RE: Assessing a Proposed Solution to the KY Case

[Doug Laycock]

I don't think anyone understands the clerk's office to be remotely like a
judge's office. The judge exercises an expert judgment for which only
another judge can be substituted. Even if his staff occasionally signs her
name, no one thinks her staff can legitimately decide cases.

Issuing marriage licenses is a ministerial task that requires essentially no
judgment, for which the deputies are a perfectly adequate substitute, and
the Kentucky statute says (what we would all assume anyway) that "Any duty
enjoined by law . . . upon a ministerial officer, and any act permitted to
be done by him, may be performed by his lawful deputy." Neither the statute
nor the concept applies to judges.

And even with respect to judges: if there are multiple judges in a local
court, the recusal of one does not require bringing in a judge from a
different court. Another judge of the same court takes over the case. 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Wednesday, September 16, 2015 7:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Assessing a Proposed Solution to the KY Case

I agree that only the office holder gets an exemption, not a unit of
government. My argument is premised on the office holder getting an
exemption, and so is Davis's. 

Once an office holder is recused, the question becomes who carries out the
duties instead. That turns on who has legal authority. 

If a federal trial judge recuses from a capital case because she cannot sign
a death order as a matter of religious conscience, the case has to go to
another judge. And that is so even though the recused judge has law clerks,
a courtroom deputy, and other assistants who sign pieces of paper under the
judge's authority. The judge's recusal takes out everyone in the chambers,
as they have no authority independent of her. As I understand Davis's
position on state law, the authority of her deputy clerks is related to the
authority of her office as the authority of law clerks is related to the
authority of the office of judge. The county clerk's recusal takes out
everyone in the office, as they have no authority independent of her. These
results follow from a _personal_ exemption, not one granted to _the office_
of district court judge or _the office_ of county clerk. 

One pressure point on this position is Davis's understanding of state law.
Marty has set out another reading that, if correct, would make the law clerk
analogy inapposite. Deputy clerks can sign marriage licenses (whereas law
clerks cannot sign death orders). But if Davis is right about state law,
then the law clerk analogy holds. There is no more an Establishment Clause
problem flowing from the need to bring in another judge than there is from
the need to bring in another county clerk. If the substitution is seamless
from the point of view of the applicant, as it would be if implemented in
the manner I proposed, there are also no problems arising from the fact that
the other clerk's geographic location may be distant. The licenses still get
issued out of the recused clerk's physical plant, as if a substitute judge
were sitting in a recused judge's courtroom and using the recused judge's
staff. 

Kevin

  

From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock
[dlayc...@virginia.edu]
Sent: Tuesday, September 15, 2015 9:44 PM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case

The judge who recuses does not try to prevent his whole court from deciding
the death penalty case. He recuses himself, personally; he does not recuse
the government authority.

Davis did not seek merely to recuse herself; she sought to prevent her whole
office from issuing marriage licenses. And having them issued under the
authority of another county is another way of disabling her whole office.

This is the fundamental confusion between the unit of government, which has
no religion, and the office holder, who does. Whatever the Establishment
Clause might say about the issue, the Kentucky RFRA analysis is clear --
only the office holder gets an exemption. Not the unit of government.





On Wed, 16 Sep 2015 01:02:53 +
 "Walsh, Kevin"  wrote:
>Alan,
>
>That's a helpful clarification. You're right about this third meaning 
>of "office." (And there may be more!)
>
>I find it helpful to think in terms of partial recusal: Davis is declining
to exercise marriage licensing authority, rather than exercising it to
comport with her religious beliefs. She's still exercising county clerk
authority when she does other things while remaining recused from marriages.
So there's a sense in which we 

RE: Federal RFRA in Davis-Like Situation?

[Doug Laycock]

I do not think RFRA is off the table, for the reasons you point out. But apart 
from compelling interest, it is also clear that a statute cannot prevent 
enforcement of the Constitution, and that a statute that tries to do so is 
unconstitutional as applied. So it would be essential to devise a RFRA remedy 
that did not prevent full and effective enforcement of the constitutional right 
on the other side. That is not what Kim Davis appears to be interested in, but 
it might matter in some other case with a more reasonable litigant and legal 
team.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Wednesday, September 16, 2015 5:22 PM
To: conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics
Subject: Federal RFRA in Davis-Like Situation?

 

I have a conceptual question that I’ve been trying to get my mind around.

 

Could the *federal* RFRA be invoked by someone like Kim Davis (whether or not 
the state has its own RFRA), arguing that a federal court order—that is, an 
order that is designed to enforce the 14th Amendment—is action of the 
“government,” which is defined under 42 U.S.C. Sec. 2000bb–2 to “include[] a 
branch, department, agency, instrumentality, and official (or other person 
acting under color of law) of the United States.”  In other words, is the 
judicial enforcement of the Constitution subject to RFRA?  Cf. 42 U.S.C. Sec. 
2000bb–3:  “This chapter applies to all Federal law, and the implementation of 
that law, whether statutory or otherwise . . . .” 

 

On the face of it, it would seem that the federal RFRA would indeed apply, but 
maybe I’m missing something.  (It’s happened before!)

 

I’m not suggesting that a federal RFRA objection could or should prevail.  I’m 
simply wondering whether the federal RFRA might apply.

 

Needless to say, enforcing the requirements of the 14th Amendment is a 
compelling governmental interest.  But, as the long thread of Kim Davis 
postings has indicated, there might be various ways of serving that compelling 
interest.  E.g., assuming a class action, perhaps the surest and simplest way 
to enforce the 14th Amendment in this setting would be to require, by 
injunction,  that each and every official and employee in every relevant 
government office provide marriage licenses upon request, including for 
same-sex couples.  Putting aside Title VII’s “reasonable accommodation” 
provision, would a federal court be free to issue that type of categorical 
order without taking account of the federal RFRA, assuming it were properly 
raised by one or more state government officials or employees?

 

Again, I’m not trying to make any point here, either way, on the merits of 
Davis’s objection or about how similar objections ought to be resolved.  I’m 
simply wondering if the federal RFRA is off the table and, if so, why.

 

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: conlawprof-boun...@lists.ucla.edu 
  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 15, 2015 10:53 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu  ; Law & Religion 
issues for Law Academics; Michael Dorf; Samuel Bagenstos
Subject: CTA6 rejects Davis's KY RFRA claim on sovereign immunity grounds

 

In an order today the Sixth Circuit rejected Kim Davis's state RFRA claim 
which, realistically, was the only one in play.  "We need not address the 
merits of her claims under Kentucky law because the Eleventh Amendment of the 
U.S. Constitution precludes the federal courts from compelling state officials 
to comply with state law. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 
89, 105–06 (1984)."  As for her federal constitutional claims, they remain 
alive, but only by a thread:  The court held that "Davis has not demonstrated a 
substantial likelihood of success on her federal constitutional claims." 

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RE: Judge Bunning's Injunctions

[Doug Laycock]

I don’t think she’s in violation. She has not prevented the deputies from 
issuing marriage licenses. Marty does not say that she has ordered them, 
threatened them, penalized them, or even verbally discouraged them from issuing 
licenses. I would read “in any way” to refer to the means of interfering, not 
as modifying what it is that she is not to interfere with.

 

The requirement of specificity is something like the rule of lenity – before we 
send her to jail for contempt, she is entitled to know with specificity exactly 
what it is that she is not to do. I don’t think that any of Bunning’s orders 
specifically tell her not to instruct her deputies to say the licenses are 
issued by authority of the federal court instead of the authority of Rowan 
County. Probably he should order that. But he hasn’t done it yet.

 

The sloppy off-the-cuff drafting is inexcusable when both the judge and the 
plaintiffs knew that they had a defiant defendant who would test limits and 
exploit loopholes.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Monday, September 14, 2015 6:08 PM
To: Doug Laycock
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Judge Bunning's Injunctions

 

This is extremely helpful, thanks, Doug.  A couple of reactions:

 

1.  First, Davis clearly is in flat violation of the judge's order of 9/11, 
which stated that "Defendant Davis shall not interfere in any way, directly or 
indirectly, with the efforts of her deputy clerks to issue marriage licenses to 
all legally eligible couples. If Defendant Davis should interfere in any way 
with their issuance, that will be considered a violation of this Order and 
appropriate sanctions will be considered."  

 

She is interfering, by ordering Mason to amend the license form.  I doubt 
anyone will care enough to try to have her held in violation of the order, but 
she is.

 

2.  At the contempt hearing, Judge Bunning said that as long as the plaintiffs 
thought the licenses were valid, he would not insist that the Deputy Clerks use 
any particular form.  Therefore, if the plaintiffs were to now come into court 
and argue that the new version of the licenses raises serious questions about 
their validity, I suspect Bunning would craft a more specific injunction about 
what must be on the form.  I'm very, very doubtful it will come to that, 
however, because, like Mae K., I can't imagine anyone ever seriously arguing 
that the marriages in question are invalid, even if there were a technical 
defect in the licenses issued in terms of what KY law requires.

 

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Judge Bunning's Injunctions

[Doug Laycock]

I finally looked at the court’s orders, provoked in part by someone asking 
whether today’s marriage license is in compliance. The answer is that it is 
hard to tell, but I think she is in compliance. It is hard to tell because none 
of his orders have made the slightest effort to comply with Federal Rule 65. 
This is not just a Remedies teacher’s technicality.  Defendants can go to jail 
for violating such an order, so it is important to state precisely what 
defendants are supposed to do or not do. Plaintiffs and judges are often sloppy 
about this, and they get away with it until a dispute arises or a defendant 
becomes recalcitrant.

 

Rule 65(d)(1) provides: “Ever order granting an injunction and every 
restraining order must (A) state the reasons why it issued; (B) state its terms 
specifically; and (C) describe in reasonable detail – and not by referring to 
the complaint or other documents – the act or acts restrained or required.”  
(emphasis added).  All emphasis below is by the judge. 

 

So here are the orders.  August 12:  “IT IS ORDERED that Plaintiffs’ Motion for 
Preliminary Injunction (Doc. # 2) against Defendant Kim Davis, in her official 
capacity as Rowan County Clerk, is hereby granted. IT IS FURTHER ORDERED that 
Defendant Kim Davis, in her official capacity as Rowan County Clerk, is hereby 
preliminarily enjoined from applying her “no marriage licenses” policy to 
future marriage license requests submitted by Plaintiffs.”

 

This is appended to a 28-page opinion, which states the reasons for the 
injunction’s issuance. But what does it order? The first sentence is 
meaningless without looking to the motion, which we are not supposed to do. And 
when we do look to the motion, we get no help: “Pursuant to Fed. R. Civ. P. 
65(a), the Named Plaintiffs move for a preliminary injunction enjoining 
Defendant Davis, in her official capacity, from enforcing the challenged policy 
of refusing to issue marriage licenses against them.” There is an accompanying 
memorandum of law, which presumably describes “the challenged policy.”

 

What the second sentence prohibits depends on Davis’s “policy,” which is not 
set out in the injunction. Davis has no written policy; any “policy” emerges 
only from her acts and her various and sometimes inconsistent statements. If 
you look to Bunning’s Memorandum Opinion (which we aren’t supposed to do), it 
appears that by no marriage licenses policy, he means a policy of not issuing 
marriage licenses to anyone, gay or straight. 

 

Plaintiffs had given him a proposed order, which was better (though it still 
improperly incorporated the motion), but he didn’t use it. The proposed order 
would have enjoined Davis from “enforcing the policy of refusing to issue 
marriage licenses to any future marriage license applications submitted by the 
named Plaintiffs.” Judge Bunning never said that.

 

September 3: “Motion having been made, and the Court being sufficiently 
advised, IT IS HEREBY ORDERED: Plaintiff’s Motion Pursuant to Rule 62(c) to 
Clarify the Preliminary Injunction Pending Appeal is GRANTED. IT IS FURTHER 
ORDERED: The Court’s August 12, 2015 preliminary injunction order, RE #43, is 
hereby modified to state that Defendant Kim Davis, in her official capacity as 
Rowan County Clerk, is hereby preliminarily enjoined from applying her “no 
marriage licenses” policy to future marriage license requests submitted by 
Plaintiffs or by other individuals who are legally eligible to marry in 
Kentucky.”

 

The first sentence is again meaningless without looking to the motion. The 
second sentence still prohibits an undescribed policy. There is no statement of 
the reasons for this order. We speculated that maybe the extension to 
non-parties  is based on a finding of probable success on the motion for class 
certification, but there is no such finding. Plaintiff’s Motion to Clarify 
makes no argument about his authority to protect persons who are not 
plaintiffs; and again, we are not supposed to look there.

 

Also on September 3:  After a recital that Rowan County “is fulfilling its 
obligation to issue marriage licenses to all legally eligible couples, 
consistent with the U.S. Supreme Court’s holding in Obergefell and this Court’s 
August 12, 2015 Order,” he says:  “Accordingly, IT IS ORDERED as follows: 1. 
Defendant Davis shall be released from the custody of the U.S. Marshal 
forthwith. Defendant Davis shall not interfere in any way, directly or 
indirectly, with the efforts of her deputy clerks to issue marriage licenses to 
all legally eligible couples. If Defendant Davis should interfere in any way 
with their issuance, that will be considered a violation of this Order and 
appropriate sanctions will be considered. 2. CJA counsel for the five (5) 
deputy clerks who indicated they would comply with the Court’s Order shall file 
a Status Report every fourteen (14) days from the date of entry of this Order 
unless otherwise excused by the Court. 

RE: Davis doubles down

[Doug Laycock]

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

 

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

 

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, September 09, 2015 12:12 AM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: Re: Davis doubles down

 

Kevin writes: "It would have been odd, for example, if Kentucky's Attorney 
General had said that he would not be defending Kentucky's marriage law, but 
that his office would continue to do so through his deputy. It made sense that 
the state hired private counsel instead."

 

I'm not sure this analogy works. It's one thing for an AG to refuse to have 
their office defend a law based on the AG's conclusion that a district judge 
correctly found the law to be unconstitutional and that the Supreme Court is 
likely to agree. It is quite another for an AG to refuse to have their office 
defend a law based solely on the AG's religious objection to the law. The idea 
that we wouldn't have state lawyers defend state laws based on  state AGs' 
religious objections to those laws strikes me as extremely odd.

 

Back to Davis, my point was not that she hasn't preserved the "on her 
authority" argument for objecting to the issuance of "Rowan County Clerk's 
Office" licenses. It appears that she has preserved that argument. But given 
Marty's comparison of that argument to the complicity arguments in the 
contraception case, I thought it was worth noting that her lawyers specifically 
argued in their latest filing that her claim should be viewed as more modest 
than the claims in the contraception cases and they framed that argument by 
emphasizing (their emphasis, not mine) the phrase "devoid of her name." 

 

Finally, in judging the burden a claimed accommodation imposes on the 
government, I'm inclined to think that we need to look at more than the 
logistical issue of whether "the government could easily substitute another 
official." It seems to me that requiring the government to modify the use of 
government office names to satisfy the religious beliefs of government 
employees imposes a burden (and raises concerns) beyond logistics. 
(Alternatively, perhaps this is all best approached not by focusing on the 
burden on government, but instead, the lack of a cognizable burden on plaintiff 
per Roy and Lyng).

 

- Jim 

 

 

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

[Doug Laycock]

He can’t issue an injunction orally. There are cases on that. And it is hard to 
imagine an oral order complying with Rule 65, which requires the injunction to 
be specific in its terms, to state the reasons for its issuance, and describe 
in reasonable detail, and not by reference to other documents, the acts 
restrained or required.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, September 08, 2015 3:53 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Eric J Segall; conlawp...@lists.ucla.edu
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

What's she going to do to stop her Deputies?  In his order today, Judge Bunning 
indicates that they are subject to their own injunctions to issue the licenses. 
 (If so, the document is not yet public -- it must have been done orally at the 
contempt hearing on Thursday, the transcript of which is still not available.)  
Is she going to literally stand in their path?  Threaten them with disfavorable 
work conditions?  If so, she'll be back in prison in a nanosecond -- and 
without even the pretextual ground of religious burden, since her name isn't on 
the licenses.

 

On Tue, Sep 8, 2015 at 3:42 PM, Anthony Michael Kreis <kr...@uga.edu 
<mailto:kr...@uga.edu> > wrote:

Just as an FYI for those not watching the rally-- Davis' counsel told the crowd 
she plans on blocking marriages again. He also went out of his way to say that 
the Plaintiffs' licenses are not valid. (Not that his view on that finer point 
necessarily matters, but interesting nonetheless.)

Anthony Michael Kreis, J.D.

University of Georgia

School of Public & Int'l Affairs

Sent from my iPhone


On Sep 8, 2015, at 2:24 PM, Scarberry, Mark <mark.scarbe...@pepperdine.edu 
<mailto:mark.scarbe...@pepperdine.edu> > wrote:

If Davis interprets current Kentucky law to provide that a license not 
specifically authorized by the county clerk is invalid, would she be in 
violation of the release order if she so informs others within the Kentucky 
government, or so informs persons seeking licenses? There may be interesting 
federalism or 1st Am. issues. But perhaps the licenses still include her name 
so that, to the extent she thinks her authorization is required, she would 
admit that her authorization is being given (though over her objection) in a 
sufficient manner.

 

Mark

 

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

 

From: conlawprof-boun...@lists.ucla.edu 
<mailto:conlawprof-boun...@lists.ucla.edu>  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall
Sent: Tuesday, September 08, 2015 10:55 AM
To: Doug Laycock
Cc: Michael Dorf; Law & Religion issues for Law Academics; Volokh, Eugene; 
conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> 
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

I'm not sure but it seems like judges should have jurisdiction to enforce prior 
injunctions and his injunction does seem reasonable as being without a time 
limit.

 

But definitely a tentative conclusion.

 

Best,

 

Eric

Sent from my iPhone


On Sep 8, 2015, at 1:40 PM, "Doug Laycock" <dlayc...@virginia.edu 
<mailto:dlayc...@virginia.edu> > wrote:

I agree that he probably can’t issue an order protecting all couples without a 
class certification. But he did it, in the release order:  “Defendant Davis 
shall not interfere in any way, directly or indirectly, with the efforts of her 
deputy clerks to issue marriage licenses to all legally eligible couples.” And 
he seems to interpret his September 3 order as also covering “all legally 
eligible couples.” And he orders counsel for the deputies to report on 
compliance every two weeks.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546  

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> ; Michael Dorf; 
Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

But now we're back to the problem we've seen in other states: The named 
plaintiffs have received their licenses and this has not (yet) been certified 
as a class action. So Davis would not actually be violating the court's order 
if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the injunction 
extends to all couples, named or otherwise. But it's not clea

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

[Doug Laycock]

Good point. He can issue a preliminary injunction based on a preliminary view 
of all the other issues, so why not based on a preliminary view of the class 
certification question? I haven’t thought about that, but it sounds plausible.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Tuesday, September 08, 2015 3:40 PM
To: Doug Laycock
Cc: Howard Wasserman; Cohen,David; Volokh, Eugene; Dellinger, Walter; 
conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman; Law & Religion issues 
for Law Academics
Subject: Re: Kim Davis released, given that her Deputies are issuing licenses

 

My sense is that the judge extended his preliminary injunction to cover all 
couples seeking a license because he anticipates granting the motion for class 
certification and wished to preserve their rights in the meantime.  Not sure 
whether that's kosher -- cart before horse and all -- but I wouldn't be 
surprised if he grants the motion for class certification soon.

 

On Tue, Sep 8, 2015 at 1:57 PM, Doug Laycock <dlayc...@virginia.edu 
<mailto:dlayc...@virginia.edu> > wrote:

Howard and I agree that issuing the injunction to protect non-parties is an 
error, although there are cases going both ways, and I haven’t looked in the 
Sixth Circuit.

 

And that error should be a good defense to a motion for civil contempt. It is 
no defense to a motion for criminal contempt, but again, it so far does not 
appear that anyone wants to go there.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546  

 

From: Howard Wasserman [mailto:wasse...@fiu.edu <mailto:wasse...@fiu.edu> ] 
Sent: Tuesday, September 08, 2015 1:43 PM
To: Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas 
Laycock; conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> ; Michael 
Dorf; Josh Blackman


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

 

I don't think it's mootness-I think it would be a motion to dissolve the 
injunction as having been complied with. That will just alert the judge to 
certify the class.

 

Doug: I agree Judge Bunning did that. But that would seem to be a good defense 
to a contempt motion.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482 <tel:%28305%29%20348-7482> 
(786) 417-2433 <tel:%28786%29%20417-2433> 
howard.wasser...@fiu.edu <mailto:howard.wasser...@fiu.edu> 
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 


  _  


From: Cohen,David <ds...@drexel.edu <mailto:ds...@drexel.edu> >
Sent: Tuesday, September 08, 2015 1:38 PM
To: Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger, Walter; 
Douglas Laycock; conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> ; 
Michael Dorf; Josh Blackman
Subject: RE: Kim Davis released, given that her Deputies are issuing licenses 

 

In other words, shouldn’t Davis file a motion to dismiss the complaint as moot?

 

David S. Cohen

Professor of Law


Thomas R. Kline School of Law

Drexel University 

3320 Market St.

Philadelphia, PA 19104 

Tel: 215.571.4714  

 
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(Oxford) 

 

From: conlawprof-boun...@lists.ucla.edu 
<mailto:conlawprof-boun...@lists.ucla.edu>  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Howard Wasserman
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; 
conlawp...@lists.ucla.edu <mailto:conlawp...@lists.ucla.edu> ; Michael Dorf; 
Josh Blackman
Subject: Re: Kim Davis rel

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

[Doug Laycock]

I agree that he probably can't issue an order protecting all couples without
a class certification. But he did it, in the release order:  "Defendant
Davis shall not interfere in any way, directly or indirectly, with the
efforts of her deputy clerks to issue marriage licenses to all legally
eligible couples." And he seems to interpret his September 3 order as also
covering "all legally eligible couples." And he orders counsel for the
deputies to report on compliance every two weeks.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

But now we're back to the problem we've seen in other states: The named
plaintiffs have received their licenses and this has not (yet) been
certified as a class action. So Davis would not actually be violating the
court's order if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the
injunction extends to all couples, named or otherwise. But it's not clear he
can do that without the class certification.

 

Howard

 

PS: Please feel free to forward this comment to the Law & Religion list.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Marty Lederman  >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman;
conlawp...@lists.ucla.edu  ; Law &
Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses 

 

Contempt order lifted.  Because the deputies are issuing licenses -- which
the judge assumes are valid without Davis's name, since plaintiffs have not
suggested otherwise -- he lets Davis out of jail and orders that she "shall
not interfere in any way, directly or indirectly, with the efforts of her
deputy clerks to issue marriage licenses to all legally eligible couples. If
Defendant Davis should interfere in any way with their issuance, that will
be considered a violation of this Order and appropriate sanctions will be
considered." 

 

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html
 

 

 

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

[Doug Laycock]

Rum luck for her that it was a three-day weekend. But maybe good for the court 
that she had more time to reflect on her situation.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Marty Lederman [mailto:lederman.ma...@gmail.com] 
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman; 
conlawp...@lists.ucla.edu; Law & Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses

 

Contempt order lifted.  Because the deputies are issuing licenses -- which the 
judge assumes are valid without Davis's name, since plaintiffs have not 
suggested otherwise -- he lets Davis out of jail and orders that she "shall not 
interfere in any way, directly or indirectly, with the efforts of her deputy 
clerks to issue marriage licenses to all legally eligible couples. If Defendant 
Davis should interfere in any way with their issuance, that will be considered 
a violation of this Order and appropriate sanctions will be considered."

 

http://balkin.blogspot.com/2015/09/judge-bunning-appropriately-releases.html

 

 

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

[Doug Laycock]

Howard and I agree that issuing the injunction to protect non-parties is an
error, although there are cases going both ways, and I haven't looked in the
Sixth Circuit.

 

And that error should be a good defense to a motion for civil contempt. It
is no defense to a motion for criminal contempt, but again, it so far does
not appear that anyone wants to go there.

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Howard Wasserman [mailto:wasse...@fiu.edu] 
Sent: Tuesday, September 08, 2015 1:43 PM
To: Cohen,David; Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas
Laycock; conlawp...@lists.ucla.edu; Michael Dorf; Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

I don't think it's mootness-I think it would be a motion to dissolve the
injunction as having been complied with. That will just alert the judge to
certify the class.

 

Doug: I agree Judge Bunning did that. But that would seem to be a good
defense to a contempt motion.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Cohen,David  >
Sent: Tuesday, September 08, 2015 1:38 PM
To: Howard Wasserman; Marty Lederman; Volokh, Eugene; Dellinger, Walter;
Douglas Laycock; conlawp...@lists.ucla.edu
 ; Michael Dorf; Josh Blackman
Subject: RE: Kim Davis released, given that her Deputies are issuing
licenses 

 

In other words, shouldn't Davis file a motion to dismiss the complaint as
moot?

 

David S. Cohen

Professor of Law


Thomas R. Kline School of Law

Drexel University 

3320 Market St.

Philadelphia, PA 19104 

Tel: 215.571.4714

 
 drexel.edu | facebook
  | twitter
 

Available NOW
 : Living in the Crosshairs: The Untold Stories of Anti-Abortion
Terrorism (Oxford) 

 

From: conlawprof-boun...@lists.ucla.edu

[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Howard Wasserman
Sent: Tuesday, September 08, 2015 1:31 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock;
conlawp...@lists.ucla.edu  ; Michael Dorf;
Josh Blackman
Subject: Re: Kim Davis released, given that her Deputies are issuing
licenses

 

But now we're back to the problem we've seen in other states: The named
plaintiffs have received their licenses and this has not (yet) been
certified as a class action. So Davis would not actually be violating the
court's order if she interferes with licenses to non-parties.

 

The plaintiffs filed a motion asking the court to clarify that the
injunction extends to all couples, named or otherwise. But it's not clear he
can do that without the class certification.

 

Howard

 

PS: Please feel free to forward this comment to the Law & Religion list.

 


Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida  33199
(305) 348-7482
(786) 417-2433
howard.wasser...@fiu.edu  
Faculty Page:  https://law.fiu.edu/faculty/directory/howard-m-wasserman/
http://ssrn.com/author_id=283130

 

  _  

From: Marty Lederman  >
Sent: Tuesday, September 08, 2015 1:06 PM
To: Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard Wasserman;
conlawp...@lists.ucla.edu  ; Law &
Religion issues for Law Academics; Michael Dorf
Subject: Kim Davis released, given that her Deputies are issuing licenses 

 

Contempt order lifted.  Because the deputies are issuing licenses -- which
the judge assumes are valid without Davis's name, since plaintiffs have not
suggested otherwise 

RE: Question about the Kentucky County Clerk controversy

[Doug Laycock]

For what it’s worth, a reporter for the LA times told me yesterday that the 
deputy clerk is her son. And he seemed to think (this was less clear) that the 
two of them were the whole office.

 

That doesn’t change the legal point. Someone in the office has to issue 
licenses.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

 

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

 

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RE: Question about the Kentucky County Clerk controversy

[Doug Laycock]

So much for reporters!

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-bounces+dlaycock=virginia@lists.ucla.edu 
[mailto:religionlaw-bounces+dlaycock=virginia@lists.ucla.edu] On Behalf Of 
Volokh, Eugene
Sent: Thursday, September 03, 2015 11:11 AM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

 

According to the district court opinion, Davis has six deputy 
clerks.  “Four of Davis’ deputy clerks share her religious objection to 
same-sex marriage, and another is undecided on the subject.  The final deputy 
clerk is willing to issue the licenses, but Davis will not allow it because her 
name and title still appear twice on licenses that she does not personally 
sign.”

 

Eugene

 

From: religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu>  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Thursday, September 03, 2015 7:59 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Question about the Kentucky County Clerk controversy

 

For what it’s worth, a reporter for the LA times told me yesterday that the 
deputy clerk is her son. And he seemed to think (this was less clear) that the 
two of them were the whole office.

 

That doesn’t change the legal point. Someone in the office has to issue 
licenses.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu>  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 10:41 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

 

By the way, none of this affects whether Davis should be held in contempt 
today:  Obviously, she should be.  If her principal complaint is merely that 
the Kentucky RFRA gives her the right to omit her name on the two lines in 
question, she should simply instruct the Deputy Clerk to do just that, but to 
otherwise issue the licenses/certificates.  And then if her superiors, such as 
the Governor, conclude that the documents are not valid without her name 
(notwithstanding the KY RFRA), she'd have to include her name, too.  There's no 
justification for directing the willing Deputy Clerk not to issue the documents.

 

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RE: The Remarkable Disappearance of State Justifications in Obergefell

[Doug Laycock]

I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, July 03, 2015 11:55 AM
To: Law  Religion issues for Law Academics
Cc: conlawp...@lists.ucla.edu
Subject: The Remarkable Disappearance of State Justifications in Obergefell

 

Some of you might find this of interest.  Reactions and critiques encouraged, 
as always.

 

http://balkin.blogspot.com/2015/07/the-remarkable-disappearance-of-state.html

 

The Remarkable Disappearance of State Justifications in Obergefell

Marty Lederman

Over at the Slate Breakfast Table, I have a  
http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_surprises_obamacare_marriage_jerusalem_passport_arizona_judicial.html
 post describing the handful of biggest surprises in what was in fact (or so I 
argue) a Supreme Court Term in which the Justices generally acted according to 
predictable form.

One of the most remarkable aspects of the Term, I argue there, is what the 
Court didn't do in  
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf 
Obergefell--namely, devote much attention at all to the states' asserted 
justifications for excluding same-sex couples from the institution of civil 
marriage.  That lacuna was no mere oversight--it was a function of the fact 
that the articulated justifications were threadbare, and that any legitimate 
justifications were virtually nonexistent.  For that reason, I argue, the 
impassioned opinions of the dissenting Justices will have very little traction 
in the years to come--they elide the critical point--and the Court's judgment 
will, in short order, be very widely embraced as self-evidently correct.  To be 
sure, there is, and will remain, a substantial minority of Americans who oppose 
SSM.  But the reasons they do so--primarily, moral disapproval, biblical 
injunction, anxiety about homosexuality, and occasionally even animus--are 
unavailable to the states as legitimate justifications; and therefore it's 
understandable that those justifications--the actual grounds for state 
discrimination--do not even make an appearance in the Obergefell opinions.

Here's a slightly amended version of the Obergefell portion of my Slate post:

For more than a dozen years, in the scores of cases challenging marriage laws 
going back to  
https://scholar.google.com/scholar_case?case=16499869016395834644hl=enas_sdt=6as_vis=1oi=scholarr
 Goodridge and beyond, the briefing, arguments, and written decisions had been 
dominated by two questions:  First, is discrimination on the basis of sexual 
orientation, like sex discrimination, subject to “heightened scrutiny” (in 
which case the denial of same-sex marriage would certainly be 
unconstitutional)?  Second, if not--if rational basis review is 
applicable--what are the state interests supporting denial of same-sex 
marriage, and do they satisfy even the very deferential “rational-basis” test?

Lawyers, judges, clerks and commentators expended thousands upon thousands of 
hours on these questions; if I had to guess, I’d say they consumed upward of 80 
percent of the time, effort, and resources in the marriage cases over the 
years, including in Windsor and Hollingsworth two terms ago, and in Obergefell 
and its companion cases this year.

The 90-plus pages of the Justices’ opinions in Obergefell don’t mention the 
first question (the proper standard of review for discrimination on the basis 
of sexual orientation) at all—not even to reserve it.  That's a significant 
failing of the dissenting opinions, as I explain below.  But it's not so 
surprising an omission in the majority opinion; I certainly didn't think 
Justice Kennedy would issue a ruling on the standard-of-review question, given 
that it was sufficient for him simply to hold that the marriage laws do not 
pass rational-basis muster (in conjunction with his substantive due process 
ruling). 

What is truly shocking, however, is that the various opinions barely even 
allude to the states’ asserted interests and whether they are sufficient to 
satisfy rational-basis review!

Let's start with the majority opinion.  Justice Kennedy announces the 
categorical, unequivocal holdings of the court on Pages 22–23 (emphasis mine):

The right to marry is a fundamental right inherent in the liberty of the 
person, and under the Due Process and Equal 

FW: The Remarkable Disappearance of State Justifications in Obergefell, federal laws of the family

[Doug Laycock]

The post below is from Judith Resnik, who for some reason is able to read our 
musings but not able to reply. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Resnik, Judith 
Sent: Friday, July 03, 2015 4:18 PM
To: 'Doug Laycock'; 'Law  Religion issues for Law Academics'
Cc: conlawp...@lists.ucla.edu mailto:conlawp...@lists.ucla.edu 
Subject: RE: The Remarkable Disappearance of State Justifications in 
Obergefell, federal laws of the family 

 

 

I’m joining with Doug and wanted to add that, as many of us have detailed over 
the last decades, an essentialist approach to jurisdiction (family, women, 
children=state) was wrong as a matter of fact and that essentialist approaches 
to jurisdictional allocations were normatively misconceived.  Of course the 
ready example is the master/servant argument and slavery, and the “domestic” 
realm is another one – painfully claimed in the VAWA case, Morrison, when Chief 
Justice Rehnquist held,  5-4 that Congress could not, at least as it had done 
in VAWA, reach violence against women, which was a “local” as compared to a 
“national” issue.  

 

The federal statutory laws of the family include ERISA, bankruptcy, social 
welfare benefits, Indian law, and immigration, inter alia. The constitutional 
laws of the family are reflected in Santosky, Troxel, and Loving, inter alia 
before this iteration. 

 

This categorical federalism approach is also at odds with the emerging 
international right to be free from household violence. The ECtHR found against 
Lithuania for failing to provide remedies for a woman hurt by her domestic 
partner. 

 

 

From: conlawprof-boun...@lists.ucla.edu 
mailto:conlawprof-boun...@lists.ucla.edu  
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Friday, July 03, 2015 12:21 PM
To: 'Law  Religion issues for Law Academics'
Cc: conlawp...@lists.ucla.edu mailto:conlawp...@lists.ucla.edu 
Subject: RE: The Remarkable Disappearance of State Justifications in Obergefell

 

I think the majority gave short shrift to the state’s reasons because they 
viewed them as ridiculous. I think the dissenters didn’t talk about them 
because 1) they didn’t really believe them either, and 2) they didn’t have to 
get that far because a) there was no right in the first place and nothing had 
to be justified, and b) if any justification were required, moral disapproval 
was enough. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

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RE:

[Doug Laycock]

I think there is no legal or doctrinal basis for her statement. But the
practical reality is that the damages are emotional or dignitary, and juries
are generally unsympathetic, so plaintiffs usually don't seek damages and
don't recover much when they do.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Friday, June 12, 2015 9:44 AM
To: Law  Religion issues for Law Academics
Subject: 

 

In Smith v Jefferson County Bd. of School Comm'rs, 13-5957,decided yesterday
by the Sixth Circuit,, the concurring judge(Judge Batchelder) said flat out
that We do not grant monetary damages for violations of the Establishment
Clause. No authority is cited for that proposition ,other than  a remark
that EC relief is equitable in nature.  I know that other courts have
awarded such damages, although with the exception of one 10th Circuit case,
I  don't know of any published opinions. Is Judge Batchelder right about
this claim? I understand it will often be difficult to prove or quantify
such damages, but I don't see a blanket rule against them.

 

Marc D. Stern

General Counsel

AJC

212 891 1480

646 289 2707 (c )

212 891 1495 (f)

ste...@ajc.org mailto:ste...@ajc.org  

www.ajc.org http://www.ajc.org/ 

Facebook.com/AJCGlobal http://www.facebook.com/AJCGlobal 

Twitter.com/AJCGlobal http://www.twitter.com/AJCGlobal 



 

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RE: 8th Cir. upholds exclusion of religious schools from playground safety funds

[Doug Laycock]

In a similar vein is Freedom from Religion Foundation v. McCallum, 324 F.3d
880 (7th Cir. 2003), where Judge Posner described Zelman and then said of
the case before him:

The state in effect gives eligible offenders vouchers that they can use
to purchase a place in a halfway house, whether the halfway house is
parochial or secular. We have put vouchers in scare quotes because the
state has dispensed with the intermediate step by which the recipient of the
publicly funded private service hands his voucher to the service provider.
But so far as the policy of the establishment clause is concerned, there is
no difference between giving the voucher recipient a piece of paper that
directs the public agency to pay the service provider and the agency's
asking the recipient to indicate his preference and paying the provider
whose service he prefers.

He never mentioned Mitchell. One might say that this particular judge cares
more about economics than about law, but I can't imagine he's the only judge
with that reaction to this question. And while I haven't read the losing
briefs in Mitchell, my guess is that they were much more in support of
Souter's position -- that this was unconstitutional no matter how the
government went about it -- than of O'Connor's distinction between per
capita distribution and true private choice. 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Luke Goodrich
Sent: Monday, June 01, 2015 4:44 PM
To: religionlaw@lists.ucla.edu
Subject: Re: 8th Cir. upholds exclusion of religious schools from playground
safety funds

I agree with Marty that the Eighth Circuit failed to grapple with the
doctrine in key respects. But when he says that Churches have not been
constitutionally eligible to receive government grants -- especially
selective grants -- for many decades, I think he might be overstating the
extent to which the lower courts have agreed with his interpretation of
Mitchell and the other direct aid cases. 

An important counterexample is Am. Atheists, Inc. v. City Of Detroit
Downtown Dev. Auth., 567 F.3d 278 (6th Cir. 2009), in which the Sixth
Circuit unanimously upheld the inclusion of churches in a direct, selective
grant program. There, Detroit wanted to improve the appearance of a section
of downtown. So it encouraged property owners to renovate their buildings
and parking lots, and then reimbursed them for half the cost of the
renovations. All told, the City received 189 qualifying applications and
approved 123 projects (of which 91 were completed). Nine of the projects
were completed by three different churches, and they included things like
renovating a church facade and steeple clock, and replacing church signs and
covers over stained glass windows. 

Judge Sutton considered Mitchell and the other direct aid cases at some
length, and it seems, if I understand him and our fellow interlocutors
correctly, that he goes more with the approach described by Doug and
advocated by Eugene than with the approach described by Marty. I.e., he
doesn't treat the distinction between direct funding and other forms of aid
as dispositive; he doesn't treat Zelman as inapposite; and he distinguishes
Tilton and Nyquist. In short, he holds that as long as the aid is
distributed to religious and non-religious groups on in an evenhanded way,
and does not have the purpose or primary effect of advancing religion, it
should be upheld.

I assume Marty would argue that the Sixth Circuit has simply gotten Mitchell
and the other direct aid cases wrong. But at a minimum, that would suggest
that his reading of those cases has not been fully accepted. Alternatively,
maybe Marty would argue that the grant program was not truly selective.
But when there's a fairly detailed application process and 35% of qualifying
applications get rejected, that seems fairly selective--unless I'm
misunderstanding what Marty means by that term.



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RE: Religious organizations, tax-exempt status and same-sex marriage

[Doug Laycock]

I generally agree with Marty. But it is very troubling that the SG wouldn’t say 
something like that.

 

A couple of caveats:  In CLS v. Martinez, the Court treated a neutral rule 
against sex outside of marriage as discrimination against gays. And once there 
is same-sex marriage throughout the land, a rule against sex outside of an 
opposite-sex marriage will facially discriminate on the basis of sexual 
orientation. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, May 04, 2015 8:15 AM
To: Law  Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage

 

Please allow me to use Michael's final question as a way of turning this thread 
back to its original topic--namely, whether a decision for the petitioners in 
Obergefell would have any legal impact on religious colleges and universities 
that adhere to the view that same-sex marriage is immoral.  I think it won't, 
basically for the following reasons:

 

1.  Even today, several institutions, such as Notre Dame, (at least nominally) 
prohibit their students from engaging in extramarital sex at all; but very few 
purport to treat LBGT students differently from straight students in this 
regard, or to otherwise facially discriminate on the basis of sexual 
orientation.  That is to say:  There remains some such discrimination at some 
schools . . . but not much, and the exceptions will become even rarer over 
time, for reasons wholly independent from legal compulsion.

 

As to those rare schools that do continue to discriminate . . . 

 

2.  It will be a while (if at all) before Congress amends Title IX to prohibit 
recipients of federal funds from discriminating on the basis of sexual 
orientation.

 

3.  And if and when Congress does amend Title IX, I think it is almost 
inconceivable that it would not retain the current exception in 1681(a)(3) for 
an educational institution which is controlled by a religious organization if 
the application of this subsection would not be consistent with the religious 
tenets of such organization.  Therefore, there won't be any threat of a 
federal funding cut-off.  

 

4.  Moreover, as long as Title IX continues to include 1681(a)(3)--whcih it 
will--I can't imagine the IRS ever even considering withdrawing tax-exempt 
status from a school entitled to that exemption, if for no other reason than 
that it would be on very weak statutory grounds in doing so as long as Title IX 
expressly exempts such schools.  (By contrast, recall that in Bob Jones, the 
Court stressed that Congress already had, in Title VI and numerous [other] 
enactments since then, established a categorical public policy forbidding 
racial discrimination in public and private schools.)   

 

 

On Mon, May 4, 2015 at 12:20 AM, Michael Worley mwor...@byulaw.net 
mailto:mwor...@byulaw.net  wrote:

 

4) Assuming opposition to same-sex marriage is seen as irrational, is there any 
reason universities should be allowed to discriminate against same-sex couples?

I ask these questions because in my mind, a ruling based on no rational basis 
impacts the public square in such a way that makes any university that holds 
the religious values we've mentioned (and at least 10 or 20 will continue to do 
so) up for attack?  I feel like you see a distinction I'm missing here, or 
oppose a ruling based on the lack of rational basis.

I look forward to your and any others responses.


Thanks,

Michael

 

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RE: Religious organizations, tax-exempt status and same-sex marriage

[Doug Laycock]

Offlist:  Has it done away with selling them? If so, you might want to clarify.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Friday, May 01, 2015 12:14 PM
To: Law  Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage

 

Dear Michael,

 

This does not contradict your point but, as it happens, and for what it's 
worth, the Catholic Church has not done away with indulgences.  See, e.g.:

 

http://www.news.va/en/news/pope-francis-grants-indulgences-for-world-youth-da

 

That said, there was recently some confusion over the question whether Pope 
Francis had *really* told people that following him on Twitter was a way to 
obtain them:

 

http://www.forbes.com/sites/alexknapp/2013/07/18/no-the-pope-isnt-tweeting-indulgences-to-his-followers/

 

=-)

 

All the best,

 

Rick




Richard W. Garnett

Professor of Law and Concurrent Professor of Political Science

Director, Program on Church, State  Society

Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556-0780

574-631-6981 (w)

574-276-2252 (cell)

rgarn...@nd.edu mailto:rgarn...@nd.edu 

 

To download my scholarly papers, please visit my SSRN page 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 

 

Blogs:

 

Prawfsblawg http://prawfsblawg.blogs.com/ 

Mirror of Justice http://mirrorofjustice.blogs.com/ 

 

Twitter:  @RickGarnett https://twitter.com/RickGarnett 

 

On Fri, May 1, 2015 at 11:44 AM, Michael Worley mwor...@byulaw.net 
mailto:mwor...@byulaw.net  wrote:

To emphasize two policy changes in the LDS faith is legitimate; however the 
centrality of traditional sexual norms to the LDS faith is extremely more 
central than those changes.  

It is like saying to a Catholic because you did away with indulgences, you'll 
eventually deny that Christ's blood is literally in the sacrament.  I think 
that would be offensive to all Catholics.  LDS teachings on marriage in this 
regard are just as central to our faith as the doctrine of Transubstantiation 
is to Catholics.

 

On Fri, May 1, 2015 at 9:06 AM, Levinson, Sanford V slevin...@law.utexas.edu 
mailto:slevin...@law.utexas.edu  wrote:

Isn't it foolish in the extreme to assert that time and culture are not part 
and parcel of the history of all religious movements, even if one concedes, 
perhaps for reasons of tact, that they are not simply such products. (I 
frankly have no idea what secularists actually mean by that concession. Some 
may be agnostics, genuinely open to the unproven possibility of revealed 
religion.). For starters, though, look at the LDS renunciation of polygamy in 
1890 (not to mention the later renunciation of an all-white priesthood), the 
Protestant critique of selling indulgences (and the response of the Catholic 
Church), or the 11th century decision of Ashkenazik Jews to ban polygamy even 
as Sephardi Jews living in Islamic cultures stuck with it, some until the 20th 
century. I could obviously go on and on. I have no doubt whatsoever that some 
adamantly opposed to same sex marriage religious groups will change their 
collective minds in the next decades. Can anyone seriously doubt that?

 

This is much like debates between committed legal internalists who take 
everything the Supreme Court says with full seriousness (including Roberts's 
assertion on Tuesday that judges aren't politicians) and committed legal 
realists who see ONLY politicians in robes. The truth may be somewhere in 
between, both for law and religion as systems of practices always striving to 
maintain their legitimacy within the wider culture. 

 

Sandy

Sent from my iPhone


On May 1, 2015, at 9:14 AM, Marty Lederman lederman.ma...@gmail.com 
mailto:lederman.ma...@gmail.com  wrote:

Alan:  Thank you for that very thoughtful and candid reply.

 

I apologize if my wording in response to Eugene's post was infelicitous, or 
insensitive, in any way.  I was trying to be very careful not to suggest that 
all religious objectors would change their minds.  I agree with you that some 
will not.

 

And I certainly did not write, and did not mean to suggest in the slightest, 
any of the following:

 

-- that religious beliefs are simply a product of time and culture

 

-- that religious beliefs opposing same-sex sexual relationships are purely an 
irrational bias 

 

-- that religious beliefs on this question are dependent upon, or necessarily 
reflect, bigotry (or animus, for that matter)

 

-- that anyone misunderstands their own religion

 

or 

 

-- that conservative Christian teachings about sex have the same place in the 
church that former teachings about race did.

 

Indeed, I don't believe any of those things to be true, and so I surely would 
not argue for them or 

RE: Religious organizations, tax-exempt status and same-sex marriage

[Doug Laycock]

Doh!

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Friday, May 01, 2015 12:18 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Religious organizations, tax-exempt status and same-sex marriage

 

Offlist:  Has it done away with selling them? If so, you might want to clarify.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Friday, May 01, 2015 12:14 PM
To: Law  Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage

 

Dear Michael,

 

This does not contradict your point but, as it happens, and for what it's 
worth, the Catholic Church has not done away with indulgences.  See, e.g.:

 

http://www.news.va/en/news/pope-francis-grants-indulgences-for-world-youth-da

 

That said, there was recently some confusion over the question whether Pope 
Francis had *really* told people that following him on Twitter was a way to 
obtain them:

 

http://www.forbes.com/sites/alexknapp/2013/07/18/no-the-pope-isnt-tweeting-indulgences-to-his-followers/

 

=-)

 

All the best,

 

Rick




Richard W. Garnett

Professor of Law and Concurrent Professor of Political Science

Director, Program on Church, State  Society

Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556-0780

574-631-6981 (w)

574-276-2252 (cell)

rgarn...@nd.edu mailto:rgarn...@nd.edu 

 

To download my scholarly papers, please visit my SSRN page 
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 

 

Blogs:

 

Prawfsblawg http://prawfsblawg.blogs.com/ 

Mirror of Justice http://mirrorofjustice.blogs.com/ 

 

Twitter:  @RickGarnett https://twitter.com/RickGarnett 

 

On Fri, May 1, 2015 at 11:44 AM, Michael Worley mwor...@byulaw.net 
mailto:mwor...@byulaw.net  wrote:

To emphasize two policy changes in the LDS faith is legitimate; however the 
centrality of traditional sexual norms to the LDS faith is extremely more 
central than those changes.  

It is like saying to a Catholic because you did away with indulgences, you'll 
eventually deny that Christ's blood is literally in the sacrament.  I think 
that would be offensive to all Catholics.  LDS teachings on marriage in this 
regard are just as central to our faith as the doctrine of Transubstantiation 
is to Catholics.

 

On Fri, May 1, 2015 at 9:06 AM, Levinson, Sanford V slevin...@law.utexas.edu 
mailto:slevin...@law.utexas.edu  wrote:

Isn't it foolish in the extreme to assert that time and culture are not part 
and parcel of the history of all religious movements, even if one concedes, 
perhaps for reasons of tact, that they are not simply such products. (I 
frankly have no idea what secularists actually mean by that concession. Some 
may be agnostics, genuinely open to the unproven possibility of revealed 
religion.). For starters, though, look at the LDS renunciation of polygamy in 
1890 (not to mention the later renunciation of an all-white priesthood), the 
Protestant critique of selling indulgences (and the response of the Catholic 
Church), or the 11th century decision of Ashkenazik Jews to ban polygamy even 
as Sephardi Jews living in Islamic cultures stuck with it, some until the 20th 
century. I could obviously go on and on. I have no doubt whatsoever that some 
adamantly opposed to same sex marriage religious groups will change their 
collective minds in the next decades. Can anyone seriously doubt that?

 

This is much like debates between committed legal internalists who take 
everything the Supreme Court says with full seriousness (including Roberts's 
assertion on Tuesday that judges aren't politicians) and committed legal 
realists who see ONLY politicians in robes. The truth may be somewhere in 
between, both for law and religion as systems of practices always striving to 
maintain their legitimacy within the wider culture. 

 

Sandy

Sent from my iPhone


On May 1, 2015, at 9:14 AM, Marty Lederman lederman.ma...@gmail.com 
mailto:lederman.ma...@gmail.com  wrote:

Alan:  Thank you for that very thoughtful and candid reply.

 

I apologize if my wording in response to Eugene's post was infelicitous, or 
insensitive, in any way.  I was trying to be very careful not to suggest that 
all religious objectors would change their minds.  I agree with you that some 
will not.

 

And I certainly did not write, and did not mean to suggest in the slightest, 
any of the following:

 

-- that religious beliefs are simply a product of time and culture

 

-- that religious

RE: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to Arise

[Doug Laycock]

I stand by the prediction Jim quoted. But I prudently did not put a timeline on 
it. And I did not predict official denominational positions. I was speaking at 
a Catholic institution, and in Jim’s ellipsis, I said that “The Catholic Church 
may or may not change its official teaching, but if it does not, American 
Catholics will pay no more attention than they pay to Humanae Vitae.” Of course 
it is harder for Catholic institutions to pay no attention than for individual 
Catholics to pay no attention.

 

So while I agree that the traditional teaching will eventually die or fade to 
the margins of the culture, I also agree that it will retain the faith of a 
significant minority in the short and medium term, and that the medium term may 
turn out to be pretty long. 

 

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, April 30, 2015 11:55 AM
To: Law  Religion issues for Law Academics
Subject: Re: Gordon College v. Bob Jones Redux v. Conflicts Actually Likely to 
Arise

 

Thanks, Michael. Let me close on a point of agreement, albeit one that I 
understand will give you no comfort.

In a 2011 article, Doug wrote the following: There will come a time when 
religious hostility to gays and to same-sex relationships will be as 
disreputable as religious hostility to blacks and to interracial 
relationships But it makes all the difference in the world how we get 
there. 

I have disagreed with Doug on the how we get there piece of that assessment, 
as he supports broader accommodations in the short term than do I, but I think 
Doug's long-term assessment is likely correct, with one caveat. The caveat is 
that because racial discrimination is our original sin as a nation, and because 
it had consequences beyond those flowing from any other type of discrimination, 
it may always be subject to special targeting in some circumstances. Thus, 
although our antidiscrimination laws and regulations usually ban other types of 
discrimination alongside racial discrimination, sometimes racial discrimination 
is singled out for unique treatment, as the IRS rule illustrates. I think that 
same pattern will hold true in the future -- sexual-orientation discrimination 
will join sex, religion, and often a host of other types of prohibited 
classifications alongside race in most contexts, but there will continue to be 
contexts in which race discrimination is treated as unique and targeted alone. 

Overall, however, I think you are right to suspect that the status/conduct 
distinction will be rejected and beliefs condemning homosexual conduct will 
become very marginalized in our society by the time your children and 
grandchildren are adults. The process has already begun, and it will continue 
to accelerate. And regardless of what happens with the IRS rule in the 
long-term, countless other laws and regulations prohibiting discrimination on a 
variety of bases will be extended to sexual-orientation discrimination, and 
that -- along with the growing acceptance of married same-sex couples raising 
families in our communities -- will reinforce a growing societal norm against 
sexual-orientation discrimination, which will be widely viewed as including 
discrimination against same-sex couples. 

I think movement toward that new norm is a good thing, others think it is a bad 
thing, but I don't think there can be any doubt that it is where we are headed. 

- Jim



 

On Thu, Apr 30, 2015 at 6:42 AM, Michael Worley mwor...@byulaw.net 
mailto:mwor...@byulaw.net  wrote:

Thanks Jim,

I think, I was remembering the earlier Gordon College coverage that did not 
make the distinctions you mentioned (and which deserved more concern than it 
got). I do think it is conceivable Gordon College is understating its concerns, 
but agree with your interpretation of the recent stories.  That said, other 
parties (not nearly as central to the school's function as accreditation) did 
discontinue their association with the school last year.

However, I think I could still make a prima facie case for concern, given the 
following facts:

1. A declining ability to defend traditional morality in the public square. 
(http://www.glad.org/uploads/docs/cases/kitchen-v-herbert/kitchen-scotus-cert-steven-calabresi-brief.pdf)
2. The fears of the LGBT community, as shown in the Indiana RFRA and other 
(admittedly for-profit) settings.

3. The fact that our nation is consistently becoming more protective of LGBT 
rights.

4. Gerrymandering in the House, which favors Republicans now, but may change in 
the next census.
5. The likelihood of a Hillary Clinton presidency (Clinton recently said Laws 
have to be backed up with resources and political will, and deep-seated 
cultural codes, religious beliefs and 

RE: Town of Greece - Canadian Version

[Doug Laycock]

The actual text of the prayer, which is set out in paragraph 12 of the
court’s opinion, is actually quite nonsectarian, addressed to “Almighty God”
and focused on soliciting guidance for the council. I think the right rule
is no prayers at government meetings with assembled citizens, but no one
could count to five on that in this country, and we would have been
delighted to get the official Saguenay prayer in Town of Greece.

 

Yet Paul characterizes it as more sectarian than the prayers in Town of
Greece, and not without reason. The mayor, who recited the prayer,
introduced it and ended it with the words “in the name of the Father, the
Son, and the Holy Spirit,” as he and other members of the council made the
sign of the cross. In one of the two places where the council met, there was
a statue of the Sacred Heart; in the other, a crucifix on the wall. So there
was much about this practice that was explicitly Catholic. These Catholic
devotions were wrapped around an official text of the prayer, enacted as a
town bylaw, that was about as nonsectarian as they come.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, April 16, 2015 11:15 AM
To: Law  Religion issues for Law Academics
Subject: FW: Town of Greece - Canadian Version

 

Ruthann Robson of CUNY has, on the con law listserv, offered a post linking
to the issuance of a judgment by the Supreme Court of Canada in the case of
Mouvement laique quebcois v. Saguenay (City). [I apologize for not properly
accenting it; I am reminded of page 104 of Rick Atkinson's masterful book An
Army at Dawn.] As she notes, the case has parallels to Town of Greece v.
Galloway, inasmuch as the Supreme Court dealt with religious opening
practices by a city municipal council; unlike the American Court's decision,
however, the Canadian Court ruled, essentially on Charter grounds, that such
practices were impermissible. There are factual differences between the
cases. The practices in Saguenay were arguably much more sectarian than most
if not all of the prayers in Town of Greece, they were delivered by the
mayor and not an invited guest, and they represented one faith only; there
was not even a bare minimum of rotation among other faiths. I think it
unlikely, however, that the ruling would have differed if the facts had been
closer to those in Galloway. The decision was unanimous as to the result
although there were differences on the ad law/standard of review aspects of
the case. 

 

Three interesting facts here. First, as the case notes, the Speaker of the
House of Commons in Parliament delivers opening prayers before sessions, and
the prayer said in this case was drawn from that language. The Court
declined to draw any conclusions on that basis about the municipal practice,
and noted in passing that the prayer practice in Parliament might be subject
to parliamentary privilege. (Although I wonder whether that sufficiently
answers questions about the constitutionality of that practice.) 

 

Second and to my mind more interesting, the preamble to the Canadian Charter
of Rights and Freedoms contains this language: Whereas Canada is founded
upon principles that recognize the supremacy of God and the rule of law...
The Court refused to allow that fact to alter its judgment on the Charter
question, stating that the preamble articulates the 'political theory' on
which the Charter's protections are based and was not determinative on the
question of how to interpret the Charter itself, whose religion and
conscience guarantees must be interpreted expansively. Although I think the
Court's judgment was right, it was nonetheless interesting to see this kind
of move, which both contrasts with those here who would interpret the
Constitution and Bill of Rights in light of both the preamble to the
Constitution and, for that matter, the Declaration of Independence; the
Canadian Court's dismissive approach to the preamble and its importance to
Charter interpretation is kind of like Heller-apres-la-lettre. 

 

More generally, I doubt that the differences in result between the two cases
had much to do with constitutional text or legal reasoning as such. The
Court's reasoning in Saguenay, whether wrong or right, is rather airy,
depends on abstract terms that must be filled in and do little strong work
in and of themselves, and ultimately, as the Court itself says, has much
more to do with its sense of what is demanded by its sense of what the
Charter should be taken to mean given its sense of the evolution of
Canadian society. The Court's sense is probably right, although Canadian
government, including the Court, is something of a mandarinate and there are
reasons to be skeptical about its conclusions about the state and the views
of Canadian 

FW: Eugene's Blog Post on Liberals and Exemption Rights

[Doug Laycock]

The alleged inaccuracy is a transitional issue that does not affect the basic 
point. And if the Court were to eventually strike down the non-profit solution, 
which I think quite unlikely, that would not be Hobby Lobby. That would be a 
decision that goes well beyond Hobby Lobby.

 

The Third, Sixth, Seventh, and DC Circuits have rejected challenges to the 
non-profit solution. Has any court of appeals struck it down? And given 
Kennedy’s concurrence in Hobby Lobby, I think it quite unlikely that he would 
vote to strike it down.

 

I assume that some of the sixteen signers of the letter supporting RFRA would 
also support the challenges to the non-profit solution; I have not polled them. 
At least one, and I think two signers, think that Hobby Lobby was wrongly 
decided but that we accurately described it. Speaking only for myself, I think 
that Hobby Lobby was rightly decided, and that the objections to the non-profit 
solution should be rejected, as they have been at the appellate level. 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, April 06, 2015 5:57 PM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

 

Mark:

 

I don't take kindly to insults to my legal acumen (Chip's invocation of 
O'Brien would receive a very poor grade on a student's paper.), or the clarity 
of my thinking (is he perhaps just not thinking straight?).  FWIW, I note that 
the brief in opposition to certiorari in Elane Photography cited O'Brien, 
though it did not rely substantially on that case. The New Mexico Supreme Court 
rejected the compelled speech claim, and SCOTUS denied cert,, so the idea that 
my view of the case involves some Orwellian tyranny does seem a little 
far-fetched.  Still, as I have said in many posts, reasonable scholars can 
differ on the compelled speech issues, and exempting photographers from public 
accommodations law (rather than adjudicating artistic content, case by case, 
for all vendors) is an idea worth considering.

 

But, most of all, I do my best to speak and write, as a scholar, lawyer, and 
citizen, with honesty and integrity. 

 

​Sixteen scholars, including you, Doug Laycock, Tom Berg, and many other 
members of this list​, prepared and signed a letter to the Indiana Senate 
Judiciary Committee about Indiana's proposed RFRA.  The full letter, dated 
2/3/15 is available here: 

http://www.faithlafayette.org/uploads/Church/LetterSupportingReligiousFreedomRestoration.pdf

​.

The letter, anticipating correctly that opponents of the Indiana Bill would 
rely on the Supreme Court's decision in Hobby Lobby as evidence that RFRA's can 
cause harm to employees and others, devoted several paragraphs to discussing 
Hobby Lobby.  If Hobby Lobby had been a win-win situation (or even a win -- no 
loss situation) as the Court had suggested and Doug Laycock had often 
characterized it, religious liberty would have been protected and no one would 
have been harmed.

But, the story of Hobby Lobby and all the other challenges to the contraceptive 
mandate, as applied to for-profits, is one of continuing harm to female 
employees and female dependents (of child-bearing age) of all employees.  In 
these cases, the challenged coverages have not been provided to employees.  In 
some, like Hobby Lobby, the challenged contraceptives included emergency 
contraceptives and IUD's (the most effective and expensive contraceptive 
device). In other cases, like Gilardi v. HHS (DC Cir.), the employer challenged 
coverage of all contraceptives.  To the best of my knowledge, the employees of 
these challengers are without the challenged coverages.  (I'm happy to be 
corrected if I'm wrong about any of these employers.)

The Obama Administration has proposed extending the non-profit accommodation to 
for-profits, but has not made that policy final.  When it does, RFRA challenges 
are likely, and RFRA challenges remain very much alive with respect to that 
accommodation as applied to non-profits.  So thousands of women have been 
denied contraceptive coverage, partial or complete, by the Hobby Lobby decision 
and fall-out from it.  There is no guarantee they will ever get that coverage, 
and it won't be retroactive even if they do. They are suffering continuing 
harm, and it may go on for a long time.

Nevertheless, your letter included the following: 

the key to the Court’s decision was that the owners could be exempted from the 
regulation without affecting their female employees’ access to contraception. 
The Court, in other words, found a win-win solution. The owners got to follow 
their religious beliefs; their female employees got the contraception they 
needed

RE: Eugene's Blog Post on Liberals and Exemption Rights

[Doug Laycock]

Chip says: 

 

“(Cf. the doctors who refuse to provide infertility treatments to lesbian 
couples; those are real cases, not scare hypotheticals.)”

 

Well, they’re real cases in the sense that at least one has been litigated. It 
remains the case that the religious objector has never won such a case, even 
when the treatment was offered by a different doc in the same medical practice. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 05, 2015 10:51 AM
To: Law  Religion issues for Law Academics
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

 

Mark and I agree on fewer legal premises than he thinks.  Yes, the wedding 
photographer creates art.  And I'm sure that the best wedding caterers, 
planners, florists, and bakers also have artistic elements in their work.  So 
what?  Davey O'Brien created political theater when he burned his draft card; 
his actions could be regulated because they threatened legitimate state 
interests (in an orderly selective service system), independent of their 
communicative content.  

 

I think the concept of hybrid rights is made up hooey.

 

I don't draw lines based on art vs. non-art.  I might draw lines, for free 
speech purposes, based on the communicative character of the business covered 
by public accommodations law.  Regulating the content of newspapers and films 
seems much more troubling than regulating the content of food presentations in 
restaurants.  So I am tempted, but only a little, by Jim Oleske's suggestion on 
this list that certain predominantly communicative trades -- photographer, 
videographer, free lance writer -- be removed from the coverage of public 
accommodations law entirely.  I am not at all convinced that the First A 
doctrines of compelled speech require this, but I can see how First A 
expressive values support this move, if the coverage is narrow. 

 

I strongly disfavor covering these or any other trades with public 
accommodations laws while simultaneously granting exemptions to religious 
objectors, either explicitly or through a RFRA balancing test.  The assurances 
that Tom Berg and Doug Laycock give, that the only successful RFRA defenses to 
discrimination will be in same sex wedding cases, are politically self-serving, 
totally unreliable, and objectionable on their own terms.   If weddings get 
special treatment, then anniversary parties, children's birthdays, etc. may 
follow. (Cf. the doctors who refuse to provide infertility treatments to 
lesbian couples; those are real cases, not scare hypotheticals.)  

 

And who among us knows when other religious exemptions will be sought and 
gained -- re: Muslims, Jews, Hispanics, immigrants from certain places, etc.? 
Today's intense culture war will fade, and tomorrow will bring a new one.  

 

The hardest questions for me, and I don't see a whole lot of discussion on the 
list about these, are the exemptions for religiously affiliated non-profits.  
Are they all ministries, to be left unregulated?  When government funded?  When 
government licensed? These are not merely speculative questions -- see the 
Indiana RFRA fix, and see 

http://www.irfalliance.org/hidden-restriction-on-faith-based-organizations-in-vawa-reauthorization/

​.​

 

On Thu, Apr 2, 2015 at 2:04 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
mailto:mark.scarbe...@pepperdine.edu  wrote:

Let's see what Chip and I seem to agree on, and then I'll express my strong 
disagreement on one point.

 

We seem to agree that the wedding photographer creates art. It is hard to see 
how visual portrayals of an event can convey a message of beauty and 
authenticity and not be called art. Indeed it would seem to be celebratory art, 
as I've been saying all along, if it deals with beauty and authenticity.

 

We seem to agree that the wedding photographer (if she can be required to 
photograph the same sex ceremony) cannot (as a colleague put it off list) 
sabotage the photography, by intentionally portraying the ceremony as ugly or 
false (in the sense that the two persons are insincere or that the ceremony 
doesn't have whatever legal effect the law provides). I suppose I'd go further 
and say that the photographer has to use the same high-quality equipment that 
she normally would use, has to take photos from the normal angles, and has to 
fix red-eye problems and similar problems before sending the proofs to the 
clients for their selection.

 

I can't agree that the photographer can be required to create visual works that 
portray the ceremony as beautiful (or authentic, if that means posing the 
couple so as to bring out their sincere commitment to each other). The state 
may be able to require her to photograph the ceremony, but it can't require

RE: Text of Indiana RFRA Fix; Video of Hearing

[Doug Laycock]

Things are moving much too fast in Indiana for a group of sixteen to take any 
position on the fix. And heavy duty political forces are now in play on both 
sides that render academic information pretty much irrelevant. 

 

I agree with Tom that a far better fix would be a strong gay-rights law with 
religious exemptions. Those could be provided under a state RFRA, or better 
yet, specifically negotiated to cover only those few cases where religious 
exemptions make sense. Then we wouldn’t have to argue about whether the general 
language of a RFRA might some day be interpreted to create an exemption that 
went too far. The Utah law is a step in the right direction, but it doesn’t 
cover all the ground.

 

But we apparently can’t negotiate that deal, because the two sides are too far 
apart, too polarized, and too mistrustful. Much of the conservative religious 
community doesn’t want any gay rights law at all, and they apparently can’t 
enact one in Indiana. And much of the gay rights community increasingly appears 
to oppose any exemption of any kind, except for the clergy officiating at the 
wedding. If the two sides would acknowledge that folks on the other side 
deserve liberty with respect to matters going to the core of their identity, 
solutions would be possible. But that prerequisite appears to be missing. 

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Thursday, April 02, 2015 1:11 PM
To: Law  Religion issues for Law Academics
Subject: RE: Text of Indiana RFRA Fix; Video of Hearing

 

The fix preserves the ability of nonprofit religious institutions to have their 
claims heard under the state RFRA, which in my view is correct. Of course that 
will not be a stable resolution in blue states now, and many on the list would 
oppose allowing those claims to be raised. 

 

In my view, the best fix would have been to provide statewide 
anti-discrimination protection based on sexual orientation, and let claims 
continue to be raised under the state RFRA. That would do far more for same-sex 
couples, especially in rural areas where they face the most prejudice, than 
this does. And as we predicted in our original letter, the only commercial 
claims with even a possibility of being granted would be the small wedding 
vendors (and those would be doubtful). But I gather Republicans did not support 
expanding the anti-discrimination law, and I assume Democrats wouldn’t have 
taken the deal either. The focus has been on the state RFRA even though, as to 
commercial discrimination cases, its effect is largely symbolic.

 

This episode could work to hamper the strategy of addressing this conflict 
through exemptions from anti-discrimination laws. But that’s not going to do 
much to get anti-discrimination laws passed in red states in the first place.

 

-

Thomas C. Berg

James L. Oberstar Professor of 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 mailto:tcb...@stthomas.edu 

SSRN: http://ssrn.com/author=261564

Weblog: http://www.mirrorofjustice.blogs.com 
http://www.mirrorofjustice.blogs.com/mirrorofjustice 



 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, April 02, 2015 10:31 AM
To: Law  Religion issues for Law Academics
Subject: Re: Text of Indiana RFRA Fix; Video of Hearing

 

After lots of testimony in favor of the fix by members of the business 
community, Advance America's Eric Miller made the case against the fix at 
length, repeatedly citing the letter signed by 16 law professors in favor of 
the Indiana RFRA. 

I'm guessing that, while many of those law professors think the fix is 
unnecessary, some of them might not join Miller in actively opposing the fix. 
Miller has championed RFRA for the very specific reason that he believes it 
would provide clear protection to businesses that refuse to provide 
marriage-related services to same-sex couples, but the law-professor letter he 
invokes does not portray that protection as clearly forthcoming under RFRA 
(But whatever one thinks of the arguments for and against exempting such 
individuals, it is not at all clear that the proposed Indiana RFRA would lead 
courts to recognize such an exemption [E]ven had the New Mexico RFRA 
applied [to the claim in Elane Photography], the New Mexico Supreme Court ... 
would likely have held that enforcement of the anti-discrimination laws served 
a compelling interest by 

RE: civil rights carve out from state RFRAs

[Doug Laycock]

This sort of specific exemption, written into a general gay rights law, is
clearly the best solution. And I'm not sufficiently political to know that
it's impossible.  But in the few such experiences I have had, it turned out
to be impossible.

 

There are some counter examples, but except for Utah, they were all enacted
well before the present level of polarization.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan E Brownstein
Sent: Monday, March 30, 2015 11:07 PM
To: Law  Religion issues for Law Academics
Subject: Re: civil rights carve out from state RFRAs 

 

Sorry to be returning to prior posts, but I would like further clarification
on the argument against adopting a RFRA law with a provision excluding civil
rights laws from its application.

 

If a state RFRA is not intended or expected to provide any kind of expansive
protection to discrimination in employment or public accommodations based on
religious beliefs, then the argument against a civil rights carve out is
that it would exclude too many claims. There are a limited number of
situations in which religious exemptions to civil rights laws are justified
and these claims would be excluded from protection under a general civil
rights carve out.

 

The response to this argument is that in addition to adopting a broad civil
rights carve out from the state RFRA, the state could negotiate explicit
exemptions to cover the limited number of situations in which religion-based
discrimination deserves to be protected against civil rights laws. That
response is challenged, however, by the argument that such negotiations
would be futile. The two sides are so polarized that they would never agree
on explicit limited exemptions.

 

While that kind of legislative gridlock might prevent the adoption of
explicit limited exemptions in the area of civil rights in some states, it
is not clear to me why it would pose a problem to the adoption of such
exemptions in a red state like Indiana where the state government is
controlled by one party. I'm not sure that negotiations would be futile --
particularly if a state law prohibiting discrimination on the basis of
sexual orientation was also on the table. But even assuming that
negotiations between legislators wanting no or very limited exemptions and
legislators wanting broader civil rights exemptions failed to reach
agreement, what would stop the Republican majority in the legislature and
the Republican governor from adopting whatever explicit limited exemptions
they thought were appropriate. From a policy perspective, this would have
several advantages. It would provide more clarity than the state RFRA. It
would guarantee religious exemptions to civil rights laws in specific
circumstances where they were thought to be particularly justified. It would
avoid any concern that the law would be interpreted too broadly to protect
discrimination in inappropriate circumstances. And it would allow a state
RFRA to be adopted to protect religious liberty in all of the situations
that do not involve discrimination in violation of civil rights laws.

 

Working out what the specific exemptions for religion-based discrimination
would be would undoubtedly be hard political work, But is there any other
reason why this approach is problematic or unacceptable? The justification
for a civil rights carve out is fairly obvious and reasonably strong.
Exemptions from civil rights laws raise sufficiently difficult questions
with important interests on both sides that they merit different legislative
treatment than most other religious liberty claims -- which could be handled
by the generic approach provided by the state RFRA.

 

I suppose one could argue that even in Indiana, the legislature would be
unwilling to explicitly protect religiously motivated discrimination even in
limited circumstances and that the adoption of a state RFRA is the only way
to protect such discrimination through the subterfuge of a general religious
liberty statute. But putting aside Machiavellian explanations like this one,
are there other reasons to oppose a carve out with explicit limited
exemptions for religion-based discrimination when the state government has
the political power to draft such limited exemptions at its discretion? Am I
missing something obvious here?

 

Alan

 

 

 

 

 

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RE: Amazing what Hobby Lobby has wrought

[Doug Laycock]

Covering closely held corporations is one issue. Discrimination is a different 
issue, and we know how courts have treated it. Making women do without 
contraception is yet a third issue, and we know that Hobby Lobby did not reach 
that issue, and found a solution that preserved free contraception. And pretty 
clearly there were not five votes for making female employees do without.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, March 27, 2015 2:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

 

I surely hope Doug is right that the warnings about the possible impact of 
RFRAs in the commercial sphere will turn out to be a Big Lie.  But that is 
hardly what Doug and others said to the Court in HL; instead, they urged the 
Court to deviate from its long, virtually unbroken tradition of denying 
exemptions in the commercial sector; urged a highly deferential posture toward 
claims of substantial burden; and argued for imposing far greater burdens on 
the government on the compelling interest and narrow tailoring side of the 
equation.

 

I addressed this tension in greater detail, before the Court's decision, here:

 

http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html  

 

On Fri, Mar 27, 2015 at 2:24 PM, Doug Laycock dlayc...@virginia.edu 
mailto:dlayc...@virginia.edu  wrote:

Right. The widespread exaggeration of what Hobby Lobby did may be adding fuel 
to the fire.  But this propaganda began before Hobby Lobby, and it worked, so 
it continues. This is really the Big Lie in action. And a lot of people who 
know better feel compelled to go along. I know that is true of some of the ACLU 
lawyers who have brought RFRA claims for clients; I obviously have no way to 
know, but it may well be 

true of Hillary Clinton.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

  tel:434-243-8546 434-243-8546

 

From:  mailto:religionlaw-boun...@lists.ucla.edu 
religionlaw-boun...@lists.ucla.edu [mailto: 
mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ryan T. Anderson
Sent: Friday, March 27, 2015 2:16 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

 

The reaction to Indiana strikes me as similar to Arizona. Arizona took place 
well before Hobby Lobby ruling. So the causal relationship you suggest here 
seems off.  Something else explains this. 

 

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com 
mailto:lederman.ma...@gmail.com  wrote:

http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill

 

If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't be coming back to Indiana anytime 
soon.  Think about that -- a basketball boycott in Indiana!  How far we've come 
. . . 

 

RFRA has gone from being benign, milquetoast legislation that garnered support 
across the political spectrum 20 years ago -- like Chevrolet and apple pie -- 
to becoming the political equivalent of a state adopting the confederate flag, 
or refusing to recognize MLK Day.  I doubt this would have happened if the 
Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony  Susan Alamo, 
etc., would have rejected the accommodation claim 9-0.

 

Of course, the market will ultimately undo the damage:  In order to preserve 
states' economic competitiveness, their RFRAs will either be repealed or 
construed to recreate the pre-Smith FEC regime.

 

The more interesting question is what Justice Alito's initiative augurs for the 
future of religious accommodations more broadly.


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RE: Amazing what Hobby Lobby has wrought

[Doug Laycock]

The NCAA is the victim of the most absurd propaganda. There is no conceivable 
way that the Indiana RFRA would affect any athletes next week. There are no 
cases of religious believers simply refusing to serve gays; the only cases 
involve weddings, and the religious objectors have lost every wedding case so 
far, without getting a single vote. I don’t think that anyone has ever won a 
religious exemption from a discrimination rule in any case not involving a 
minister. 

 

I would like to protect very small vendors in the wedding business, but I am 
not at all optimistic. And I am confident that none of the Final Four athletes 
plan to get married while they’re in Indianapolis next weekend.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, March 27, 2015 1:42 PM
To: Law  Religion issues for Law Academics
Subject: Amazing what Hobby Lobby has wrought

 

http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill

 

If the new Indiana RFRA had been enacted last year, I think it's fair to say, 
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's 
safe to predict that the NCAA tourney won't be coming back to Indiana anytime 
soon.  Think about that -- a basketball boycott in Indiana!  How far we've come 
. . . 

 

RFRA has gone from being benign, milquetoast legislation that garnered support 
across the political spectrum 20 years ago -- like Chevrolet and apple pie -- 
to becoming the political equivalent of a state adopting the confederate flag, 
or refusing to recognize MLK Day.  I doubt this would have happened if the 
Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony  Susan Alamo, 
etc., would have rejected the accommodation claim 9-0.

 

Of course, the market will ultimately undo the damage:  In order to preserve 
states' economic competitiveness, their RFRAs will either be repealed or 
construed to recreate the pre-Smith FEC regime.

 

The more interesting question is what Justice Alito's initiative augurs for the 
future of religious accommodations more broadly.

___
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RE: Amazing what Hobby Lobby has wrought

[Doug Laycock]

Right. The widespread exaggeration of what Hobby Lobby did may be adding
fuel to the fire.  But this propaganda began before Hobby Lobby, and it
worked, so it continues. This is really the Big Lie in action. And a lot of
people who know better feel compelled to go along. I know that is true of
some of the ACLU lawyers who have brought RFRA claims for clients; I
obviously have no way to know, but it may well be 

true of Hillary Clinton.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ryan T. Anderson
Sent: Friday, March 27, 2015 2:16 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

 

The reaction to Indiana strikes me as similar to Arizona. Arizona took place
well before Hobby Lobby ruling. So the causal relationship you suggest here
seems off.  Something else explains this. 

 

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com
mailto:lederman.ma...@gmail.com  wrote:

http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli
gious-freedom-bill

 

If the new Indiana RFRA had been enacted last year, I think it's fair to
say, the NCAA would have pulled the Final Four out of Indianapolis; and I
think it's safe to predict that the NCAA tourney won't be coming back to
Indiana anytime soon.  Think about that -- a basketball boycott in Indiana!
How far we've come . . . 

 

RFRA has gone from being benign, milquetoast legislation that garnered
support across the political spectrum 20 years ago -- like Chevrolet and
apple pie -- to becoming the political equivalent of a state adopting the
confederate flag, or refusing to recognize MLK Day.  I doubt this would have
happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart,
Tony  Susan Alamo, etc., would have rejected the accommodation claim 9-0.

 

Of course, the market will ultimately undo the damage:  In order to preserve
states' economic competitiveness, their RFRAs will either be repealed or
construed to recreate the pre-Smith FEC regime.

 

The more interesting question is what Justice Alito's initiative augurs for
the future of religious accommodations more broadly.


___
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wrongly) forward the messages to others.

 

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RE: Amazing what Hobby Lobby has wrought

[Doug Laycock]

The wedding cases are special (although not in the view of courts so far),
because many religious folks understand marriage to be an inherently
religious relationship and a wedding to be an inherently religious event.
There are no cases about alleged religious reasons for discriminating
against gays generally (save the one in Minnesota 30 years ago, involving
employment rather than customers), and I don't know any denomination that
teaches discrimination against gays generally. So cases like Paul's
hypothetical have not arisen, are not likely to arise, and if one of two of
them happens, the religious claimant will lose and the precedent will be
clear for any would be imitators. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, March 27, 2015 2:27 PM
To: Law  Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought

 

Doug: 

 

I appreciate your analysis of the cases.  Case law will not limit private
action if the actors think the law allows them to discriminate.  

 

But, it seems to me that the Indiana law encourages the exact sort of
behavior that has not held up in court.  Does it really matter if months or
years later some court says a server was wrong, or that a restaurant owes a
fine?  Isn't the NCAA saying, in effect, that this law creates a very
hostile environment for many people, including players and fans?  Isn't the
issue here that the law is sponsored by people who want to discriminate
against gays and that they will use the law to see how far they can push it
-- and perhaps not only against gays and lesbians but against people other
faiths?  

 

If a same sex couple walks into a restaurant (or some other place) holding
hands, don't you think there is a reasonable likelihood that some restaurant
(or hotel or some other establishment) will kick them out, using the law as
their shield.  

 

You limit your comments to players -- but what about fans?  parents?  It is
worth noting that businesses and some church groups are planning to boycott
Indiana.

 

 

 

 
http://www.slate.com/blogs/outward/2015/03/26/disciples_of_christ_protest_in
diana_anti_gay_law_more_of_this_please.html

*
Paul Finkelman

Senior Fellow

Penn Program on Democracy, Citizenship, and Constitutionalism

University of Pennsylvania

and

Scholar-in-Residence 

National Constitution Center

Philadelphia, Pennsylvania

 

518-439-7296 (p)

518-605-0296 (c)

 

 mailto:paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu

 http://www.paulfinkelman.com/ www.paulfinkelman.com

*

  _  

From:  mailto:religionlaw-boun...@lists.ucla.edu
religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on
behalf of Doug Laycock [dlayc...@virginia.edu]
Sent: Friday, March 27, 2015 2:07 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Amazing what Hobby Lobby has wrought

The NCAA is the victim of the most absurd propaganda. There is no
conceivable way that the Indiana RFRA would affect any athletes next week.
There are no cases of religious believers simply refusing to serve gays; the
only cases involve weddings, and the religious objectors have lost every
wedding case so far, without getting a single vote. I don't think that
anyone has ever won a religious exemption from a discrimination rule in any
case not involving a minister. 

 

I would like to protect very small vendors in the wedding business, but I am
not at all optimistic. And I am confident that none of the Final Four
athletes plan to get married while they're in Indianapolis next weekend.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From:  mailto:religionlaw-boun...@lists.ucla.edu
religionlaw-boun...@lists.ucla.edu [
mailto:religionlaw-boun...@lists.ucla.edu
mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, March 27, 2015 1:42 PM
To: Law  Religion issues for Law Academics
Subject: Amazing what Hobby Lobby has wrought

 

http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli
gious-freedom-bill

 

If the new Indiana RFRA had been enacted last year, I think it's fair to
say, the NCAA would have pulled the Final Four out of Indianapolis; and I
think it's safe to predict that the NCAA tourney won't be coming back to
Indiana anytime soon.  Think about that -- a basketball boycott in Indiana!
How far we've come . . . 

 

RFRA has gone from being benign, milquetoast legislation that garnered
support across the political spectrum 20 years ago -- like Chevrolet and
apple pie -- to becoming

RE: Amazing what Hobby Lobby has wrought

[Doug Laycock]

Show me a case. It just hasn't happened. We have a woman dead in Kansas for
lack of a state RFRA; that's a real case. These wild discrimination
hypotheticals are so far just that - wild hypotheticals. And probably that's
all they will be for the future too.

 

Discrimination against gay customers is entirely legal in Indiana except in
Indianapolis and Bloomington. That doesn't mean that it's happening, much
less that businesses are discriminating and then offering religious
justifications. The various Indiana reporters who have called me had not
heard any reports of that kind of discrimination.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, March 27, 2015 2:44 PM
To: Law  Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought

 

But does this mean that religion is not protected?   Will we see claims
that members of certain faiths do not want to hire (or even serve) members
of other faiths?  I think the language of the Indiana law and some of these
other laws might allow this.  

 

 

*
Paul Finkelman

Senior Fellow

Penn Program on Democracy, Citizenship, and Constitutionalism

University of Pennsylvania

and

Scholar-in-Residence 

National Constitution Center

Philadelphia, Pennsylvania

 

518-439-7296 (p)

518-605-0296 (c)

 

paul.finkel...@albanylaw.edu mailto:paul.finkel...@albanylaw.edu 

www.paulfinkelman.com http://www.paulfinkelman.com/ 

*

  _  

From: religionlaw-boun...@lists.ucla.edu
mailto:religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman
[lederman.ma...@gmail.com]
Sent: Friday, March 27, 2015 2:34 PM
To: Law  Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

or, imagine if Justice Alito had not included the references to race and
racial in this sentence: 

 

The Government has a compelling interest in providing an equal opportunity
to participate in the workforce without regard to race, and prohibitions on
racial discrimination are precisely tailored to achieve that critical goal.

 

On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com
mailto:lederman.ma...@gmail.com  wrote:

Before the ruling -- but not before the lower court decisions and the slew
of briefs --including by many Catholic groups that were insistent upon
reading RFRA narrowly back in 1993 -- urging the Court to do at least as
much as it did (indeed, more so). 

 

The converse point works, too:  If the Court had issued a Lee-like 9-0
decision, there wouldn't now be much of an opposition to state RFRAs (but
not nearly the same impetus to enact them, either).

 

On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson
ryantimothyander...@gmail.com mailto:ryantimothyander...@gmail.com 
wrote:

The reaction to Indiana strikes me as similar to Arizona. Arizona took place
well before Hobby Lobby ruling. So the causal relationship you suggest here
seems off.  Something else explains this. 

 

On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com
mailto:lederman.ma...@gmail.com  wrote:

http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli
gious-freedom-bill

 

If the new Indiana RFRA had been enacted last year, I think it's fair to
say, the NCAA would have pulled the Final Four out of Indianapolis; and I
think it's safe to predict that the NCAA tourney won't be coming back to
Indiana anytime soon.  Think about that -- a basketball boycott in Indiana!
How far we've come . . . 

 

RFRA has gone from being benign, milquetoast legislation that garnered
support across the political spectrum 20 years ago -- like Chevrolet and
apple pie -- to becoming the political equivalent of a state adopting the
confederate flag, or refusing to recognize MLK Day.  I doubt this would have
happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart,
Tony  Susan Alamo, etc., would have rejected the accommodation claim 9-0.

 

Of course, the market will ultimately undo the damage:  In order to preserve
states' economic competitiveness, their RFRAs will either be repealed or
construed to recreate the pre-Smith FEC regime.

 

The more interesting question is what Justice Alito's initiative augurs for
the future of religious accommodations more broadly.

 

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RE: For-Profit Corporations and the Section 702 Exemption

[Doug Laycock]

World Vision is a more recent review of the cases. But World Vision is a 
non-profit.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 10, 2015 3:14 PM
To: Law  Religion issues for Law Academics
Subject: Re: For-Profit Corporations and the Section 702 Exemption

 

the split decision in World Vision is probably more relevant now than Townley, 
FWIW:

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2011/01/25/08-35532.pdf

 

On Tue, Mar 10, 2015 at 2:58 PM, Christopher Lund l...@wayne.edu 
mailto:l...@wayne.edu  wrote:

Does anyone have any cases addressing the applicability of the Section 702
exemption to for-profit employers?  The Section 702 exemption, remember,
is what exempts religious groups from the federal ban on religious
discrimination in hiring.

I have the 9th Circuit decision in Townley Engineering (1988).  But I
didn't know if there were other lower court cases, and figured the
listserv might be a good resource.

Thanks!

Best,
Chris
___
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI  48202
l...@wayne.edu mailto:l...@wayne.edu 
(313) 577-4046 tel:%28313%29%20577-4046  (phone)
(313) 577-9016 tel:%28313%29%20577-9016  (fax)
Website-http://law.wayne.edu/profile/christopher.lund/
Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402


___
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RE: Referral for Public Accommodation Non-Discrimination Laws and Religious Accommodations Resource?

[Doug Laycock]

In my experience, which is not at all systematic, many or most of these laws 
have exemptions for religious non-profits, and the content of those exemptions 
is highly varied. Some are broad; some are narrow; some are well drafted; some 
are inept. It is hard to describe a pattern.

 

And I do not know of any systematic treatment. That doesn’t mean much, because 
I have never seriously looked. But I have never run across one. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Wednesday, March 04, 2015 10:11 AM
To: Religionlaw@lists.ucla.edu
Subject: Referral for Public Accommodation Non-Discrimination Laws and 
Religious Accommodations Resource?

 

 

All:

 

Please pardon the interruption and allow me to request any recommendations for 
a good resource on the current status of the law relating to public 
accommodation non-discrimination laws and how those laws have addressed 
religious liberty concerns.  Here is the context:

 

On Monday, the City of Charlotte went through a significant debate regarding a 
proposal to add certain protected classes to the City's non-discrimination 
ordinance, including the addition of the following categories: marital status, 
familial status, sexual orientation, gender identity, and gender expression.  
There was significant public reaction to the proposal (both for and against - 
indeed, there were over 120 speakers who spoke on the proposed ordinance 
amendment over the course of 4+ hours).  Among the concerns raised was the fact 
that the proposed ordinance did not contain any exemptions or accommodations 
for (a) religious charitable and educational organizations who may be deemed to 
provide certain public accommodation services (e.g. Catholic Charities) or 
(b) for individuals / business owners for whom participation in a same-sex 
marriage ceremony would violate their sincerely held religious beliefs (e.g. 
the Coeur d'Alene litigation).  At the end of the evening, the Charlotte City 
Council voted 6-5 against passage of the proposed ordinance (although it 
appears the ordinance failed to pass primarily for reasons other than the 
concerns about religious liberty).  

 

The issue is going to continue to be discussed and debated in Charlotte for 
some time, and I am certain it will be put back up for vote before the City 
Council in the not too distant future.  There are individuals in the community 
who have expressed an interest to better inform themselves on the state of the 
law in this area (i.e. what are other cities and states doing, what kind of 
religious accommodations have been granted, what are the status of lawsuits 
dealing with religious exemptions to such provisions, etc.)  

 

I would appreciate it if anyone could point me to some good reading material 
that would provide a good overview of this area.  Feel free to email me any 
recommendations offlist at willes...@yahoo.com mailto:willes...@yahoo.com .  

 

Best regards,

 

Will

 

Will Esser 
Charlotte, North Carolina

willes...@yahoo.com mailto:willes...@yahoo.com  

 

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RE: Utah Bill re: LGBT discrimination, with religious exemptions

[Doug Laycock]

I am not involved and so I’m not sure, but I think this is the bill.  It’s many 
small amendments, which makes it complicated.

 

http://www.le.utah.gov/~2015/bills/static/SB0100.html

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:15 PM
To: Law  Religion issues for Law Academics
Subject: Utah Bill re: LGBT discrimination, with religious exemptions

 

Many stories on-line about the new proposal, e.g., 
http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/

 

Does anyone have a link to the text of the Bill?

 

Thanks in advance.

 

Chip

 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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RE: Utah Bill re: LGBT discrimination, with religious exemptions

[Doug Laycock]

Delete my e-mail. Jim’s version is more recent.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, March 04, 2015 4:30 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Utah Bill re: LGBT discrimination, with religious exemptions

 

I am not involved and so I’m not sure, but I think this is the bill.  It’s many 
small amendments, which makes it complicated.

 

http://www.le.utah.gov/~2015/bills/static/SB0100.html

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:15 PM
To: Law  Religion issues for Law Academics
Subject: Utah Bill re: LGBT discrimination, with religious exemptions

 

Many stories on-line about the new proposal, e.g., 
http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/

 

Does anyone have a link to the text of the Bill?

 

Thanks in advance.

 

Chip

 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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RE: Utah Bill re: LGBT discrimination, with religious exemptions

[Doug Laycock]

Jim’s is more accurate. It has a much higher bill number; it was introduced 
more recently. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: Utah Bill re: LGBT discrimination, with religious exemptions

 

Thanks to both Jim and Doug, but they link to different versions.  One (from 
Jim's link) exempts from the definition of covered employer the Boy Scouts by 
name, and the other has a much broader exemption from the definition of 
employer, as follows:

an organization engaged in public or private expression if employing an 
individual
would affect in a significant way the organization's ability to advocate public 
or private
viewpoints protected by the freedom of expressive association described in 
decisions of the
United States Supreme Court or the Utah Supreme Court.

 

I am wondering which is accurate -- the press has been reporting the Boy 
Scouts version.

 

On Wed, Mar 4, 2015 at 4:29 PM, Doug Laycock dlayc...@virginia.edu 
mailto:dlayc...@virginia.edu  wrote:

I am not involved and so I’m not sure, but I think this is the bill.  It’s many 
small amendments, which makes it complicated.

 

http://www.le.utah.gov/~2015/bills/static/SB0100.html

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:15 PM
To: Law  Religion issues for Law Academics
Subject: Utah Bill re: LGBT discrimination, with religious exemptions

 

Many stories on-line about the new proposal, e.g., 
http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/

 

Does anyone have a link to the text of the Bill?

 

Thanks in advance.

 

Chip

 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


___
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messages to others.





 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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RE: Utah Bill re: LGBT discrimination, with religious exemptions

[Doug Laycock]

Putting that different, it appears that each of these bills has been 
introduced. But I gather that Jim’s link is the most recent version, and the 
bill more likely to move.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:48 PM
To: Law  Religion issues for Law Academics
Subject: Re: Utah Bill re: LGBT discrimination, with religious exemptions

 

Thanks to both Jim and Doug, but they link to different versions.  One (from 
Jim's link) exempts from the definition of covered employer the Boy Scouts by 
name, and the other has a much broader exemption from the definition of 
employer, as follows:

an organization engaged in public or private expression if employing an 
individual
would affect in a significant way the organization's ability to advocate public 
or private
viewpoints protected by the freedom of expressive association described in 
decisions of the
United States Supreme Court or the Utah Supreme Court.

 

I am wondering which is accurate -- the press has been reporting the Boy 
Scouts version.

 

On Wed, Mar 4, 2015 at 4:29 PM, Doug Laycock dlayc...@virginia.edu 
mailto:dlayc...@virginia.edu  wrote:

I am not involved and so I’m not sure, but I think this is the bill.  It’s many 
small amendments, which makes it complicated.

 

http://www.le.utah.gov/~2015/bills/static/SB0100.html

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Ira Lupu
Sent: Wednesday, March 04, 2015 4:15 PM
To: Law  Religion issues for Law Academics
Subject: Utah Bill re: LGBT discrimination, with religious exemptions

 

Many stories on-line about the new proposal, e.g., 
http://www.seattletimes.com/nation-world/mormon-church-backs-utah-anti-discrimination-bill/

 

Does anyone have a link to the text of the Bill?

 

Thanks in advance.

 

Chip

 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


___
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messages to others.





 

-- 

Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053

Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Anti-discrimination, legislative compromise, and strict scrutiny

[Doug Laycock]

That’s not even a rule with exceptions. As you describe it, it’s a generally 
applicable rule that no beard can be longer than one inch. If it’s enforced 
even handedly against religious and secular beards, i.e., enforced as written, 
it is insulated from attack under the Free Exercise Clause, even if the rule is 
entirely pointless and unnecessary, or serves only the most modest of aesthetic 
interests. That of course is the problem with Smith.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Wednesday, February 25, 2015 10:33 AM
To: Law  Religion issues for Law Academics
Subject: Re: Anti-discrimination, legislative compromise, and strict scrutiny

 

Thanks Doug. 

 

Would the same logic apply to beard length regulations on city police forces? 
Suppose there was a legislative (or reasoned department) judgment that 
well-kept beards are an acceptable exception to the general clean shaven 
policy, and that in order to effectuate that judgment, they provide that beards 
must be no longer than one inch. This will be true for people with skin 
conditions, people with religious reasons for facial hair growth, and people 
who enjoy the warmth or look of the beard. There is thus no value judgment 
whatsoever, and an admittedly arbitrary line is drawn in order to prevent 
members of the force from looking disheveled. 

 

Along comes a religious objector who claims that his beard must be 1.25 inches 
long, or one who claims that his religion prohibits him from ever shaving. 
(Assume sincerity, and indeed, there are such religious practices.)

 

Does strict scrutiny apply? Does it pass strict scrutiny?

 

On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock dlayc...@virginia.edu 
mailto:dlayc...@virginia.edu  wrote:

Strict scrutiny would not be triggered under Smith/Lukumi, principally because 
the legislated exemptions are for religious objectors, do not discriminate on 
the basis of faith or denomination, and are a reasonable legislative effort to 
exempt the cases where the claim to religious exemption is strongest. 
Therefore, they do not imply a value judgment that secular reasons for 
exemption are more important than religious reasons for exemption. They imply 
only a judgment that religious reasons for exemption are stronger in very small 
businesses that generally are personally run by the owner than in larger and 
generally more impersonal businesses. Of course that generalization is not 
perfect, and the precise line drawn between large and small is inevitably 
arbitrary. But there is no discrimination between religious and secular. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546 tel:434-243-8546 

 

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 Hillel Y. Levin
Sent: Wednesday, February 25, 2015 5:53 AM
To: Law  Religion issues for Law Academics
Subject: Anti-discrimination, legislative compromise, and strict scrutiny

 

Friends:

 

As you are likely aware, the LDS church recently announced support for 
legislation prohibiting discrimination on the basis of sexual orientation in 
Utah, so long as such legislation included religious accommodations. LDS 
leaders were not explicit about the precise contours of the accommodations they 
seek, but I have the distinct sense that they would insist on broader 
accommodations than have been written into law elsewhere. 

 

Suppose that supporters of anti-discrimination legislation were able to accept 
a compromise with LDS leaders that included accommodations for some for-profit 
service providers/employers/landlords so long as gays and lesbians could find 
alternative providers without much difficulty. (Similar to pharmacist 
conscience clauses with respect to dispensation of contraception in some 
states.) Alternatively, suppose that categorical exceptions were carved out for 
small businesses and small-time landlords. Hypothetically, what if businesses 
with fewer than 20 employees were excluded from coverage, as were landlords 
with fewer than 5 properties. 

 

Now suppose that a religious objector who did not meet the criteria for the 
religious accommodation or categorical exception sued under the FEC. Given the 
exceptions built into the compromise legislation, would strict scrutiny 
automatically apply, under the theory that with the compromise legislation, the 
law is not generally applicable? And if so, how would the case come out, given 
that the compromise legislation necessarily drew somewhat arbitrary lines?

 

I am aware that the question of what

RE: Anti-discrimination, legislative compromise, and strict scrutiny

[Doug Laycock]

Strict scrutiny would not be triggered under Smith/Lukumi, principally because 
the legislated exemptions are for religious objectors, do not discriminate on 
the basis of faith or denomination, and are a reasonable legislative effort to 
exempt the cases where the claim to religious exemption is strongest. 
Therefore, they do not imply a value judgment that secular reasons for 
exemption are more important than religious reasons for exemption. They imply 
only a judgment that religious reasons for exemption are stronger in very small 
businesses that generally are personally run by the owner than in larger and 
generally more impersonal businesses. Of course that generalization is not 
perfect, and the precise line drawn between large and small is inevitably 
arbitrary. But there is no discrimination between religious and secular. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Wednesday, February 25, 2015 5:53 AM
To: Law  Religion issues for Law Academics
Subject: Anti-discrimination, legislative compromise, and strict scrutiny

 

Friends:

 

As you are likely aware, the LDS church recently announced support for 
legislation prohibiting discrimination on the basis of sexual orientation in 
Utah, so long as such legislation included religious accommodations. LDS 
leaders were not explicit about the precise contours of the accommodations they 
seek, but I have the distinct sense that they would insist on broader 
accommodations than have been written into law elsewhere. 

 

Suppose that supporters of anti-discrimination legislation were able to accept 
a compromise with LDS leaders that included accommodations for some for-profit 
service providers/employers/landlords so long as gays and lesbians could find 
alternative providers without much difficulty. (Similar to pharmacist 
conscience clauses with respect to dispensation of contraception in some 
states.) Alternatively, suppose that categorical exceptions were carved out for 
small businesses and small-time landlords. Hypothetically, what if businesses 
with fewer than 20 employees were excluded from coverage, as were landlords 
with fewer than 5 properties. 

 

Now suppose that a religious objector who did not meet the criteria for the 
religious accommodation or categorical exception sued under the FEC. Given the 
exceptions built into the compromise legislation, would strict scrutiny 
automatically apply, under the theory that with the compromise legislation, the 
law is not generally applicable? And if so, how would the case come out, given 
that the compromise legislation necessarily drew somewhat arbitrary lines?

 

I am aware that the question of what triggers strict scrutiny is subject to 
considerable debate in the literature, and that those who require a showing of 
animus to trigger Lukumi's strict scrutiny would not find any here. But for 
those who do not believe that animus is required, how would this come out?

 

My sense is that this difficulty might stand in the way of any legislative 
compromise. 



-- 
Hillel Y. Levin
Associate Professor

University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu mailto:hle...@uga.edu 
hillelle...@gmail.com mailto:hillelle...@gmail.com 
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645

 

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RE: Anti-discrimination, legislative compromise, and strict scrutiny

[Doug Laycock]

Every religious exemption will have a boundary. And it will have somebody
just outside that boundary who is not all that much different from the last
person just inside that boundary. The body creating the exemption may try to
draw the boundary narrowly, as in the original HHS proposals about the
contraception mandate, exempting pretty much only the church itself. Or they
may try to draw it broadly and inclusively, as in the Title VII exemption
for any religious organization. It's a boundary either way, and with the
Title VII boundary, we get cases like the King Kamehameha schools, which
hired only Protestant teachers under the terms of its endowment, but which
the Ninth Circuit said wasn't really religious enough to qualify any more. 

 

So judgments about the importance of religious practices are inevitable,
however much the Court would like to avoid them. The Court is certainly
right that judges should not make threshold judgments about centrality,
defining some folks as exempt and others as having no claim because of a
yes-no judgment about centrality. Centrality is a continuum, not a
dichotomous variable. Specific legislative exemptions are stuck drawing
yes-no lines for lack of any good alternative.  And if it's line reasonably
distinguishes more and less intensely religious contexts, without
discriminating between faiths, it does not imply a value judgment about
religion and should not trigger strict scrutiny.

 

In applying the compelling interest test in any sensible fashion, the courts
inevitably balance the government interest against the religious interest,
and the importance of the religious practice inevitably matters. To borrow
and reverse Scalia's example in Smith, courts would not protect the practice
of throwing rice at weddings to the same extent that they would protect the
practice of getting married in church. Sometimes the Court describes the
compelling interest test in terms of balancing, and Congress described it
that way in the debates on RFRA. The comments about not judging centrality
should not be read to negate all this. And if they are so read, they are
simply mistaken. 

 

Signing off for a big block of teaching.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Wednesday, February 25, 2015 10:51 AM
To: Law  Religion issues for Law Academics
Subject: Re: Anti-discrimination, legislative compromise, and strict
scrutiny

 

Is it permissible under current law for government actors to assess whether
religious reasons for exemption are stronger in very small businesses that
generally are personally run by the owner than in larger and generally more
impersonal businesses (emphases added)?  I thought plenty of cases
including Thomas forbid government to judge the importance or centrality
sincere religious claims.  Doug, are you talking about some notion of
secular strength of religious reasons?

 

David B. Cruz

Professor of Law

University of Southern California Gould School of Law

Los Angeles, CA 90089-0071

U.S.A.

 

 

From: Doug Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu 
Reply-To: Law  Religion issues for Law Academics
religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu 
Date: Wednesday, February 25, 2015 at 7:01 AM
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
mailto:religionlaw@lists.ucla.edu 
Subject: RE: Anti-discrimination, legislative compromise, and strict
scrutiny

 

Strict scrutiny would not be triggered under Smith/Lukumi, principally
because the legislated exemptions are for religious objectors, do not
discriminate on the basis of faith or denomination, and are a reasonable
legislative effort to exempt the cases where the claim to religious
exemption is strongest. Therefore, they do not imply a value judgment that
secular reasons for exemption are more important than religious reasons for
exemption. They imply only a judgment that religious reasons for exemption
are stronger in very small businesses that generally are personally run by
the owner than in larger and generally more impersonal businesses. Of course
that generalization is not perfect, and the precise line drawn between large
and small is inevitably arbitrary. But there is no discrimination between
religious and secular. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

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Anyone can subscribe

RE: Jim Oleske's new review of book by Robert George

[Doug Laycock]

I think Smith was wrong. But those who think it right think so for a variety of 
reasons. They may think the original public meaning simply didn’t include 
exemptions, and think that unfortunate. They may not at all buy Scalia’s 
argument about how terrible it is for judges to make judgments. Recall Bill 
Marshall’s argument that the result was right but the opinion was a travesty.

 

Even if they rely on legislative oversight, they may think that in a 
sufficiently clear or unpopular case, legislative oversight would come. State 
legislatures have enacted plenty of RFRA exceptions, some of them reasonably 
sensible and some of them deeply ill-advised. Most of these were part of the 
initial enactment, but at least Illinois and Florida have enacted RFRA 
exceptions in response to particular litigation. Supporters of both Smith and 
RFRA may also think that the present legislative polarization will not last 
forever, and sooner or later, it will be possible for Congress to legislate 
again. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, February 18, 2015 6:12 PM
To: Law  Religion issues for Law Academics
Subject: Re: Jim Oleske's new review of book by Robert George

 

Dear Rick:

 

Yes, I think you are just echoing Mark and Eugene when you emphasize the 
distinction between pre-Smith free exercise adjudication and RFRA adjudication. 
 Consider what Scalia says in Smith (pp. 885-890) about the normative and 
institutional deficiencies of free exercise adjudication -- among other 
concerns, the deep undesirability of a system in which each conscience is a 
law unto itself or in which judges weigh the social importance of all laws 
against the centrality of all religious beliefs (at 890).  What makes this and 
other concerns he expresses go away when the identical standards are being 
applied under RFRA?

 

The argument to the contrary, as I understand it, is not about judicial 
competence to apply those standards.  How can judges magically become more 
trustworthy or reliable when the identical power is being exercised under a 
statute? Eugene's argument (which you and Mark have seconded) is not about 
manageability or substantive soundness of those standards.  Instead, it is all 
about political accountability - that somehow RFRA adjudication is different 
because of the possibility of legislative revision and control.  As you 
probably know, I have recently argued that this line of thinking is an academic 
fancy, with no real world confirmation.  See pp. 73-74 of Hobby Lobby and the 
Dubious Enterprise of Religious Exemptions, 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466571.  Reasonable people 
can differ on this, of course, but public choice theory confirms the lived 
experience -- at least before the recent conflict about marriage equality and 
vendor discrimination, legislators would routinely vote for religious freedom 
in the abstract, and leave to the judiciary all the particular choices of how 
to apply RFRA's to each case. Legislators would get all the credit and none of 
the blame for any bad choices.  There has been no after the fact accountability 
for legislative approval of a RFRA.

 

So I get why Mike Paulsen, Doug Laycock, and others are big fans of RFRA -- 
they think Smith was wrong, and that RFRA rightly restores some version of the 
pre-Smith regime.  But I don't get why you, Mark, Eugene and others cling to 
this Smith was right, but RFRA is good trope.  It rests on sand.

 

I will confess original ambivalence about Smith (i have written on both sides 
of that -- critical of Smith in the early years, supportive more recently).  
But I have been convinced from the beginning that RFRA was a mistake, and I am 
only more convinced by 20 years of experience that the regime of RFRA, as 
administered by judges and never supervised by legislatures, is unprincipled.

 

 I hope this answers your question.

 

Chip

 

  

 

On Wed, Feb 18, 2015 at 2:25 PM, Rick Garnett rgarn...@nd.edu 
mailto:rgarn...@nd.edu  wrote:

Dear Chip,

 

I'm probably just echoing Eugene's earlier comment but, for what it's worth, I 
think your claim that [n]o one who embraced Scalia's description of limits on 
the judicial role could be a fan of RFRA, unless perhaps it turned out that 
RFRA helped his friends might overstate things a bit and I wonder if you might 
modify or qualify it.  

 

As someone who thinks Smith is (basically) right in terms of what the First 
Amendment requires and authorizes judges to do ( 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1880084) -- and who also 
said yay, RFRA! after the O Centro decision 
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=931186), it seems to me 
that one *could* (what's the joke about

RE: Homeschooling, vaccinations, and Yoder

[Doug Laycock]

Many have viewed Yoder as offering no education after 8th grade. But the Court 
viewed the Amish as providing appropriate vocational education after 8th grade. 
 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 02, 2015 4:19 PM
To: Law  Religion issues for Law Academics
Subject: RE: Homeschooling, vaccinations, and Yoder

 

   I agree entirely that Pierce plays a very important role in 
homeschooling rhetoric.  If it weren’t for the result and reasoning in Pierce, 
the rhetorical case for homeschooling would be much weaker.  But Pierce seems 
quite apt to homeschooling because it asserts a right (1) applicable to all 
grades, which in turn stems from a right (2) to school children, albeit through 
an alternative system, rather than a right to exempt them from academic 
education (as opposed to vocational education), period.  That’s very closely 
connected to homeschooling.

 

   Yoder strikes me as much more distant from homeschooling, both 
because it only applies only to high-school-age students, and because it 
asserts a right not to have children continue their academic education.  
Homeschooling is generally billed as a more effective way of academically 
educating students, or at least a comparatively effective way.  So I’d like to 
know more about how much of an effect Yoder has been having on the political 
debate in this matter.

 

   Eugene

 

From: religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu  
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, February 02, 2015 12:25 PM
To: Law  Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder

 

Doug is mostly correct. The few lower court decisions on point have generally 
limited Yoder to the Amish (it is sometimes referred to in the cases and 
literature as the Amish exception). 

 

However, I think it is mistake to say that the legality of homeschooling across 
the country is purely a result of political pressure in legislatures and 
agencies. To be sure, there is a good deal of that going on. The pro-homeschool 
lobby is focused on the issue; and it is really difficult to identify any 
lobbying group that would counter their interests. (The story is pretty much 
the same with the anti-vaxers in general.) So the political story here is an 
important one.

 

But the Court's decisions in Yoder and Pierce v. Society of Sisters play an 
important role too. Together, these cases leave the question of whether the 
state can prohibit or heavily regulate home schooling open, and they suggest 
(though do not explicitly find) a parental right of some sort. The 
pro-homeschooling groups make use of these cases when they lobby, leaving 
regulators with the impression that it might be unconstitutional to heavily 
regulate homeschooling. As a result--together with the political economy on the 
matter and the practical questions about how the state meaningfully could 
regulate homeschooling--they often throw their hands up and concede.

 

Further, some lower courts have used Yoder and Pierce to read homeschooling 
protections broadly in statutory interpretation cases (applying constitutional 
avoidance). There was a state appellate court decision about 6 years ago in 
California along these lines.

 

Finally, I wonder how courts in states that recognize strong religious 
freedom/parental rights but also constitutionally guarantee a free public 
education to every child would mediate a decision by a state to condition 
public schooling on vaccination.

 

On Mon, Feb 2, 2015 at 9:31 AM, Doug Laycock dlayc...@virginia.edu 
mailto:dlayc...@virginia.edu  wrote:

This is impressionistic and not based on a systematic survey, but home 
schoolers lost most of their cases challenging restrictions on home schooling. 
For better or worse, courts said Yoder was only about the Amish. Home schoolers 
won their battle in most states politically, through the legislature or through 
continued pressure on the relevant state agencies.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546 tel:434-243-8546 

 

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 Volokh, Eugene
Sent: Monday, February 02, 2015 1:00 AM
To: Law  Religion issues for Law Academics
Subject: Homeschooling, vaccinations, and Yoder

 

   I agree that homeschooling is a possible constraint on the 
effectiveness of schooling-based immunization, though given

RE: Homeschooling, vaccinations, and Yoder

[Doug Laycock]

This is impressionistic and not based on a systematic survey, but home
schoolers lost most of their cases challenging restrictions on home
schooling. For better or worse, courts said Yoder was only about the Amish.
Home schoolers won their battle in most states politically, through the
legislature or through continued pressure on the relevant state agencies.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 02, 2015 1:00 AM
To: Law  Religion issues for Law Academics
Subject: Homeschooling, vaccinations, and Yoder

 

   I agree that homeschooling is a possible constraint on the
effectiveness of schooling-based immunization, though given the burdens of
homeschooling, I'm not sure how many people's homeschooling choices are
going to be driven primarily by vaccination preferences.

 

   But can you elaborate, please, on Yoder leading to
unregulated home schooling?  As I read Yoder, it authorized an exemption
from schooling - with no requirement for further study, no requirement of
passing various tests, etc. -for ages 14 and up, and pretty strongly
suggested that no exemption from schooling would be available for materially
younger children.  Most homeschoolers, especially those who homeschool in
the prime vaccination years, wouldn't really get the benefit of Yoder as
such.  

 

More broadly, I don't think there's much in Yoder that suggests that any
exemption regime has to be virtually unregulated.  And
http://nces.ed.gov/programs/digest/d13/tables/dt13_206.20.asp and
http://nces.ed.gov/pubs2013/2013028/tables/table_07.asp suggest that the big
surge in homeschooling, from 1.7% in 1999 to 3.4% in 2012-13, came well
after Yoder.  It certainly may be the case that there is such a strong
causal link, but I'd just like to hear a little more about it.

 

   Eugene

 

From: religionlaw-boun...@lists.ucla.edu
mailto:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Sunday, February 01, 2015 9:27 PM
To: d...@crab.rutgers.edu mailto:d...@crab.rutgers.edu ; Law  Religion
issues for Law Academics
Subject: RE: Vaccine objectors

 

one thought on Marty's point 1.  The number of children being home schooled
is huge.  If the vehicle for requiring immunization is schooling then many
people will avoid the mandate by opting out of schools.  Virtually
unregulated home schooling is one of the consequences of Yoder. 

 

 

*
Paul Finkelman

Senior Fellow

Penn Program on Democracy, Citizenship, and Constitutionalism

University of Pennsylvania

and

Scholar-in-Residence 

National Constitution Center

Philadelphia, Pennsylvania

 

518-439-7296 (p)

518-605-0296 (c)

 

paul.finkel...@albanylaw.edu mailto:paul.finkel...@albanylaw.edu 

www.paulfinkelman.com http://www.paulfinkelman.com/ 

*

  _  

From: religionlaw-boun...@lists.ucla.edu
mailto:religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane
[d...@crab.rutgers.edu]
Sent: Sunday, February 01, 2015 11:15 PM
To: Law  Religion issues for Law Academics
Subject: Re: Vaccine objectors

Marty,

I agree with # 1, except in states that might have a particularly robust
state free exercise doctrine.  

I also agree with # 2.

The issue with respect to # 3, though, is this:  What if it turns out that
an exemption regime limited to actual religious objections (and not
personal ones) did not produce serious third-party burdens because the
number of kids left unvaccinated would not be enough to compromise herd
immunity?  

Such a regime would, I believe, be constitutional.  But it does raise at
least a question for folks who (a) argue that religion is not special, (b)
it is generally unfair to limit exemption regimes to folks with religious
motives, and (c) the best remedy to such unfairness should generally be to
level up to include deep non-religious beliefs rather than level down to
eliminate exemptions entirely.  

Perry

On 02/01/2015 10:38 pm, Marty Lederman wrote:

I'm a bit confused as to which question Perry and Sandy (and Doug?) are
discussing.  To break it down a bit for clarification: 

1.  It would be perfectly constitutional for the state to require everyone
to be vaccinated; a fortiori, vaccination can be made a condition of
attending school.  That's basically what the Second Circuit case is about;
and of course it's correct.

2.  It would also be perfectly constitutional for the state to exempt any
children whose parents have a personal objection to immunization,
religious or otherwise. The only question as to those exemption laws is one
of policy -- and I'd hope that recent