Law & Religion issues for Law Academics
Subject: RE: Snowbowl decision

Ted,

A group of religious liberty scholars (several of them on this list, including 
me) filed an amicus brief supporting the cert petition arguing that the 
standard the 9th Circuit used to dismiss this case (for lack of a substantial 
burden under RFRA) could have far-reaching effects, including on cases 
involving prisoner religious claims and church land-use claims.  
http://narf.org/sct/navajonationvusfs/amicus_of_religious_liberty_law_scholars.pdf
  There was a similar brief from religious organizations, all of them 
Christian.  
http://narf.org/sct/navajonationvusfs/amicus_of_religious_organizations.pdf  If 
the 9th Circuit follows its language broadly, the effects could be large.  If 
it limits its rule to federal-land issues or allegedlly purely spiritual harms, 
the effects on serious religious claims of non-Native-American faiths will 
probably be smaller.

-
Thomas C. Berg
St. Ives Professor of Law and Associate Dean for Academc Affairs
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ted Olsen [tol...@christianitytoday.com]
Sent: Friday, June 12, 2009 12:33 PM
To: Religionlaw@lists.ucla.edu
Subject: Snowbowl decision

The Snowbowl decision (Navajo Nation v. Forest Service, denied cert. this week 
by scotus) appears significant for religion clause discussions and seems like 
it could be good fodder for a discussion in my magazine (Christianity Today).  
But the significance to Christianity is not immediately apparent to me.

Any ideas?

The one I've thought about is looking again at the 9th Circuit opinion (which, 
admittedly, is now a year old) and the questions it raises about whether RFRA 
protects "subjective, emotional religious experience." The court said 
diminishing "subjective, emotional religious experience" (i.e. "damaged 
spiritual feelings") doesn't constitute a substantial burden. The dissent said 
subjective emotional religious experience is at the very core of religious 
belief and practice and therefore deserves the highest protections. That 
discussion could be interesting not just for the religion law questions but 
because it connects to so many other ongoing debate and questions (protecting 
"damaged spiritual feelings" in various domestic laws and UN resolutions, the 
relationship between "heart" religious expressions and "head" ones, e.g. 
Pentecostals feeling like the red-headed stepchild of the evangelical movement 
or of American Christianity in general, etc.)

But I'm no expert. Am I missing a more obvious implication of the Snowbowl case 
on Christian faith and practice?

Ted Olsen
Managing Editor, News & Online Journalism
Christianity Today
http://www.christianitytoday.com/ct/
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RE: 3rd Circuit: Parent Can't Read Bible to Son's Public School Class

[Brownstein, Alan]

Shameless plug. I have recently published an unreasonably long article 
addressing the general issue of student (and parent) free speech rights in 
school sponsored activities which discusses the District Court's opinion in 
this case.  The article is "The Nonforum as a First Amendment Category: 
Bringing Order Out of the Chaos of Free Speech Cases Involving School-Sponsored 
Activities," 42 UC Davis L. Rev. 717 (2009).

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sogol
Sent: Tuesday, June 02, 2009 1:56 AM
To: Religionlaw
Subject: 3rd Circuit: Parent Can't Read Bible to Son's Public School Class

3rd Circuit: Parent Can't Read Bible to Son's Public School 
Class
The Legal Intelligencer

In battles over prayer in school, the cutting-edge cases are coming from 
kindergarten classes. In one such case, the 3rd Circuit rejected the First 
Amendment claims of a student's mother who sued after not being allowed to read 
verses from the Bible -- which she said was her son's favorite book -- during 
an "All About Me" program. Writing for the court, Chief Judge Anthony J. 
Scirica said parents "may reasonably expect their children will not become 
captive audiences to an adult's reading of religious texts."



http://www.law.com/jsp/article.jsp?id=1202431142230&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20090602&kw=3rd%20Circuit%3A%20Parent%20Can't%20Read%20Bible%20to%20Son's%20Public%20School%20Class




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.

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RE: Diocese of Bridgeport sues state over"lobbying" complaint

[Brownstein, Alan]

There are at least three interesting issues raised by this lawsuit. First, 
there is the general question of when lobbyist registration laws violate the 
free speech clause of the First amendment. Second, there is the question of 
whether religious organizations should be granted exemptions from state 
lobbyist registrations laws. Third, there is the question of whether granting 
an exemption to religious organizations for activities that would require 
registration if they were engaged in by secular organizations constitutes 
viewpoint discrimination prohibited by the free speech clause of the First 
Amendment.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
Sent: Tuesday, June 02, 2009 9:01 AM
To: Academics, Law & Religion issues for Law,
Subject: Diocese of Bridgeport sues state over"lobbying" complaint

The Connecticut Office of State Ethics has attempted to require the Diocese of 
Bridgeport to register as a lobbyist because a) the Diocese spent over $2000 to 
rent buses to bring protesters to the state capitol for a demonstration against 
Raised Bill 1098 (the attempt to force the Catholic church to reorganize in 
violation of church law), b) the Diocese made statements on its website 
encouraging members to oppose Bill 1098 and Bill 899 (regarding same-sex 
marriage).

>From the Hartford Courant: 
>http://www.courant.com/news/local/hc-church-ethics-0530.art0may30,0,5479928.story
>From the Diocese: http://www.bridgeportdiocese.com/story_Ethics.shtml
>From WorldNet Daily: 
>http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=99836

Brad
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RE: Iqbal and the Free Exercise Clause

[Brownstein, Alan]

Good question. There is certainly some range of opinions on whether a law that 
requires a lot of individualized applications or exceptions is sufficiently 
general for Smith purposes.  Also, legislative accommodations of religion that 
do not reach all faiths may not be intentionally discriminatory.  I also think 
it is possible to be perceived as creating a "religious gerrymander" without 
deliberately intending to do so.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com
Sent: Wednesday, May 27, 2009 10:33 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Iqbal and the Free Exercise Clause

When would a law that's not neutral or not generally applicable not also be 
intentionally discriminatory?  Can a legislature negligently or unknowingly 
enact a law that's not neutral or not generally applicable?

Art Spitzer


**
Dinner Made Easy Newsletter - Simple Meal Ideas for Your Family. Sign Up Now! 
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RE: Iqbal and the Free Exercise Clause

[Brownstein, Alan]

I think the alternative reading that Chris offers is the appropriate way to 
understand this language. I don't think this language precludes an argument 
that a law is not neutral or generally applicable without proving 
discriminatory purpose. I actually thought this language was a plus for free 
exercise claims. As I recollect in Lukumi, Kennedy could not get a majority to 
agree that it was permissible to inquire into legislative motive to challenge 
Hialeah's ordinance. By juxtaposing Lukumi and Washington v. Davis, the Court 
gives litigators a bit more of an argument that direct inquiries into 
legislative motive might be as permissible in free exercise cases as they are 
in equal protection cases.
Alan Brownstein



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Wednesday, May 27, 2009 10:00 AM
To: religionlaw@lists.ucla.edu
Subject: Iqbal and the Free Exercise Clause

There's this potentially troubling line in the Supreme Court's recent decision 
in Ashcroft v. Iqbal (at least I find it potentially troubling) that I wanted 
to raise with you all.  Here's the passage:

"The factors necessary to establish a Bivens violation will vary with the 
constitutional provision at issue. Where the claim is invidious discrimination 
in contravention of the First and Fifth Amendments, our decisions make clear 
that the plaintiff must plead and prove that the defendant acted with 
discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 
520, 540-541 (1993) ( First Amendment ); Washington v. Davis, 426 U. S. 229, 
240 (1976) ( Fifth Amendment )."

I am a little distressed by this language and even more by the back-to-back 
citations of Washington v. Davis and Lukumi.  I fear it may tend to suggest 
that the Free Exercise Clause now only guards against intentional 
discrimination.

I'd read this language another way.  I'd read it to say that when a plaintiff 
argues a violation of neutrality ("where the claim is invidious 
discrimination"), he must plead and prove it with the requisite detail ("the 
plaintiff must plead and prove that the defendant acted with discriminatory 
purpose").  But a plaintiff can go another route altogether.  He can argue that 
the law is not generally applicable, and thus avoid all inquiries about 
discriminatory purpose.  Under my reading, nothing in Iqbal speaks to the 
general applicability requirement.

I think my reading is the most plausible one.  But it may be that I am being 
unduly influenced by my attraction to a strong substantive conception of Free 
Exercise.  So I'd be interested in what other people think.

P.S.  In my defense, surely the Court did not mean to change the Free Exercise 
Clause standard in a case about pleading standards, right?  Although maybe this 
is meaningful as an inadvertent disclosure about where the Free Exercise Clause 
is going.  (Also note that Justice Alito, who wrote the Newark opinion while on 
the Third Circuit, joined this opinion.)



__
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
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RE: City rejects atheist bus ad as "too controversial"

[Brownstein, Alan]

Cornelius v. NAACP Legal Defense Fund also suggests that the government can 
exclude controversial messages from a nonpublic forum (which the bus may be) as 
long as the policy is not applied in a way that constitutes viewpoint 
discrimination. The Court held that excluding advocacy groups, in part, because 
they were controversial was not intrinsically viewpoint discriminatory.  That 
would support the bus operator's rule, but one could challenge the way the rule 
is applied.

I know it is common usage, but I have always thought it muddied the waters to 
characterize a regulation as "vague" for free speech purposes when the 
regulation guides government action but does not involve the imposition of 
penalties on speakers.  The issue here isn't notice as to speakers, but 
government discretion in applying the policy.  A regulation may fail both 
requirements; it may fail to provide notice to speakers and also provide 
officials too much discretion in implementing the rule, but I think it makes 
more sense to discuss these concerns separately - especially when only one of 
them applies.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Friday, May 15, 2009 4:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: City rejects atheist bus ad as "too controversial"

The bus operator's policy in Bloomington (my current stomping grounds!) is 
slightly less vague that Steve's posting might suggest, although vagueness 
remains a serious problem.  Citing its concerns about creating the appearance 
of favoritism and imposing controversial views on captive audiences, the policy 
limits ads to commercial ads, works of art, and "noncontroversial public 
service announcements."  The policy specifically excludes political ads and ads 
containing "statements of position in support of or in opposition to 
controversial public issues."  I assume the policy could be read to preclude 
not only atheistic messages but also sectarian religious appeals, although 
that's certainly not clear (which tends to support the ACLU's vagueness 
challenge).

Under a more clearly worded policy, could the bus operator exclude all 
political and religious advertising?  Cf. Lehman v. City of Shaker Heights.  Or 
would that be regarded as impermissible viewpoint discrimination, at least as 
to the religious messages?  Cf. Lamb's Chapel, Good News Club, Rosenberger, etc.

Dan Conkle

**
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu
**


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Friday, May 15, 2009 1:12 PM
To: Religionlaw@lists.ucla.edu
Subject: City rejects atheist bus ad as "too controversial"
The Indiana Atheist Bus Campaign is seeking to buy advertising on municipal 
buses with the slogans "In the beginning, man created God" and "You can be good 
without God."  The group explains on its web site (http://inatheistbus.org/), 
"We want to let everyone know that it's all right not to believe in a deity, 
that you do not need to be 'saved,' and that you can be a good person without 
religion.  We hope that everyone will look at the facts and evidence before 
making life decisions, including religion."

The bus operator in Bloomington, IN (my old stomping grounds) refused to accept 
the "You can be good without God" ads because they were "too controversial."  
The Indiana Civil Liberties Union has sued on behalf of the campaign.  See 
http://inatheistbus.org/2009/05/05/bloomington-rejects-you-can-be-good-without-god-lawsuit-underway/
 for links to the complaint and press release.

Bloomington Mayor Mark Kruzan (disclosure: one of my undergrad classmates and 
old friends) says the city legal department won't represent Bloomington 
Transit, which is a separate municipal corporation which contracts with the 
city legal department.  According to the Bloomington Herald-Times, "Kruzan said 
having city legal defend BT in court would amount to 'promoting government 
sanctioned censorship' because the bus service gets city legal's services at an 
hourly rate less than that of a private law firm, which is in essence a partial 
taxpayer subsidy."


_

Steve Sanders

Attorney, 
Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago

Co-editor, Sexual Orientation and the Law 
Blog

Adjunct faculty, University of Michigan Law School (Winter term 2010)

Email: steve...@umich.edu

Personal home page: www.stevesanders.net

RE: Law.com - Religious Accommodation Dispute Over Mock TrialScheduleResolved

[Brownstein, Alan]

Marci asks what was the result of the dispute that I described in my earlier 
post. As far as I know it is still going on. The dispute arose in 2000. 
Adventists students and parents challenged the Athletic Association's policy. 
After protracted administrative review, the policy was upheld. 

A suit was brought in state court with the assistance of the Oregon ACLU. It 
went up to the Court of Appeals twice. The focus of the litigation at this 
point was on the meaning of Oregon state civil rights statutes (and I no longer 
had any involvement in the litigation). The Athletic Association argued that 
the Oregon civil rights statute did not require any accommodation for religious 
minorities burdened by a facially non-discriminatory policy unless the 
accommodation could be provided at de minimis costs. The Association argued 
that requiring any greater accommodations would violate the Establishment 
Clause. The Court of Appeals rejected their arguments and remanded twice, each 
time telling the Association to apply a more rigorous standard in determining 
whether it was required to accommodate religious minorities who were burdened 
by its policy. 

The Association took the case to the Oregon Supreme Court. In Nakishima v. 
Oregon School Activities Association, 185 P. 3d 429 (2008), the Oregon Supreme 
Court also held that the state civil rights statute required a more rigorous 
standard than the one the Association had applied in refusing to accommodate 
the Adventist players and that giving the statute this more rigorous meaning 
would not violate the Establishment Clause. The Court remanded again to allow 
the Association to apply the statute correctly. I do not know what has happened 
since then.

Marci also asks whether the Mock Trial folks will be lobbied on this issue in 
the future. I'm sure they will be. What I don't know is how they will respond 
to that lobbying. Sometimes petty bureaucrats and local governments will fight 
tooth and nail against anyone who dares to challenge their discretionary 
authority, seemingly without regard to the merits of the issue. On other 
occasions they may act more reasonably either because they are persuaded by 
argument or they are influenced by political action. And sometimes, they get 
sued -- but only if state law is available to justify litigation since the 
federal constitution can no longer be used to protect religious minorities in 
these kinds of situations..

Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of hamilto...@aol.com [hamilto...@aol.com]
Sent: Saturday, May 09, 2009 8:42 PM
To: Law & Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock
TrialScheduleResolved

Alan. What was the result of the dispute on which you consulted?  That year and 
future years.
Also-is there any doubt that the Mock Trial folks will be heavily lobbied to 
change their policy in future?
Marci
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: "Brownstein, Alan" 

Date: Sat, 9 May 2009 20:34:19
To: Law & Religion issues for Law Academics
Subject: RE: Law.com - Religious Accommodation Dispute Over Mock Trial
ScheduleResolved




Still, the Mock Trial Competition isn't  the worst offender in this area. I 
consulted on a dispute a few years ago involving a basketball tournament in 
Oregon. A Seventh-day Adventist school's team asked the Athletic Association 
managing the tournament to accommodate their religious obligations by trying 
not to schedule their games on Friday night or Saturday. The Adventist team 
indicated that if an accommodation was really impractical they would be willing 
to forfeit a game scheduled on their Sabbath. The Athletic Association 
responded that in order for the Adventist school's team to play any games in 
the tournament, they would have to promise to play all of the games on their 
schedule. That is, they would have to be willing to commit to playing on the 
Sabbath, if a game was scheduled on Saturday, in order to be allowed to play 
games scheduled for the other days of the week.

Under Smith, it would be hard to challenge this rule as well since a 
requirement that all teams play all scheduled games is a neutral law of general 
applicability.



Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Anthony Decinque [anthony.decin...@gmail.com]
Sent: Saturday, May 09, 2009 8:20 AM
To: Law & Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock Trial  
ScheduleResolved

But as someone who has participated in many mock trial tournaments, including 
the National (College) Tournament, the board's decision seems like the best 
thing.  Teams travel from around the country to attend the tournament.  

RE: Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved

[Brownstein, Alan]

I appreciate Mr. Decinque's explanation of the costs that might be incurred if 
the Mock Trial Competition accommodated religious teams that are prohibited by 
their religion from participating in the competition on Saturday, their 
Sabbath. But I'm unpersuaded by his argument in support of the Smith regime for 
several reasons.

First, individuals and/or the public often incur costs as the price for 
protecting fundamental rights. Certainly, this is true for freedom of speech. 
Of course, at some point the costs of protecting a right may be too expensive 
and the exercise of the right has to be abridged. But the price here does not 
seem that high when one compares it to the price both individuals and 
communities have to pay as a result of the protection we routinely provide to 
hurtful or unpopular speech. 

Second, Mr. Decinque seems to assume that the cost of accommodating a religious 
school's team must fall exclusively on the particular team against which they 
were scheduled to compete. But there are lots of ways to spread or mitigate 
those costs. If the Mock Trial Competition solicited donations to create a fund 
to mitigate the additional expenses incurred when religious accommodations 
required the rescheduling of matches, they might find that many individuals and 
institutions were willing to offer financial support for religious 
accommodations in the tournament. Or the cost could be spread among all the 
competitors. The easiest answer to a request for a religious accommodation is 
always to say no. But that doesn't mean that there aren't alternative 
approaches available to avoid any teams being seriously disadvantaged.

Third, Mr. Decinque concedes that The Mock Trial Board should reschedule 
competition dates when it is feasible to do so. But the Smith regime, which he 
apparently supports, doesn't require feasible accommodation. It gives decision 
makers the discretion to refuse accommodations even when it is feasible to 
provide them.

Still, the Mock Trial Competition isn't  the worst offender in this area. I 
consulted on a dispute a few years ago involving a basketball tournament in 
Oregon. A Seventh-day Adventist school's team asked the Athletic Association 
managing the tournament to accommodate their religious obligations by trying 
not to schedule their games on Friday night or Saturday. The Adventist team 
indicated that if an accommodation was really impractical they would be willing 
to forfeit a game scheduled on their Sabbath. The Athletic Association 
responded that in order for the Adventist school's team to play any games in 
the tournament, they would have to promise to play all of the games on their 
schedule. That is, they would have to be willing to commit to playing on the 
Sabbath, if a game was scheduled on Saturday, in order to be allowed to play 
games scheduled for the other days of the week.

Under Smith, it would be hard to challenge this rule as well since a 
requirement that all teams play all scheduled games is a neutral law of general 
applicability.

I don't agree with Brad very often on this list. But I do on this issue.

Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Anthony Decinque [anthony.decin...@gmail.com]
Sent: Saturday, May 09, 2009 8:20 AM
To: Law & Religion issues for Law Academics
Subject: Re: Law.com - Religious Accommodation Dispute Over Mock Trial  
ScheduleResolved

But as someone who has participated in many mock trial tournaments, including 
the National (College) Tournament, the board's decision seems like the best 
thing.  Teams travel from around the country to attend the tournament.  The 
fund-raising that is required to attend is a massive undertaking - as captain 
of my team, I remember spending hours pleading with the University and with 
donors.  We put on "exhibition" trials and tried anything else we could think 
of to raise money.  High school and college students also miss school to attend.

To go through that trouble and then find out that, because of the religious 
beliefs of another team, your team has to either (1) come back another weekend, 
or (2) change hotels/flights and stay an extra day, is unreasonable.

No one can claim that they were surprised that the the tournament extends to 
the sabbath.  That has been the schedule for decades.

I feel sorry for the students that had to forfeit.  I remember facing a team 
who told us that they would have to forfeit if they beat us because they 
couldn't compete on the sabbath.  (We solved that problem by beating them.)

But I don't think that this has much to do with Smith because I think the 
decision is correct under a pre-Smith regime as well.  If anything, it supports 
Smith because now we know that a judge is not going to second-guess the 
decision of the people who have managed this tournament for decades.  I'm 
afraid that your a-b-c formula below is just a fact of life.  We should avoid 
the situation 

RE: Teachers (private and private, high school and college), ministers, psychotherapists, and lawyers

[Brownstein, Alan]

Good questions, Eugene. Quick answers because I'm writing an exam.

I have no problem viewing teaching as a First Amendment activity, but I don't 
think we can base that conclusion on the fact that it involves talking. My 
point was simply that we will draw different conclusions about whether and how 
the First Amendment protects an activity (that involves talking) based on 
various considerations. What those considerations are isn't that easy to 
answer. But the fact that teachers, doctors and members of the clergy all talk 
a lot doesn't tell me much about how government regulations of their activities 
should be evaluated under the free speech clause.

When we get to sermons from the pulpit specifically, the problem with a free 
speech paradigm is that it doesn't only operate to protect the person preaching 
from the pulpit. The focus of free speech doctrine is to prevent the government 
from engaging in content and viewpoint discrimination. That means that treating 
the preacher from the pulpit differently (more or less favorably) than other 
speakers requires rigorous review. If you believe that there is nothing 
distinctive about the religious expressive activities that occur in a house of 
worship that warrants special constitutional consideration, then a free speech 
model works. But if you believe that there is something distinctive about these 
religious activities (and I do), then the equal treatment which underlies free 
speech doctrine is a significant problem.

I think both of the religion clauses require religious activities (including 
some activities involving expression) to be treated differently than 
non-religious activities (including some activities involving expression) in 
some circumstances. If I'm wrong about that and free speech doctrine applies to 
all of these religious and non-religious activities, then we ought to be able 
to see the consequences of that determination. One consequence would be that 
religious exemptions and accommodations for religious activities with an 
expressive dimension to them would have to be justified under strict scrutiny 
review. Another consequence would be that government could fund religious 
proselytizing, worship, and associations in any situation in which it funds 
secular advocacy, activities and associations.

Since I don't see that happening, I conclude that the idea that the regulation 
and funding of religious expressive activities should always be evaluated under 
free speech doctrine doesn't work -- at least it doesn't work yet. It doesn't 
explain how the courts decide cases or how government treats religion. 
Normatively, I also think it would be a bad idea.

Alan Brownstein 






From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, May 04, 2009 7:04 PM
To: Law & Religion issues for Law Academics
Subject: Teachers (private and private, high school and college), ministers,
psychotherapists, and lawyers

Alan:  I'm a bit puzzled here.  First, is there really much in
common between teachers (at least what they say in the classroom, as
opposed to one-on-one career counseling or some such) and doctors or
psychotherapists?  If teachers are to be treated as similar to doctors
and psychotherapists, then presumably the government would have vast
authority not only over public education and publicly-funded private
education, but purely privately funded private education as well, yes?
I would have thought that professional-client speech restrictions,
whatever First Amendment problems they might provide, are at least
separate from the mainstream of First Amendment doctrine, and the speech
of teachers is well within that mainstream (though subject to
restriction in some measure when the teachers are government employees).
Am I mistaken on that?

Second, why is "analyzing regulations of" "sermons from the
pulpit" "under a free speech paradigm" not "going to work"?  Even if
ministers have extra rights under the Free Exercise Clause (which I
doubt), surely they have Free Speech Clause rights, and rights that are
the same as those of other speakers, no?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Monday, May 04, 2009 5:03 PM
> To: hamilto...@aol.com; Law & Religion issues for LawAcademics
> Subject: RE: Bowman v. U.S.
>
> Marci has to be right here. Deciding what is speech for first
amendment purposes
> has to involve more than just the fact that an activity involves a lot
of talking.
> Sermons from the pulpit are talking, so is the practice of
psychotherapy, most of
> what lawyers do, and a lot of what doctors do. Analyzing regulations

RE: Bowman v. U.S.

[Brownstein, Alan]

Marci has to be right here. Deciding what is speech for first amendment 
purposes has to involve more than just the fact that an activity involves a lot 
of talking. Sermons from the pulpit are talking, so is the practice of 
psychotherapy, most of what lawyers do, and a lot of what doctors do. Analyzing 
regulations of all these activities under a free speech paradigm isn't going to 
work.

Alan

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, May 04, 2009 4:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bowman v. U.S.

While speech is involved in the classroom, career preparation is more involved 
than just speech.  The state is not simply handing out funds for the sheer joy 
of learning or enriching discourse. The state funding of ministers or rabbis 
for that matter is a direct and knowing benefit to  religious institutions. 
That is different from the abstract treatment of learning as nothing but a 
discourse of speech.
Marci 

--Original Message--
From: Volokh, Eugene
Sender: religionlaw-boun...@lists.ucla.edu
To: Law & Religion issues for Law Academics
ReplyTo: Law & Religion issues for Law Academics
Sent: May 4, 2009 7:41 PM
Subject: RE: Bowman v. U.S.

What exactly is it about government-funded education directed at
future careers that keeps it from being "pure speech"?  It presumably
wouldn't just be the government funding, since that was at issue in
Rosenberger as well.  I take it the theory must be that "education" is
somehow more than just "pure speech," in constitutionally significant
ways.  But why, especially when we're talking about education that
basically just involves talking, rather than science labs, football
games, and the like?

Marci Hamilton writes:

> In any event, this is not pure speech -- it is government funding
education directed
> at future careers.

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Sent from my Verizon Wireless BlackBerry
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RE: Bowman v. U.S.

[Brownstein, Alan]

One problem, of course, is that if a free speech analysis is employed, it will 
cut both ways. Private organizations focusing on environmental, social justice, 
or civil liberty issues can't be treated more favorably than religious 
institutions. But they also can't be treated less favorably than religious 
institutions. Eugene, to his credit, has always adopted a formal equality 
position in this area that would permit the free speech clause to be used to 
prohibit religious accommodations and exemptions that discriminated in favor of 
religious institutions as well as to prohibit government action that 
discriminated against religious institutions. (I hope that I am describing your 
position correctly, Eugene. My apologies if I got it wrong.) I don't see a lot 
of evidence that the government or the courts are ready to adopt that framework 
across the board.

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, May 04, 2009 9:41 AM
To: Law & Religion issues for Law Academics
Subject: Bowman v. U.S.

Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last
December but just redesignated two weeks ago as being for publication?
Federal law allows a wide range of public and community service by
military personnel - including working for organizations that provide
"elementary, secondary, or postsecondary school teaching," or "any other
public or community service" -- to "count toward [one's] years of
service needed to obtain a full twenty-year military retirement."  But
the program excludes participation in activities of "organizations
engaged in religious activities, unless such activities are unrelated to
religious instructions, worship services, or any form of
proselytization" (as well as in activities of for-profit businesses,
labor unions, and partisan political organizations).  

Thus, for instance, if someone were volunteering to teach in a school
program aimed at spreading various controversial views on environmental
responsibility, or social justice, or civil liberties, that would
presumably count.  But if someone were volunteering to teach in a school
program aimed at spreading religious views, that would not count.  The
Sixth Circuit upheld this against a Free Exercise Clause challenge,
citing Locke v. Davey.  Is that right?  What should the result have been
under the Free Speech Clause, if such a claim had been made (presumably
relying on Rosenberger)?

Eugene
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RE: Same-sex marriage and religious exemptions

[Brownstein, Alan]

Not to keep beating a dead horse, but we really do accomplish a lot by 
analogizing gay and lesbian autonomy rights and religious liberty autonomy 
rights. As Chip suggests below, under this analogy you would exempt religious 
organizations from applicable anti-discrimination laws -- as was done in Title 
VII. Also, you ground each group's respect for the other group's autonomy on a 
strong foundation. If religious liberty means anything it means the freedom to 
be different -- to hold beliefs and engage in practices that other faiths may 
consider to be sinful. Legally protecting the autonomy of non-monotheistic 
faiths doesn't mean that monotheistic faiths accept or approve of the those 
beliefs. It means that our society respects the right to be different with 
regards to how each of us answers basic and very important questions about G-d, 
the meaning of life, and worship obligations and practices. Extending that 
principle to the right to be different in the way that each of us lov!
 es the person we want to share our lives with shouldn't be that large a leap. 

Alan Brownstein

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu
Sent: Friday, April 10, 2009 11:31 AM
To: Law & Religion issues for Law Academics
Subject: Re: Same-sex marriage and religious exemptions

Doug writes:

"On the gay rights issues, religious conservatives are pretty much getting 
exemptions only within the church itself -- not even their affiliated religious 
organizations -- which is to say, they are getting only those exemptions that 
no sensible person on the gay rights side actually opposes."

>From everything I have heard, no version of ENDA (the bill that would extend 
>Title VII to discrimination based on sexual orientation) can possibly pass 
>unless it includes the same exemption for religious organizations (not just 
>"houses of worship") as the current Title VII exemption for such organizations 
>to engage in religious selectivity.  If that is right, such an exemption will 
>include a broad range of religiously affiliated entities (i.e., schools, 
>charities, etc, organized for religious purposes).  So Doug's "pretty much" in 
>the first sentence above may be obscuring some very important matters. 

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RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid toWearReligiousScarf

[Brownstein, Alan]

I would describe the problem in a slightly different way than John does 
although I think his break down of the issues is quite helpful.
In most cases wearing religious garb fulfills religious obligations and 
incidentally communicates a message identifying the person wearing the garb as 
a member of a particular faith community. This is true for government employees 
as well as non-government employees. As a general matter, the decision to wear 
religious garb should be protected as part of the free exercise of religion. If 
Smith does not recognize such a right, the problem is with Smith.
What states, and courts, are correctly concerned about is the government 
employee going beyond the incidental message of religious identity communicated 
by wearing religious garb and communicating two other messages, "You should 
adopt my religious beliefs" or "Whether or not you hold the same religious 
beliefs that I do will influence the way I act in my official capacity towards 
you," to clients, people receiving services from the employee, and subordinate 
employees.
I think there are more effective ways to prevent these other messages from 
being communicated (ways that are less burdensome to religious liberty) than a 
ban on the wearing of religious garb. To the extent that such mechanisms are in 
place and training provided to make sure that these other messages are not 
communicated, the prohibition against religious garb becomes increasingly 
difficult to defend.
Alan Brownstein


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of John Taylor
Sent: Thursday, April 09, 2009 9:01 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid toWearReligiousScarf

Doug's concerns are certainly legitimate ones, and I suspect few would disagree 
with the propositions that:

(a) a specific religious exclusion like a garb statute is more worrisome than 
"neutral" laws under Smith (as the Police Directive in Webb apparently was), and
(b) courts should certainly be very interested in any evidence that such a 
statute or regulation is being enforced selectively.  The potential that a 
hoary garb statute can be ignored most of the time and then selectively 
enforced due to biases of particular officials is troubling, and certainly 
proof that this was happening ought to result in a finding of a constitutional 
violation.

How much enforcement and/or retention of a garb statute or the like would turn 
on hostility versus honest commitment to separationism is an empirical 
question.  I am always a little skeptical of the idea that in America there are 
significant numbers of communities where significant numbers of government 
officials or citizens are hostile to religion in all its forms, though I'm sure 
there are quite a few who are hostile to conservative forms of religiosity or 
to specific views.  I don't really know how to answer the empirical question, 
but I don't disagree with Doug that there is some real and fairly general 
hostility out there.  I suppose I'm a bit less suspicious on this front than 
Doug, but Doug is admittedly in a better position to make the empirical 
judgment than I am.

I think the best case for the propriety of a religion-specific exclusion might 
be something like this: a "no religious garb or symbols" rule applied to public 
school teachers in a community that is largely religiously homogenous; i.e. the 
teachers who choose to wear symbols of their religious commitments will pretty 
much all be wearing Christian symbols.  In such a setting, I think 
Establishment Clause concerns are pretty significant and the indicia of 
religious hostility pretty low.  (In contrast, the balance changes if the 
community and the teachers' religious affiliations are more mixed).  But even 
there, one could imagine the counterargument that the school district's 
legitimate concerns could be more properly addressed through some religiously 
neutral dress code rule.

John Taylor,
WVU Law





>>> Douglas Laycock  4/9/2009 10:49 AM >>>

I think that hostility to religion in general, or to conservative religion in 
general, or to all religions that are in conflict with the secular culture -- 
the reach of the bias will vary from person to person -- is a large part of why 
these laws stay on the books and why some administrators seek to vigorously 
enforce them and quite probably, other administrators don't much care.

This is not to say that an honest commitment to separation is not also part of 
the explanation.  But so is real hostility.

Quoting John Taylor :

> It occurs to me that I should offer an additional point before my
> omission is pointed out by others:  Re the statement below that it is
> not crazy to think that in some circumstances "singling out religion"
> as in a religious garb statute is not always badly motivated, I
> neglected to say that I recognize that the historical circumstances
> of the statute in PA (c

RE: Americans United: Iowa SupremeCourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Brownstein, Alan]

Eugene may be right that a referral is ultimately the best alternative - even 
it imposes real burdens on the client.  But that doesn't mean it is an easy 
case.  The best result would be one that minimizes the burdens to the client 
while respecting decisions based on conscience. As exemptions and 
accommodations are developed, I think we need to weigh the cost of 
accommodations carefully and try to identify ways to reduce those costs.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, April 07, 2009 10:57 AM
To: Law & Religion issues for Law Academics
Subject: RE: Americans United: Iowa 
SupremeCourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

But if a counselor has such personal reservations about a client's 
behavior that he would prefer to refer the client to someone else, then 
wouldn't it be better for a client to go to that someone else, and avoid the 
counselor who has reservations?  And that's true even if the counselor, when 
forced to counsel the client, tries to be as professional as possible.

Of course, an alternative would be to insist that counselors have 
no reservations - even unstated ones - about homosexuality or various kinds of 
religiosity or whatever else, and expel all counselors who admit to such 
reservations (or at least who candidly admit that because of such reservations 
they might have a hard time giving the most effective possible advice to some 
people).  But if we don't go that far, then wouldn't the clients be better 
served when counselors can set the clients up with colleagues who are most 
likely to be sympathetic with the client?

Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, April 07, 2009 12:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Americans United: Iowa 
SupremeCourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

I think cases involving counselors, therapists, and health care providers may 
be more difficult in at least some situations than Doug suggests. In many 
cases, it is difficult for the person seeking help about very personal matters 
to discuss their problems with the counselor or therapist at the initial 
meeting. Often a relationship has to develop over time before the person 
seeking assistance fully confides in the counselor. To have the counselor refer 
the patient to another therapist at that time imposes serious burdens on the 
client.  In some cases, there may be a way for counselors to provide 
information to prospective clients so that they can make choices to avoid this 
predicament. But that possibility may not always be feasible.

Alan Brownstein

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RE: Americans United: Iowa Supreme CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Brownstein, Alan]

I think cases involving counselors, therapists, and health care providers may 
be more difficult in at least some situations than Doug suggests. In many 
cases, it is difficult for the person seeking help about very personal matters 
to discuss their problems with the counselor or therapist at the initial 
meeting. Often a relationship has to develop over time before the person 
seeking assistance fully confides in the counselor. To have the counselor refer 
the patient to another therapist at that time imposes serious burdens on the 
client.  In some cases, there may be a way for counselors to provide 
information to prospective clients so that they can make choices to avoid this 
predicament. But that possibility may not always be feasible.

Alan Brownstein

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RE: Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Brownstein, Alan]

rofessor of Law
Co-Director, Murphy Institute for Catholic Thought, Law,
 and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice

________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu]
Sent: Saturday, April 04, 2009 6:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: Americans United: Iowa Supreme Court   
RulingOnMarriageUpholdsReligious Liberty, Says Americans United

As a hypothetical question, I think there is an extraordinarily slight 
possibility that churches or clergy will ever be required to host or officiate 
the marriages of same sex couples. But this issue isn't being raised as a 
hypothetical question. It is being argued as a basis for denying same-sex 
couples the right  to marry now. I suspect the reason why some members of this 
list used terms like "fear mongering" is because discrimination against gays 
and lesbians isn't speculative. It is real, ongoing, and hurtful. And is 
frustrating to hear people defend this discrimination on the basis of such a 
remote possibility in some future world that doesn't come close to existing now.

When I talk to people who are starting to prepare for the next constitutional 
amendment on same-sex marriage in California -- one that will be drafted by 
proponents of same-sex marriages -- there is a general consensus that one of 
the reasons Proposition 8 passed was that its supporters convinced people who 
didn't know any better that there was a real threat that their pastors and 
priests would be forced to marry same-sex couples. Virtually everyone I talk to 
is looking for ways to defuse this issue because they think it is false. No one 
wants to be married in a church that condemns their relationship by a member of 
the clergy who thinks their relationship is sinful and is only officiating at 
the ceremony under threat of legal sanction.

I am recommending that this new amendment recognizing the validity of same-sex 
marriages should include a provision guaranteeing that no member of the clergy 
or house of worship can be required to officiate over or host such a ceremony. 
I haven't met a single person who opposes that idea. Many think it is 
unnecessary because such compulsion is already prohibited by the First 
Amendment. But they still support the idea because it may make same-sex 
marriages seem less threatening to some voters -- and because no one cares 
about not being able to get married in a church that condemns their 
relationship in the first place.

Alan Brownstein

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RE: Americans United: Iowa Supreme Court RulingOnMarriageUpholdsReligious Liberty, Says Americans United

[Brownstein, Alan]

As a hypothetical question, I think there is an extraordinarily slight 
possibility that churches or clergy will ever be required to host or officiate 
the marriages of same sex couples. But this issue isn't being raised as a 
hypothetical question. It is being argued as a basis for denying same-sex 
couples the right  to marry now. I suspect the reason why some members of this 
list used terms like "fear mongering" is because discrimination against gays 
and lesbians isn't speculative. It is real, ongoing, and hurtful. And is 
frustrating to hear people defend this discrimination on the basis of such a 
remote possibility in some future world that doesn't come close to existing now.

When I talk to people who are starting to prepare for the next constitutional 
amendment on same-sex marriage in California -- one that will be drafted by 
proponents of same-sex marriages -- there is a general consensus that one of 
the reasons Proposition 8 passed was that its supporters convinced people who 
didn't know any better that there was a real threat that their pastors and 
priests would be forced to marry same-sex couples. Virtually everyone I talk to 
is looking for ways to defuse this issue because they think it is false. No one 
wants to be married in a church that condemns their relationship by a member of 
the clergy who thinks their relationship is sinful and is only officiating at 
the ceremony under threat of legal sanction.

I am recommending that this new amendment recognizing the validity of same-sex 
marriages should include a provision guaranteeing that no member of the clergy 
or house of worship can be required to officiate over or host such a ceremony. 
I haven't met a single person who opposes that idea. Many think it is 
unnecessary because such compulsion is already prohibited by the First 
Amendment. But they still support the idea because it may make same-sex 
marriages seem less threatening to some voters -- and because no one cares 
about not being able to get married in a church that condemns their 
relationship in the first place.

Alan Brownstein

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RE: Government Religious Displays and Substantive Neutrality

[Brownstein, Alan]

Sorry - my previous post was sent prematurely. My full post is as follows:

I think Mark's post is helpful in returning to the original source of this 
thread, but my post was not intended to suggest just free speech analogies. As 
Mark notes, there may be interesting free speech questions that are implicated 
by my examples, but my focus is one the Establishment Clause not just the Free 
Speech Clause.

Just as the Summum case was litigated on free speech grounds and did not 
directly address Establishment Clause issues, we can imagine a case that is 
litigated on Establishment Clause grounds and ignores the free speech issues 
that may be present.

When I wrote that "If the government decided that one quarter of an acre of a 
one hundred acre park is reserved solely for the expressive use of a particular 
religious faith, I  presume that would be unconstitutional, " I was thinking of 
both constitutional clauses, but there is a split in how courts apply them.

There may be a free speech violation here but there is also an Establishment 
Clause violation. If we litigated a case based on my hypothetical under the 
Establishment Clause alone, wouldn't you agree, Mark, that there is an 
Establishment Clause violation? But if that is so, how is the Establishment 
Clause problem cured by making the speech formally governmental instead of 
private. I can understand the argument that by taking over the speech as its 
own, the government has changed the context for free speech purposes - because 
the free speech clause is primarily directed at government regulation of 
private speech as opposed to imposing constraints on the government's use of 
its own resources. But the Establishment Clause is importantly, if not 
primarily, directed at how the government uses its own resources. That's why I 
used spending examples in my post as well as property examples.

If government deliberately discriminates among religious faiths in its use of 
government resources in a way that does not create serious incentives for 
choosing one faith over another, I think those decisions are still 
unconstitutional under the Establishment Clause - even though similar 
discrimination among secular belief systems would withstand free speech clause 
review. Do you disagree, Mark?

Alan Brownstein





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, March 31, 2009 11:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Government Religious Displays and Substantive Neutrality

Given Doug's criticism of my earlier post (which undoubtedly means I did not 
give the matter enough thought before posting and need to clarify or revise my 
post), I'm reluctant to reengage so soon, but it is worth noting that parts of 
Alan's analysis would apply even with respect to nonreligious speech (e.g., 
Rick's examples of secular messages that are offensive to some). If the govt 
decided to allow one group with a focus on a particular subject (e.g., global 
warming) and one viewpoint (law must severely limit carbon dioxide emissions) 
exclusive use of a portion of a park for expressive purposes--while still 
maintaining its character as a part of a public park--I think there would be a 
free speech violation, with speech in a traditional public forum being 
regulated on the basis of content and even viewpoint. If Alan's analogy holds, 
then allowing adoption of a secular message on a govt monument would also 
violate the First Am. I suppose that would make war memorials that honor the 
fallen violative of the First Am (at least absent an equal opportunity for 
placement of dissenting monuments). I presume that means something does not 
work with the analogy.

Mark S. Scarberry
Pepperdine University School of Law




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, March 31, 2009 10:14 AM
To: Law & Religion issues for Law Academics
Subject: RE: Government Religious Displays and Substantive Neutrality

I fully accept Alan's analysis.  Very helpful.

Quoting "Brownstein, Alan" :

> While I would probably come out in the same place as Doug does on
> many of these issues, I might be more explicit than he is in arguing
> that substantive neutrality refers to both liberty and equality
> values. Liberty standing alone can't handle the job. If government
> gives modest financial incentives to one faith and not another (three
> pence in aid), the impact on religious liberty and the incentives
> such spending discrimination creates will be minimal or nonexistent.
> Even minor regulatory discrimination is unlikely to persuade many
> individuals to  change their religious beliefs and practices. But
> surely a one dollar tax credit to Christians is unconstit

RE: Government Religious Displays and Substantive Neutrality

[Brownstein, Alan]

I think Mark's post is helpful in returning to the original source of this 
thread, but my post was not intended to suggest free speech analogies. As Mark 
notes, there may be interesting free speech questions that are implicated by my 
examples, but my focus is one the Establishment Clause not the Free Speech 
Clause.

Just as the Summum case was litigated on free speech grounds and did not 
directly address Establishment Clause issues, we can imagine a case that is 
litigated on Establishment Clause grounds and ignores the free speech issue 
that may be present.

When I wrote that "



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Tuesday, March 31, 2009 11:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Government Religious Displays and Substantive Neutrality

Given Doug's criticism of my earlier post (which undoubtedly means I did not 
give the matter enough thought before posting and need to clarify or revise my 
post), I'm reluctant to reengage so soon, but it is worth noting that parts of 
Alan's analysis would apply even with respect to nonreligious speech (e.g., 
Rick's examples of secular messages that are offensive to some). If the govt 
decided to allow one group with a focus on a particular subject (e.g., global 
warming) and one viewpoint (law must severely limit carbon dioxide emissions) 
exclusive use of a portion of a park for expressive purposes--while still 
maintaining its character as a part of a public park--I think there would be a 
free speech violation, with speech in a traditional public forum being 
regulated on the basis of content and even viewpoint. If Alan's analogy holds, 
then allowing adoption of a secular message on a govt monument would also 
violate the First Am. I suppose that would make war memorials that honor the 
fallen violative of the First Am (at least absent an equal opportunity for 
placement of dissenting monuments). I presume that means something does not 
work with the analogy.

Mark S. Scarberry
Pepperdine University School of Law




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, March 31, 2009 10:14 AM
To: Law & Religion issues for Law Academics
Subject: RE: Government Religious Displays and Substantive Neutrality

I fully accept Alan's analysis.  Very helpful.

Quoting "Brownstein, Alan" :

> While I would probably come out in the same place as Doug does on
> many of these issues, I might be more explicit than he is in arguing
> that substantive neutrality refers to both liberty and equality
> values. Liberty standing alone can't handle the job. If government
> gives modest financial incentives to one faith and not another (three
> pence in aid), the impact on religious liberty and the incentives
> such spending discrimination creates will be minimal or nonexistent.
> Even minor regulatory discrimination is unlikely to persuade many
> individuals to  change their religious beliefs and practices. But
> surely a one dollar tax credit to Christians is unconstitutional,
> notwithstanding its minimalist impact on religious liberty.
>
> It is not that hard to conceptualize a preferentialist religious
> display  in a public park in the same way. If the government decided
> that one quarter of an acre of a one hundred acre park is reserved
> solely for the expressive use of a particular religious faith, I
> presume that would be unconstitutional. If the government reserves
> one quarter acre for the expressive use of a particular religious
> faith, but insists that the message must be communicated with a
> permanent structure, I would think that is also unconstitutional. How
> different is it if the government states that it will accept the
> permanent structure as a gift and place it on that same quarter acre
> plot? In all three cases, government property is being used on a
> discriminatory basis to communicate the message of one religious
> community and not that of others.  The line between giving a
> religious group funds to communicate the government's religious
> message that coincides with the group's own beliefs, and giving a
> religious group public land to express a religious message that
> coincides with the government's religious commitments is thin.
>
> Alan Brownstein
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas
> Laycock
> Sent: Monday, March 30, 2009 7:53 PM
> To: religionlaw@lists.ucla.edu
> Subject: Fwd: Government Religious Displays and Substantive Neutrality
>
>
> A friend on the list posed the following question to me.  Since he
> didn't send the query to the list, 

RE: Government Religious Displays and Substantive Neutrality

[Brownstein, Alan]

While I would probably come out in the same place as Doug does on many of these 
issues, I might be more explicit than he is in arguing that substantive 
neutrality refers to both liberty and equality values. Liberty standing alone 
can't handle the job. If government gives modest financial incentives to one 
faith and not another (three pence in aid), the impact on religious liberty and 
the incentives such spending discrimination creates will be minimal or 
nonexistent. Even minor regulatory discrimination is unlikely to persuade many 
individuals to  change their religious beliefs and practices. But surely a one 
dollar tax credit to Christians is unconstitutional, notwithstanding its 
minimalist impact on religious liberty.

It is not that hard to conceptualize a preferentialist religious display  in a 
public park in the same way. If the government decided that one quarter of an 
acre of a one hundred acre park is reserved solely for the expressive use of a 
particular religious faith, I presume that would be unconstitutional. If the 
government reserves one quarter acre for the expressive use of a particular 
religious faith, but insists that the message must be communicated with a 
permanent structure, I would think that is also unconstitutional. How different 
is it if the government states that it will accept the permanent structure as a 
gift and place it on that same quarter acre plot? In all three cases, 
government property is being used on a discriminatory basis to communicate the 
message of one religious community and not that of others.  The line between 
giving a religious group funds to communicate the government's religious 
message that coincides with the group's own beliefs, and giving a religious 
group public land to express a religious message that coincides with the 
government's religious commitments is thin.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, March 30, 2009 7:53 PM
To: religionlaw@lists.ucla.edu
Subject: Fwd: Government Religious Displays and Substantive Neutrality


A friend on the list posed the following question to me.  Since he didn't send 
the query to the list, I have deleted his name.  If he thinks he's got me after 
my answer, he can take credit on his own initiative..

> Might you be willing to offer your reaction to the following line of argument:

> (1) Suppose that a government erects a nativity scene, a Ten Commandments 
> display, or a cross.

> (2) It is pretty clear that this is *formally* non-neutral.

> (3) The display, however, is *substantively* neutral -- in the sense that the 
> display does not affect anyone's religious choices.

> (4) Since the Establishment Clause is the constitutional mechanism for 
> achieving substantive government neutrality towards religion, the display 
> does not violate the Establishment Clause -- despite its formal 
> non-neutrality.

Actually, I don't think that either 2) or 3) is clear.  Formal neutrality 
becomes incoherent in the case of government speech.  Formal neutrality is 
defined as the absence of religious categories.  But a rule that government can 
take no positions when it discusses religion -- that it must be either silent 
or scrupulously neutral in what it says -- makes a very special category of 
religion.  On every other topic, government endorses or opposes as it chooses.  
So while endorsing religion certainly seems like a departure from neutrality, 
it doesn't easily fit into the definition of formal neutrality.

And if you try to put religion into one of the existing categories, which one?  
The category of all the things government endorses?  All the things it opposes 
or denounces?  All the things it doesn't care about and expresses no opinion 
on?  It's really not clear what formally neutral would mean here.

I do think government endorsements depart from substantive neutrality, because 
they attempt to persuade or encourage people to adopt the government's 
religious views.  But as my questioner notes, these government efforts are 
highly unlikely to be very effective.  Sometimes I have defined substantive 
neutrality as requiring neutral incentives; sometimes I have defined it as 
government neither encouraging or discouraging religious belief or practice.  I 
had not focused on the difference between these two formulations until I got 
this question, but government speech encouraging religion is a case where the 
encouragement is blatant but the effects on incentives may be quite small.

I don't think the effect on incentives is zero.  Government is a large and 
pervasive presence, and at the margin, its religious speech surely matters.  
The kinds of government speech we are talking about is not going to convert 
Jews or Muslims to Christianity.  But government religious speech necessarily 
comes in some particular form.  It models forms of prayer, forms of observing 
Christmas, one tran

RE: Using religion for government purposes

[Brownstein, Alan]

As is often the case, Doug says what I was trying to say -- but better and more 
clearly. Early on Native Americans, Catholics and other religious minorities 
often did not count for coercion purposes, much less endorsement purposes. 
Preferentialism was rejected among those believers that mattered on issues that 
mattered to them -- both politically and constitutionally. Today, we have a 
broad consensus that non-monotheistic faiths, polytheistic faiths, and 
nonbelievers count for religious controversies involving government spending 
and the coercive promotion of religion (e.g. government directed prayer). The 
general principle that government should not take sides in religious 
controversies and select favored faiths controls for these disputes. The 
contention that government should not favor particular religious displays and 
messages and disfavor others is grounded on the same principle.

Alan Brownstein 




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Sunday, March 29, 2009 4:48 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Using religion for government purposes

The historical argument is a level-of-generality issue.  The founders had 
prayer at government events and invoked the conception of God that Eugene 
describes.  They did it without controversy in a society that was 
overwhelmingly Protestant.  A couple of quotes from Madison and Jefferson, 
mostly from when they were safely out of office and never running again, cannot 
change that.

The broader principle in the founding generation was that government should not 
take sides in religious controversies.  They fought over how to finance the 
church, and not over prayer at government events, because how to finance the 
church was controversial among Protestants.  And the dissenters in Virginia 
kept complaining about every vestige of support or special recognition for the 
Episcopal Church in Virginia, until every bit of that was eliminated.

Government-sponsored prayer became controversial, and thus subject to the 
principal that government should stay out of religious controversies, with the 
big Catholic immigration in the 2d quarter of the 19th century.  Then it was so 
intensely controversial that we had people dead in the streets from mob 
violence.  That fight was over observances that Protestants claimed were 
nonsectarian but that the newly arrived Catholics found specifically Protestant.

The emergence of substantial numbers of avowed nonbelievers is like the 
Catholic immigration.  It creates religious controversies where none existed 
before.  Then the question is whether those people just lose, because the 
traditional practice was neutral enough for the founders with their radically 
different population, or whether we should once again apply the founding 
principle that the government should not take sides in religious controversies.



Quoting "Volokh, Eugene" :

> As I understand it, throughout American history the government
> has repeatedly, in a vast range of contexts, invoked a particular
> conception of God -- one God, who created the world, who sets a moral
> code for us, who judges us ("the Supreme Judge of the world"), and who
> may protect us in certain situations ("a firm reliance on the protection
> of Divine Providence").  This is a pretty broadly ecumenical conception
> of God, but it is still one view of God.  So I don't really see how
> history supports rejection of the continued use of this conception in
> government speech.
>
> Likewise, while there is some strand of constitutional case law
> that would condemn every government reference to that conception of God,
> the case law is pretty clear deeply mixed, with the bottom line
> supporting the constitutionality of at least some such reliance (see
> Marsh and Van Orden).  So I'm not sure that arguments based on
> constitutional case law on balance support rejection of the continued
> use of this conception in government speech.
>
> Finally, while there has been an evolving cultural commitment in
> favor of religious inclusivity, my sense is that the acceptance of
> government invocation of God in the way I describe still has wide
> adherence in virtually all aspects of American culture except the
> subculture of the academic and legal elites.  So I don't really see how
> evolving cultural commitments will do the work that history and case law
> won't.
>
> Now to be sure there are eminently plausible arguments why a
> rule barring all government religious speech (with some hazy exception
> or limitation related to religious speech of sufficient historical
> significance, ranging from the text of Founding documents to the names
> of our cities) would be morally or practically superior.  But I don't
> think that one can support these arguments with reference to culture or
> to history, and one can r

RE: Using religion for government purposes

[Brownstein, Alan]

   I think Eugene may have read more into my comment than I intended 
(probably my fault for not being more clear and trying to get away with too 
brief a comment). I think it is problematic to argue that our government is 
"identified with a particular conception of God." There are strong arguments 
based on history, evolving cultural commitments, and constitutional case law to 
support the argument that government should not identify itself with, and use 
the  resources of government to promote, a particular religious faith. There 
are arguments on the other side as well -- but I think the direction of law and 
history has been toward inclusivity rather than preferentialism.

  Clearly some kinds of traditionally accepted preferentialism are no 
longer acceptable. Government does not fund missionaries to convert Native 
Americans today and it does not use the public schools to promote Protestantism 
over Catholicism. In the past, American culture and law has been able to 
increasingly advance an inclusive understanding of religious liberty and 
equality without rejecting some broadly stated public commitment to religion. 
As our society has become more diverse, however, this has become increasingly 
more difficult to do. Hence, the degree of constitutional conflict over this 
issue. 

   I suspect we are going to see some very hard cases in the future. If the 
constitutional constraints on government displays of religious messages weaken, 
most decision makers, I suspect, will accept displays from many of the 
popularly recognized faiths in our society. Having done so, however, that will 
make the rejection of less popular and recognized faiths all the more glaring. 
It will be increasingly difficult to characterize government decisions in those 
cases as anything other than the rejection of particular religions. That's 
problematic to me (and it is, I believe subject to constitutional challenge) -- 
but it seems to me to be the inevitable consequence of permitting government to 
identify and align itself "with a particular conception of God."

Alan Brownstein





  


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, March 28, 2009 9:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Using religion for government purposes

I agree with Alan at a general level.  Among other things, I
think his observations, like mine, help show that it's problematic to
say that "our government is supposed to be 'under God,' not one with
God, or identified with a particular conception of God.  Totalitarian
states co-opt God, and loyalty to God, for their own purposes; the
Establishment Clause forbids that in the U.S."  Forbids on what
authority?  And supposed to by whom?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan
> Sent: Friday, March 27, 2009 10:29 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Using religion for government purposes
>
> I think that Eugene's mention of the fact that the government's
accepted use of
> religion occurred at a "pretty ecumenical level" has to carry a lot of
weight here.
> It's not that there weren't countervailing cultural, political, and
legal aspects of our
> history. Certainly, contempt for Native American faiths,
anti-Semitism, anti-
> Mormonism and anti-Catholicism are a part of our heritage. But our
constitutional
> culture had a strong foundation in inclusive and non-preferential
church-state
> relationships and has increasingly evolved toward increased
inclusivity. Today,
> given the diversity of beliefs in our society, these parallel themes
of inclusivity
> and anti-preferentialism on the one hand and some limited use of
religion by
> government on the other are increasingly difficult to reconcile.
>
> Alan Brownstein
> 
> From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu]
> On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Friday, March 27, 2009 8:51 AM
> To: Law & Religion issues for Law Academics
> Subject: Using religion for government purposes
>
> Chip Lupu writes:
>
> > Second, our government is supposed to
> > be "under God," not one with God, or identified with a particular
> conception of God.
> > Totalitarian states co-opt God, and loyalty to God, for their own
> purposes; the
> > Establishment Clause forbids that in the U.S.
>
> I wonder where the "supposed to" comes from.  As I understand
> it, throughout much of history it was understood that the governm

RE: Using religion for government purposes

[Brownstein, Alan]

I think that Eugene's mention of the fact that the government's accepted use of 
religion occurred at a "pretty ecumenical level" has to carry a lot of weight 
here. It's not that there weren't countervailing cultural, political, and legal 
aspects of our history. Certainly, contempt for Native American faiths, 
anti-Semitism, anti-Mormonism and anti-Catholicism are a part of our heritage. 
But our constitutional culture had a strong foundation in inclusive and 
non-preferential church-state relationships and has increasingly evolved toward 
increased inclusivity. Today, given the diversity of beliefs in our society, 
these parallel themes of inclusivity and anti-preferentialism on the one hand 
and some limited use of religion by government on the other are increasingly 
difficult to reconcile.

Alan Brownstein 

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Friday, March 27, 2009 8:51 AM
To: Law & Religion issues for Law Academics
Subject: Using religion for government purposes

Chip Lupu writes:

> Second, our government is supposed to
> be "under God," not one with God, or identified with a particular
conception of God.
> Totalitarian states co-opt God, and loyalty to God, for their own
purposes; the
> Establishment Clause forbids that in the U.S.

I wonder where the "supposed to" comes from.  As I understand
it, throughout much of history it was understood that the government was
supposed to use religion -- at least at a pretty broad level -- for its
own purposes.  That seems pretty clear in the invocations of God in the
first and last paragraphs of the Declaration of Independence and nearly
all state constitutional preambles.  It also seems to be pointed to by
the Northwest Ordinance ("Religion, morality, and knowledge, being
necessary to good government and the happiness of mankind, schools and
the means of education shall forever be encouraged") and other legal
rules.

To be sure, there was long the understanding that there should
be limits on this (though for a long time they were exclusively
prudential political limits rather than judicially enforceable ones),
and in particular that co-opting loyalty to God works best when one puts
it at a pretty ecumenical level.  But the notion that people's
religiosity -- and God talk more broadly -- can legitimately be used as
a government tool seems to have been pretty broadly accepted throughout
most of American history.  And I take it that it's still accepted pretty
broadly by many Americans.

Now maybe the "is supposed to" refers not to original meaning or
tradition or current consensus, but the judgment (perhaps the correct
judgment) of some influential groups within modern legal elites.  But I
think it would require more defense than just the historical-sounding
"is supposed to."

As to totalitarianism, some totalitarian states (e.g., Iran)
co-opt loyalty to God, others (e.g., the USSR and other Communist
countries) rejected it, and for others (e.g., Nazi Germany) it seems not
to have played much of a role.  Likewise, some non-totalitarian states
(e.g., the U.S.) have historically co-opted loyalty to God, at least in
a relatively ecumenical way.  So I'm not sure that history at that level
of abstraction tells us much.

Eugene
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RE: Summum

[Brownstein, Alan]

Since this thread allegedly began with a focus on the Summum case, it might be 
helpful to focus the discussion on the core Establishment Clause issue raised 
by the case -- that of denominational preferentialism.

In that context, I find arguments about a heckler's veto to be unpersuasive. If 
a town has a nativity scene in the Park in front of City Hall, and a Jewish 
groups donates a Menorah to the town to be displayed in s similar location. If 
the town refuses to display the Menorah, the ensuing dispute bears little 
resemblance to a heckler's veto context. There may be a bit of an implicit 
heckler's veto to any equality claim to the extent that one way for the state 
to achieve equality is by eliminating  the benefit to the favored class, but 
equality claims can also be satisfied, of course, by extending the benefit -- 
and that is often the claimant's goal.

Moreover, the idea of a heckler's veto suggests that it is the fact that people 
oppose the speaker's message, standing alone, that justifies restricting the 
speaker's speech. That isn't the way we understand and apply other first 
amendment principles that require courts to make some determination about 
social reality, and it isn't a meaningful way to think about the endorsement 
test either. Speech isn't found to be fighting words just because someone 
claims that the expression made them angry enough to start a fight. Speech 
isn't found to be a threat just because someone claims that they were 
frightened by the message. Speech doesn't violate the Brandenburg standard just 
because someone claims that they were incited by the expression and the list 
could go on. The endorsement test requires some judicial evaluation of social 
reality -- just as these other tests do -- and some judicial determination of 
what constitutes an endorsement. 

This doesn't mean that the endorsement test is particularly easy to interpret 
or apply. But it involves more than a heckler's veto.

Alan Brownstein 

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu]
Sent: Friday, March 27, 2009 8:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Summum

I can see that Rick just doesn't accept the idea that religion is 
constitutionally distinctive for purposes of non-coercive government support.  
And, without an Establishment Clause, I suppose it's not.  So, in some towns, 
we'll get crosses on City Hall and "Christians welcome" signs.  (Recall that in 
my hypo, no one was told they were unwelcome, homophobes or not.)  I don't want 
to live in a town that would put a cross (or a Star of David, or other 
sectarian symbol) on City Hall, so I'm quite glad that the Estab Clause does 
apply to the states.

And once we return to the legal status quo, we're back to the question of 
religious distinctiveness.  As Doug says, the government may (sometimes must) 
have policies on war vs. peace, or civil rights of gays.  There is no reason 
for government to have a religious view.  Religious people are not "silenced" 
by this; they are free in the private sector to express their view.  But they 
don't get government amplification.

Eugene suggests that the "endorsement" test causes divisiveness.  I'm no fan of 
the test, but it's obvious that all Religion Claus litigation causes 
divisiveness; what does that prove?  Fighting in court over religion clause 
limits sees far less destructive of the polity than fighting in politics over 
whose faith gets amplified by the government.

I noticed that no one wanted to take on the idea that government is "under 
God," and not one with God, nor is it free to claim the loyalties associated 
with God.  That's the core here, not the idea of "offense," to which Rick 
endlessly returns.

Chip

 Original message 
>Date: Fri, 27 Mar 2009 08:22:09 -0700 (PDT)
>From: Rick Duncan 
>Subject: RE: Summum
>To: Law & Religion issues for Law Academics 
>
>   I think Eugene makes a great point about the
>   divisiveness caused by the endorsement test.
>
>   When you enjoin a governmental religious display
>   (such as the Nativity scene I keep "harping" about),
>   you don't merely silence the govt. You also impose
>   silence on the willing audience (private citizens
>   who wish to see the display). These are many of the
>   same people who were told to avert their eyes when
>   they were offended by the Gay Pride display. This
>   adds insult to injury, and results in people
>   reasonably feeling like outsiders who must play a
>   "heads you win tails we lose" game with their
>   secular counterparts in the marketplace of ideas.
>
>   Rick Duncan
>
>___
>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 mess

RE: Summum

[Brownstein, Alan]

I think Mark and Randy both make good points, so let me pose a couple of 
hypotheticals to explore the potential range of the Summum opinion.

1. Town X routinely refuses to allow private parades through its central 
business district because of congestion and safety concerns and because once it 
allows some private parades to use this route, traditional public forum 
doctrine will limit its ability to restrict access on the basis of content or 
viewpoint. But X does sponsor a couple of government parades each year through 
the central business district. A group of local churches ask X to give them a 
permit to hold a Christmas parade through the central business district. The 
town says "no", but it says that this is such a great idea that it will adopt 
the parade as its own -- in which case the parade can march through the central 
business district. Other religious groups ask the town to permit them to hold 
parades celebrating the holidays of their faith through the central business 
district. The town says "no". Did the town violate the free speech clause of 
the First Amendment?

2. A similar hypothetical but the location has changed. Now it is the walls of 
the lobby of a government office building. The administrator of the building 
only permits temporary private displays on the walls under a regime of 
selective access -- so the walls are a non-public forum. There is one flat 
rule, however. All advocacy messages are prohibited.
Some churches want to put up temporary signs that say "Be all that you can be 
-- Attend Church -- Join a Church."
The city adopts this message as its own. Similar signs by non-Christian faiths 
are rejected. Is there a violation of the free speech clause of the First 
Amendment?

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu]
Sent: Friday, March 27, 2009 8:35 AM
To: Law & Religion issues for Law Academics
Subject: RE: Summum

Well ... that assumes that (1) the acceptance of the monument was coupled with 
a decision by the city to commit the "monument" space in the park to a 
government expressive them, and (2) the Court's rationale (apart from its 
declaration that this applies only to monuments) can be so limited.

Randy Bezanson

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, March 26, 2009 7:39 PM
To: Law & Religion issues for Law Academics
Subject: RE: Summum

Parks, streets and sidewalks have never been seen as forums for
placement of permanent monuments by anyone who wished to do so. Now, if
the city prohibited you from holding an anti-Ten-Commandments-monument
rally in the park, next to the Ten Commandments monument, we'd have more
to talk about.

Mark S. Scarberry
Pepperdine University School of Law


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