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

[Failinger, Marie]

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

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

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

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

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

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

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


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



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



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

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



Alan


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

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

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

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-bou

Re: "Necessary," and alternatives that are less restrictive of one right, but that burden other interests

[Failinger, Marie]

Eugene, this seems to me to strike at the problem of finding parallels in
necessity in the criminal law sense with necessity in the constitutional
law LRA sense.

In a self-defense or necessity situation, the defendant needs to act on the
basis of very incomplete information, i.e., what he can see from where he
stands, and his options are usually limited to what he can do or what he
can convince those nearby to do to alleviate the necessity of violating the
law.

Conversely, in the constitutional situation, there is almost always
something the government can do to avoid the burden on the claimant by
re-designing its law, and it has all kinds of time to do that re-design
after exploring how its law affects its citizens.  Those alternatives
include, as was discussed in the Hobby Lobby case, having the government
pay for whatever would remove the burden.  The question is whether these
alternatives should be legally required.

While there are principled arguments for not requiring government to choose
the very least restrictive alternative, financial consequences
notwithstanding--e.g., why should a religious claimant be saved from a
burden that a secular claimant would not? why should we allow free-riders
on the system?--it has always seemed to me that these are not the implicit
message of many cases where the government fights accommodations.  Rather,
they have seemed to be some version of, "this is your problem, not ours,"
or "why should we have to help you?"  Conversely, in those cases where the
government has decided to give an affirmative accommodation, at least
sometimes, the message is, "you are our citizens and we are responsible for
recognizing your situation and seeing if we can do what we need to without
burdening you or your fellow citizens." I don't know why free exercise law
should not encourage the government to respond in the latter way rather
than the former.

On Thu, Dec 11, 2014 at 7:20 PM, Volokh, Eugene  wrote:

> Ash:  I agree that *Grutter *would be an excellent
> example here.  But as to *Reno*, couldn’t the government have just bought
> the rights to filtering software, and distributed it for free?  To be sure,
> that would be a cost for the government -- but some extra administrative
> costs of alternatives are generally considered acceptable (see, e.g., 
> *Sherbert
> v. Verner*), plus I think the cost might actually be less than the cost
> of criminal enforcement of the CDA, no?
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ashutosh A Bhagwat
> *Sent:* Wednesday, December 10, 2014 4:32 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: "Necessary," and alternatives that are less restrictive of
> one right, but that burden other interests
>
>
>
> Eugene,
>
>
>
> Two quick thoughts:
>
>
>
> 1.How about the cases like ACLU v. Reno, where filtering software
> is the less restrictive alternative – doesn’t that realistically impose a
> financial burden on parents?
>
>
>
> 2.   I think it can be argued that in Grutter v. Bollinger, the Court
> rejected reducing admissions standards (or reliance on the LSAT) as a less
> restrictive alternative because of the burden that would place on the law
> school’s desire to be elite.
>
>
>
> Ash Bhagwat
>
> Professor of Law
>
> UC Davis School of Law
>
> (530) 752-8687
>
>
>
> Find my papers at:
>
> http://ssrn.com/author=193880
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene
> *Sent:* Tuesday, December 09, 2014 3:26 PM
> *To:* Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
> *Subject:* "Necessary," and alternatives that are less restrictive of one
> right, but that burden other interests
>
>
>
> Dear colleagues:  I’m writing an article on the concept of “necessary,” in
> the sense of “least restrictive alternative.”  I plan to focus on, of all
> things, the law of self-defense and the duty to retreat, as well as least
> restrictive means tests in constitutional law / RFRA, and other matters as
> well.
>
>
>
> I was hoping I could ask people for a bit of help related to this.  I’m
> looking for cases in which (1) the Court analyzes whether a law is
> necessary to serve a sufficient government interest / is the least
> restrictive means of serving this interest, (2) there are some alternatives
> that would serve the interest pretty much as well, but (3) those
> alternatives would implicate other interests, whether governmental or
> private.
>
>
>
> For instance, in *44 Liquormart*, the plurality and the concurrence
> concluded that the alcohol price advertising ban was unconstitutional
> partly because there were other less restrictive alternatives of serving
> the interest in reducing alcohol abuse – such as taxes, minimum prices, or
> regulations through which each consumer would be limited in how much
> alcoh

Re: Holt v. Hobbs Oral Argument - the comb

[Failinger, Marie]

content/uploads/2014/08/No-13-6827-Response-t
> o-Pet-Rule-32.3-Request.pdf.
>
> Best,
> Chris
> ___
> Christopher C. Lund
> Associate Professor of Law
> Wayne State University Law School
> 471 West Palmer St.
> Detroit, MI 48202
> l...@wayne.edu
> (313) 577-4046 (phone)
> (313) 577-9016 (fax)
> Website—http://law.wayne.edu/profile/christopher.lund/
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu
>
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
> Sent: Tuesday, October 07, 2014 10:57 PM
> To: Law & Religion issues for Law Academics; Marc Stern
> Subject: Re: Holt v. Hobbs Oral Argument
>
> What Marc says is clearly true. But even in this case, when we caught
> them red handed, I didn't feel like I could say to the Court that they lie
> routinely. Judges have either figured that out, or they don't believe it.
> And even those who have figured it out are unwilling to say it in
> opinions.
>
> On Tue, 7 Oct 2014 22:07:56 -0400
> Marc Stern  > wrote:
>
>
>
> A simple fact of prison litigation is that prison officials lie-or
> simply
>
> care little for the facts-when asserting concerns about security. When I
> was a law clerk, the states routinely filed canned briefs asserting grave
> and unavoidable security concerns , no matter what the reality was-and in
> one memorable case in defense of a practice( labeling prisoners by race)
> that the Supreme Court had even then long since condemned. One state
> commissioner of corrections once told a group of us that he was aware that
> prison security officials could not be relied on to fairly assess risks
> and the deputy commissioner of another flatly told me she know prison
> administrators routinely lied. That sort of paying fast and loose occurred
> in this case,but was caught by counsel with the skill, time, commitment
> and knowledge to discover the fraud on the court- luxuries pro se
> litigants often don't have. And even when they do, some judges will still
> invoke deference.
>
>
>
>
> Prisons are not like other places, and things that seem innocent and
>
> harmless can be deadly weapons. Deference to prison officials therefore
> makes much sense- but only if prison officials can be counted on to tell
> the truth and deliver fair and honest assessments of risk. Too many
> don't and courts should not ratify those malign ‎practices by blindly
> deferring to prison officials. How to apply deference without judicial
> abdication is the hard question in this case, not the question of how long
>
>
>
> ‎Is too long.
> Marc‎ Stern
> Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE
>
> network.
>
>
>
> From: Friedman, Howard M.
> Sent: Tuesday, October 7, 2014 9:03 PM
> To: Law & Religion issues for Law Academics Reply To: Law & Religion
> issues for Law Academics
> Subject: RE: Holt v. Hobbs Oral Argument
>
>
> I think this case on its facts is likely to be easy for the Court
> because so many other states have found ways to accommodate beards.
> That being the case, I fear that the Court may not be as careful as it
> should in formulating the strict scrutiny test under RLUIPA. Broadly
> speaking, prisons have put forward two kinds of justifications for
> refusals to accomodate religious beliefs-- security concerns (as in
> this case) and budgetary issues (e.g. in claims for kosher or Halal
> diets). It seems to me that courts are fairly able to assess budgetary
> justifications. However I fear that they are less able to assess
> security concerns as they exist on the ground. If the court imposes
> truly strict scrutiny when security is at issue, I fear that prisons
> may be unable to adequately deal with Racist, neo-Nazi, and similar
> groups that assert they are religious organizations. Currently a
> number of prisons are facing the question of whether Nations of Gods
> and Earths should be recognized a
>
> s a
>
>
>
> religion or classified as a security threat group. How much deference
>
> should be given to prison officials there?
>
>
>
>
> Howard Friedman
> 
> From: religionlaw-boun...@lists.ucla.edu
>
> [religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie
> [mfailin...@hamline.edu]
> Sent: Tuesday, October 07, 2014 6:38 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Holt v. Hobbs Oral Argument
>
> I haven't read all of the background materials, but it seems to me a
>
> little bizarre to worry about what one could hide in a 1/4, 1/2 or even 

Re: Holt v. Hobbs Oral Argument

[Failinger, Marie]

I haven't read all of the background materials, but it seems to me a little
bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch
beard given what one could hide in a typical prison uniform.  If uniforms
are searched for contraband, why not beards?  Seems like it would be much
easier and safer than a uniform search, unless there is some religious ban
against someone touching one's beard.

And what about the value encouraging state to expend a little effort and
creativity in meeting believers half-way by putting the state to its burden
of proof on its interests? In Hennepin County, the jail created an
inmate hijab for Muslim women that doesn't have any folds or places where
contraband can be hidden.   To use the argument example, why couldn't a
Sikh be issued a transparent turban designed to minimize the ability to
hide contraband?

Could Doug or someone could explain the state's argument in the lower court
that someone could drastically change his appearance by shaving his beard
as a reason for denial?  I presume that implies that he could escape.  I am
trying to imagine a case in which a guy walking around in prison with a
jumpsuit (or less) would be allowed to leave prison because he wasn't
recognized as prisoner X.  In the movies, at least the prisoners have to
steal a guard's uniform to get out:)

I also wonder what everybody thinks about Scalia's statement that religious
beliefs are "categorical," "it's [what] God tells you," implying that there
is no such thing as ethical "partial" compliance and that there has to be a
specific oral or written command from God for a RLIUPA claim to be viable?
   I guess I would have to be a complete pacifist, observe glatt kosher
(and no elevators on Shabbat) or go to church every Sunday before I could
object to the state's rules. Or does Scalia mistakenly assume that Islam is
more "categorical" than these other religions?

On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C.  wrote:

>  The oral argument transcript is up,
> http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
> I haven't read it yet, but from the SCOTUS Blog report, it looks like
> things went poorly for the state.
> http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/
>
> We've had little discussion of this case on the list.  I've presumed
> that's because there is a wide consensus that the case is easy.  SCOTUS
> Blog likewise concludes that "[t]he case, at least from the tenor of the
> oral argument, did not seem to be a difficult one."  But assuming that Holt
> wins, there remains the important question of the precise language the
> Court will use to explicate the compelling interest standard in the prison
> context, where officials get some deference.
>
> -
>
> 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 4881
>
> E-mail: tcb...@stthomas.edu
>
> SSRN: http://ssrn.com/author='261564
>
> Weblog: http://www.mirrorofjustice.blogs.com
>
>
> 
> --
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>



-- 
Marie A. Failinger
Professor of Law
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651.523.2124 (work phone)
651.523.2236 (work fax)
mfailin...@hamline.edu (email)
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.