RE: Bible classes in elementary schools

[Finkelman, Paul]

The community apparently raises $500,000 a year for the course – that should 
cover attorney’s fees.  Nice irony if the county and the donors help support 
the Freedom From Religion Foundation.


***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
paul.finkel...@pitt.edu
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Sunday, April 23, 2017 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Bible classes in elementary schools

I think it is impossible to teach a constitutionally defensible Bible class to 
7 year olds. And anytime the Bible course is described as "history," the game 
is over. What a waste of money for this School District to have to pay the 
plaintiffs' attorneys fees, even if Liberty Institute is representing the 
School  Board for free.
On Sun, Apr 23, 2017 at 11:27 PM Laycock, H Douglas (hdl5c) 
mailto:hd...@virginia.edu>> wrote:

One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu]

Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
this
 is constitutional?
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F. Elwood & Eleanor Davis Professor of Law
George Washington University
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RE: Bible classes in elementary schools

[Finkelman, Paul]

Exactly. Of course Doug is right.  And this why it should be taught in Sunday 
School and not public school. The answer is obvious.
One question would be what are the qualifications for the teacher to teach the 
course?



***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
paul.finkel...@pitt.edu
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Laycock, H Douglas 
(hdl5c)
Sent: Sunday, April 23, 2017 11:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Bible classes in elementary schools


One could teach a constitutional Bible course in public schools. The odds that 
they are teaching it that way in Princeton, WV seem vanishingly small. And the 
story's quotations from the curriculum seem to eliminate that slim possibility.



Of course there is no constituency for teaching the Bible in the agnostic way 
that would be constitutional. The political demand is to teach it as Sunday 
School.


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

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman 
[martin.leder...@law.georgetown.edu]
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools
Any possibility 
this
 is constitutional?
___
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RE: Bible classes in elementary schools

[Finkelman, Paul]

Hard to imagine; I like this juxtaposition.  Not religion – just history 
followed by “proclaiming” God’s word “is a good thing.”  The story does not 
indicate if there are any prayers at these sessions.


“Supporters are adamant that the weekly class is an elective meant to explore 
the history and literature of the Bible, not to promote religious belief.”

“My experience with it has been very positive. I’ve never known of anyone who 
has been pressured or felt ostracized,” said the Rev. David W. Dockery, senior 
pastor at First Baptist Church of Princeton. “Any time God’s word can be 
proclaimed is beneficial and is a good thing.”



***
Paul Finkelman
John E. Murray Visiting Professor of Law
University of Pittsburgh School of Law
3900 Forbes Avenue
Pittsburgh, PA  15260
paul.finkel...@albanylaw.edu
paul.finkel...@yahoo.com
paul.finkel...@pitt.edu
o) 412-648-2079
c) 518-605-0296




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, April 23, 2017 9:49 PM
To: Law & Religion issues for Law Academics
Subject: Bible classes in elementary schools

Any possibility 
this
 is constitutional?
___
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Re: Christian convert's claim that church broke confidentiality promise and thus exposed him to attack for apostasy in Syria

[Finkelman, Paul]

Seems to me that if the Church publicizes its conversions  then the church 
feels it is getting a benefit from converting people.  Also conversion is an 
important aspect of all evangelical Christian churches.  In a sense they exist 
to "save souls" -- hence their missionary activities at home and around the 
world.  Since that is in part their raison d'etre then that should be 
sufficient "benefit" to the church to create the contract.  And that benefit 
would exist whether it publicizes the event or not.


Furthermore, I wonder if there is a tort here -- intentional infliction of 
emotional distress or some very serious negligence action, since the church 
knew that bragging about this convert exposed him to literally moral danger and 
he relied on the church (and its promise) not to expose him, and then did so.



*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Case, Mary Anne 
Sent: Monday, June 27, 2016 8:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: Christian convert's claim that church broke confidentiality 
promise and thus exposed him to attack for apostasy in Syria


Eugene asks, “ Why wouldn’t that be a legally enforceable contract ?” What 
consideration is there for the Church and its agents?  Conversion is a benefit 
to the convert, not the Church.  Consider a secular analogue, plaintiff seeks 
to participate in the rituals of a secular organization, be it the KKK or 
Yale’s Skull and Bones, and extracts a promise that the organization’s leaders 
will keep his participation confidential.  When the organization is offering a 
privilege and the individual is not even becoming a dues paying member, all the 
consideration seems to be flowing to the individual.  It’s a different case 
when, for example, a reporter promises confidentiality to a source, because the 
consideration is the information exchanged. Eugene also says in his WAPO piece, 
“But if the defendants really agreed not to reveal this information, then they 
have waived their free speech rights on this score.”   Does that mean that 
revenge porn is actionable breach of contract if  before sending a compromising 
picture the victim extracted a promise that it will not be more widely 
circulated?



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Sunday, June 26, 2016 9:14 PM
To: Law & Religion issues for Law Academics
Subject: Christian convert's claim that church broke confidentiality promise 
and thus exposed him to attack for apostasy in Syria



   Howard Friedman summarizes the decision in the case, but I’m not 
sure it’s right.  Among other things, the Complaint asserts that church 
officials expressly promised that plaintiff’s “baptism and conversion would 
remain private,” and breached that promise.  Why wouldn’t that be a legally 
enforceable contract (see 
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/17/convert-to-christianity-sues-church-claiming-it-broke-confidentiality-promise-and-thus-exposed-him-to-attack-for-apostasy-in-syria/)?



   Eugene



Feed: Religion Clause
Posted on: Sunday, June 26, 2016 11:28 AM
Author: Howard Friedman
Subject: Court Says Religious Autonomy Precludes Adjudication of Suit By 
Torture Victim



In a fascinating decision handed down June 17, an Oklahoma trial court held 
that the "religious autonomy doctrine" requires it to dismiss a suit against a 
U.S. church by a convert from Islam to Christianity who was captured and 
tortured in Syria because of his conversion. The facts are set out more fully 
in a complaint (full 
text)
 filed in 2014.  A Tulsa, Oklahoma resident who was born in Syria decided to 
convert, but told First Presbyterian Church leaders that his conversion had to 
remain confidential because he periodically traveled back to Syria and the 
punishment for apostasy under Sharia law was death. Despite assurances of 
confidentiality, the church published an announcement of his baptism in its 
Order of Worship, which was posted on the World Wide Web.  After traveling back 
to Syria, plaintiff was bound, beaten and tortured by radical Muslims who 
threatened to behead him. He eventually escaped.  His suit alleges that the 
church is guilty of negligence, breach of contract and outrageous conduct 
leading to extreme em

The Charlotte City Ordinance and Religious Freedom

[Finkelman, Paul]

I think David has it exactly right.  If the law says you cannot use the mens 
room with a birth certificate saying you are male then you are breaking the 
law.  If there is no enforcement mechanism, then what sort of law is it?  And 
if you a transwoman, who is tall and maybe have residual traits of being male, 
are you going to be accosted at the women's room by the owner of a business?  
Will some business hire bathroom police?


The paranoia of a man in the ladies room is mostly just that and a 
non-transwoman could dress up like a woman and to the ladies room with or 
without laws stigmatizing trans people and subjecting them to potential legal 
sanctions and public humiliation.  This law seems designed to allow anyone to 
humiliate and go after transpeople.


And as I read it the law allows discrimination in housing, employment, and 
access to services.  A doctor or dentist might legitimately say, "I don't treat 
your kind."


Most of all, it stimulates a climate of fear and hatred towards Trans people 
and the entire LGBT community.




*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of David Cruz 
Sent: Thursday, March 31, 2016 11:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Off list -- Re: The Charlotte City Ordinance and Religious Freedom

It strikes me that suggestions that (some) trans men should just use men's 
restrooms in South Carolina and would get away with it because they would be 
perceived as a men does not really speak to the fact that to do so, they will 
now have to be lawbreakers.  This to me just underscores and/or compounds the 
many problems of HB2.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


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Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

I am not sure what part of my posting bothered Mr. Gillen (Prof?  He does not 
tell us who he is) so much, whether it was my attempt a little humor (to 
channel Madison) or my rather long and hardly facile attempt to distinguish 
between tax exemptions for churches and tax money going to churches.  My 
reading of Madison (and I have read a LOT of Madison) is that he had no problem 
with tax exemption for churches precisely because he was not anti-religion (nor 
am I) and realized that taxing churches could destroy them.  He had seen 
massive persecution in Va. of Baptists, Quakers, and other dissenters, and knew 
that if the political leaders could tax churches it was reasonable to expect 
economic persecution.  For the same reasons he opposed the anti-Catholic and 
anti-Semitic tests for office holding in the contemporary state constitutions.


There were no such things as tax deduction or tax exemptions or deductions for 
charitable giving in Madison's time, so we can only guess that he would likely 
have approved of allowing for deductions for charitable giving (if there were 
such a tax system) and accepted that churches are charitable institutions.  But 
again, this is only an assumption.  And perhaps I am wrong and he would have 
seen such deductions as impermissible government support for religious 
institutions.  Certainly that is a reasonable argument.  Given the complexity 
of our world, however, it is hard to imagine treating a religious charity in a 
different way than a secular charity (for example, allowing a tax deduction for 
a donation to George Washington University but not to Georgetown University).


What we do know is that Madison emphatically opposed the government giving 
money, land, goods, or anything else of value to churches and believed that not 
a penny  (and that is his language) of taxpayer money should be handed over to 
churches.


That would include scrap rubber.  On this I stand with our 4th president, and I 
hope Mr. Gillen does not think this is facile.


I realize there are complications here and I tried to address some of them in 
my previous post.  But I have said enough on this for the moment.



*
Paul Finkelman

Ariel F. Sallows Visiting Professor of Human Rights Law

College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon, SK  S7N 5A6

Canada

c) 518.605.0296

paul.finkel...@albanylaw.edu

paul.finkel...@yahoo.com

and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Patrick Gillen 
Sent: Sunday, January 17, 2016 5:49 PM
To: Law & Religion issues for Law Academics
Subject: Re: Excluding religious institutions from public safety benefits

I don't have time to engage in a sustained discussion but feel compelled to 
confess that I am astonished to see such a facile (and highly debatable) claim 
for original understanding to be offered by someone who has written 
insightfully about the difficulty of making claims for such. Regards to all, Pat

Sent from my iPhone. Please excuse any errors or informality.

On Jan 17, 2016, at 4:52 PM, Finkelman, Paul 
mailto:paul.finkel...@albanylaw.edu>> wrote:


As someone (I think) who still believes in originalism, you should try to 
channel Madison for a full answer.


The real issue is when you transfer money to churches you (I use this as a 
shorthand for Temples, Mosques, Synagogues, Ashrams, Kingdom Halls, etc).the 
gov. is directly endorsing religion and establishing it.  Furthermore, if cash 
changes hand, the Gov. must be required to audit the churches and that 
threatens religious liberty and free exercise.  To use the asbestos case -- can 
use tax dollars for abatement of a wall that has a religious message -- text, 
crucifix, art work?  I think now.


However, I think a partial answer  would be the following:


1:  the government provides all sorts of "external" services to all people in 
society, police, fire, roads, sewers, trash pick up, snow removal, etc.  
Churches (I use this as a shorthand for Temples, Mosques, Synagogues, Ashrams, 
Kingdom Halls, etc). get these like everyone else.


2:  Not for profit entities get all sorts of tax breaks, and religious 
institutions fit that bill.  If the religious institutions are running 
businesses to support their activities I would not give them the same tax 
breaks for those businesses.  So, if the church also owns an apartment complex, 
and the profit from the apartments goes to support the church, I would think 
the apartment complex as a business should pay real estate and other taxes just 
like anyone else. And along the same line, religious buildings should pay use 
taxes for water, sewers, etc.


3:  assessing fair market value for a church is impossible and not taxing 
religious

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

ligion 
because of its religiosity, rather than to offer religious people and 
institutions equal access to broadly available benefits.



        Eugene



From: Finkelman, Paul [mailto:paul.finkel...@albanylaw.edu]
Sent: Sunday, January 17, 2016 12:28 PM
To: Volokh, Eugene ; Law & Religion issues for Law 
Academics 
Subject: Re: Excluding religious institutions from public safety benefits



Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?



Sent from my T-Mobile 4G LTE device



-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits



Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Graber, 
> Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> mailto:religionlaw@lists.ucla.edu>>
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of Paul 
> Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> mailto:religionlaw@lists.ucla.edu>>
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com<mailto:paul.finkel...@yahoo.com%3cmailto:paul.finkel...@yahoo.com>>
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene"
> mailto:vol...@law.ucla.edu<mailto:vol...@law.ucla.edu%3cmailto:vol...@law.ucla.edu>>>
> To: Law & Religion issues for Law Academics
> mailto:

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

And recruitment of new members.


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Alan E Brownstein

Date: Sun, Jan 17, 2016 2:38 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:Re: Excluding religious institutions from public safety benefits


It might also be relevant to note that at least for many congregations, 
pre-schools -- which typically have playgrounds -- are very important sources 
of revenue for the house of worship at which they are based.
Alan

Sent from my iPhone

> On Jan 17, 2016, at 11:16 AM, "Graber, Mark"  
> wrote:
>
> For the record, my reform temple regularly held religious activities in the 
> playground.  A playground is a very good place for making religious points 
> for 6 and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I suppose it’s possible, but it doesn’t seem that likely.  From 
> what I’ve seen, the springy recycled-tire surface tends to be used by swing 
> sets, monkey bars, slides, and the like – not the optimal place for an “’old 
> time religion’ tent revival” or even an Easter Sunrise Service.  A soccer 
> field, a baseball diamond, or tennis courts might be a better place, but I 
> think they generally don’t use rubber surfaces (since that would throw off 
> the play of the game).
>
>   But in any event, if such a service is held on a resurfaced 
> playground, the resurfacing would have done little to help the service; the 
> service can be held on all kinds of surfaces.  Resurfacing is important when 
> kids are running, climbing, and tumbling, not when they’re standing still.
>
>   Eugene
>
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when 
> religions hold outdoor services, most obviously and Easter Sunrise Service.  
> A playground might be just the place for that, or for an "old time religion" 
> tent revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law
> College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program
> University of Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics 
> mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>   I’m not sure how upgrading the playground will make it 
> materially more usable as space for worship and religious instruction.  Few 
> institutions, I expect, want to do worship and religious instruction on 
> playgrounds, rather than more familiar places.  But those that do probably 
> don’t care about rubber vs. gravel surfaces when using a space for worship 
> and religious instruction, which rarely involves tumbling and running around. 
>  Indeed, the improved surface is important for everyday playground physical 
> safety, and not really important for the very rare worship/religious 
> instruction on the playground.
>
> And a building that’s more earthquake safe, or that has asbestos removed, or 
> that has a security guard, or lacks dangerous mosquitoes outside, actually is 
> slightly more attractive as space for worship and religious instruction:  
> Some people might be more willing to send their kids to a school or a church 
> that’s earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded 
> than to a church or school that seems dangerous.  The effect won’t be vast, 
> but again it’s not like the extra benefit of a rubberized surface for worship 
> and religious instruction is vast, either.
>
> Indeed, an earthquake-safe/asbestos-remediated/well-guarded/mosquito-free 
> church or religious school building surely will be used for religious 
> purposes, right?  One can imagine a religious school or preschool that 
> doesn’t use its playground for religious purposes – indeed, I’d think that’s 
> quite common – but a church or a school definitely would use the safer 
> buildings for religious purposes.  Chip, under your proposal, wouldn’t a 
> state therefore be equally 

Re: Excluding religious institutions from public safety benefits

[Finkelman, Paul]

Doesnt it depend on how much resurfacing was needed.  But is that the issue.  
If the giv money is supporting and enhancing sectarian worship, does it matter 
how much.  As Madison noted in his remonstrance, it isd objectionable to take 
one penny of a citizens money to support any church or religion.  Do you really 
want to  start analyzing "how much" you can spend of ny tax dollars to supporrt 
your church?


Sent from my T-Mobile 4G LTE device


-- Original message--

From: Volokh, Eugene

Date: Sun, Jan 17, 2016 2:17 PM

To: Law & Religion issues for Law Academics;

Cc:

Subject:RE: Excluding religious institutions from public safety benefits


Got it, thanks.  How much more effective are those religious activities 
(as opposed to secular play activities) on a resurfaced playground as opposed 
to a non-resurfaced playground?

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Graber, Mark
> Sent: Sunday, January 17, 2016 11:15 AM
> To: Law & Religion issues for Law Academics 
> Subject: RE: Excluding religious institutions from public safety benefits
>
> For the record, my reform temple regularly held religious activities in the
> playground.  A playground is a very good place for making religious points 
> for 6
> and 7 year olds.
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
> on behalf of Volokh, Eugene [vol...@law.ucla.edu]
> Sent: Sunday, January 17, 2016 12:46 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I suppose it's possible, but it doesn't seem that likely.  
> From what I've
> seen, the springy recycled-tire surface tends to be used by swing sets, monkey
> bars, slides, and the like - not the optimal place for an "'old time 
> religion' tent
> revival" or even an Easter Sunrise Service.  A soccer field, a baseball 
> diamond, or
> tennis courts might be a better place, but I think they generally don't use 
> rubber
> surfaces (since that would throw off the play of the game).
>
>But in any event, if such a service is held on a resurfaced 
> playground, the
> resurfacing would have done little to help the service; the service can be 
> held on
> all kinds of surfaces.  Resurfacing is important when kids are running, 
> climbing,
> and tumbling, not when they're standing still.
>
>Eugene
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
> Sent: Sunday, January 17, 2016 9:22 AM
> To: Law & Religion issues for Law Academics 
> Subject: Re: Excluding religious institutions from public safety benefits
>
> without getting too far into the details here; there are many times when
> religions hold outdoor services, most obviously and Easter Sunrise Service.  A
> playground might be just the place for that, or for an "old time religion" 
> tent
> revival.
>
>
> **
> Paul Finkelman
> Ariel F. Sallows Visiting Professor of Human Rights Law College of Law
> University of Saskatchewan
> 15 Campus Drive
> Saskatoon, SK  S7N 5A6
> CANADA
> paul.finkel...@yahoo.com
> c) 518.605.0296
> and
> Senior Fellow
> Democracy, Citizenship and Constitutionalism Program University of
> Pennsylvania
>
>
>
>
>
> Call
> Send SMS
> Call from mobile
> Add to Skype
> You'll need Skype CreditFree via Skype
>
>
> 
> From: "Volokh, Eugene"
> mailto:vol...@law.ucla.edu>>
> To: Law & Religion issues for Law Academics
> mailto:religionlaw@lists.ucla.edu>>
> Sent: Saturday, January 16, 2016 6:25 PM
> Subject: RE: Excluding religious institutions from public safety benefits
>
>I'm not sure how upgrading the playground will make it 
> materially more
> usable as space for worship and religious instruction.  Few institutions, I 
> expect,
> want to do worship and religious instruction on playgrounds, rather than more
> familiar places.  But those that do probably don't care about rubber vs. 
> gravel
> surfaces when using a space for worship and religious instruction, which 
> rarely
> involves tumbling and running around.  Indeed, the improved surface is
> important for everyday playground physical safety, and not really important 
> for
> the very rare worship/religious instruction on the playground.
>
> And a building that's more earthquake safe, or that has asbestos removed, or
> that has a security guard, or lacks dangerous mosquitoes outside, actually is
> slightly more attractive as space for worship and religious instruction:  Some
> people might be more willing to send their kids to a school or a church that's
> earthquake-safe, asbestos-remediated, mosquito-free, or well-guarded than to
> a church or school that seems dangerous.  The effect won't be vast, 

Re: RE: What's happening in the Kim Davis case

[Finkelman, Paul]

*
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
www.paulfinkelman.com
*
please forgive me; i thought I was sending a phone number to someone else but 
my cell phone decided to send it to the list.



From: religionlaw-boun...@lists.ucla.edu  
on behalf of Paul Finkelman 
Sent: Monday, September 14, 2015 10:34 PM
To: Law & Religion issues for Law Academics
Subject: Re: RE: What's happening in the Kim Davis case

Mine is 518 605 0296


Sent from Yahoo Mail on 
Android


From:"Walsh, Kevin" 
Date:Sat, Sep 12, 2015 at 7:08 PM
Subject:RE: What's happening in the Kim Davis case

Brian Mason is a deputy county clerk. Is there a county clerk under whose 
authority these licenses were issued, or not?

[Note: I originally sent this before ND threw a touchdown pass to pull ahead of 
UVA a few minutes ago, but am resending now after being notified it was too 
long. Go Irish.]

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Saturday, September 12, 2015 6:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

Kevin Mason -- it is the Deputy County Clerk.

On Sat, Sep 12, 2015 at 6:34 PM, Walsh, Kevin 
mailto:kwa...@richmond.edu>> wrote:
What is the name of the county clerk under whose authority these licenses are 
issued?

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman 
[lederman.ma...@gmail.com]
Sent: Saturday, September 12, 2015 6:23 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

They are one and the same.  The authorization "statement" is at the top of the 
form, and does not mention an official.  The official is only mentioned in the 
"issued by" line, which refers to Brian Mason, not Kim Davis (as the statute 
permits):

https://www.justsecurity.org/wp-content/uploads/2015/09/davis.mason_.licenses.pdf

On Sat, Sep 12, 2015 at 4:54 PM, Walsh, Kevin 
mailto:kwa...@richmond.edu>>>
 wrote:
The point about validity and authorization is not about the signature required 
by Ky. Rev. Stat. 402.100(1)(c) but "the authorization statement of the county 
clerk issuing the license" required by Ky. Rev. Stat. 402.100(1)(a). What is 
the authorization statement of the county clerk issuing the license on the 
licenses issued by Mason to plaintiffs?

Read Davis's PI testimony (below) for her interpretation.

From: 
religionlaw-boun...@lists.ucla.edu>
 
[religionlaw-boun...@lists.ucla.edu>]
 on behalf of Marty Lederman 
[lederman.ma...@gmail.com>]
Sent: Saturday, September 12, 2015 4:34 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman; Samuel Bagenstos
Subject: Re: What's happening in the Kim Davis case

The license is valid even if Mason rather than Davis signs and issues it:  As I 
posted earlier, KY law provides that the license must contain “[t]he date and 
place the license is issued, and the signature of the county clerk or deputy 
clerk issuing the license.”  Moreover, KRS § 61.035 states that “[a]ny duty 
enjoined by law . . . upon a ministerial officer, and any act permitted to be 
done by him, may be performed by his lawful deputy.”  What Davis and Kevin call 
"county clerk authority" is no more needed here than in the case where the SG 
recuses from a case and the brief is signed, on behalf of the U.S., by the 
Deputy SG (as John Roberts did in, e.g., Metro Broadcasting).

Indeed, Davis agrees that the license could be valid without her name, since 
that's ostensibly the remedy she's seeking--she insists that RFRA requires the 
Governor to issue a new license form that would omit her name and title.

If Davis had genuinely been interested in making sure the marriages could go 
forward withou

RE: Kim Davis announcement about what she'll do at work today

[Finkelman, Paul]

Fair enough, but going forward does everyone in this County have to go through 
the courts in the future to have their marriage secured?  And what happens with 
the next Kim Davis is in some other agency, probate, the agency that deals with 
child custody, or a hospital, and says “no valid marriage” so you 1) can’t 
visit your spouse in the hospital; 2) we can’t transfer the deed from your 
deceased spouse; 3) no joint custody of your kids, etc.

Are you seriously arguing that relying on some court in the future to “save” a 
marriage is Equal Protection of the law?

Paul Finkelman
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: 
conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Kuykendall, Mae
Sent: Monday, September 14, 2015 12:25 PM
To: Marty Lederman; Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard 
Wasserman; conlawp...@lists.ucla.edu; Law & 
Religion issues for Law Academics; Michael Dorf; Samuel Bagenstos
Subject: RE: Kim Davis announcement about what she'll do at work today

Indeed,  if the earlier couples had gone ahead and married without a license in 
that county, there would be a strong case for saying they had a valid 
constructive marriage license.  Courts have saved marriages done without a 
license where there was less justification.  mk

Professor of Law
Michigan State University College of Law
648 N. Shaw Lane Rm 366
East Lansing, MI 488241300
517-432-6894 (office)
734-645-5769 (cell)
517-381-2082 (Haslett land)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=233952

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RE: Assessing a Proposed Solution to the KY Case

[Finkelman, Paul]

If she orders Mason not to issue the licenses, and she refused; can she fire 
Mason?

Paul Finkelman
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Sunday, September 13, 2015 2:11 PM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case

Fortunately, there is an accommodation available here that both allows couples 
to marry in Rowan County and that avoids Davis having to approve or authorize 
such marriages (even only in her official capacity) -- and, conveniently, that 
accommodation is the very solution currently in play, namely, that the function 
of issuing licenses has, in effect, been delegated to Mason, something Davis 
herself would have done earlier had she been genuinely interested in finding an 
accommodation.  It's as if she's recused from the marriage-license-issuing 
function.

On Sun, Sep 13, 2015 at 1:42 PM, Alan E Brownstein 
mailto:aebrownst...@ucdavis.edu>> wrote:

While I appreciate Kevin's efforts to identify an accommodation that will work 
here --  and I certainly try to look for acceptable accommodations in resolving 
religious liberty disputes -- I'm inclined to agree with Jim and Chip here.  A 
public official's insistence that the government office she works for (or 
directs) has to stop performing its lawful functions because continuing to do 
so gives the official's stamp of approval to conduct the official finds 
religiously objectionable is an unacceptable demand for accommodation. If a 
religious individual working for the government is assigned a duty that 
conflicts with her religious obligations, she may request an accommodation. It 
is possible to argue that the accommodation should be granted --  particularly 
if the duties can be assigned to other workers at no cost to them or to members 
of the public. But she can't insist that her office stop performing the 
objectionable function.  In essence, Ms. Davis is demanding that all the 
operations of the clerk's office that are identified as operating under the 
county clerk's authority must be consistent with her religious beliefs or 
assigned to another government office.



The solution to a conflict of that scope and nature is for the religious 
individual to resign from her position. It cannot be that the authorized 
functions of every government office must vary depending on the varying 
religious beliefs of the official directing its operation. Assume there are 
three counties: in County A, the clerk opposes same-sex marriage on religious 
grounds. In County B, the clerk opposes inter-faith marriages between Jews and 
non-Jews on religious grounds. In County C, the clerk opposes marriages by 
previously divorced individuals on religious grounds. Does our commitment to 
reasonable religious accommodations require us to accept a system in which 
same-sex couples living in County A have to have their marriage licenses 
authorized by the county clerk of County B or C. Inter-faith couples involving 
one Jewish partner living in County B must obtain a license authorized by 
clerks in County A or C. Divorced individuals living in County C who want to 
get married must obtain a license authorized by clerks in County A and B. And 
that's just the situation for marriage licenses. What about all the other 
functions identifiably authorized by the county clerk.



Alan


From: 
religionlaw-boun...@lists.ucla.edu 
mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Ira Lupu mailto:icl...@law.gwu.edu>>
Sent: Sunday, September 13, 2015 6:34 AM
To: Law & Religion issues for Law Academics
Subject: Re: Assessing a Proposed Solution to the KY Case

I think Jim Oleske's analysis is spot on, and completely of a piece with Doug 
Laycock's point, offered early in this discussion, that Rowan County cannot 
assert a religious identity.  Accommodations can be made for Davis personally, 
but not for the County. The 6th Circuit might wisely put an end to the 
overstated claims for accommodation by ruling that Kentucky RFRA, whatever its 
legitimate scope, cannot be construed and applied in ways that violate the 
Equal Protection Clause or the Establishment Clause.  Any construction of KRFRA 
that denied same sex couples access (physical or symbolic) to the authority of 
Rowan County would constitute such a dual violation.

On Sun, Sep 13, 2015 at 1:07 AM, James Oleske 
mailto:jole...@lclark.edu>> wrote:
Stepping back from the detailed discussion Kevin, Marty, and others have been 
having today about the intricacies and proper interpretation of Kentucky law, I 
wanted to address more broadly Kevin's sugg

RE: What's happening in the Kim Davis case

[Finkelman, Paul]

The legal analysis in all of our posts have been mostly based on “good faith” 
legal arguments.  But we try to figure it out as Ms. Davis’s arguments and 
claims seem to evolve.  Most of the people on this list assume that a 
reasonable accommodation is possible to protect her “religious freedom.”

Does anyone want to entertain the possibility of the following?

There is no good faith here.  Ms. Davis is taking steps to enhance her 
political career and her ability earn money speaking around the country.  In 
addition, some people in Morehead (where I was this week) suggest that she is 
trying to compensate for her less than “Christian” lifestyle in the past, 
including two or three divorces, multiple marriages, children born from one 
father while she was married to someone else – all of this I was told by 
multiple people on Morehead, I have not done any independent research to verify 
it).  Thus people suggested  she is taking this position to shore up her 
political strength with evangelicals in eastern Kentucky.

Alternatively, as some have suggested on this list, she simply does not want to 
have people marry who they love unless she approves of their lifestyle and so 
her actions are not about religious values at all but just old fashioned 
homophobia and bigotry,)and she  is doing everything possible to obstruct the 
law.  She can’t close the courts or even any other clerk’s offices  She can’t 
stand in the school house door, but she is following in the steps of Govs.  
Orville Faubus, Ross Barnett,  and George Wallace.  As such, any attempt to 
negotiate or accommodate is rebuffed with new arguments and new claims.

I would add that her supporters are doubtless sending fundraising email blasts 
to everyone on their email lists begging for money to save Kim Davis for the 
Godless heathens (like Judge Bunning???) who are out to get her.  I suspect 
they are hoping she will be back in jail next week so they can raise more money.

My assumption, by the way, is that when she took her oath of office she did it 
on a Bible and said so help me God, that she would enforce the law (and perhaps 
even uphold the Constitution).  I would be interesting to see what oath she 
took.  (see Matthew 22:21 and Mark 12:17).  I have not heard anyone raise this 
issue, and while it is not relevant in constitutional law, perhaps  it is 
significant for the discussion of constitutional politics.

I could be wrong about all this, and overly cynical. Perhaps we will know in a 
few months or a little longer, if and when we know what her speaking fees are 
after this is over.

=

Paul Finkelman
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 12, 2015 10:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in the Kim Davis case

Yes, but that same statute also says that the Deputy Clerk can issue the 
license, in addition to the Clerk.  Ky. Rev. Stat. 402.100(1)(c).  In such 
cases, obviously, the "authorization statement" in question becomes that of the 
Deputy Clerk -- which the State's official form acknowledges when it provides 
in the statement for the prospect that the Deputy Clerk, rather than the Clerk, 
might issue the license.  Another way to look at it:  Because KRS § 61.035 
states that “[a]ny duty enjoined by law . . . upon a ministerial officer, and 
any act permitted to be done by him, may be performed by his lawful deputy,” 
references in the Code to duties imposed upon the Clerk can all be read to add 
the implicit "or the Deputy."

I very much doubt that Kevin, or any other reasonable person, believes that Kim 
Davis actually authorized the licenses issued on Friday, or that any member of 
the public understands her to have done so.  Assuming that's right, I'm really 
not sure why we're still debating it.


On Sat, Sep 12, 2015 at 8:44 PM, Walsh, Kevin 
mailto:kwa...@richmond.edu>> wrote:
David,

Sure. The two most pertinent provisions are Ky. Rev. Stat. 402.100(1)(a) 
(requiring the prescribed form for marriage licenses to include "an 
authorization statement of the county clerk issuing the license") and Ky. Rev. 
Stat. 402.100(3)(a) (requiring the prescribed form to include a marriage 
certificate stating "the name of the county clerk under whose authority the 
license was issued").

Kevin

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of David Cruz [dc...@law.usc.edu]
Sent: Saturday, September 12, 2015 8:24 PM
To: Law & Religion issues for Law 

RE: What's happening in KY?

[Finkelman, Paul]

As Marty says: “. . . until she refuses to allow the documents to be issued to 
the next couple that appears)?”  Martyrdom is a strong tradition among some 
Christians so she may be planning for the long haul, or until it becomes old 
news and is boring and no one cares that she is in jail.


Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law, University of 
Saskatchewan College of Law (2016)
and
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:49 PM
To: Cohen,David; Law & Religion issues for Law Academics
Cc: ConLaw LIst Prof
Subject: What's happening in KY?

The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

1.  Is the County Executive Judge now issuing certificates and licenses (which 
might ironically eliminate the grounds for Davis's contempt incarceration . . . 
until she refuses to allow the documents to be issued to the next couple that 
appears)?

2.  What was the deal the judge offered her, regarding her deputies issuing the 
documents?  Did she refuse it because her name would continue to appear on the 
two lines?  Or did the judge say that she could omit her name and she still 
refused?

Thanks in advance for any info, or, better yet, links to actual documents.

On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David 
mailto:ds...@drexel.edu>> wrote:
Hi all - a mootness question for you.  In the case of the KY clerk who was 
jailed today for refusing to comply with a district court order that required 
her to issue a marriage license to a gay couple (and stay denied from the 6th 
Circuit or Supremes), according to some news reports, now that she is in jail 
and not able to serve, state law allows a county’s executive judge to now issue 
licenses.  So, presumably that will happen relatively quickly, and the 
plaintiffs will get their licenses.

Is the case now moot and the clerk can get out of jail because she’d no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn’t capable of repetition at this point for the plaintiffs, as they now 
have a license and can’t get another (until divorced, which may never happen).  
It certainly is capable of repetition for other people, but not these 
plaintiffs (and they haven’t filed a class action, to the best of my 
knowledge).  We’ve been around this issue before, and to the best of my 
recollection, most people believe the cases say that the “capable of 
repetition” part has to be for the particular plaintiffs, not for someone else.

In other words, is she in jail for an hour, maybe a day, and then back at it 
shortly to deny someone else a license (when that eventually happens) only to 
repeat the whole thing again?

David

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)


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RE: Question about the Kentucky County Clerk controversy

[Finkelman, Paul]

But, Eugene, isn't your bearded sheriff different from a clerk refusing to do 
hers job.  The analogy would not be to the beard but to the pacifist sheriff 
who refuses to carry a gun, or the animal rights sheriff who refuses to use 
police dogs, or even the person who believes saving the environment is a 
religious obligation and so as sheriff mothballs all the police cruisers.   An 
accommodation could easily be made for a beard, or halal or kosher food, or 
different Sabbaths.  It is hard do so when the official flat out refuses to do 
the job.

In this case it is beyond marriage equality.  The clerk will not give marriage 
licenses to anyone.  So much for being in favor of marriage, traditional or 
otherwise.


Paul Finkelman
Ariel F. Sallows Visiting Professor of Human Rights Law, University of 
Saskatchewan College of Law (2016)
and
Senior Fellow, University of Pennsylvania Program on Democracy, Citizenship, 
and Constitutionalism
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, September 02, 2015 11:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

   It seems to me that even government officials are sometimes 
acted upon by the government, and might get exemptions from government-imposed 
rules.  That's certainly true for lower-level government employees, but I would 
think the same might be true of election officials, too.  (Compare McDaniel v. 
Paty, which the plurality viewed as a Sherbert-based exemption case, though it 
has since been largely viewed as a discrimination case.)

   Say, for instance, that there is a statute or ordinance 
mandating a no-facial-hair rule for law enforcement officials, including 
elected sheriffs.  A sheriff who belongs to a beard-wearing religion is elected 
to office.  Why wouldn't he have a RFRA claim to an exemption from the 
no-facial-hair rule?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Wednesday, September 02, 2015 7:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Question about the Kentucky County Clerk controversy

Kentucky law requires the license to be signed by the clerk or deputy clerk. 
http://www.lrc.ky.gov/statutes/statute.aspx?id=36475

I have a different question though. State RFRAs protect against actions by the 
government that infringe religious liberty.  Here Kim Davis "is" the 
government, i.e. she is objecting to actions she is required to take in her 
official capacity.  Should RFRAs be read to protect government officials in 
that kind of situation?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Paul Finkelman 
[paul.finkel...@yahoo.com]
Sent: Wednesday, September 02, 2015 8:48 PM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy
Quick question. Does anyone know if KY law requires the clerk to issue the 
license in the Clerk's name, as opposed to "the office of the Clerk" as Eugene 
suggests?


**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholars Advisory Panel
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com


From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
To: "Law & Religion issues for Law Academics 
(religionlaw@lists.ucla.edu)" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wednesday, September 2, 2015 6:31 PM
Subject: Question about the Kentucky County Clerk controversy

   I was wondering what list members thought - as a legal matter - 
of this following issue that arises in the Kentucky County Clerk controversy.  
A federal judge issued an injunction ordering County Clerk Kim Davis to issue 
marriage licenses, including same-sex marriage licenses.  See 
http://www.scotusblog.com/wp-content/uploads/2015/08/Kentucky-marriage-15A250-application.pdf
 (the application for stay from the Supreme Court, with the orders below 
attached).  I think that's quite correct.

   But as I understand it, Kim Davis's stated objection is not to 
having any same-sex marriages be processed by her office, but only to 
authorizing the distribution of marriage license and certificate forms in which 
her name appears (see PDF p. 133 of the linked-

Re: Colorado Cakeshop decision

[Finkelman, Paul]

nies that do business with South Africa), and so on.  That we don’t see 
anything inappropriate about either the companies or the use to which the 
products are put is irrelevant.  If they believe it is religiously wrong for 
them to sell anything to a company, that’s enough to get in the door under a 
religious exemption regime – not just my view, of course, but also that of the 
Minnesota Court of Appeals.

   Now whether these religious exemption claims should be trumped 
by some government interest, such as the interest in preventing discrimination 
based on race, or religion, or political affiliation, or business practices, is 
a separate matter – that goes to whether denying the exemption is necessary to 
serve a compelling government interest.

   But, as I said, I would have thought that my view was entirely 
orthodox.  “[I]t is not for us to say that the line [religious objectors draw 
between what they view as religiously permissible or religiously impermissible] 
was an unreasonable one.”  If devout Jews interpret the Torah as barring not 
just the seething of a kid in its mother’s milk, but also mixing chicken meat 
with cow milk, it’s not for us to parse their reasoning, or to suggest that 
their thinking is inconsistent with what we think sound thinking would be (or 
for that matter with their own thinking in other areas).  Likewise if someone 
feels that it’s inappropriate for him to provide any support, however indirect, 
for abortion providers or for the military or for killers of animals or for the 
South African regime.

   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: Friday, August 14, 2015 10:32 AM
To: Law & Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

Eugene:

 I am trying to figure out what would  be the "inappropriate" use of the Deli's 
sandwiches?  Is it feeding doctors who perform abortion?

Are you arguing that the pillow case maker can refuse to sell pillow cases to 
members of the KKK who use them for pillows?  That is, can your refuse to do 
business with people if you don't like them or like what they do for a living?  
So, if the product -- a sandwich -- is being used properly -- that is it is 
being eaten, then how could it possibly be used inappropriately?

Or, are you that the Deli owner can refuse to sell to the clinic because the 
clinic does things the owner does not like?  So, he won't sell to the clinic 
because he does not think doctors who work there should eat food?

And the KKK owner of a clothing store will not sell to blacks or Jews or 
Catholics (and many more groups) because he does not think those people should 
ever be seen in public so they don't need clothing?

Your widget maker simply would not compete for the military contract.  No one 
forces him to do so.

At the end of this post you migrate from illegitimate use, to illegitimate 
user.  That is, you don't want your product being sold in a South Africa 
because you are opposed to the regime.  So you won't sell to a 2nd party, who 
sells it to 3rd party, who sells it to South Africa?

Assuming this is a retail business, then I am guessing you would say that a 
racist who believes that blacks are inferior and made to be slaves of whites, 
it would be ok for that person to refuse to sell retain good to blacks?  It is 
worth noting that most southern ministers believed that in the 19th century and 
I have had some students tell me they have heard similar things i their 
churches.  So, we have a "racist" church.  Are you arguing the member of that 
church can refuse to seat a black at his restaurant, refuse to serve and 
interracial couple, or refuse to rent a room to a black?




*
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> 
mailto:religionlaw-boun...@lists.ucla.edu>> 
on behalf of Volokh, Eugene mailto:vol...@law.ucla.edu>>
Sent: Thursday, August 13, 2015 7:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https:

Re: Colorado Cakeshop decision

[Finkelman, Paul]

what is "magical" about common carrier is that if you go into the business of 
being a common carrier, and you get a license from the state to operate your 
business, you have agreed to accept all who come forward with the fee and 
behave properly.   So the restaurant can require shoes and shirts, but not that 
everyone take their hat off in the room because that is not a health safety 
issue.  The restaurant can require you turn off your music in the restaurant 
but not prohibit you because you are [fill in a racial, ethnic, religious, 
gendered based minority].  That is what common carriers do.


If you don't want to do that, then go into another business.  If you deliver 
pizzas, you can't say, but not to your store because we don't like what you 
sell in that store.  Don't offer to deliver pizzas and you don't have that 
problem.


What you seem to be arguing for is a religious right to be a bigot, and 
essentially saying that what the segregationists lost in 1964 on race, they can 
win back on religion.  That somehow the First Amendment must always trump 
everything else in the Constitution, including the 14th.


Here Harlan's dissent in Plessy is worth rereading.  His argument is that 
common carriers are regulated by the state and so there must be equal 
protection -- equal access -- to all.  I buy my meat from a farmer.  Grass fed 
happy cow.  He is not a common carrier; he does not have a store, and he does 
not even have to follow USDA rules because he sells directly to customers in 
low enough quantities so that buying from him constitutes a "club" not a 
business.  He could discriminate on the basis of whatever he wants.  He is not 
a common carrier or a business that is involved with public accommodations.  
The local deli is another matter.


And, again, doesn't your position -- that anyone can refuse to sell to anyone 
else -- simply move us back to 1963?



*
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
www.paulfinkelman.com
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Friday, August 14, 2015 11:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision


   I still don’t quite understand.  “No hoasca” means that the 
ordinary right of citizens to ingest what they please is eliminated – but RFRA 
says otherwise.  “You must serve on a jury” means that the ordinary right of 
citizens to decide where to go and what to do with their time is eliminated – 
but religious exemption regimes say otherwise.  What’s magical about common 
carrier law that somehow immunizes it from religious exemption regimes, while 
other laws are deliberately covered by those regimes?  (I set aside the 
possibility that common carrier law, like drug law and other laws, would often 
be justifiable under strict scrutiny, since I take it that isn’t Sandy’s 
argument.)



   As people on this list know, I’m not a religious exemption 
maximalist.  Once upon a time, I was one of the very few First Amendment people 
who supported Employment Division v. Smith, though I notice that the tide has 
turned on that in recent years.  I support state RFRAs, but precisely because 
they are trumpable by legislatures (which could, if they choose, carve out drug 
laws or common carriers or antidiscrimination law from the state RFRAs); I also 
would have preferred it if RFRAs had used looser standards than strict scrutiny.



   But if we’re talking about the actual religious exemption model 
under RFRAs and the state constitutional religious exemption regimes, I just 
don’t see how assumptions about what “common carrier” “just means” resolve the 
religious exemption analysis.



   Eugene



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision



I suppose I’m like the naïve first-year student who begins with the assumption 
that “common carrier” just means that the ordinary right of the seller to pick 
and choose among customers is eliminated (at least so long as the purchaser can 
pay the regular price or, in the cases of innkeepers, is behaving properly).  
Would an English innkeeper at common law been able to say to a Catholic “we 
don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)?  
I thought the essence of “common carrier” law (about which I know extremely 
little, obviously) is that it refers to 

Re: Colorado Cakeshop decision

[Finkelman, Paul]

Eugene:


 I am trying to figure out what would  be the "inappropriate" use of the Deli's 
sandwiches?  Is it feeding doctors who perform abortion?


Are you arguing that the pillow case maker can refuse to sell pillow cases to 
members of the KKK who use them for pillows?  That is, can your refuse to do 
business with people if you don't like them or like what they do for a living?  
So, if the product -- a sandwich -- is being used properly -- that is it is 
being eaten, then how could it possibly be used inappropriately?


Or, are you that the Deli owner can refuse to sell to the clinic because the 
clinic does things the owner does not like?  So, he won't sell to the clinic 
because he does not think doctors who work there should eat food?


And the KKK owner of a clothing store will not sell to blacks or Jews or 
Catholics (and many more groups) because he does not think those people should 
ever be seen in public so they don't need clothing?


Your widget maker simply would not compete for the military contract.  No one 
forces him to do so.


At the end of this post you migrate from illegitimate use, to illegitimate 
user.  That is, you don't want your product being sold in a South Africa 
because you are opposed to the regime.  So you won't sell to a 2nd party, who 
sells it to 3rd party, who sells it to South Africa?


Assuming this is a retail business, then I am guessing you would say that a 
racist who believes that blacks are inferior and made to be slaves of whites, 
it would be ok for that person to refuse to sell retain good to blacks?  It is 
worth noting that most southern ministers believed that in the 19th century and 
I have had some students tell me they have heard similar things i their 
churches.  So, we have a "racist" church.  Are you arguing the member of that 
church can refuse to seat a black at his restaurant, refuse to serve and 
interracial couple, or refuse to rent a room to a black?





*
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
www.paulfinkelman.com
*




From: religionlaw-boun...@lists.ucla.edu  
on behalf of Volokh, Eugene 
Sent: Thursday, August 13, 2015 7:51 PM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision


   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https://scholar.google.com/scholar_case?case=648897692635049631, which holds 
that, even if a city ordinance banning discrimination based on “creed” required 
restaurants to deliver to abortion clinics, there had to be a religious 
exemption from such an ordinance.  “Under the provisions of the Minneapolis 
ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can 
either associate with an entity that engages in conduct which he finds to be 
morally offensive [delivering to abortion clinics], thus compromising his 
conscience, or he can refuse and be found guilty of discrimination and fined.”



   Now these have to do with objections to sales to businesses, not 
sales to individuals – but I can’t see why they would be different for RFRA / 
state Free Exercise Clause purposes.  As to how the information would be 
obtained, I take it that many a business wouldn’t work very hard to investigate 
the matter, but when it learned that its products were used by a customer in 
ways it disapproved of, might stop selling them to that customer.



   Isn’t that how many of us would act if we were businesspeople, 
and we learned that some of our customers were using our products in ways we 
strongly disapproved of?  Want to buy our pillowcases?  Go right ahead.  Oh, 
wait, you’re the KKK and you want to use them for your hoods; sorry, your 
business isn’t welcome here.  Same if you learn your customers are using your 
products to kill animals (if you object to that), resell them to South Africa 
(if you objected to that back in the 1980s), and so on.  Some people take a 
“Hey, the product is out of our hands, none of our business” attitude, which I 
think is just fine.  But other people care more about the behavior of their 
customers (and for that matter of their suppliers) – indeed, many who praise 
“corporate social responsibility” support that general approach.  And when the 
business feels a religious objection in such a situation, any existing 
religious exemption regime would be implicated, wouldn’t it be?



  

RE: Ireland

[Finkelman, Paul]

Dear Michael:

when children have children it is a bad thing. That is true whether they are 
married or merely very young and forced into marriages.

But out-of-Wedlock births is a very broad category.

When my adult gay friends had children, twelve years ago, they could not be 
legally married because our legal system would not sanction their commitment to 
each other, their love, or their respect of the institution of marriage.  Some 
fifteen years ago they had a wedding, performed by a bona fide member of the 
clergy, who was legally permitted to marry people in New York state, but not 
them.  Their twins (one of my friends is the birth mother -- who used a sperm 
donor -- the other is the other mom) are about to enter high school. They are 
bright, and as well adjusted as most 12 year old girls, doing well in school, 
and will probably be dating boys soon.

That you condemn my friend (who by the was is now a sitting judge!) as an unwed 
mother is more than outdated or even irrational.  It is unconscionable and 
shameful.

I note you are at BYU (or at least you have a BYU email address).   The Mormons 
faced horrendous persecution by the United States government, the cold blooded 
murder of their founder (Joseph Smith), and a forced migration that took them 
outside the country -- all because of their views on marriage and faith. It 
would seem to me that you should honor those who were persecuted for faith and 
marriage and thus you ought to be cheering on Ireland -- and my gay friends who 
were finally able to legally marry after New York State adopted marriage 
equality.

If opponents of marriage equality spent their energies on dealing with real 
social issues -- such as poverty, the lack of birth control for teenagers, and 
sex education -- instead of condemning people who only wish to be married, the 
whole society would be better off.



*
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
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Worley [mwor...@byulaw.net]
Sent: Saturday, May 23, 2015 8:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Ireland

I understand many disagree with my concern about out-of-wedlock births. This 
apathy over my concern worries me, because without an acknowledgement of the 
importance of opposite-sex marriage to our society, the concerns shared by many 
who oppose same-sex marriage will be incorrectly seen as outdated and 
irrational.

On Sat, May 23, 2015 at 6:13 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
I'll rest easier when out-of-wedlock childbearing is widely condemned worldwide 
as harmful to kids; when people acknowledge there are good arguments on both 
side of this difficult issue, and when the re-writing of a multitude of family 
laws is seen for the broad consequences that they have--rewriting the 
significance of marriage.


On Sat, May 23, 2015 at 4:35 PM, Baer, Judith A 
mailto:j-b...@pols.tamu.edu>> wrote:
We shall overcome!
Judy Baer

Sent from my iPhone

On May 23, 2015, at 5:02 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:

Ireland!, of all places.  62 percent to 38, and in 42 of 43 districts.

http://www.nytimes.com/2015/05/24/world/europe/ireland-gay-marriage-referendum.html


___
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.



--
Michael Worley
J.D., Brigham Young University



--
Michael Worley
J.D., Brigham Young University
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, cha

law suit on behalf of Jesus

[Finkelman, Paul]

Someone just send me this; it seems like it might be real, but does anyone 
know?  Can the plaintiff bring the suit on behalf of Jesus or G-d without a 
power of attorney signed by one or both?


http://www.thenewcivilrightsmovement.com/davidbadash/nebraska_woman_sues_all_homosexuals_in_federal_court_because_jesus_literally


*
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
www.paulfinkelman.com
*



___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Amazing what Hobby Lobby has wrought

[Finkelman, Paul]

Derek is offering exactly the kind of argument that as used to support 
segregation or the rights of people not to have to serve blacks, it that is 
what they chose to do.

But, even if Derek's "solution" (to allow discrimination) is approved, where 
does ti end?

Doug (in an earlier post) wants to apply it to cake bakers;

How about Tux makers?
Or Tux renters?
or shoe stores?
Or dress stores.
or florists?
Or car rentals?
Or Limo rentals.

And will it stop at weddings?  What about a cake or Limo for an anniversary 
party?  Or a baby shower for a same sex couple?

Where do you draw the line?  Cakes, Dresses, Limos?  Party favors?  Ice cream?

Does anyone have a way make a clear case for one over the other.

And it does not appear to be limited to same sex issues.  What happens when a 
Wiccan or a Satanist walks into the cake baker and says I need a wedding cake 
for our Wiccan wedding?   I don't recall (I could be wrong) seeing any proposed 
statutes that prohibit discriminating against anyone because of *their* 
religion?  On the contrary, all these laws seem to allow discrimination against 
anyone if based on a religious claim, even though NO ONE is being asked to 
participate in a same sex marriage, but only being asked to sell their goods to 
all purchasers.

There have been instances of businesses refusing to serve Muslims (and of 
course that was once common for Jews in lots of places).  Are we ready to allow 
people to refuse to sell to people because they have the wrong religion?



*
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
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Gaubatz, Derek [dgaub...@imb.org]
Sent: Friday, March 27, 2015 5:53 PM
To: Law & Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought

And I don’t think we want to create a society where we the only exercise of 
religion we protect is religious exercise that the elites are comfortable with. 
   Perhaps I’m misreading them, but it seems that many contributors to this 
list are only fans of protecting religious liberty in the milquetoast scenarios 
where it doesn’t much matter to most people if the religious adherent gets to 
practice his or her faith.   I guess that’s a nice start, but it doesn’t 
exactly merit inclusion in the next edition of Profiles in Courage.The 
reality is that we live in a pluralistic society.   People who believe strongly 
in same sex marriage aren’t going away in our society and people who hold to 
strong religious beliefs that require them to act in certain ways consistent 
with their faith when asked to participate in some aspect of a same sex 
marriage aren’t going away either.Instead of just trying to drum one group 
into submission, I’d submit that there really are ways to accommodate both 
through a sensible legal regime that accommodates religious exercise without 
leading to open season against gay people.Doug and Eugene have offered 
thoughts along these lines  in the wedding vendor context that draw the line in 
different places. It would be encouraging to see more engagement with those 
sorts of ideas that recognize the reality of our pluralistic society and the 
need of a legal regime that can find ways to respect the diverse consciences of 
its citizens.The lesson that Hobby Lobby should have wrought is that it is 
really is possible to accommodate both the government interest and the 
conscience of the religious adherent in ways that respect the pluralistic 
nature of our society.


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, March 27, 2015 4:29 PM
To: Law Religion & Law List
Subject: Re: Amazing what Hobby Lobby has wrought

There is a big difference between a regime where the law says you cannot or 
should not and a law that says its ok in the way people respond.

Most people do not sue most of the time every time their rights are infringed, 
so the “show me the cases” standard seems a bit off to me.

Nonetheless, I think most people will not take advantage of the anti-gay animus 
of the present impetus behind the law.  But that does not mean that that is the 
society we want to create — where people can legally exclude on the basis of 
such beliefs.

Steve

On Mar 27, 2015, at 2:54 PM, Doug Laycock 
mailto:dlayc...@virginia.edu>> wrote:


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

RE: Amazing what Hobby Lobby has wrought

[Finkelman, Paul]

If the cases I am talking about arise the discriminating party may lose.  Doug 
and I agree on that.

But the law encourages this kind of discrimination (as well as against people 
of other faiths), and encourages people to push to see how far they can extend 
their private prejudices into the public sphere.

So, the court acting years after the discrimination takes place is hardly a 
remedy, and it means the person facing the discrimination must initiate legal 
action.  Someone visiting Indiana for a basketball game is unlikely to return 
to sue. Would't an anti-discrimination law be a better route?

You cannot refuse to do for one person what you do for other?  That is what 
this is all about. It is about the sanctioning discrimination.

No minister ever has to perform a wedding. So that is off the table.  But, 
people who sell cakes do not perform marriages. They sell cakes.


*
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 [religionlaw-boun...@lists.ucla.edu] 
on behalf of Doug Laycock [dlayc...@virginia.edu]
Sent: Friday, March 27, 2015 2:46 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Amazing what Hobby Lobby has wrought

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_indiana_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)

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 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

RE: Amazing what Hobby Lobby has wrought

[Finkelman, Paul]

Both are immutable characteristics.  In that way they are very much alike. 
Indeed, while one can choose to convert to a new religion, people do not 
"choose" to be gay, just as they don't choose to be white or black or some 
other race.


*
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
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ryan T. Anderson [ryantimothyander...@gmail.com]
Sent: Friday, March 27, 2015 2:42 PM
To: Law & Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought

Sexual orientation is not the same as race.

On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
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 
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 
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 
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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Any

RE: Amazing what Hobby Lobby has wrought

[Finkelman, Paul]

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
www.paulfinkelman.com
*


From: 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 
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 
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 
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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messag

RE: Amazing what Hobby Lobby has wrought

[Finkelman, Paul]

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_indiana_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)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: 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: 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: The racist prostitute hypothetical

[Finkelman, Paul]

Brad:

Tell me why is the wedding cake which I pick up at your bakery and take to my 
wedding any different than the rental tux I pick up, the flowers I bring to the 
wedding, or the limo I rent.  Or, if I buy the car for the wedding party, how 
is the cake any different than the car I bought at the dealer.

Can the liquor store refuse to sell me wine for the wedding reception?  Or for 
the ceremony itself?  If the parties take communion before the ceremony, can 
the liquor store owner refused to sell wine?


*
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
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Saturday, February 14, 2015 7:41 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The racist prostitute hypothetical

Let me clearer.  There is a difference between saying you won't serve certain 
people and saying you won't be a participant in a certain event.  A wedding 
cake is part and parcel of the event, same as providing the floral settings and 
taking the photographs, although I realize don't agree with that.  That's why 
the baker, florist, or photographer should have the freedom to choose not to be 
a part of events that their faith forbids them to take part in.  If the 
condition of their remaining in business is that they abandon the tenets of 
their faith, then they don't have any religious freedom that has any meaning.

The problem with comparing a same sex wedding with an interracial wedding is 
that the color of a person's skin is no different than the color of a person's 
hair or the color of a person's eyes.  I don't think anybody would say that the 
difference in genders is a strictly cosmetic distinction.

Brad

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Saturday, February 14, 2015 11:27 AM
To: Law & Religion issues for Law Academics
Subject: Re: The racist prostitute hypothetical

"Refusing to bake a wedding cake for [interracial] couples is about not taking 
part in a specific event.  Refusing to bake bread for someone who is [black]  
is about not serving a specific type of person.  Two very different things."

Brad -- with those bracketed alterations, do you stick with what I perceive to 
be your view that the baker should have a right to refuse to bake the wedding 
cake?
If not, I would suggest that bakers making wedding cakes for the general public 
do not fall within the intimate sphere of privacy that Eugene is trying to 
identify with his hypothetical. Like Eugene, I think for-profit ministers and 
freelance writers present more difficult cases, though I disagree with him that 
most wedding photographer situations present difficult cases.
- Jim
___
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RE: The racist prostitute hypothetical

[Finkelman, Paul]

One thought is this:  How would Eugene's hypothetical differ from a nurse, 
doctor, dentist, or undertaker, who said "I don't like touching people of this 
or that race" and so I will not do my job with them?  I am not sure what the 
difference, once we get over any issues we have about the legality of the 
service.

If there is a difference it is in the nature of the special intimacy of the 
prostitution service, and the idea that anyone who engages in that particular 
service, male or female, has a right to choose or not choose his/her customers 
because of the very close and intimate and special nature of the contact.

However, that is very different than a baker or florist, or photographer.  To 
be blunt about it, a photographer is not intimately part of the same sex 
wedding he/she is merely taking pictures of an event.   It would be no 
different if the photographer were taking pictures of an accident -- the 
photographer at the accident is not handling the bodies or involved in the 
event.   of A baker is baking a cake, not feeding the cake to the the 
participants.   I am not sure why Eugene thinks that selling cakes in a store 
is even a personal services business; or selling flowers is one.  There may be 
a delivery service and a special name on the cake, but is that any different 
than ordering your car from Ford with a special radio in it, as opposed to the 
standard one?   The only "service" in the same sex marriage might be the 
musician or the person officiating.   The baker is selling cakes; the florist 
is selling flowers.  The dress maker or tailor making the wedding suit might be 
closer to service if it is a custom fitted, custom made garment dress with lots 
of measurements, but are we going to argue that people in those professions can 
refuse to sell dresses/suits to blacks, Hispanics, Jews, Catholics, etc. 
because of their views on religion or race?   

Even the person  officiating at the service is not intimately involved in the 
service. A Justice of the Peace or Judge might say "you may now kiss the bride" 
or "the groom" but the he/she does not have to kiss anyone himself/herself.  

So, I guess I do not see how Eugene's hypothetical fits with what I assume is 
his goal of trying to justify the refusal of people in businesses to sell their 
services to gay people (or blacks or Jews or anyone else)

*
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
www.paulfinkelman.com
*




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, February 14, 2015 12:01 AM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: The racist prostitute hypothetical

   I’ve been thinking about a little thought experiment, and I 
thought I’d run it past this list to see whether people see it as helpful.

   Imagine a state in which prostitution is legalized.  A 
prostitute offers her services to the general public (perhaps through a web 
site, which as I understand it is not uncommon).  She is generally not very 
selective, because it’s just business.  But she doesn’t like black people.  A 
black would-be customer feels understandably insulted by this, so he sues her 
for discrimination in public accommodations.  And the state law does cover all 
businesses, bricks and mortar or not, that provide goods or services to the 
general public.  (That, after all, is the sort of law that covers bakers, 
wedding photographers, and perhaps ministers who charge for their services.)

   My inclination is that the prostitute should have an absolute 
right to discriminate on any basis she wants, whether it’s race, religion, 
marital status, age, or whatever else.  And that is true even though she 
charges money, and generally provides her services to everyone.  (I say “she” 
and “he” in this example, but of course the same would apply regardless of the 
sex or sexual orientation of the parties.)  The choice of whom to have sex with 
is a personal choice, even when done commercially, and no-one should have to 
have sex with someone they don’t want to have sex with – on pain of either 
facing a fine or having to quit one’s chosen line of business – no matter how 
many for-pay partners they might have.  Are people on this list with me so far?

   Now the next step:  I think that, while sexual conduct should 
involve a right to choose for particular reasons having to do with bodily 
autonomy, some other conduct should involve a similar right to choose for other 
reasons.  Religious autonomy, intellectual/expressive aut

RE: Interposition on Same Sex Marriage

[Finkelman, Paul]

in the Ten Commandments case he testified (as the defendant in a civil suit he 
was called by the plaintiff) that the 1st Amendment did not apply t the state 
of Alabama.  His attorneys argued this in their appeal to the 11th circuit.  
Then he defied a direct order of the US Dist. Court to take his monument down. 
So, he has been doing this for some time.


*
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
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Friedman, Howard M. [howard.fried...@utoledo.edu]
Sent: Monday, February 09, 2015 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Interposition on Same Sex Marriage

Roy Moore, Alabama's Chief Justice, seems to have ordered something near 
interposition in response to federal court invalidation of the state's ban on 
same-sex marriage.  The 1950's returning??
http://religionclause.blogspot.com/2015/02/interposition-ordered-by-alabama-chief.html

___
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RE: Homeschooling, vaccinations, and Yoder

[Finkelman, Paul]

I think Yoder set the stage for exemptions from schools and for people to 
demand, first on religious grounds, and then on secular grounds, the right to 
keep their children completely out of any schools.  There was a significant 
rise in home schooling after Yoder, although I do not have the statistics 
handy.  (I should add that I home schooled my daughter (in 4 different states) 
until 8th grade, and was always shocked at how little the states did to 
investigate whether I was qualified to do so or what I was teaching her.  In 
Virginia I only had to prove that I had a college degree to be allowed to home 
school.  If I remember correctly, in Oklahoma I was not required to even tell 
the state I was homeschooling my child.  On the other hand, in some states, 
home schooling is regulated and there is even mandated testing to prove the 
home schooling is going on and is effective.



I agree that people are unlikely to home school merely to avoid vaccinations.  
My point is that children who are home schooled may never be vaccinated.




*
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 [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
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] On Behalf Of Finkelman, Paul
Sent: Sunday, February 01, 2015 9:27 PM
To: 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.  

RE: Vaccine objectors

[Finkelman, Paul]

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
www.paulfinkelman.com
*


From: 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 events cause state legislatures to seriously consider 
repealing such exemptions.
3.  But if a state chooses to exempt people only for religious reasons, that 
raises not only a policy question (which is the one I intended to raise in 
starting this thread -- should other states follow MS and WV in refusing to 
grant even religious exemptions?), but also a serious Establishment Clause 
question, in light of the third-party burdens (those borne by the children who 
are not immunized as well as the children who are made more susceptible to 
disease).  I haven't checked in a while, but I believe no court has ever held 
such religious exemptions unconstitutional except where they discriminate among 
religions.  I am inclined to say that they are unconstitutional even where not 
discriminatory; but the case law does not, as far as I know, yet support that 
view.
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RE: Vaccine objectors

[Finkelman, Paul]

One issue not raised hete is the vast number on unvaccinatef immigrants which 
means the populstion of unvaccinated is constantly changing and growing


Sent from my Verizon Wireless 4G LTE smartphone


 Original message 
From: Perry Dane 
Date:02/01/2015 6:43 PM (GMT-05:00)
To: Law & Religion issues for Law Academics 
Subject: Re: Vaccine objectors


Sandy,

Thanks.

I did elide the state's distinct interest (separate from its general interest 
in assuring herd immunity) in making sure that individual children are 
protected from illness.  That might indeed be compelling.

But if the rest of the herd is vaccinated, then the risk to the individual 
child might (I'm just speculating here) be minimal, which might change the 
calculation and distinguish this case from the transfusion or cancer treatment 
cases.  Of course, there's a free rider issue here, of sorts.  But should be 
object to free-riding in principle, or only in the sort of free-riding that 
threatens the provision of the public good at issue?

Perry

On 02/01/2015 6:19 pm, Levinson, Sanford V wrote:

This is certainly thoughtful. But what about the Jehovah's Witnesses cases re 
transfusions?  Are we necessarily to prefer the interests of the religious 
parents over the health and safety of the child?  Or do we simply say that the 
risk of measles, polio, tetanus etc. isn't so serious as the consequences of no 
transfusion. But the Jehovah's Witness child threatens no one else, whereas, by 
stipulation, the unvaccinated child does threaten the herd.
Sandy

Sent from my iPhone

On Feb 1, 2015, at 3:41 PM, Perry Dane 
mailto:d...@crab.rutgers.edu>> wrote:


Hi all,

Without getting deeply mired myself (right now) in the normative implications 
here, it might still be worth noting that:

1. Exemptions from vaccination requirements only become a serious public health 
issue when they increase to the point of threatening "herd immunity."  That is 
to say, we can -- from a public health perspective -- tolerate some exemptions, 
but not too many.

2. According to some studies, states that allow "personal" in addition to 
"religious" exemptions, and states that grant exemptions "easily," have (not a 
surprise) a higher rate of non-vaccinators than states that limit exemptions to 
"religious" motives or put more hurdles (documentation, etc.) in the way of 
folks seeking exemptions.  See, e.g., 
http://www.ncbi.nlm.nih.gov/pubmed/17032989

3. It might even be possible, though I don't have any numbers to support this, 
that limiting exemptions to genuine "religious" objectors,  and defining 
religion in any of the standard ways, would produce a rate of non-vaccination 
low enough not to pose a major public health risk.  (That still leaves, of 
course, the question of risk to the individual unvaccinated child.  But even 
that risk might be considerably reduced if "herd immunity" is in place.)

That is to say, vaccination might be one of those contexts in which society has 
a solid compelling interest in enforcing a rule overall but not necessarily a 
compelling interest in enforcing that rule on genuinely religious objectors.  
(That was, for better or worse, Burger's argument in Yoder).

The obvious challenge here is to the "religion is not special" view.  If 
"leveling up" produces distinctly bad results (of a sort not produced by more 
limited religious exemptions), should that be a reason to "level down" and 
eliminate all exemptions?  That is to say, should religious objectors lose 
rights they might otherwise have if too many non-religious folks want to get on 
the bandwagon?

And even for the rest of us, who do think that "religion is special," the 
intrusion of these sorts of facts creates a quandary.  What if, for example, 
one part of the country has a number of religious objectors below the "herd 
immunity" threshold and another part of the country has a number above the 
threshold?  How should law respond?

As I said, I'm just asking the question here, not trying to answer it.

Perry
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RE: Bishop John Hughes, Protestant Public Schools in New York, and Political Activity by Clergy

[Finkelman, Paul]

I have written a bit about this in my biography of Millard Fillmore --who was 
totally insensitive to issues involving Catholics, Jews, and blacks -- a sort 
of equal opportunity bigot.

If was state wide, not just NYC.   Fillmore lost the NY Gov. race in 1844 in 
part over this issue -- to the extent that he alienated almost all Catholic 
voters in the state.  The issue may have affected the presidential race as 
well, since Clay lots NY State to Polk by about 5,000 votes.

The issue is in part that the school day began with a prayer and a Bible 
reading, and the prayer was Protestant (usually the Protestant Lord's Prayer, 
not to be confused with the Catholic Lord's Prayer), followed by Bible reading 
from the King James Bible -- which was also both Protestant and in places 
translated to be anti-Catholic.  

Almost all of the teachers were Protestant in a pre-Civil Service world.  

I am not sure what the curriculum was, but there was certainly a sense among 
Catholics that the schools were hostile to their faith.  It was doubtless tied 
up up in British vs. Irish ethnic hostility as well (although were there a 
minority of German Catholics as well, but most of the political conflict was 
over the Irish).  It helped set the stage for various anti-Catholic and 
anti-Immigrant parties, most famously the Know Nothings, but there were others 
before that one.  (For what it is worth, Millard Fillmore ran for president in 
1856 on the Know Nothing ticket, with a party platform provision against 
Catholics ever holding office in the US).

While the Irish generally voted for Democrats, some Whigs -- like William Henry 
Seward -- supported their position,, not merely to get Catholic votes but 
because he saw the bigotry in the issue.

Mark, I am not sure what you mean by "oppose clergy political activity."  I 
oppose religious bodies using their tax exempt status for political purposes.  
I think that is wrong and probably illegal.  

I think all Americans should be politically active, and that includes the 
Clergy.  I think members of the Clergy should speak out -- as citizens -- on 
public issues, as long as they are not doing it on tax exempt money.  The easy 
way is to create organizations that are not religious but are supportive of 
religious goals, to support political issues.  

 I am pretty sure the Catholic Church, for example, did not fund Father Robert 
Drinan's successful campaigns for Congress.  There are number of members of 
Congress now (or in the recent past) who are members of the clergy.  Surely 
that is not a problem as long as their campaigns are not funded by 
tax-deductible contributions to their church.  

Obviously this analysis is anachronistic and perhaps irrelevant for the 
mid-19th century.  In that period members of the clergy were deeply involved in 
political issues, although not (as far as I know) ever telling their flock how 
to vote or arguing that politicians should be denied communion based on their 
political position.  The most obvious example of political/religious debate was 
over slavery; where three church split into southern and northern branches and 
thousands of ministers gave sermons for or against slavery.  The southern 
churches funded books and essay contests to prove that the Bible supported 
slavery.  My favorite book title of the period is "The Duties of a Christian 
Master," which was not (as some might think today) to free his slaves!



*
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
www.paulfinkelman.com
*



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Wednesday, December 24, 2014 6:21 PM
To: Law & Religion issues for Law Academics
Subject: Bishop John Hughes, Protestant Public Schools in New York, and 
Political Activity by Clergy

It seems that Bishop John Hughes in New York endorsed political candidates. 
Apparently he opposed public funding of schools that taught Protestantism 
unless funds were also provided for Catholic schools, as he requested.  When 
the request was denied, he endorsed political candidates who took steps to 
remove religion from NY public schools (New York City, I think, rather than New 
York State, but I could be wrong). My sense is that New York public schools 
(perhaps in NY City or perhaps just elsewhere in the state) continued to (or 
eventually later began again to) promulgate Protestantism, at least of a sort.

I'd be interested in hearing from list members who oppose clergy political 
activity what they think about this example.

Mark

Mark S. Scarberry
Professor of Law
Peppe

Sorry for the Double Posting.

[Finkelman, Paul]

Sorry for the double posting.  Apparently the list-serve copy of my posting 
went to spam.  What does that tell us about spam filters when they reject your 
own postings!


Paul Finkelman
Scholar-in-Residence
National Constitution Center


From: Marc Stern 
To: "religionlaw@lists.ucla.edu" ; Law & Religion 
issues for Law Academics ; 
"religionlaw@lists.ucla.edu" 
Sent: Sunday, September 28, 2014 5:24 PM
Subject:


Today's NY Times Review section has an article by a professor of evolutionary 
biology at a public university describing a lecture he gives annually 
explaining how that body of science ‎ has undermined central claims of 
religious traditions.

Is it constitutional for him to give this lecture? Would it be constitutional 
for a professor of theology at the same university to offer a rebuttal in 
religious terms?

Marc
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Rick Garnett
Sent: Friday, September 26, 2014 10:43 AM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: Re: GW National Religious Freedom Moot Court Competition


Dear Chip,

Thanks for this.  I'm hoping that Notre Dame will send a team again.  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

To download my scholarly papers, please visit my SSRN 
page

Blogs:

Prawfsblawg
Mirror of Justice

Twitter:  @RickGarnett

On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
George Washington University will once again host the National Religious 
Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. 
The registration period is open from now until Nov. 15, 2014.  The problem will 
be released on Nov. 17, 2014.  The competition will be held at GW on 
Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of conscience 
raised by teachers against a hypothetical law in Washington, D.C. that requires 
teachers and administrators to carry firearms on public school property during 
school hours.  More information here: http://www.religionmootcourt.org/  
(Ignore the Feb, 2014 dates at the top of the website).

--
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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Science Lecture

[Finkelman, Paul]

[I posted this earlier but it does not look llike it was put up so I am 
resending it.]

Obviously yes, and yes.  How could it be otherwise?  If it is "no" or no and 
no, then we have lost all ability to have free intellectual inquiry.  It would 
not be proper (I am not sure if it would be constitutional) for either to 
proselytize and it would certainly be improper to grade on religious belief.

Indeed, its strikes me that this would be a great setting for a team taught 
interdisciplinary course.

The only question is whether they teach "theology" at the university.  Some 
state universities don't even teach religion (or at least they used to now 
teach it.

Paul Finkelman
Scholar-in-Residence
National Constitution Center
and
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania


*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marc Stern [ste...@ajc.org]
Sent: Sunday, September 28, 2014 5:24 PM
To: religionlaw@lists.ucla.edu; Law & Religion issues for Law Academics; 
religionlaw@lists.ucla.edu
Subject:


Today's NY Times Review section has an article by a professor of evolutionary 
biology at a public university describing a lecture he gives annually 
explaining how that body of science ‎ has undermined central claims of 
religious traditions.

Is it constitutional for him to give this lecture? Would it be constitutional 
for a professor of theology at the same university to offer a rebuttal in 
religious terms?

Marc
Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Rick Garnett
Sent: Friday, September 26, 2014 10:43 AM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: Re: GW National Religious Freedom Moot Court Competition


Dear Chip,

Thanks for this.  I'm hoping that Notre Dame will send a team again.  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



To download my scholarly papers, please visit my SSRN 
page



Blogs:



Prawfsblawg

Mirror of Justice



Twitter:  @RickGarnett

On Mon, Sep 22, 2014 at 4:34 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
George Washington University will once again host the National Religious 
Freedom Moot Court Competition, presented by the J. Reuben Clark Law Society. 
The registration period is open from now until Nov. 15, 2014.  The problem will 
be released on Nov. 17, 2014.  The competition will be held at GW on 
Friday-Saturday, Feb. 6-7, 2015. The 2015 problem involves claims of conscience 
raised by teachers against a hypothetical law in Washington, D.C. that requires 
teachers and administrators to carry firearms on public school property during 
school hours.  More information here: http://www.religionmootcourt.org/  
(Ignore the Feb, 2014 dates at the top of the website).

--
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: Practice experience of Justices

[Finkelman, Paul]

The very fact that members of this list have to search around to find any 
experience with "people" for the members of the court to find a year here or 
there, or even a few years here or there, underscores how totally removed from 
mainstream life and law practice the Justices are.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, July 12, 2014 1:59 AM
To: Law & Religion issues for Law Academics
Subject: RE: Practice experience of Justices

   I didn’t include him because my sense is that he was on the 
appellate side, which isn’t the sort of experience that was under discussion.  
But I may well be wrong.

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Tessa Dysart
Sent: Friday, July 11, 2014 10:50 PM
To: Law & Religion issues for Law Academics
Subject: Re: Practice experience of Justices


Wasn't Clarence Thomas involved in state law in Missouri as an Asst. AG?
On Jul 11, 2014 10:43 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
   My understanding is that Anthony Kennedy was a local Sacramento 
lawyer of some distinction – and not at a large firm – from 1963 to 1975.  I 
suspect this was largely a civil practice, so it might not go to criminal law 
experience (which, as some pointed out, only Alito and Sotomayor seem to have), 
but it is relevant to whether someone has had experience with local clients, 
and was involved in state law.

   Eugene


The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

___
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RE: Is Discussion of Justices' Religion "Off Limits"?

[Finkelman, Paul]

Agreeing with Sandy, I would just add that none (I believe) have  even been in 
a courtroom prosecuting an ordinary person. Have any  been involved in a plea 
bargain?  interviewed a witness in a holding cell?  or a police station?  
Except Ginsberg have have they dealt the day-to-day legal issues that most 
Americans face?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Friday, July 11, 2014 3:02 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?


Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an " ordinary" criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone

On Jul 11, 2014, at 1:33 PM, "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>> wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>] 
on behalf of Richard Friedman [rdfrd...@umich.edu<mailto:rdfrd...@umich.edu>]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court no

RE: Is Discussion of Justices' Religion "Off Limits"?

[Finkelman, Paul]

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was "representative" body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Richard Friedman [rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law & Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion "Off Limits"?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be "off limits," 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
mailto:bicker...@nku.edu>> wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limited to Christianity but is simply the default memorial because it is "the 
most common symbol" of the dead, how can it not be the case that the justices' 
life experiences--jobs, schools, politics, faith--are playing a role in how 
they decide cases?

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

From: 
conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edu] 
on behalf of Myron Moskovitz [mmoskov...@ggu.edu]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Disc

RE: On a different strand of the seamless web

[Finkelman, Paul]

I will admit I may have put words into Doug's mouth, and if so I apologize.  
However, whether it is Doug or Justice Alito, it strikes me that the point is 
the same.  A for-profit corporation cannot have a "soul" or a religion.  It is 
not a person in that sense and I doubt any religion would say it is.  So if it 
cannot have a religion, it cannot have an exemption from a law of general 
applicability on the basis of its faith.





*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, July 07, 2014 11:25 AM
To: Law & Religion issues for Law Academics
Subject: RE: On a different strand of the seamless web

   Paul:  You said, “unlike Doug, I do not believe corporations are 
people, that they have religious believes or that they have souls (that is of 
course an understatement).”  That strikes me as a statement that Doug does 
believe that corporations are people (in the lay sense of the word “person”), 
and that they have souls.  Whatever the underlying point may have been, the 
actual statement appears to me like a claim that an adversary of yours believes 
something ridiculous, something that I’m pretty sure he doesn’t actually 
believe.  Can you point me, please, to any evidence that this statement of 
yours about Doug is actually true?

   Eugene

From: Paul Finkelman [mailto:paul.finkel...@yahoo.com]
Sent: Monday, July 07, 2014 1:53 AM
To: Volokh, Eugene; Law & Religion issues for Law Academics; Douglas Laycock; 
Scarberry, Mark
Subject: Re: On a different strand of the seamless web

i am not sure; my point is this that Hobby Lobby is NOT about individuals it is 
about a company.  I agree with Doug (and probably every on this list) that the 
owners of Hobby should have religious liberty to avoid doing some things (but I 
believe that is true for Smith in the Oregon case).  My point is that Hobby 
Lobby is a corporation and not a person and so it has no -- zero -- rights of 
religious liberty.  It should be required to act according to the law, the same 
as any other corporation.  For profit corporations (as opposed to an 
not-for-profit religious corporation) are not people so I simply disagree that 
their owners are free to act in the way Doug wishes.

So, in that sense, I think Doug's position has to be that the corporation 
somehow has a religious liberty.  I am not buying it.


From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>
To: Paul Finkelman mailto:paul.finkel...@yahoo.com>>; 
Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>; Douglas 
Laycock mailto:dlayc...@virginia.edu>>; "Scarberry, 
Mark" mailto:mark.scarbe...@pepperdine.edu>>
Sent: Sunday, July 6, 2014 7:11 PM
Subject: RE: On a different strand of the seamless web

   Paul:  Are you seriously claiming that Doug believes a 
corporation has a soul?  Or even that he believes it is a person (the singular 
of “people”) in the lay sense of the word “person,” as opposed to the 
Dictionary Act sense of the person?

   Eugene


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman
Sent: Sunday, July 06, 2014 1:48 PM
To: Douglas Laycock; Law & Religion issues for Law Academics; Scarberry, Mark
Subject: Re: On a different strand of the seamless web


unlike Doug, I do not believe corporations are people, that they have religious 
believes or that they have souls (that is of course an understatement); 
corporations are legal vehicles designed to make money for the investors and to 
shield the investors from having to use their own assets to cover losses and 
debts.

I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to 
heaven or hell, or that it prays.  So, I guess I am unpersuaded that there can 
be an exemption issue for a corporation


From: Douglas Laycock mailto:dlayc...@virginia.edu>>
To: Paul Finkelman mailto:paul.finkel...@yahoo.com>>; 
Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>; "Scarberry, 
Mark" mailto:mark.scarbe...@pepperdine.edu>>
Sent: Sunday, July 6, 2014 11:36 AM
Subject: Re: On a different strand of the seamless web

Unlike Paul, I think the exemption issues and the government-sponsored prayer 
issues are very different.


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

RE: Cert. denied in Elmbrook Schools

[Finkelman, Paul]

Scalia's dissent is interesting I one way, at least.  When I was growing up 
Catholic children were not allowed to visit synagogues (this was in remote 
upstate New York) without permission of the local bishop.  That has all changed 
now, I know.  but it would have been true when Scalia was growing up.  So, in 
theory if he wins in this case high school graduations could take place where 
some kids might not be allowed to attend.



I am currently in France for a few weeks where I have been told that many 
Muslim students will not enter a church on a school field trip (to look at art, 
architecture, and culture) because it would violate their faith.  I wonder how 
Scalia would respond if this case were brought by a Muslim who could not in 
good faith attend graduation in a church.



I think Town of Greece is deeply wrong, but Scalia seems to think that allowing 
a multitude of prayers as the town council (even though in fact that is mostly 
theoretical for Town of Greece) is no different than handing out diploma's 
under a crucifix of a cross.











*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Friedman, Howard M. [howard.fried...@utoledo.edu]
Sent: Monday, June 16, 2014 11:17 AM
To: Law & Religion issues for Law Academics
Subject: RE: Cert. denied in Elmbrook Schools

Thanks for the heads up.  Scalia's dissent is fascinating.  I just blogged on 
it: 
http://religionclause.blogspot.com/2014/06/scotus-review-denied-over-interesting.html

Howard Friedman


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Monday, June 16, 2014 9:54 AM
To: Law & Religion issues for Law Academics
Subject: Cert. denied in Elmbrook Schools

Scalia and Thomas dissenting:

http://www.supremecourt.gov/orders/courtorders/061614zor_2b8e.pdf
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case book needed

[Finkelman, Paul]

Does anyone know if there is a casebook out there -- or has anyone taught and 
can share materials -- for a course on  comparative religion and law.  I have 
to teach one this summer -- comparing US to EU law (and if I can other 
countries).



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of J. Mallory [jeremy.mall...@gmail.com]
Sent: Wednesday, May 07, 2014 6:54 PM
To: Law & Religion issues for Law Academics
Subject: Re: Supreme Court Decides Town of Greece

I found the unanimity to be as striking as the difference of opinion. Marsh 
retains vitality, 9-0.

Moreover--and even more eye-opening, in my book--five votes agree that 
legislative prayer is effectively now a litmus test for Establishment Clause 
tests: if legislative prayer (in the abstract) would fail a test, then the test 
is wrong.

If that's now decided, and Justice Brennan was right in saying that "if any 
group of law students were asked to apply the principles of Lemon to the 
question of legislative prayer, they would nearly unanimously find the practice 
to be unconstitutional," Marsh, 463 U.S. at 800-01, then Lemon has indeed been 
buried, no?

I am also curious as to the outright rejection of an "aesthetic" theory of 
violating the Establishment Clause. If offense is no longer a valid grounds for 
raising an objection, then what happens to the monument cases (McCreary County, 
Van Orden, Summum)? Aren't monuments more or less just very slow-moving 
chaplains? At this point there's arguably no standing to sue, if the five votes 
here are correct that offense is no longer good enough to ground an 
Establishment Clause challenge. (Note also how this interacts with Hein: 
taxpayer standing is one of the few ways to challenge a chaplaincy unless you 
attend, see Hinrichs, in which case it's an aesthetic "I was offended" injury.)

Seeing the outcome here makes me think cases like Snyder v. Murray City and 
Simpson v. Chesterfield County Bd. of Supervisors came too soon: in both cases, 
a prayergiver was denied the opportunity to give a prayer. That would seem to 
me to be the next front, given how much hay was made on all sides about how 
"all comers" were welcome in Greece.

Jeremy





On May 5, 2014, at 3:35 PM, Conkle, Daniel O. 
mailto:con...@indiana.edu>> wrote:

The Court says that Marsh is not merely “an exception,” but it goes on to write 
an opinion linked specifically to the context at hand, i.e., legislative 
prayer.  As I read Kennedy’s opinion, the Court is saying that if history and 
tradition clearly approve a practice, then there is no need to invoke any 
broader or more general test.  Conversely, the Court might need such a more 
general test if history and tradition are not so clear in the specific setting 
at hand.  In any event, I don’t read the Court to be burying either Lemon or 
the endorsement test, at least not explicitly, even though the Court does not 
apply them here.

It’s interesting that even the dissenters accept Marsh as valid even though 
they would reach a different result under their “fact-sensitive” (Breyer’s 
language) approach.

Dan Conkle

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





.

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Monday, May 05, 2014 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Supreme Court Decides Town of Greece

One thing that stands out  as important for Justice Kennedy is  the absence of 
an intent to prefer the majority faith. .But what of the effects test,which is 
still part of the law until Lemon is formally overruled.(Interesting that the 
plurality  did not even discuss the vitality of Lemon.) Is that test irrelevant 
here only because of  the history and tradition of legislative prayer? Or is 
something else at work?.

Marc D. Stern
General Counsel
212.891.1480
ste...@ajc.org

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From: 
religionlaw-boun...@list

religious disagreement and commerce

[Finkelman, Paul]

I think it is entirely possible that some religious businesses might have 
problems with certain possible businesses.  Consider this:



Same sex couple is married in a Reform Temple or a Conservative Synagogue.  I 
am not sure where the Conservative movement stands on this, but I know many 
conservative rabbis who would perform such a wedding.



The party is held at the Temple or Synagogue.  The first prefers Kosher 
catering to be all-inclusive to Jews; the 2nd requires it.  The Kosher caterer 
is Orthodox.  Has regularly catered at this Temple/Synagogue.  Can the caterer 
refuses to do to the work (after first having agreed and signed a contract) 
when the caterer realizes that it is a same sex couple?  (To make it more 
interesting, as best I can tell there is no Biblical prohibition on lesbian 
relations.  The verses in Leviticus and Deuteronomy are very gender specific 
and only prohibit same sex relations among men -- which makes sense given the 
polygamous marriage allowed in the Bible).  So, the caterer might, or might 
not, oppose the marriage, but the kosher catering is for a *party* and not 
actually part of the wedding.  I would hold the caterer to the contract, just 
as I would any other business that is open to the public.  As far as I know, 
the businesses mentioned below do not say, "we only serve members of xxx 
faith," and I am not sure they can legally do so.


Paul Finkelman
Justice Pike Hall, Jr. Visiting Professor of Law
LSU Law Center
110 Union Square Bldg.
1 East Campus Drive
Louisiana State University
Baton Rouge, LA  70803-0106
518 605 0296 (mobile)

*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Saturday, March 01, 2014 8:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

A belated response to Alan's typically thoughtful and though-provoking post:

I think Alan is right that an absolute non-profit/for-profit distinction will 
not be sufficient to solve all cases. But I don't think the close cases Alan 
posits would require a change to the two paradigm categories at the opposite 
ends of the spectrum: (1) the internal operations of non-profit religious 
organizations and (2) for-profit commercial businesses open to the public at 
large.

As Alan notes, there are certainly non-profit enterprises and activities that 
are far enough removed from #1 that they should be subject to 
antidiscrimination law. Conversely, there may be for-profit enterprises that 
"cater to a limited religious market" such that they may not be best considered 
public accommodations (as Kevin Chen has noted) and their selectivity does not 
amount to "singling out same-sex couples for discriminatory treatment."

But I do think it's important to keep in mind that the commercial businesses 
actually involved in the disputes over same-sex marriage to date -- including 
the bakeries in Oregon and Colorado, the florist in Washington, and the 
photographer in New Mexico -- have not catered their businesses towards limited 
religious markets or limited their services based on any religious beliefs 
other than their opposition to same-sex marriage. And the academic proposal for 
commercial exemptions that has been pressed for the past five years is not 
limited to businesses that cater to a limited religious market.

At the end of the day, I suspect the much more limited accommodation Alan 
suggests has not been proposed -- either in the context of same-sex marriage 
today, or the context of interracial marriages, interfaith marriages, or 
marriages between divorced people in the past -- because it has never been 
deemed necessary as a practical matter. Unlike the bakery or florist in the 
local strip mall, or the inn advertising to all comers on the internet, the 
orthodox Jewish caterers or Christian marriage counselors who are expressly 
holding themselves out as providing religiously affiliated services probably do 
not have people who disagree with their religious beliefs requesting their 
services.


On Thu, Feb 27, 2014 at 10:38 PM, Alan Brownstein 
mailto:aebrownst...@ucdavis.edu>> wrote:

Let me try to respond to Chip's post. He asks two basic questions. (1) Why 
should we be any more willing to accommodate religious objectors to same-sex 
marriage than we are willing to accommodate religious objectors to inter-racial 
marriages. (Or more broadly why accommodate discrimination against gays and 
lesbians any more than we would accommodate discrimination against 
African-Americans.) (2) Why should we try to distinguish between sincere 
religious objectors to same-sex marriage and bigots since it is probably 
impossible to do that accurately, mistakes will be made, and, in any case, the 
discrimination causes real harm to the victims of discrimination in both cases?



These are good questions, 

RE: The pain of discrimination and the role of government

[Finkelman, Paul]

Will, the answer is of course they do not always know.  But the case in New 
Mexico which got this started was one where they did know.  But, I would turn 
the question back on you.  If you cannot tell, then why do you need the law 
like the one in Arizona? Obviously people in Arizona think they can tell, which 
is why they wanted to the law.  And if you can tell, how do you tell.  

It is like Homer Plessy right?  The conductor thought he was white until told 
otherwise. (By the way, Plessy is buried in a white cemetery and in the 1910 
and 1920 census was listed as white.") 

 So, someone might think a person is gay, when he or she is not; or straight 
when he or she is not, and act accordingly.  But, can they ask?  If I call for 
the wedding cake can the baker as if it is same sex or mixed-sex marriage?  
What if I lie, and pay for the cake, and then the baker won't deliver it? 

What if the Baker goes by first names?  If Lee and Jean get married what 
genders are they?  Or Claire and Avery?  Is Angel a male or a female?  (more 
boys were named Angel last year than girls according to social security 
website).

Are we back to "don't ask, don't tell" in the market place.  

So, if you cannot know, without asking, and you are not told, what happens when 
the florist, photographer, and cake maker show up to the marriage of John and 
Sue and it turns out that "Sue" is a "A Boy Named Sue" from Johnny Cash's song. 
  Can they refused to deliver the services they contracted for?  

The only answer must be that such discrimination cannot be allowed and then no 
one has to worry or ask.


Paul Finkelman
Justice Pike Hall, Jr. Visiting Professor of Law
LSU Law Center
110 Union Square Bldg.
1 East Campus Drive
Louisiana State University
Baton Rouge, LA  70803-0106
518 605 0296 (mobile)

*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Will Linden [wlind...@verizon.net]
Sent: Saturday, March 01, 2014 10:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: The pain of discrimination and the role of government

 The same way they know someone is homosexual, of coruse.

I have been waiting for explanations of how the alleged horde of bigots who
are itching for an excuse to "refuse service to gays" propose to identify
people who presumably do not begin every business transaction by
announcing "I'm gay!" Unless said customers are on their part
deliberately looking for excuses for litigation. But THAT couldn't
happen, of course.

- Original Message -
From: "Finkelman, Paul" 
To: Law & Religion issues for Law Academics 
> (But, it would be an interesting question if a store in AZ could say, "we
don't serve Democrats" or "we don't serve Republicans" -- but how would
they really know?)
>
>
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RE: The pain of discrimination and the role of government

[Finkelman, Paul]

Greg's posting strikes me as a little of the mark in a few ways.

The Friday night sale is not at issue. You can close your business whenever you 
want (it is the opposite of the forced Sunday closing).  However, the Florist 
who refused to provide flowers for a same sex commitment ceremony (and this is 
not as far as I can tell hypothetical, but real), WAS open for business.  If 
the ceremony had been on Sunday and the Florist said "I don't work on Sunday, 
so I can't set the floral arrangements up that day" there would have been no 
discrimination.  And, I don't think ANYONE on this list says the florist has to 
work on Sunday, just like Greg's hypothetical baker can be closed Friday night. 
 But if the baker or florist is open, most of us (but perhaps not Greg?) 
believe the florist or baker must serve all customers equally.

As for differential rules on leaflets, as far as I know a private business is 
not a government entity and is not a public forum. So, yes, the business owner 
can restrict leafleting to whoever she/he wants.  There is no illegal 
discrimination here.  What the business cannot do (at least in Az now) is to 
refuse service on the basis of race, religion, sexual orientation, or any other 
arbitrary reasons.  I suspect that includes political affiliation.  I think 
Greg agrees with this analysis, so I guess, on rereading his post, I am 
confused as to what point he is trying to make.
(But, it would be an interesting question if a store in AZ could say, "we don't 
serve Democrats" or "we don't serve Republicans" -- but how would they really 
know?)

Greg's third point seems to be that we should not worry about discrimination 
against gays because most businesses are not doing it, and there is not an 
"epidemic" of this sort of thing.  I can't even imagine how to respond to the 
concept that discrimination by businesses is "ok" as long as it does not affect 
too many (defined by who?) patrons.

Since Greg seems to want the government to adopt religious principles, how 
about a law which says all business owners must treat customers as they would 
want to be treated (do unto others); should love their neighbors; and 
unless the business owners are utterly without sin (and can prove it in a court 
of law), they may not discriminate against others (or cast verbal or economic 
stones on them) based on the presumed "sins" of others.

In other words, serve your customers, take their money, and go about your 
business.

Paul Finkelman
Justice Pike Hall, Jr. Visiting Professor of Law
LSU Law Center
110 Union Square Bldg.
1 East Campus Drive
Louisiana State University
Baton Rouge, LA  70803-0106
518 605 0296 (mobile)


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Sisk, Gregory C. [gcs...@stthomas.edu]
Sent: Friday, February 28, 2014 10:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: The pain of discrimination and the role of government

But of course!  I quite agree "that's how it should be."  I too believe that 
our two Christian evangelists should be able to walk into Greg Lipper's 
hypothetical bakery and be served.

If that were all that is on the table for legal regulation, then we all could 
breath a sigh of relief and quickly come to an amicable agreement on the lion's 
share of the matter.  I might quibble that an expansion of anti-discrimination 
laws to accomplish this simple purpose is a solution in search of a problem, 
given that there are no reports in the media of an epidemic of bakeries or 
grocery stores or other merchants that are refusing to take money from people 
until after checking their sexual orientation or religious or other 
identification card.  In addition, we might still have a much lower stakes 
debate about whether even the principle of basic affording of basic merchant 
goods to everyone should admit to a rare exception where the harm is minimal 
and the idiosyncratic religious claim is severe.  But, again, I'd acknowledge 
that we’d be at least 99 percent of the way there if this were all we are 
talking about.

Unfortunately, unless I've misread the many posts over the last couple of 
weeks, this does not appear to be all that is demanded by advocates of a 
broader anti-discrimination regime that admits of no religious liberty 
exceptions.

Suppose that our two Christian evangelists walk into Greg Lipper’s hypothetical 
bakery and the baker says, “you’re welcome to come in and buy baked goods, but 
I won’t allow any Christian leafleting or prosyletizing of my customers.”  I 
imagine that nearly all of us would agree that the baker would b

War on Drug Symposium

[Finkelman, Paul]

The War on Drugs has been going on for some 40 years,  President Nixon first 
declared was on the use of drugs in America.  This symposium will reexamine the 
war and look at it in historical perspective.  Some law students are able to 
come for free; fees without CLE credit are modest and cover meals.   The 
announcement is below.  There are obvious issues for free exercise in the War 
on Drugs which will come up at the symposium

Paul Finkelman


===
Rethinking the War on Drugs
A Symposium
Sponsored by the Seventh Circuit Bar Association Foundation
Co-Sponsored by Northwestern University School of Law
and The Harvard Club of Chicago
February 20-21, 2014
Northwestern University School of Law, Chicago (In Person) and Webcast Live and 
Delayed
The Seventh Circuit Bar Association Foundation has assembled an all-star 
faculty of judges, prosecutors,
medical personnel, professors, government officials (including Senator Richard 
Durbin), economists and
journalists for a vigorous “rethinking” of the War on Drugs, which began in 
1971.
Federal and state governments have recently been reexamining drug laws and 
policies, many of which
are legacies of the War on Drugs. High profile manifestations of these 
reexaminations include state
initiatives to de-criminalize marijuana, Attorney General Holder’s August 2013 
announcement of a
change in federal prosecutorial policy on drug offenses, and legislation 
pending in Congress to grant
greater sentencing discretion to the judiciary.
The two day symposium will address federal and state criminal laws for 
possession, use and sale of
drugs; law enforcement, prosecutorial discretion and sentencing for same; 
addiction programs; prison
populations; social fabric of communities in which drug use is high; drug 
economics; and foreign policy
directed at drug source.
In addition to a live in-person audience, the symposium will be webcast 
simultaneously and delayed.
Application for continuing legal education credit will be made in Illinois, 
Indiana and Wisconsin (over
nine CLE hours for the two day symposium will be requested).
As the symposium is substantially underwritten by foundations and law firms, it 
is priced to encourage
attendance.
Two day attendance
$150 – in person, live webcast and delayed webcast with CLE
$50 – in person, live webcast and delayed webcast without CLE
$50 – state and federal government attorneys, in person, live webcast and 
delayed webcast with or
without CLE
One day attendance
$75 – in person, live webcast and delayed webcast with CLE
$25 – in person, live webcast and delayed webcast without CLE
$25 – state and federal government attorneys, in person, live webcast and 
delayed webcast with or
without CLE
No charge - Federal judges, federal judge law clerks, and state court judges: 
in person, live webcast and
delayed webcast; law school students: up to 10 per law school in person - 
unlimited number live
webcast and delayed webcast
Register and review the symposium program at 
www.7thcircuitbar.org. Inquiries may be directed 
to
dgrobo...@ag-ltd.com.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*
___
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Please note that messages sent to this large list cannot be viewed as private.  
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messages to others.

RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[Finkelman, Paul]

This looks like one of the Fraternal Order of the Eagles Monument. As a one 
time Okie I am offended that the legislature could not at least design a new 
monument, rather than dig up an old one.

But, what will the Satanists put on their monument?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Joel Sogol [jlsa...@wwisp.com]
Sent: Sunday, December 08, 2013 9:22 PM
To: Religionlaw
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature

Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite


Joel L. Sogol
Attorney at Law
811 21st Ave.
Tuscaloosa, Alabama 35401
ph (205) 345-0966
fx (205) 345-0971
email: jlsa...@wwisp.com
website: www.joelsogol.com

Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts.

___
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To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Ministerial Housing Allowance Ruled Unconstitutional

[Finkelman, Paul]

but isn't that the problem;  if a religious institution wants to provide a 
house it can; but if not, why should the tax payers subvent the clergy's house 
that is NOT owned by and next to the church/temple/synagogue/mosque/ etc. 


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, November 28, 2013 1:56 PM
To: Law & Religion issues for Law Academics; Steven Jamar
Subject: Re: Ministerial Housing Allowance Ruled Unconstitutional

The possibility that the parsonage may be unsuited to the minister's needs is 
actually at the heart of the relevant tax policy. There is an exemption for 
housing provided by the employer that the employee is required to live in for 
the convenience of the employer. The traditional rectory or parsonage next door 
to the church, or attached to the church, can meet that criterion. A house of 
the minister's selection somewhere else obviously does not.



On Thu, 28 Nov 2013 12:50:27 -0500
 Steven Jamar  wrote:
>I agree that this provision cannot really be defended on any sound theoretical 
>basis in the face of an establishment challenge.  But I see 5 or more votes 
>for this being upheld because it is just a modern updating of the old idea of 
>the manse, clergy house, parish house, rectory, vicarage — where the church 
>actually owned the residence and minister/pastor/priest lived there rent free 
>— instead of the church owning a house that the minister/pastor/priest lives 
>in, the religious organization subsidizes the minister to buy the house she 
>wants rather than one that may be very unsuited to her needs.  So I can see a 
>majority saying if one is ok, the other is ok — history trumps equality.  The 
>IRS does not need to treat like things alike, and never has.  And it can 
>decide what things are alike — this is like the manse, not like compensation 
>to all chief executives of non profits.
>
>Steve
>
>
>--
>Prof. Steven D. Jamar vox:  202-806-8017
>Director of International Programs, Institute for Intellectual Property and 
>Social Justice http://iipsj.org
>Howard University School of Law   fax:  202-806-8567
>http://iipsj.com/SDJ/
>
>
>"In these words I can sum up everything I've learned about life:  It goes on."
>
>Robert Frost
>
>
>
>
>
>On Nov 28, 2013, at 12:38 PM, Finkelman, Paul  
>wrote:
>
>> The IRS code has lots of breaks for special interests. Is this any different 
>> than tax breaks for wind turbines or middle class home owners who deduct 
>> their interest payments?  I bet Roberts and Scalia will find no difference.  
>>  And it is historical and Thomas and Scalia love old historical reasons for 
>> things that make no sense.  Alito loves religion.  So where does Kennedy 
>> stand?  Will Ginsberg be persuaded on IRS grounds?
>>
>>
>>
>> *
>> Paul Finkelman, Ph.D.
>> President William McKinley Distinguished Professor of Law
>> Albany Law School
>> 80 New Scotland Avenue
>> Albany, NY 12208
>>
>> 518-445-3386 (p)
>> 518-445-3363 (f)
>>
>> paul.finkel...@albanylaw.edu
>> www.paulfinkelman.com
>> *
>>
>> From: religionlaw-boun...@lists.ucla.edu 
>> [religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody 
>> [peabody...@gmail.com]
>> Sent: Thursday, November 28, 2013 12:30 PM
>> To: religionlaw@lists.ucla.edu
>> Subject: Ministerial Housing Allowance Ruled Unconstitutional
>>
>> This week U. S. District Judge Barbara Crabb of the Western District of 
>> Wisconsin ruled that the ministerial tax-free housing allowance is 
>> unconstitutional in response to a challenge brought by the Freedom From 
>> Religion Foundation.  Essentially, the tax-free allowance permits churches 
>> to pay ministers a salary (taxable) and a separate housing allowance (not 
>> reported or taxed) up to the "reasonable" rental value of property.  If 
>> ministers are also mortgage holders, they can separately deduct interest 
>> from their salary.
>>
>> This case will likely be appealed up to the U.S. Supreme Court and members 
>> of the clergy are extremely concerned and I can see why since it seems that 

RE: Ministerial Housing Allowance Ruled Unconstitutional

[Finkelman, Paul]

I wonder how that differs from any other housing situation that is connected to 
work.  For example, if a university has a "president's house" the president can 
live there for free and there is no tax consequence.  But if he school does not 
have a president's house then president has to pay his own rent and it is not 
tax deductible (although a portion might be if used for his job).  Similarly, 
if forest ranger is required to live in a government house to be close to the 
fire the house is tax free job requirement; but if the ranger does not need to 
live there then there is no parsonage exemptions.  The university or the park 
service could give the president or the ranger a "housing allowance" but that 
would be taxable.

But, the current situation is that the tax payers support the clergy through 
the generous parsonage dedication, and of course the richer the religious 
institution and the nicer the house, the greater the subsidy for the religion.

The ministerial deduction is surely not about Catholics vs. Protestants, since 
it comes from independent protestant churches which gave ministers housing in 
the colonial period and Anglican churches which had parsonages; when ministers 
moved out of these housing arrangements they persuaded governments to give them 
a huge tax write off.

The "claim" is that the parsonage is always a business facility for meeting 
parishioners and congregants.  But if that were the case, why not just treat 
part of the house as a "home office."  After all, the parishioners are probably 
not sleeping the guest bedroom, taking a shower, using the garage, etc.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: , Mark 
mailto:mark.scarbe...@pepperdine.edu>>
Reply-To: "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>>, Law & 
Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thursday, November 28, 2013 12:49 PM
To: "religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>" 
mailto:religionlaw@lists.ucla.edu>>, 
"mich...@californialaw.org<mailto:mich...@californialaw.org>" 
mailto:mich...@californialaw.org>>
Subject: RE: Ministerial Housing Allowance Ruled Unconstitutional

Arguably this is a matter of neutrality between religious groups that have 
parsonages where priests or other clergy live free and others that don't have 
parsonages and whose clergy live in the community.

Mark Scarberry


Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: "Finkelman, Paul" 
mailto:paul.finkel...@albanylaw.edu>>
Date: 11/28/2013 9:39 AM (GMT-08:00)
To: mich...@californialaw.org<mailto:mich...@californialaw.org>,Law & Religion 
issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Ministerial Housing Allowance Ruled Unconstitutional


The IRS code has lots of breaks for special interests. Is this any different 
than tax breaks for wind turbines or middle class home owners who deduct their 
interest payments?  I bet Roberts and Scalia will find no difference.   And it 
is historical and Thomas and Scalia love old historical reasons for things that 
make no sense.  Alito loves religion.  So where does Kennedy stand?  Will 
Ginsberg be persuaded on IRS grounds?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<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<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Michael Peabody [peabody...@gmail.com<mailto:peabody...@gmail.com>]
Sent: Thursday, November 28, 2013 12:30 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Ministerial Housing Allowance Ruled Unconstitutional

This week U. S. District Judge Barbara Crabb of the Western District of 
Wisconsin ruled that the ministerial tax-free housing allowance is 
unconstitutional in response to a challenge brought by the Freedom From 
Religion Foundation.  Essentially, the tax-free allowance permits churches to 
pay ministers a salary (taxable) and a separate housing allo

RE: Ministerial Housing Allowance Ruled Unconstitutional

[Finkelman, Paul]

The IRS code has lots of breaks for special interests. Is this any different 
than tax breaks for wind turbines or middle class home owners who deduct their 
interest payments?  I bet Roberts and Scalia will find no difference.   And it 
is historical and Thomas and Scalia love old historical reasons for things that 
make no sense.  Alito loves religion.  So where does Kennedy stand?  Will 
Ginsberg be persuaded on IRS grounds?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Peabody [peabody...@gmail.com]
Sent: Thursday, November 28, 2013 12:30 PM
To: religionlaw@lists.ucla.edu
Subject: Ministerial Housing Allowance Ruled Unconstitutional

This week U. S. District Judge Barbara Crabb of the Western District of 
Wisconsin ruled that the ministerial tax-free housing allowance is 
unconstitutional in response to a challenge brought by the Freedom From 
Religion Foundation.  Essentially, the tax-free allowance permits churches to 
pay ministers a salary (taxable) and a separate housing allowance (not reported 
or taxed) up to the "reasonable" rental value of property.  If ministers are 
also mortgage holders, they can separately deduct interest from their salary.

This case will likely be appealed up to the U.S. Supreme Court and members of 
the clergy are extremely concerned and I can see why since it seems that 
there's no real constitutional basis to providing members of the clergy with an 
exemption but excluding all others.  So far proponents of the exemption have 
failed to articulate an argument supporting its constitutionality other than a 
mushy Marsh v. Chambers style historical argument.

I guess my first question is whether, assuming arguendo that the allowance is 
ultimately (somehow) found constitutional, whether the expanded definition of 
the "ministerial exception" under Hosanna-Tabor could entitle non-clergy 
religious employees to a non-taxable housing allowance. Could it then expand to 
non-profits? (It is noted that in Hosanna-Tabor, the teacher Cheryl Perich was 
actually getting the tax-free housing allowance, but this is not common 
practice among teachers in parochial schools.  This fact alone along with her 
extensive religious training and religious commissioning may serve to 
differentiate her from other parochial teachers but the Court doesn't seem to 
want to come up with criteria for determining who is a religious teacher and 
who isn't.)

Secondly, since I'm doing some writing on the subject, I'm wondering if you'd 
be willing to look into your crystal ball and predict the fate of the 
ministerial tax-free housing allowance.

Thanks!

Michael Peabody, Esq.
Editor - ReligiousLiberty.TV
http://www.religiousliberty.tv
___
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RE: Marriage -- the Alito dissent

[Finkelman, Paul]

I sent this for posting some time ago but it appears not to have been posted so 
I am resending it


Mr. New posted something (below) about the gay lifestyle without of course 
telling us what it is.  But, perhaps we can get an insight into these issues by 
looking at divorce rate and rate of out-of-wedlock births.  We might call this 
the hetero-sexual lifestyle.

As the numbers below show, states which allow same sex marriage have 
substantially lower divorce rates than the average and much lower than a number 
of states which have adamantly attacked the idea of same sex marriages.  This 
may not tell us must about same sex marriages but it does tell us something 
about the social climate in many states that oppose same sex marriage and in 
those that allow such unions.  Below the divorce statistics are the numbers for 
out-of-wedlock births by states for the top 20 states for 1998 which is the 
most recent data I could find.   This data shows that of the 20 states with the 
highest out-of-wedlock birth rates only four allow same sex marriages.   On the 
other hand, in the bottom 20 for out-of-wedlock birth rates, there are 8 states 
that allow same sex marriage.   (I did not include these but you can find them 
athttp://www.state.ok.us/osfdocs/budget/table25.pdf)

The more recent divorce statistics are at

http://www.census.gov/compendia/statab/2012/tables/12s0133.pdf

Perhaps Mr. New should be concerned with the heterosexual life style that leads 
to so many divorces and so many out-of-wedlock children, and at the same time 
are so fearful of same sex marriage.

According to the US Census, in 2009 there were, on average, 3.4 divorces for 
every 1000 people in the US.  Here are the 2009 divorce rates for 13 
jurisdictions that allow same sex marriage (there are no 2009 statistics for 
California and Minn for that year but for the earlier years that the statistics 
are available, they are well below the national average.).  Note that only 5 of 
these places are above the national average, and only two (Maine and 
Washington) are substantially above the average.

Following this are the 12 states with the highest divorce rates.  All prohibit 
same sex marriage.  Some aggressively so.  Note they have much higher divorce 
rates.

Divorces per 1000 people

Conn.   3.1
Delaware 3.6
DC   2.6
Iowa2.4
Maine  4.1
Maryland2.8
Mass   2.2
NH  3.7
NJ2.8
NY  2.6
RI   3.0
Vt   3.5
Washington3.9

TOP Divorce States

Nevada  6.7
Arkansas   5.7
W. Va.   5.2
Wyoming5.2
Idaho 5.0
Oklahoma   4.9
Kentucky   4.6
Alabama4.4
Alaska   4.4
Colorado   4.2
Florida   4.2
Montana4.1

Out of wedlock births by state:


1 Mississippi 45.5%
2 Louisiana 44.9%
3 New Mexico 44.1%
4 South Carolina 38.7%
 5 Arizona 38.4%
 6 Delaware 37.1%
 7 Florida 36.6%
 8 Georgia 36.2%
 9 Arkansas 35.1%
 10 New York 34.9%
 11 Tennessee 34.9%
 12 Nevada 34.7%
 13 Maryland 34.4%
 14 Alabama 34.1%
 15 Missouri 34.1%
 16 Illinois 34.1%
 17 Ohio 34.0%
 18 Rhode Island 33.9%
19 Indiana 33.4%
20 Oklahoma 33.2%





*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Tuesday, July 02, 2013 12:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: Marriage -- the Alito dissent

Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
births that might pass as "facts."  They suggest that states that allow same 
sex marriages have lower divorce rates and lower out of wedlock birth rates 
than state that oppose same sex marriage.  Might we consider this the 
"hetero-sexual lifestyle"?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: &

RE: Marriage -- the Alito dissent

[Finkelman, Paul]

Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock 
births that might pass as "facts."  They suggest that states that allow same 
sex marriages have lower divorce rates and lower out of wedlock birth rates 
than state that oppose same sex marriage.  Might we consider this the 
"hetero-sexual lifestyle"?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Tuesday, July 02, 2013 12:27 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Marriage -- the Alito dissent

How many moral questions are based on scientific fact?  Whether an argument is 
in support of same sex marriage/relationships or in opposition to them, it 
ultimately boils down to a question about what you believe is right and and 
what you believe is wrong, and those questions, no matter which side of the 
question you find yourself supporting, are rarely, if ever, supported by 
scientific fact.  If they were, then nature's display of the law of survival of 
the fittest, a scientifically verified phenomena to be certain , would seem to 
suggest that objection to killing is irrational.

Brad Pardee

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Monday, July 01, 2013 11:00 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent

Would you kindly provide one argument that isn't irrational?  Understand that 
it will indeed be scrutinized for basis in scientific fact, and that it if 
fails, it will have to be deemed irrational.
On Jul 1, 2013, at Mon, Jul 1,  6:35 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:


 My intended point is that the notion that opposition to same sex marriage - 
even if based on traditional arguments about the morality of homosexual 
relationships - cannot be dismissed as irrational or hateful.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

The danger of the Heterosexual life style -- high divorce rates and out-of-wedlock children

[Finkelman, Paul]

Mr. New posted something (below) about the gay lifestyle without of course 
telling us what it is.  But, perhaps we can get an insight into these issues by 
looking at divorce rate and rate of out-of-wedlock births.  We might call this 
the hetero-sexual lifestyle.

As the numbers below show, states which allow same sex marriage have 
substantially lower divorce rates than the average and much lower than a number 
of states which have adamantly attacked the idea of same sex marriages.  This 
may not tell us must about same sex marriages but it does tell us something 
about the social climate in many states that oppose same sex marriage and in 
those that allow such unions.  Below the divorce statistics are the numbers for 
out-of-wedlock births by states for the top 20 states for 1998 which is the 
most recent data I could find.   This data shows that of the 20 states with the 
highest out-of-wedlock birth rates only four allow same sex marriages.   On the 
other hand, in the bottom 20 for out-of-wedlock birth rates, there are 8 states 
that allow same sex marriage.   (I did not include these but you can find them 
athttp://www.state.ok.us/osfdocs/budget/table25.pdf)

The more recent divorce statistics are at

http://www.census.gov/compendia/statab/2012/tables/12s0133.pdf

Perhaps Mr. New should be concerned with the heterosexual life style that leads 
to so many divorces and so many out-of-wedlock children, and at the same time 
are so fearful of same sex marriage.

According to the US Census, in 2009 there were, on average, 3.4 divorces for 
every 1000 people in the US.  Here are the 2009 divorce rates for 13 
jurisdictions that allow same sex marriage (there are no 2009 statistics for 
California and Minn for that year but for the earlier years that the statistics 
are available, they are well below the national average.).  Note that only 5 of 
these places are above the national average, and only two (Maine and 
Washington) are substantially above the average.

Following this are the 12 states with the highest divorce rates.  All prohibit 
same sex marriage.  Some aggressively so.  Note they have much higher divorce 
rates.

Divorces per 1000 people

Conn.   3.1
Delaware 3.6
DC   2.6
Iowa2.4
Maine  4.1
Maryland2.8
Mass   2.2
NH  3.7
NJ2.8
NY  2.6
RI   3.0
Vt   3.5
Washington3.9

TOP Divorce States

Nevada  6.7
Arkansas   5.7
W. Va.   5.2
Wyoming5.2
Idaho 5.0
Oklahoma   4.9
Kentucky   4.6
Alabama4.4
Alaska   4.4
Colorado   4.2
Florida   4.2
Montana4.1

Out of wedlock births by state:


1 Mississippi 45.5%
2 Louisiana 44.9%
3 New Mexico 44.1%
4 South Carolina 38.7%
 5 Arizona 38.4%
 6 Delaware 37.1%
 7 Florida 36.6%
 8 Georgia 36.2%
 9 Arkansas 35.1%
 10 New York 34.9%
 11 Tennessee 34.9%
 12 Nevada 34.7%
 13 Maryland 34.4%
 14 Alabama 34.1%
 15 Missouri 34.1%
 16 Illinois 34.1%
 17 Ohio 34.0%
 18 Rhode Island 33.9%
19 Indiana 33.4%
20 Oklahoma 33.2%




*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*






From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] 
on behalf of David W. New [david_...@msn.com]
Sent: Monday, July 01, 2013 8:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


Respectfully, I disagree with you. I just finished writing a 3,400 word article 
making the case against homosexuality without using religion in any way. I 
think a very strong case can be made against homosexual lifestyle without any 
reference to God, the Bible, etc. As you can imagine, I am busy trying to find 
a publisher because of its length and in some cases, its content. If I ever get 
it published, the title of my article is:

"Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
that Americans will continue to be extended the courtesy to think for 
themselves--even if its not popular. It seems that defenders of the gay 
lifestyle who want us to be tolerant of homosexuality become very intolerant if 
you dare to disagree with them. We are living in a Joseph McCarthy era in 
reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. 
Member Maryland and DC Bars.

- Original Message

RE: Marriage -- the Alito dissent

[Finkelman, Paul]

Dear Mr. New

I would love to know that the "homosexual lifestyle" is.

 One of my former students is a law graduate and a sitting judge; her 
partner/wife has and MBA; they have twin daughters (through a sperm bank); are 
members of the local Temple, one is on the board of the Temple. They live in a 
very nice house in the suburbs; They vote, pay taxes; send their kids to 
school. They have been together since the mid-1990s.

Another one of my very close friends is an associate dean at a law school; his 
partner/husband is a physician. They life in really nice apartment in NY City.  
My law professor friend writes great scholarship and does a ton of pro bono 
work.  They have been together for about 14 years.

Both of these marriages (which lacked legal sanction until just a few years 
ago) have lasted longer than many of the hetero-marriages I have seen and I 
suspect have lasted longer than the average hetero marriage does in many places.

Is there something wrong with these lifestyles?

You talk in your post of the "homosexual lifestyle."  I have no idea what you 
are talking about.
Care to share this with the list?  My gay friends have lifestyles very much 
like my straight friends except their marriages seem to be longer lasting.

Maybe you are opposed to longer lasting marriages?


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of David W. New [david_...@msn.com]
Sent: Monday, July 01, 2013 8:16 PM
To: Law & Religion issues for Law Academics
Subject: Re: Marriage -- the Alito dissent


Respectfully, I disagree with you. I just finished writing a 3,400 word article 
making the case against homosexuality without using religion in any way. I 
think a very strong case can be made against homosexual lifestyle without any 
reference to God, the Bible, etc. As you can imagine, I am busy trying to find 
a publisher because of its length and in some cases, its content. If I ever get 
it published, the title of my article is:

"Listen To Your Body, 7 Reasons Why Homosexuality is Bad for America." I hope 
that Americans will continue to be extended the courtesy to think for 
themselves--even if its not popular. It seems that defenders of the gay 
lifestyle who want us to be tolerant of homosexuality become very intolerant if 
you dare to disagree with them. We are living in a Joseph McCarthy era in 
reverse. Now it’s the left who is intolerant. Sincerely, David W. New, Esq. 
Member Maryland and DC Bars.

- Original Message -
From: Jean Dudley
To: Law & Religion issues for Law Academics
Sent: Monday, July 01, 2013 12:27 PM
Subject: Re: Marriage -- the Alito dissent

I'm with Eduardo; I can't believe this.  Mr. Esenberg, it's not simply a matter 
of disagreement, it's a matter of said arguments simply do not hold water 
without a religious premise.  Put another way, yes, I disagree with the 
arguments, but that's because they're fallacious to the point of autoeroticism. 
There are no valid non-religious arguments against homosexuality.
On Jun 30, 2013, at Sun, Jun 30,  6:38 PM, "Esenberg, Richard" 
mailto:richard.esenb...@marquette.edu>> wrote:

You can certainly disagree with these arguments but they do not proceed from 
theological premises.




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RE: Ban on Feeding Homeless

[Finkelman, Paul]

Is this a standard, time, place, manner restriction with pretty standard 
"police powers" to regulate public health?
Would the church members be allowed to hold a public march on the same parkway, 
or leaflet cars on the parkway?

This story almost sounds like some final exam question in a First Amendment 
course.


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Edward Maule
Sent: Wednesday, July 11, 2012 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Ban on Feeding Homeless

For those not picking up on Philadelphia area stories, this might be of 
interest, perhaps especially to those researching and writing in the area.

For some time, religious and other organizations have been feeding homeless 
people at outdoor sites in Philadelphia. Citing public health and other 
concerns, the city banned the practice. The religious organizations have 
challenged the ban, claiming that it violates their (and their members') First 
Amendment free exercise rights ("What they will not compromise on, however, is 
what they described as a God-directed mission to minister to the needs of 
homeless people where they live - on the parkway.")

Yesterday testimony concluded, and oral argument will now take place. 
Enforcement of the ban has been stayed pending the litigation.

http://www.philly.com/philly/news/breaking/20120710_Nutter__Ban_on_feeding_part_of_plan_to_end_homelessness.html


Jim Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule


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RE: Laws that impose "semi-religious, ethical view[s]"

[Finkelman, Paul]

The answer maybe that a one size fits all theory does not work; we may need 
some traditional balancing.  Some of that is clearly dictated by societal norms 
-- so we no longer accept binding of feet as acceptable (although that never 
had a religious basis).  Anti-discrimination laws, for example, cannot compel a 
church to accept non-members or even integrate. The do require people to 
forsake their religiously based discrimination in the outside world.  So, a 
person may have a religious belief in the inferiority of blacks or Jews, and 
thus not let them into his home or his church or private club; he may not 
refuse to serve them in his restaurant.  Thus I am not sure where Eugene is 
tying to go with this.  It strikes me that a law banning a long standing 
religious practice has a heavy burden to overcome, and it might be balanced by 
the harm it would cause the religious group.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, July 01, 2012 5:34 PM
To: Law & Religion issues for Law Academics
Subject: Laws that impose "semi-religious, ethical view[s]"

It seems to me that a vast range of laws – including laws that 
Paul and others would very much support – can equally be described as imposing 
“semi-religious, ethical view[s]” on others.  After all, at the bottom of many 
laws is an ethical judgment that can’t be proven or disproven, and one can 
label it “semi-religious” in the sense that it is taken as an article of moral 
faith.  That’s true, I imagine, of animal cruelty laws, antidiscrimination 
laws, child labor laws, endangered species laws, historical preservation laws, 
and many more.  (One can also make supposedly utilitarian arguments for some 
such laws, but at some point the utility calculus will require one to ascribe a 
particular weight to one or another value, and that judgment will be the same 
sort of unprovable ethical “semi-religious” judgment.)  One can even conclude 
that people who support those laws are unwilling to embrace diversity when it 
comes to people who have (and implement) diverse views on whether to 
discriminate in employment or public accommodation, whether to treat animals in 
particular ways, whether to hunt grizzly bears, whether to raze historical 
building that they own, and so on.

I don’t see how laws implementing the principle that one person 
ought not alter another person’s body without permission – even when the 
alterer is the altered person’s parent – unless it’s very clear that the 
alteration is likely to be almost entirely harmless (or unless the motivation 
is medical necessity, and the alterer can credibly say that he’s acting as the 
altered person would likely prefer in this situation) are any more intolerant 
or impermissible than those other laws I mentioned.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul 

Sent: Sunday, July 01, 2012 11:42 AM
To: Law & Religion issues for Law Academics
Subject: RE: German circumcision decision

Alan's point raises another analytical issue.  If "don't harm the body" is a 
semi-religious, ethical view, then aren't the German court and the proponents 
of the SF measure simply imposing their religious values on those of others who 
have a different faith. I think it is not unreasonable to see the German 
decision as an attempt to force out Muslims (and Jews) in a nation that is very 
uncomfortable with foreigners, immigration, and diversity.  I have spent a fair 
amount of time in Germany over the last 20 years and I am always struck by how 
determined the Germans are not to allow Turks -- but this time 3rd and 4th 
generation German-born, German-speaking Turks -- to become German citizens.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<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 Alan Brownstein 
[aebrownst...@ucdavis.edu]
Sent: Sunday, July

RE: German circumcision decision

[Finkelman, Paul]

I put cruel in quotation marks because while Kosher or Halal slaughtering may 
be less instant than other kinds, given the horrible treatment of animals in 
feed lots and at commercial slaughterhouses, it seems that the "cruel" is 
clearly relative.  A proper Kosher slaughtering takes only a few seconds and 
because the animals must be healthy, you will not find weak, sick animals being 
herded to the slaughter house, prodded with electric prods, in order to get 
them there.   This is not an attack on eating meat, rather it is a suggestion 
that there is a great deal of hypocrisy in attacks on kosher slaughtering.  (I 
should add I do not keep Kosher and get almost all my meat directly from 
farmers raising them for small scale farming, grass feeding, and non-industrial 
slaughtering.)  But to make an argument that Kosher slaughtering is less humane 
than other kinds, is to ignore the mistreatment of animals by large scale 
producers, even if the actual moment of slaughtering take a few seconds less 
than Kosher or Halal.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Sanford Levinson [slevin...@law.utexas.edu]
Sent: Sunday, July 01, 2012 1:06 PM
To: 'paul.finkel...@yahoo.com'; 'religionlaw@lists.ucla.edu'
Subject: Re: German circumcision decision


I'm not clear why Paul puts "cruel" in scare quotes. It seems clear--see Temple 
Grandin's lifework--that it IS less humane than other possible means of 
slaughtering. Perhaps it has to be tolerated, but we shouldn't avoid the truth.

Sandy


From: religionlaw-boun...@lists.ucla.edu 
To: Paul Finkelman ; Law & Religion issues for Law 
Academics 
Sent: Sun Jul 01 11:30:02 2012
Subject: Re: German circumcision decision

I posted this before I had a chance to read the decision, which I now see is 
about a Muslim case; that undermines some of my arguments, but not all of them. 
 The politics may be less about Jews than Muslims but the issue remains the 
same -- a fundamental attack on religious minorities.  I wonder, for example, 
whether the next step will be a ban on Kosher or Halal slaughtering on the 
grounds that it is "cruel" to animals? The case does not seem to be based on 
the place of the circumcision.  That is one could imagine a law that requires 
it to be done in a hospital. But this does not appear to be the issue here.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: Paul Finkelman 
To: Law & Religion issues for Law Academics 
Sent: Sunday, July 1, 2012 12:21 PM
Subject: Re: German circumcision decision

Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.

The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: "Volokh, Eugene" 
To: Law & Religion issues for Law Academics 
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision

Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demo

RE: German circumcision decision

[Finkelman, Paul]

Alan's point raises another analytical issue.  If "don't harm the body" is a 
semi-religious, ethical view, then aren't the German court and the proponents 
of the SF measure simply imposing their religious values on those of others who 
have a different faith. I think it is not unreasonable to see the German 
decision as an attempt to force out Muslims (and Jews) in a nation that is very 
uncomfortable with foreigners, immigration, and diversity.  I have spent a fair 
amount of time in Germany over the last 20 years and I am always struck by how 
determined the Germans are not to allow Turks -- but this time 3rd and 4th 
generation German-born, German-speaking Turks -- to become German citizens.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Alan Brownstein [aebrownst...@ucdavis.edu]
Sent: Sunday, July 01, 2012 2:31 PM
To: Law & Religion issues for Law Academics
Subject: RE: German circumcision decision


I agree with almost of all of Marty's thoughtful post -- except that I do not 
see this as a difficult case. When an attempt was made to place this issue on 
the ballot in San Francisco, some people argued medical and health concerns 
(although as Marty and Paul point out, the evidence here is indeterminate and 
disputed.) But most of the people I spoke with who supported the ban did so for 
almost quasi religious reasons -- a kind of "don't alter the natural body" 
philosophy -- or on autonomy grounds.



While I think the autonomy argument isn't entirely frivolous, our legal system 
allows parents to make so many choices for their children that  substantially 
impact their physical and mental health, personality, and appearance (without 
being subject to challenge on the grounds that they have interfered with the 
child's autonomy) that I don't assign a lot of weight to this interest. The 
alternative, after all, to having parents make these decisions is for the state 
to do so in their place.



Finally, of course, there are the obvious consequences for such a ban on 
religious freedom. Laws that require devout religious individuals to violate 
core obligations of their faith at best are intrinsically exclusionary. Unless 
one envisions a world where moderately or seriously religious Jews (and 
Muslims) voluntarily cease to exist, a ban on circumcision prohibits those 
families from living in a community.



Alan










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RE: German circumcision decision

[Finkelman, Paul]

there is mixed evidence on circumcision.  Some suggesting it helps prevent 
cervical cancer in female partners; some that lowers the spread of STDs. The 
research is mixed and politicized (like lots of research) but there is evidence 
it has medical value.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Vance R. Koven [vrko...@gmail.com]
Sent: Sunday, July 01, 2012 12:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: German circumcision decision

Isn't there still a substantial body of medical opinion--perhaps not as 
prevalent as in decades past--that recommends circumcision as a preventive 
health measure? If the issue is the lack of consent from the subject of the 
operation, this certainly affects more than just religious observance, and more 
than just this particular operation. And if the decision hinges specifically on 
the fact that the motivation (if that can ever be clear) is primarily 
religious, that certainly smacks of religio-cultural insensitivity, to put it 
mildly.

Vance

On Sun, Jul 1, 2012 at 12:21 PM, Paul Finkelman 
mailto:paul.finkel...@yahoo.com>> wrote:
Are they also banning parents from piercing the ears of children? In many 
cultures it is common to see infant girls with pierced ears.   Does the ban 
extend to pierced ears before age 18?  And then there is body piercing before 
age 18.  Is that being banned?  Has the Court banned tattoos for people under 
18?

And has this ban spread to Muslim male children, who are circumcised at age 7, 
10 or slightly later depending on the sect.

The fact is, given Germany's history of how it has dealt with Jews, is is not 
illegitimate to wonder what the Court is thinking.   Germany has one of the 
fastest growing Jewish populations in the world -- mostly through immigration.  
This decision, if enforced all over the country, would slow down or stop that 
population growth.  One might at least ponder why this case has come to the 
Germany court, and not one involving piercing, tattoos, or Muslim circumcision.


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: "Volokh, Eugene" mailto:vol...@law.ucla.edu>>

To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Sunday, July 1, 2012 11:56 AM
Subject: RE: German circumcision decision

Any chance we could have some helpful analysis of the decision, 
rather than one-liners?  The question of the degree to which parents should be 
able to permanently alter their children’s bodies – for religious reasons or 
otherwise – is not, it seems to me, one that has a completely obvious answer 
one way or the other.  There may indeed be one correct answer that can be 
demonstrated, but such demonstration requires argument rather than assertion.

Eugene

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--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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RE: Providing public school credits for release-time religious classes

[Finkelman, Paul]

Mark:

School require a certain number of course credits, just like colleges; you need 
to pass a specified number of classes; they are not all requirement.  But, if 
you allow "theology" or "bible study" or "voodoo" from a non-accredited teacher 
and school, with no outside supervision, you are essentially limiting the kind 
of education the children get; you are devaluing the diploma.  Your scenario 
misses the point that the kids can go to religious school after 3:00 and on 
weekends, like many of us did.

Futhermore, by taking the children out of school you harm education for 
everyone else because the parents of the missing students will complain that 
their kids are not getting to take certain classes.  If was nice to have 
nothing to do Wed. afternoon because too many kids were in church school, but 
think of all the hours of learning we missed.



Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Saturday, June 30, 2012 12:13 PM
To: Law & Religion issues for Law Academics
Subject: RE: Providing public school credits for release-time religious classes

I'm having trouble seeing just what the awarding of credit means here and how 
it's problematic that a public school gives students "credit" for time sitting 
in a different classroom. There is no constitutional obligation on a public 
school to provide any particular level or amount or quality of instruction. The 
"awarding" of a high school diploma is not a conferring of a public right or 
license or anything of the sort.

I believe that religious schools include religion classes in their curriculum 
as part of the number of hours of instruction required for graduation under 
their accrediting bodies' standards and presumably under whatever Education 
Code may apply. If that practice sufficiently meets societal needs, then I 
don't understand why (as a matter of constitutional law) the public schools 
should have to drag in students to sit for additional public school hours when 
the students have a release time religious educational experience.

Consider this hypo: A public school district has relatively few specified high 
school graduation requirements (only two years of English, two years of math, 
etc.), but it does require that students be in school from 8am to 3pm. The 
school district sets up a release time program for religious instruction from 
2-3pm. Must the school district now require students who are in the release 
time program to return to the public school and sit through a study hall period 
(or other class) for an additional hour, so that they have seven hours on the 
public school campus? If not, then the release time students are in effect 
being given "credit" for their release time educational experience.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

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RE: Providing public school credits for release-time religious classes

[Finkelman, Paul]

This strikes me as simply another example of the willingness of courts to 
undermine public education and educational standards, while at the same 
undermining any separation of Church and State.  The Zorach concept was to 
allow release time, which was bad enough.  When I was in school we basically 
did nothing every Wed. afternoon because all the Catholic kids left for "church 
school."  I was one of two Jewish kids in my school and there were two Greek 
Orthodox kids.  We went to Hebrew school twice a week after the school day, not 
on release time; the Orthodox kids went to Greek school in the same way.  We 
could never figure out why that system worked that way.  I still can't.  As a 
policy matter, this is not "welcoming" to use Rick's concept, but quite the 
opposite.  It separates school children out, it undermines the education of 
everyone, and leaves  less time in the school day for general education.  These 
issues remind me of President Kennedy's press conference response to the school 
prayer decision.  Asked about the decision (which came down the day of one of 
his scheduled press conferences), he simply said that  parents should pray at 
home with their children before they leave for school.  Similarly, religious 
education ought to be on the non-school time.

Giving credit for religious education outside of school makes no pedagogic 
sense at all.  And it should raise all sorts of entanglement questions, since 
the school board ought to be examining the credentials of the teachers, the 
texts, the pedagogy.  Does anyone really want that in their religious education?



Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, June 30, 2012 9:58 AM
To: Law & Religion issues for Law Academics
Subject: Providing public school credits for release-time religious classes

www.ca4.uscourts.gov/Opinions/Published/111448.P.pdf

A South Carolina school district set up a Zorach-like release time program for 
religious instruction at an unaccedited religious school.  Then it decided to 
give the participating students academic credit for their purely religious 
studies in the release-time program.  The Fourth Circuit upholds this program, 
on the theory that it's no different from recognizing credits from a private, 
accredited religious school when a student transfers to the public school.  But 
in that latter case (or in the related context of giving "credit" for 
home-schooling), the credits presumably are awarded based upon the showing or 
the presumption that they reflect the student's completion of the necessary 
secular curriculum.  Here, the education in question is specifically religious 
in nature (that's the point, and there's no indication in the opinion of any 
secular content).  That is to say, the credit is being offered for the 
religious education simplicitur.

Is this holding defensible?  On Mirror of Justice, Rick Garnett calls it 
"welcome," but it's not obvious to me why that might be so.
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RE: Religious exemptions in ND

[Finkelman, Paul]

I posted something  briefly from my droid that was short, but now raise it more 
completely.  Is there any evidence that the defeat in ND was at least in part 
about Indian religious freedom. There is some serious tension between Indians 
and non-Indians in ND and since the whole issue of RFRA came out of Oregon's 
hostility to the Native American Church  -- Oregon could easily have gone the 
other way just on the fact of Smith -- I wonder if there is some sense that 
this issue was present in ND as well.

Paul



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Vance R. Koven [vrko...@gmail.com]
Sent: Thursday, June 14, 2012 1:57 PM
To: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse

I think someone needs to raise a word in defense of Marci here. The perspective 
of someone who actively litigates these cases has to be different from that of 
someone who sits in an office reading the decisions and synthesizing the 
rationales of the cases.

The fact that religious-institution defendants raise RFRAs as a defense to 
causes of action or to discovery means that the plaintiffs have to go to that 
much more work (and legal expense) to counter the arguments. In that sense, 
whether the defenses "work" or not, there is an additional burden on litigants 
in having that extra string on the defendant's bow.

That said, the fact that RFRA-based claims don't succeed very well may over 
time cause them to wither as a tactic, especially if plaintiffs can whack the 
defendants with Rule 11 sanctions for putting them to that bother. And, of 
course, this additional burden on plaintiffs may itself not be sufficient to 
outweigh the benefits that RFRAs have in terms of facilitating non-violent 
religious practice and conscience.

I just wanted to add an observation about the fact that "everyone agrees" that 
child (and female) abuse is "indefensible." This is true in a sense, but the 
definition of these things matters. Marci's citing the LDS as one of the 
black-hat institutions raises a red flag that maybe an unsophisticated and 
tendentious notion of "abuse" is doing too much work in this discussion--there 
are practices that many sincere believers do not consider abusive that have 
become part of the culture wars. To the extent that RFRAs force courts to 
recognize the potential conscientious validity of these practices, and weigh 
the countervailing government interest, they can help prevent  anti-religious 
(or anti-denominational) lynch mobs from having free rein. You shouldn't be 
permitted to just wave your hand in a culturally biased way at a broad spectrum 
of practices and call them all abusive because they're not the norm in New York 
10025 or Cambridge 02138.

Vance

On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:
I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997).  If that's the poster 
child for why RFRAs are bad, it's not much of a poster.  In the first place, it 
didn't involve a RFRA at all, just the First Amendment, with which we're stuck 
for better or for worse.

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

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

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

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

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

Re: PS RE: Defeat of RFRA constitutional amendment in North Dakota

[Finkelman, Paul]

Among many other reasons it may reflect hostility to Native Americans.

Connected by DROID on Verizon Wireless


-Original message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 

Sent: Wed, Jun 13, 2012 20:49:25 GMT+00:00
Subject: PS RE: Defeat of RFRA constitutional amendment in North Dakota

I meant to say that Vance’s point about the fears of Muslims and Sharia law is 
surely also part of the explanation. The evangelical rank and file conceives 
religious liberty mostly in terms of their own religious liberty – they are 
certainly not the only ones, but as Vance notes, they are an important voting 
block on this issue – and when attention is focused on religious liberty for 
Muslims instead, many of them will take a different view.  So that no doubt 
affected some votes. But it was NARAL and Planned Parenthood that spent the 
money.

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: Citation errors in HeinonLine

[Finkelman, Paul]

I just had a nice email from Daniel Rosati at Hein and the most significant 
part is below.  I am impressed that the company responded this quickly to the 
issue.  It is better to have no date than the wrong date.

We did meet with our developers first thing this morning and we have already 
removed the dates from all citations wherever they appear in the U.S. Reports 
collection.   As I said we would do if we could not correct the dates quickly.

I also want to make it very clear that we will correct the dates in all of the 
case citations in the collection.  Right now I just cannot give you a 
time-frame.  Once we know our exact plan, I will share it with you and your 
colleagues.




*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: Joel Fishman [fish...@duq.edu]
Sent: Tuesday, June 12, 2012 10:40 AM
To: Finkelman, Paul ; 
lawcour...@listserv.tulane.edu; conlawp...@lists.ucla.edu; 
religionlaw@lists.ucla.edu
Cc: Emery, Robert; Reference, Shared; dros...@wshein.com
Subject: RE: Citation errors in HeinonLine

List Members:

I forwarded Paul's comment on HeinOnline to Daniel Rosati, Senior Vice 
President at W. S. Hein Co., and he asked me to post his response.

Professor Finkelman is correct in his assessment of the date we are using for 
the case citations for the HeinOnline U.S. Reports collection. This is not a 
new development as historically we used the most prominent date associated with 
any given collection in most citations for the content of HeinOnline. The U.S. 
Reports collection has been part of HeinOnline since at least 2002 and the most 
prominent date was the volumes term date and has been used since then. Remember 
that when we began HeinOnline we were trying to provide an electronic 
alternative to printed volumes and therefore the volume information was 
considered by us as important information. Back then we entered limited 
metadata for these collections. In the case of the U.S. Reports it was the case 
name, the court term date and of course the volume and page number for each 
case. In recent years we have been attempting to obtain richer metadata for 
this collection by working with The Supreme Court Database and some others, 
providing complete electronic versions of hundreds of volumes of U. S. Reports 
for their projects. We are currently discussing steps we can take to correct 
the citations so they use the decision date and not the term date. If we cannot 
correct this quickly, we will make it clear which date is being used or remove 
the date altogether from the citation. Once we know exactly what we are doing, 
we will provide a time-frame for correction.
In the mean-time, I would be happy to answer any further questions or concerns.
Dan
Daniel P. Rosati
William S. Hein & Co., Inc.
1285 Main Street
Buffalo, New York 14209
dros...@wshein.com
716-882-2600 x103
800-828-7571 (Toll-Free)
716-883-8100 (Fax)



Joel Fishman, Ph.D.

Assistant Director for Lawyer Services

Duquesne University Center for Legal Information/

Allegheny County Law Library

921 City-County Bldg.

414 Grant Street

Pittsburgh, PA 15219

412.350.5727; fax:412.350.5889



Co-Director of the Pennsylvania Constitution Web Site

www.duq.edu/law/pa-constitution<http://www.duq.edu/law/pa-constitution>



Articles available on SSRN

http://hq.ssrn.com/submissions/MyPapers.cfm?partid=555804






From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Finkelman, Paul  
[paul.finkel...@albanylaw.edu]
Sent: Saturday, June 09, 2012 6:25 PM
To: lawcour...@listserv.tulane.edu; conlawp...@lists.ucla.edu; 
religionlaw@lists.ucla.edu
Cc: Emery, Robert; Reference, Shared
Subject: Citation errors in HeinonLine

I was just preparing for a summer seminar I am giving and asked my librarian to 
get me some US Supreme Court Court Cases from Hein-on-Line.

It turns out that most of them have incorrect citations.

As a sample, here is the one from Schenck v. US
Citation: 249 U.S. 47 1918
And from Griswold v. Conn:
Citation: 381 U.S. 479 1964
As we all know, Schenck was decided in 1919 and Griswold in 1965.
And Lawrence v. Texas is cited as 2002
Citation: 539 U.S. 558 2002
But it was decided in 2003!

This is 3-for-3 that are wrong.  I have not checked super iconic cases like 
Brown and Dred Scott but I assume they are wrong as well.

Obviously the people at Hein on Line are giving the year the term begin, rather 
than the year the case was decided.  I come down pretty hard on students when 
they cite this way in papers.  I also find that law review editors chan

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

[Finkelman, Paul]

you want to be my agent?  (or will the bearded non-cop who is a cop be the 
"agent"



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Arthur Spitzer [artspit...@gmail.com]
Sent: Sunday, June 10, 2012 11:05 PM
To: Paul Finkelman; Law & Religion issues for Law Academics
Subject: Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

I'm calling the screenwriters guild ASAP.


On Sun, Jun 10, 2012 at 10:56 PM, Paul Finkelman 
mailto:paul.finkel...@yahoo.com>> wrote:
I think you are right, which makes me wonder about this case; also you would 
think the recruit would have been told about the beard policy at the beginning 
of his training;
but hey, maybe this is an elaborate scheme to make him a cop who can really go 
underground as a guy who is mad at the police?


Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)


paul.finkel...@albanylaw.edu


www.paulfinkelman.com

From: Arthur Spitzer mailto:artspit...@gmail.com>>
To: "b...@jmcenter.org" 
mailto:b...@jmcenter.org>>; Law & Religion issues for Law 
Academics mailto:religionlaw@lists.ucla.edu>>
Sent: Sunday, June 10, 2012 10:44 PM

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

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

Art Spitzer

On Sun, Jun 10, 2012 at 10:29 PM, b...@jmcenter.org 
mailto:b...@jmcenter.org>> wrote:
Joel, I'm not clear what your point is other than an Orthodox Jew was fired 
because he did not follow regulations. The article that you linked states: 
"Today there are at least two dozen Orthodox-Jewish police officers working for 
the NYPD." However, it doesn't mention whether any of those police officers 
have beards longer than 1mm (which is very short). It would seem to me that if 
NYPD regulations were enforced as to them, then you have an Employment Div. v. 
Smith -- neutral rules of general applicability situation. If the regulations 
weren't enforced as to some or all of the two dozen current police officers, 
then a number of claims may be available to the fired academy individual for 
wrongful termination.

Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236

On June 10, 2012 at 5:54 AM Joel Sogol 
mailto:jlsa...@wwisp.com>> wrote:

An Orthodox Jew who was weeks away from becoming a New York City police officer 
said he has been kicked out of the police academy for refusing to trim his 
beard.
Former recruit Fishel Litzman of Monsey was fired Friday after multiple 
confrontations with the department over the length of his whiskers, he told the 
Daily 
News.

http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite


Joel L. Sogol
Attorney at Law
811 21st Avenue
Tuscaloosa, Alabama  35401
ph (205) 345-0966
fx  (205) 345-0971
jlsa...@wwisp.com

Ben Franklin observed that truth wins a fair fight -- which is why we have 
evidence rules in U.S. courts.




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


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

Confidentiality Notice
This message is being sent by a lawyer.  It is intended exclusively for the 
individual(s) to whom it is addressed.  This commu

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

[Finkelman, Paul]

folliculitis
I think we need to create the Doug Laycock award for use of most obscure word 
on the list serve -- and Doug wins the first award. 

*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Sunday, June 10, 2012 11:02 PM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Report: NYPD fires Orthodox Jew recruit for refusing to trim beard

I would be astonished if they don't have a folliculitis exception like the one 
in FOP v. Newark.

On Sun, 10 Jun 2012 22:29:38 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Joel, I'm not clear what your point is other than an Orthodox Jew was fired
>because he did not follow regulations. The article that you linked states:
>"Today there are at least two dozen Orthodox-Jewish police officers working for
>the NYPD." However, it doesn't mention whether any of those police officers 
>have
>beards longer than 1mm (which is very short). It would seem to me that if NYPD
>regulations were enforced as to them, then you have an Employment Div. v. Smith
>-- neutral rules of general applicability situation. If the regulations weren't
>enforced as to some or all of the two dozen current police officers, then a
>number of claims may be available to the fired academy individual for wrongful
>termination.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 10, 2012 at 5:54 AM Joel Sogol  wrote:
>
>
>>
>>  An Orthodox Jew who was weeks away from becoming a New York City police
>> officer said he has been kicked out of the police academy for refusing to 
>> trim
>> his beard.
>>
>>  Former recruit Fishel Litzman of Monsey was fired Friday after multiple
>> confrontations with the department over the length of his whiskers, he told
>> the Daily News
>> 
>> .
>>
>>
>>
>>
>> http://usnews.msnbc.msn.com/_news/2012/06/10/12148224-report-nypd-fires-orthodox-jew-recruit-for-refusing-to-trim-beard?lite
>> 
>>
>>
>>
>>
>>
>>  Joel L. Sogol
>>
>>  Attorney at Law
>>
>>  811 21st Avenue
>>
>>  Tuscaloosa, Alabama  35401
>>
>>  ph (205) 345-0966
>>
>>  fx  (205) 345-0971
>>
>>  jlsa...@wwisp.com 
>>
>>
>>
>>  Ben Franklin observed that truth wins a fair fight -- which is why we have
>> evidence rules in U.S. courts.
>>
>>
>>

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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Citation errors in HeinonLine

[Finkelman, Paul]

I was just preparing for a summer seminar I am giving and asked my librarian to 
get me some US Supreme Court Court Cases from Hein-on-Line.

It turns out that most of them have incorrect citations.

As a sample, here is the one from Schenck v. US
Citation: 249 U.S. 47 1918
And from Griswold v. Conn:
Citation: 381 U.S. 479 1964
As we all know, Schenck was decided in 1919 and Griswold in 1965.
And Lawrence v. Texas is cited as 2002
Citation: 539 U.S. 558 2002
But it was decided in 2003!

This is 3-for-3 that are wrong.  I have not checked super iconic cases like 
Brown and Dred Scott but I assume they are wrong as well.

Obviously the people at Hein on Line are giving the year the term begin, rather 
than the year the case was decided.  I come down pretty hard on students when 
they cite this way in papers.  I also find that law review editors change my 
citations to put the wrong year in, and now I think I know where they are 
getting these incorrect dates.

So what should we do when a commercial firm, like Hein  does it?  Any 
suggestions.

Please feel free to send this to any list serves you might know that would be 
interested; I would love to see this posted on the list serves for the law 
librarians.  Given how much these companies charge the law schools to use their 
serviced, the least they could do is cite things correctly.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*





___
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RE: Parsonage/Housing Exclusion

[Finkelman, Paul]

I am not a tax person (that is an understatement) but my understanding is that 
if the university requires the president to live in a University house, then 
there are no tax consequences for the free rent.  It is sort of like living in 
your office.  With univ. presidents (or even law school deans), the issue is 
complicated because often the official house is far more house than the 
president would want, or even could afford.  We could have a rule that said the 
Univ. Pres (or the clergyman) should be taxed on the fair market value of the 
living area, but not the "public" area -- but with very big Univ. pres. houses, 
the living area might be more than the president could afford, and of course, 
the living area is also used for guests of the University.  Same, probably for 
ministers.  I am pretty sure this applies to the President (how would you tax 
the living area of the White House?) and Governors.

Quite frankly, I find this all rather de minimis.  Given the whole tax burden 
of the American people, the parsonage deductions for ALL ministers, priests, 
rabbis, mullahs, etc. must be a very small drop in the bucket.  Tax dividends 
and capital gains as ordinary income and you might get some real money for the 
treasury.

And even for a strong separationist (which I am), I wonder how you go about 
taxing and evaluating the parsonage.  And would that lead to some potential 
discrimination.

And, how would you tax priests, monks and nuns (some of whom take an oath of 
poverty) and live in a rectory, convent, monastery, or some other church 
building?



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of b...@jmcenter.org [b...@jmcenter.org]
Sent: Friday, April 27, 2012 1:02 AM
To: Law & Religion issues for Law Academics
Subject: Re: Parsonage/Housing Exclusion


In deed, the parsonage allowance goes far beyond the convenience of the 
employer/church. The church can structured a minister's income in such a way as 
to shift it mostly to the housing allowance. More specifically, the minister's 
housing allowance income is exempt from federal (and state) income taxes to the 
extent of the fair market value of the mortgage payments, real estate taxes, 
insurance, utilities, pool and landscaping expenses, etc. -- whatever is 
expended towards acquiring, operating and maintaining the minister's house. 
Interestingly, the minister gets to double dip by also taking the mortgage 
interest deduction if he or she itemizes his or her deductions.



We can be talking about a lot of dollars. For example, in a case involving Rick 
Warren of Saddleback Church in California, he was given a housing allowance of 
$80,000/yr. Warren v. Commissioner of Revenue, 302 F.3rd 1012 (9th Cir. 2002). 
Warren and IRS settled the case rather than having the court rule on the 
constitutionality of Sec. 107.



Bob



Robert V. Ritter

Jefferson Madison Center for Religious Liberty

A Project of the Law Office of Robert V. Ritter

Falls Church, VA

703-533-0236

On April 23, 2012 at 10:46 PM Douglas Laycock  wrote:

> We need a tax person here. But as I understand the general rule on 
> employer-provided housing, housing is tax exempt to the employee only when it 
> is provided for the convenience of the employer. It applies to lumber camps 
> and army barracks and quarters on ships; it applied to lighthouse keepers 
> when lighthouses needed keepers. I assume it applies to the White House.
>
> It applies to university presdents' houses that are used heavily for official 
> entertaining, because in the crazy world of fundraising and high-level 
> university politics, entertaining in the president's "home" turns out to have 
> powerful benefits for the university, and having the president always at hand 
> and on call also has its benefits for the university.
>
> The exclusion was never designed as a fringe benefit for the employee, 
> although it plainly has that consequence too. On the other hand, the employee 
> doesn't own the house and doesn't benefit from any appreciation in the value 
> of the house; he is also sheltered from any collapse in housing values as in 
> 2008.
>
> My understanding is that the rules on convenience of the employer have been 
> interpreted fairly tightly, because there is an obvious temptation to expand 
> a way of delivering tax free income.
>
> The point about parity between churches that can afford pasonages and those 
> that cannot takes the collateral benefit to the employee as the policy, and 
> wholly ignores the limitation to housing provi

RE: Statement on Religious Liberty from USCCB

[Finkelman, Paul]

In fairness to the others on the list, I think people who are posting things 
should actually their names and even give an affiliation, if they have one.   I 
have no idea who "Bob" is.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of b...@jmcenter.org [b...@jmcenter.org]
Sent: Thursday, April 19, 2012 11:13 AM
To: Law & Religion issues for Law Academics
Subject: Re: Statement on Religious Liberty from USCCB


Catholics have gone from being persecuted in the U.S. (early years of our 
nation) to their hey day in the 1950's when the Knights of Columbus pushed for 
inserting "under god" * into the Pledge of Allegiance (1954) to being in 
today's melting pot (pluralistic society) -- one of many. The Conference of 
Catholic Bishops is a big bully AND wrong headed. It's excruciatingly difficult 
for them to play by the rules that others, including nontheists, must follow. 
They are fighting a war of survival (due to their religion's irrelevance in the 
modern era), not of religious liberty.



The bishops reference to MLK is an insult. MLK fought for equality, not 
preferential treatment as the bishops are seeking. I doubt that there will be 
significant civil disobedience because Catholics are being asked to act like 
their neighbors, no more, no less.



As extreme as the bishops appear to be, I'm surprised that they haven't turned 
to the Declaration of Independence to justify a call for revolution to 
overthrow our secular form of government established in 1789 and return to 
pre-Enlightenment times.



* It was painful for me yesterday to hear daughter's first grade class recite 
the Pledge with "under god." If the bishops are really interested in religious 
liberty, let's strip all the advancements (or "establishments") of religion out 
of federal, state and local governments. I've considered challenging the 1954 
Pledge, but the Supreme Court did a job my friend Mike Newdow ( Newdow v. Elk 
Grove (2004)) and the 4th Circuit (where I live) thinks that "god" is a 
patriot. There will be a Resurrection of that fight sometime between 40 days 
and 40 years.



Bob

On April 13, 2012 at 6:47 AM Marty Lederman  wrote:

The Conference of Catholic Bishops just issued this major Statement on 
Religious Liberty:

http://usccb.org/issues-and-action/religious-liberty/upload/Our_First_Most_Cherished_Liberty.pdf

I'd be curious to hear what others think of it.  Its basic thrust is that 
religious liberty is now acutely "under attack" in the U.S., in a way it has 
not been in quite a while.  Indeed, "what is at stake" is no less than " 
whether America will continue to have a free, creative, and robust civil 
society—or whether the state alone will determine who gets to contribute to the 
common good,  and how they get to do it."  Do you think they've made the case 
for such an indictment?

Furthermore, it quotes liberally from Dr. King's letter from the Birmingham 
jail, and urges citizens to "have the courage" not to obey the laws that 
allegedly are presenting this profound threat.  (What are the odds there will 
be much civil disobedience of the laws they have in mind? -- not a rhetorical 
question.)  And it invokes  Lincoln at Gettysburg in asking for a fast "for a 
new birth of freedom in our beloved country."

Thoughts?


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RE: Court upholds prison no-pork policy against EstablishmentClause challenge

[Finkelman, Paul]

The french experience with intolerance is very different than ours and thu 
leads to different outcomes and paths.

Connected by DROID on Verizon Wireless


-Original message-
From: "Friedman, Howard M." 
To: Law & Religion issues for Law Academics 
Sent: Thu, Apr 12, 2012 03:10:57 GMT+00:00
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause 
challenge


It is interesting to compare reactions in Europe to similar situations. In 
2010, French politicians strongly criticized a restaurant chain that decided to 
serve only halal meat in 8 of its restaurants with a large Muslim clientele. 
Agriculture Minister Bruno Le Maire said: "When they remove all the pork from a 
restaurant open to the public, I think they fall into communalism, which is 
against the principles and the spirit of the French republic."
See: 
http://religionclause.blogspot.com/2010/02/french-politicians-criticize-restaurant.html

In 2007 in Britain, a primary school in Kingsgate attempted to accommodate 
religious needs of its growing Muslim student body by serving only Halal meat 
in its lunch menus. A number of parents objected, arguing that the school was 
forcing their children to to conform to "someone else's culture."
See 
http://religionclause.blogspot.com/2007/02/british-parents-protest-halal-menus-in.html


Howard Friedman

-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 4/11/2012 7:46 PM
To: Law & Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against EstablishmentClause
challenge

I agree entirely; I mention this partly because I occasionally 
hear pork bans as examples of quintessential violations of the Establishment 
Clause, though I don't think they would be.

To be sure, a general pork ban might have a different motivation than a prison 
decision not to serve pork.  But at the same time even a general pork ban could 
certainly be an attempt to accommodate a religious group by minimizing the risk 
that its members will accidentally ingest pork (or that its members might be 
put in a position where their employment would require the handling or even 
sampling of pork).  And just as the state of California is free to ban the sale 
of horsemeat for human consumption (as it did in 1998), so it should be free to 
ban the sale of pork - not that I'd ever endorse that as a policy matter!

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, April 11, 2012 4:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against Establishment Clause 
challenge

Is this outcome surprising in any way?  Does anyone on the list believe that 
the court got this wrong? (I certainly don't).

If Congress overrode HHS and eliminated pregnancy prevention services from 
mandatory coverage by employers under the Affordable Care Act, wouldn't the 
analysis be just the same (imposition of a uniform policy to avoid religious 
conflict, avoid any need to create controversial exceptions for religious 
entities, avoid piece-meal litigation, and ease administration of the overall 
scheme), even though the impetus for change derived from a demand by some for 
religious accommodation?
On Wed, Apr 11, 2012 at 6:48 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
River v. Mohr (N.D. Ohio Apr. 5, 2012), 
http://volokh.com/wp-content/uploads/2012/04/RiversvMohr.pdf .

Eugene

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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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RE: Point of Information -- not quite on topic

[Finkelman, Paul]

I did mean ON school teams.  The drawback of writing on a "not so smart" phone 
while sitting in a faculty meeting.  Sorry for the typo.

Connected by DROID on Verizon Wireless


-Original message-
From: Douglas Laycock 
To: 'Law & Religion issues for Law Academics' 

Sent: Tue, Mar 6, 2012 21:48:31 GMT+00:00
Subject: RE: Point of Information -- not quite on topic

I assume Paul meant “on school teams,” and not “no school teams.”

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 Finkelman
Sent: Tuesday, March 06, 2012 4:40 PM
To: religionlaw@lists.ucla.edu; lederman.ma...@gmail.com
Subject: Re: Point of Information -- not quite on topic


I have known many non-Catholics who attended Catholic schools. I assume they 
could play no school teams. When I lived in Tulsa a number of Jews attended 
Catholic schools because they were more respectful of Jewish religious needs 
(holidays) etc.than some of the public schools which sometimes acted as if they 
were evangelical schools including giving extra credit for prayer at the 
flagpole.


Sent from Yahoo! Mail on Android



From: Marty Lederman 
mailto:lederman.ma...@gmail.com>>;
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>;
Subject: Point of Information -- not quite on topic
Sent: Tue, Mar 6, 2012 5:42:22 PM
" the Maccabiah Games feature only Jewish athletes."

Nope.  See http://www.ynetnews.com/articles/0,7340,L-332,00.html

It's open to all Israeli citizens without regard to religion, and to Jews who 
are not citizens (presumably because they have an automatic right of 
citizenship, although I don't know that for a fact).

I'd also be very, very surprised if many "Catholic Leagues" exclude 
participants based on religion; perhaps they're confined to certain church 
teams, or students from Catholic schools, etc. -- but an actual personal 
religious test for individuals?

On Mon, Mar 5, 2012 at 10:06 AM, Marci Hamilton  wrote:
There is significant precedent for one-religion sporting events, which I assume 
everyone agrees is fine.Catholic Leagues exist in numerous cities   And  
the Maccabiah Games feature only Jewish athletes.

TAPPs' first mistake appears to have been opening itself up to religious 
organizations with different religious needs and demands.

Marci


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RE: Basketball tournaments on the Sabbath

[Finkelman, Paul]

I am guessing that the leaders of this organization never dreamed of a Jewish 
basketball team going to the finals.  They never heard of Dolph Shayes or Nancy 
Lieberman.



More seriously:  If the organization (which includes many Christian schools) 
played games on Sundays, would the Hebrew high school be in a weaker position?





*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, March 02, 2012 6:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

Today's first semi-final: Houston Beren 58, Dallas Covenant 46 -- final is 
after sundown tomorrow evening.

Thanks, Doug.

On Fri, Mar 2, 2012 at 5:48 PM, Ed Darrell 
mailto:edarr...@sbcglobal.net>> wrote:
If your position is utterly untenable as a matter of public relations, it may 
not matter that the other side’s state action theory is very weak. But they had 
to file the lawsuit before common sense could prevail.

One more demonstration of the value of lawyers.  Good news that they've 
scheduled the game to fit it in.  Good, good news.

Ed Darrell
Dallas


From: Alan Brownstein 
mailto:aebrownst...@ucdavis.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Fri, March 2, 2012 3:35:05 PM
Subject: RE: Basketball tournaments on the Sabbath

A somewhat  similar lawsuit was litigated by students attending the Portland 
Adventist Academy (and their parents) against the Oregon State Activities 
Association which is a state actor. After 8 years of litigation, the students 
succeeded in their state anti-discrimination claims. See Nakashima v. Bd. Of 
Educ., 334 Or. 487 (2008)

Alan Brownstein



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Douglas Laycock
Sent: Friday, March 02, 2012 11:48 AM
To: 'Law & Religion issues for Law Academics'
Subject: Basketball tournaments on the Sabbath

Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint’s state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side’s state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

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

[Finkelman, Paul]

The "common sense" is what is often lacking and with a sense of fairness and 
toleration.  Apparently for the leaders of the TAPP "common sense" means 
everyone is a Christian and all people have a Sunday sabbath.  The lawyers 
serve as educator to teach common sense and respect for other religions.

Connected by DROID on Verizon Wireless


-Original message-
From: Alan Armstrong 
To: Law & Religion issues for Law Academics 
Sent: Sat, Mar 3, 2012 19:56:56 GMT+00:00
Subject: Re: Basketball tournaments on the Sabbath

My understanding is that Jewish and 7th day adventists consider sabbath as 
going from sundown on Friday to sundown on Saturday. I do not know of any 
christian denominations that use sundown Saturday to sundown on Sunday as the 
Lord's day.Therefore a Saturday night game should be acceptable to all.

A little thought and common sense and we would need fewer lawyers.

Alan

Law Office of Alan Leigh Armstrong
Office 18652 Florida St., Suite 225
Huntington Beach CA 92648-6006
Mail 16835 Algonquin St., Suite 454
Huntington Beach CA 92649-3810
714 375 1147 fax 714 782 6007
a...@alanarmstrong.com
Serving the family and small business since 1984
NOTICE:
 Any tax advice in this e-mail, including attachments, can not be used to
avoid penalties or for the promotion of a tax related matter.








On Mar 2, 2012, at 11:48 AM, Douglas Laycock wrote:

Some of you may have seen the story in the Times the other day about the Beren 
Hebrew Academy in Houston, whose basketball team has reached the state 
semi-finals of the Texas Association of Private and Parochial Schools 
tournament. The semifinal game was scheduled for tonight; the Academy is 
Orthodox and observant, and could not play.  The other school was willing to 
reschedule, but the TAPPS Board voted 8-0 not to allow that. Most TAPPS members 
are church affiliated, and as a matter of policy, it never schedules games on 
Sunday.

Beren parents and students filed a lawsuit this morning in the Northern 
District of Texas, alleging unconstitutional religious discrimination, Texas 
RFRA, and breach of contract (based on a provision in the TAPPS bylaws). The 
complaint’s state action theory was that the game was scheduled to be played in 
a public school gym, which is surely not enough. The contract claim looked 
stronger, judging only by the complaint.

Richard Friedman at Michigan tells me that TAPPS caved as soon as the complaint 
was filed, and that the game will begin imminently and will be completed before 
sunset.  If your position is utterly untenable as a matter of public relations, 
it may not matter that the other side’s state action theory is very weak. But 
they had to file the lawsuit before common sense could prevail.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
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RE: Basketball tournaments on the Sabbath

[Finkelman, Paul]

Since I have so often -- and often vigorously -- disagreed with Rick, I thought 
it appropriate to endorse his analysis and his use of the Franklin analogy.

Paul Finkelm

Connected by DROID on Verizon Wireless


-Original message-
From: Rick Duncan 
To: Law & Religion issues for Law Academics 
Sent: Sat, Mar 3, 2012 22:47:38 GMT+00:00
Subject: RE: Basketball tournaments on the Sabbath

I speak about religious liberty at lots of CLEs for conservative Christian 
lawyers and law students, and I try to tell them that religious liberty is a 
lot like Franklin's view of the American Revolution--"We better all hang 
together, or most assuredly we will all hang separately."

The cases in which religious liberty has taken a hit--Reynolds and Smith are 
two of the best examples--are ones involving unpopular religious groups or 
practices. I know a lot of Christians were not to upset about Smith--but Smith 
gutted free exercise for everyone.

I know you all know this, but it is worth remembering from time to time.

Prof. Rick Duncan (Nebraska Law)

See my recent paper on The Tea Party, federalism, and liberty at:
   http://ssrn.com/abstract=1984699


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


--- On Sat, 3/3/12, Douglas Laycock  wrote:

From: Douglas Laycock 
Subject: RE: Basketball tournaments on the Sabbath
To: "'Law & Religion issues for Law Academics'" 
Date: Saturday, March 3, 2012, 8:26 AM

This morning's story in the Times confirms the unreconstructed Texans
theory. It looks like the conservative evangelical schools have taken
control of this organization, and tolerance of diversity has never been one
of their strengths.

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 Richard D. Friedman
Sent: Saturday, March 03, 2012 12:19 AM
To: Law & Religion issues for Law Academics
Subject: Re: Basketball tournaments on the Sabbath

The TAPPS website, http://www.tapps.net/, indicates that they agreed to let
Beren play when presented with the papers, before they were actually filed.
But the lawyer who signed the complaint -- which included the application
for the TRO -- confirmed to me that the papers were indeed filed.  I get the
impression that TAPPS, while saying adamantly that they were going to adhere
to their schedule, decided they would fold quickly if sued; I think someone
there finally realized that they were not casting themselves in a favorable
light.

Rich Friedman

At 07:19 PM 3/2/2012, you wrote:
>It would look less like a discrimination claim and more like an
>exemption claim. Judges tend to naively assume that the calendar is a
>neutral set of rules, and the sharply different treatment of Sunday and
>Saturday here would make it more obvious than usual that that just
>isn't true.
>
>By the way, I was confused about chronology. The complaint was filed,
>and TAPPS caved, yesterday. There was another story in the Times this
>morning. Haven't heard the score of the game.
>
>On Fri, 2 Mar 2012 23:11:44 +
>  "Finkelman, Paul
> "   
wrote:
> >I am guessing that the leaders of this organization never dreamed
> of a Jewish basketball team going to the finals.  They never heard of
> Dolph Shayes or Nancy Lieberman.
> >
> >
> >
> >More seriously:  If the organization (which includes many
> Christian schools) played games on Sundays, would the Hebrew high
> school be in a weaker position?
> >
> >
> >
> >
> >
> >*
> >Paul Finkelman, Ph.D.
> >President William McKinley Distinguished Professor of Law Albany Law
> >School
> >80 New Scotland Avenue
> >Albany, NY 12208
> >
> >518-445-3386 (p)
> >518-445-3363 (f)
> >
> >paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
> >www.paulfinkelman.com<http://www.paulfinkelman.com/>
> >*
> >
> >
> >From: religionlaw-boun...@lists.ucla.edu
> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu
> [icl...@law.gwu.edu]
> >Sent: Friday, March 02, 2012 6:03 PM
> >To: Law & Religion issues for Law Academics
> >Subject: Re: Basketball tournaments on the Sabbath
> >
> >Today's first semi-final: Houston Beren 58, Dallas Covenant 46 --
> final is after sundown tomorrow evening.
> >
> >Thanks, D

Re: Request for information re student proselytization at middle schools

[Finkelman, Paul]

I think u sent this to the wrong "Paul"

Connected by DROID on Verizon Wireless


-Original message-
From: "Saperstein, David" 
To: Law & Religion issues for Law Academics 
Sent: Thu, Feb 9, 2012 17:31:49 GMT+00:00
Subject: Re: Request for information re student proselytization at middle 
schools

Paul, I have a lot of this in hard copy in my office but traveling for a 
stretch. What is your timing ?

Sent from my iPhone

On Feb 9, 2012, at 11:47 AM, "Paul Horwitz" 
mailto:phorw...@hotmail.com>> wrote:

I wonder if I could beseech list members for pointers to caselaw, or relatively 
neutral doctrinal scholarly discussions, about the extent to which 1) religious 
students or student groups have a right to proselytize other students at the 
middle school, or at least post-elementary, public school level, including 
cases in which such proselytization was A) allowed, B) prohibited, or C) 
addressed in terms of the equal rights of other groups to engage in similar 
persuasive acts with respect to other students. I should add that I ask for 
practical reasons relating to a local school, and not to express a judgment 
about whether such conduct should be allowed or permitted. Any pointers you 
might have on any of the following issues would also be greatly appreciated: 1) 
the ability of such groups to meet during lunch; 2) the ability of the group to 
disseminate information through school channels; and 3) the ability of the 
group to have invited guests such as ministers. On- or off-list responses are 
fine with me.  Again, I'm not offering an explicit or implicit judgment; I just 
want to make sure that the people involved in this discussion are properly 
informed as to their obligations, or discretion, one way or the other.

Regards to all,

Paul Horwitz
University of Alabama School of Law
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RE: Interesting late 1800s Arkansas law related to government and religion

[Finkelman, Paul]

Marci:

Presumably there is a free exercise right to expel people from your church for 
having the wrong political ideas.  So, I suppose if the church leaders say "you 
must support candidate x" and a member does not, and openly supports "y" then 
it is a free exercise right for the Church to expel the member.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marci Hamilton [hamilto...@aol.com]
Sent: Tuesday, January 24, 2012 8:51 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Interesting late 1800s Arkansas law related to government and 
religion

Ok, I'll bite.   Why is an anti-coercion statute obviously unconstitutional?

Marci


On Jan 24, 2012, at 4:45 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

An Arkansas 1891 statute:  “No person shall coerce, intimidate or unduly 
influence, any elector to vote for or against the nominee of any political 
party, or for or against any particular question or candidate, by any threat or 
warning of personal violence or injury, or by any threat or warning of 
ejectment from rented or leased premises, or by the foreclosure of any mortgage 
or deed of trust, or of any action at law or equity, or of discharge from 
employment, or of expulsion from membership in any church, lodge, secret order 
or benevolent society, or by any oath, or affirmation or secret written 
pledge.”  I assume such a statute, as applied to churches, would be 
unconstitutional today, and might even have generally been seen as 
unconstitutional back then, though I have seen no cases interpreting it.

Interestingly, a North Carolina statute that didn’t mention churches -- “Any 
person who shall discharge from employment, withdraw patronage from, or 
otherwise injure, threaten, oppress or attempt to intimidate any qualified 
voter of the state, because of the vote such voter may or may not have cast in 
any election, shall be guilty of a misdemeanor” -- was held in 1901 to not be 
able applicable to expulsion from churches based on a person’s vote.  See State 
v. Rogers, 38 S.E. 34 (N.C. 1901), 
http://volokh.com/2012/01/23/interesting-old-prosecution-for-expelling-someone-from-a-church-based-on-how-he-voted/
 .

Eugene

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RE: Catholic University sued about prayer rooms for Muslims

[Finkelman, Paul]

Since Jesus is a prophet in the Muslim faith, I wonder how serious the 
complaint is.



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Brad Pardee [bp51...@windstream.net]
Sent: Wednesday, November 02, 2011 11:14 PM
To: religionlaw@lists.ucla.edu
Subject: Catholic University sued about prayer rooms for Muslims

I'm intrigued by this story.  Apparently, in Washington DC, it may turn out to 
be a human rights violation for Catholic University to be pervasively Catholic.

http://radio.foxnews.com/toddstarnes/top-stories/muslims-want-catholic-school-to-provide-room-without-crosses.html

Is there some perspective from the view of an impartial scholar where this is 
NOT patently absurd?

Brad Pardee
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Re: Back of the bus?

[Finkelman, Paul]

Have no idea about the discrimination suit

Connected by DROID on Verizon Wireless


-Original message-
From: Jean Dudley 
To: Law & Religion issues for Law Academics 
Sent: Sat, Oct 22, 2011 14:07:07 GMT+00:00
Subject: Re: Back of the bus?

I'm showing my west-coast ignorance of NYC geography again, Paul.  Thanks for 
the correction.  And you're right, extremism transcends religious groups.

Say, what ever happened to the discrimination suit against B&H photo and video 
store in NYC a few years back--they refused to hire or promote women for the 
sales floor or management.  Suit was filed in 2009.

Jean
On Oct 20, 2011, at Thu, Oct 20,  11:38 AM, Finkelman, Paul 
 wrote:

> It is not the "town" that is involved.  It is the City of New York.  Last 
> time I looked Williamsburg was still part of Brooklyn.  This seems so 
> outrageous it is hard to comprehend from a legal perspective.  It does 
> reflect the desire of many (certainly not all) in the ultra-Orthodox and 
> Hassidic communities to separate themselves from the US.  Many in these 
> groups would rather live in pre-WW I Prague where they could have their own 
> community, their own rules, and their own legal system.  They do not believe 
> in pluralism or really in religious freedom.  But, that makes them in many 
> ways like many in the Christian fundamentalist world. After all, there is not 
> much difference between them and Chief Justice Roy Moore, who wanted to 
> impose his narrow and sectarian religious views on the entire state of 
> Alabama; or the public schools that encourage "prayer the flagpole" and allow 
> teachers to give extra credit for the student who go to the prayer, as 
> happened in Oklahoma when I l!
 iv!
> ed there.
>
> 
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
> Albany Law School
> 80 New Scotland Avenue
> Albany, NY 12208
>
> 518-445-3386 (p)
> 518-445-3363 (f)
>
> paul.finkel...@albanylaw.edu
> www.paulfinkelman.com<http://www.paulfinkelman.com>
>
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Thursday, October 20, 2011 1:26 PM
> To: Law & Religion issues for Law Academics
> Subject: Back of the bus?
>
> It seems that a private bus company with a public transit contract in 
> Williamsburg wants women to sit at the back of the bus.  Why?  Because of a 
> high concentration of Hasidic Jews in the area.  The bus company is in 
> violation of its contract with the town which explicitly states that they 
> will not discriminate.
>
> Same town that residents put up signs on the street telling "Precious Jewish 
> Daughters" to step aside when a man approaches them on the sidewalk.
>
> Sorry for the implied vulgarity, but... WTF, Williamsburg?
>
> Here's the article: 
> http://gothamist.com/2011/10/19/women_riding_the_b110_bus_in_brookl.php
>
> Jean Dudley
> ___
> To post, send message to Religionlaw@lists.ucla.edu
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> private.  Anyone can subscribe to the list and read messages that are posted; 
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> forward the messages to others.
>
> ___
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RE: Back of the bus?

[Finkelman, Paul]

It is not the "town" that is involved.  It is the City of New York.  Last time 
I looked Williamsburg was still part of Brooklyn.  This seems so outrageous it 
is hard to comprehend from a legal perspective.  It does reflect the desire of 
many (certainly not all) in the ultra-Orthodox and Hassidic communities to 
separate themselves from the US.  Many in these groups would rather live in 
pre-WW I Prague where they could have their own community, their own rules, and 
their own legal system.  They do not believe in pluralism or really in 
religious freedom.  But, that makes them in many ways like many in the 
Christian fundamentalist world. After all, there is not much difference between 
them and Chief Justice Roy Moore, who wanted to impose his narrow and sectarian 
religious views on the entire state of Alabama; or the public schools that 
encourage "prayer the flagpole" and allow teachers to give extra credit for the 
student who go to the prayer, as happened in Oklahoma when I liv!
 ed there.  



Paul Finkelman
President William McKinley Distinguished Professor of Law 
Albany Law School 
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com


-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Thursday, October 20, 2011 1:26 PM
To: Law & Religion issues for Law Academics
Subject: Back of the bus? 

It seems that a private bus company with a public transit contract in 
Williamsburg wants women to sit at the back of the bus.  Why?  Because of a 
high concentration of Hasidic Jews in the area.  The bus company is in 
violation of its contract with the town which explicitly states that they will 
not discriminate. 

Same town that residents put up signs on the street telling "Precious Jewish 
Daughters" to step aside when a man approaches them on the sidewalk. 

Sorry for the implied vulgarity, but... WTF, Williamsburg? 

Here's the article: 
http://gothamist.com/2011/10/19/women_riding_the_b110_bus_in_brookl.php

Jean Dudley
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RE: Go to Church or Go to Jail?

[Finkelman, Paul]

the enlistment deal is different; and lots people took it including a friend of 
mine who had killed some people in the DWI and was offered jail or the marines; 
he took the marines and after Nam went to law school and became a prosecutor.


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] on 
behalf of Robert Sheridan [r...@robertsheridan.com]
Sent: Monday, September 26, 2011 6:40 PM
To: Douglas Laycock
Cc: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Re: Go to Church or Go to Jail?

Being forced to pray to someone or something one doesn't believe in seems cruel 
and unusual punishment in violation of Amend-8, quite apart from what it does 
to Amend-1.

As a (former) young prosecutor who observed a judge offer a defendant the 
choice of either jail or enlisting in the military, during Vietnam, I recall 
that no one went along with the WWII-era judge's proposed deal.  I believe that 
this condition, too, has failed to pass constitutional muster, but you're on 
your own for a citation.

On the other hand, at a much later date, I was happy to help clean up the 
record of a convicted person who wanted to enlist shortly after 9-11.

rs

I'd thought this list had gone to bed, as tho' there wuz nothing left to 
wrangle over...


On Sep 26, 2011, at 3:06 PM, Douglas Laycock wrote:

> Much milder versions of this, such as go to jail or go to AA, have been 
> litigated and held unconstitutional. This plan will have a short life.
>
> On Mon, 26 Sep 2011 17:37:51 -0400
> James Edward Maule  wrote:
>> That's what it appears to be (sorry for cross-posting but this should be 
>> useful to subscribers on both lists looking for an exam question, to say 
>> nothing of the expected discussion).
>>
>> http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2
>>
>> Headline and first paragraph:
>>
>> Jesus or jail? Alabama town offers options for serving 
>> time
>>
>> If you're charged with a nonviolent crime in one Alabama town, you might 
>> just have the chance to pray it all away.
>> Starting this week, under a new program called Operation ROC (Restore Our 
>> Community), local judges in Bay Minette, Alabama, will give those found 
>> guilty of misdemeanors the choice of serving out their time in jail, paying 
>> a fine or attending church each Sunday for a year.
>>
>>
>> James Edward Maule
>> Professor of Law
>> Villanova University School of Law
>> ma...@law.villanova.edu
>> http://vls.law.villanova.edu/prof/maule
>>
>>
>
> 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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> forward the messages to others.
>

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RE: Go to Church or Go to Jail?

[Finkelman, Paul]

Oh, I just remembered. When I was the main expert in the Ten Commandments 
monument case in Alabama (Glassroth v. Moore), Chief Justice Roy Moore said 
that the Ten Commandments monument could not offend any religion because all 
religions believe in the Ten Commandments.  When asked about Hindus or 
Buddhists he said "they are not real religions so they are not protected by the 
First Amendment."  I had forgotten about that!  I guess that answer part of my 
question, although not for Jews or 7th Day Adventists.





*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Edward Maule [ma...@law.villanova.edu]
Sent: Monday, September 26, 2011 5:37 PM
To: Law & Religion issues for Law Academics; conlawp...@lists.ucla.edu
Subject: Go to Church or Go to Jail?

That’s what it appears to be (sorry for cross-posting but this should be useful 
to subscribers on both lists looking for an exam question, to say nothing of 
the expected discussion).

http://news.blogs.cnn.com/2011/09/26/jesus-or-jail-alabama-town-offers-options-for-serving-time/?hpt=hp_t2

Headline and first paragraph:

Jesus or jail? Alabama town offers options for serving 
time

If you're charged with a nonviolent crime in one Alabama town, you might just 
have the chance to pray it all away.
Starting this week, under a new program called Operation ROC (Restore Our 
Community), local judges in Bay Minette, Alabama, will give those found guilty 
of misdemeanors the choice of serving out their time in jail, paying a fine or 
attending church each Sunday for a year.


James Edward Maule
Professor of Law
Villanova University School of Law
ma...@law.villanova.edu
http://vls.law.villanova.edu/prof/maule


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RE: The End of NY's Kosher Inspectors

[Finkelman, Paul]

Didn't New York City have them in the early 19th century?


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Wednesday, January 05, 2011 5:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The End of NY's Kosher Inspectors

The first permanent Kosher law was enacted in NY in 1917 to combat what was 
then rampant an open fraud in the sale of kosher meat( Its constitutionality 
against a due process vagueness challenge was upheld by the US Supreme Court.). 
I summarized this history in an article I wrote in the journal Judaism about 15 
years ago ,but it is not available on line.(Kent Greenawalt wrote something 
subsequently.) There is also a good but hard to get book on the subject whose 
name   I would have to dig out. More recently, the New York, New Jersey, 
Maryland (Baltimore) and Georgia laws were invalidated because they allowed the 
state to decide a religious question-was the food kosher. Now all states work 
on the basis of mandatory disclosure statements and the inspectors simply 
police the presence and accuracy of those statements.

Marc D. Stern
Associate General Counsel
for Legal Advocacy

ste...@ajc.org
212.891.1480
646.287.2606 (cell)

[cid:image001.jpg@01CBAD00.B7E2CB10]<http://www.ajc.org/>


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From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul 

Sent: Wednesday, January 05, 2011 05:21
To: Law & Religion issues for Law Academics
Subject: RE: The End of NY's Kosher Inspectors

I once knew a lot about this; but that was years ago; I am at the  AALS meeting 
now and can't access information. There is an essay on Kosher inspection laws 
in Religion and American Law:  An Encyclopedia (Routledge [formerly Garland] 
1999), which I edited. The laws date from the early 19th century, I believe


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Wednesday, January 05, 2011 4:00 PM
To: Law & Religion issues for Law Academics
Subject: The End of NY's Kosher Inspectors

According to the story below, NY has decided to nix its Kosher inspectors as a 
way of spending money.  Does anyone know the details (and citation) for the 
2004 case mentioned in the article?  Also, I am wondering what precisely the 
inspectors after the decision.  Finally, does anyone know why the inspectors 
were set up in the first place?  Why wasn't the issue simply solved by having 
private kosher audits by reputable bodies?  The idea of a state Kosher 
inspector just seems perverse and unnecessary to me.  What am I missing?

http://online.wsj.com/article/SB10001424052748704735304576058100916662270.html?mod=WSJ_hps_sections_newyork

Nathan B. Oman
Associate Professor
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919

"I beseech you, in the bowels of Christ, think it possible you may be 
mistaken." -Oliver Cromwell
<>___
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RE: The End of NY's Kosher Inspectors

[Finkelman, Paul]

I once knew a lot about this; but that was years ago; I am at the  AALS meeting 
now and can't access information. There is an essay on Kosher inspection laws 
in Religion and American Law:  An Encyclopedia (Routledge [formerly Garland] 
1999), which I edited. The laws date from the early 19th century, I believe


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Wednesday, January 05, 2011 4:00 PM
To: Law & Religion issues for Law Academics
Subject: The End of NY's Kosher Inspectors

According to the story below, NY has decided to nix its Kosher inspectors as a 
way of spending money.  Does anyone know the details (and citation) for the 
2004 case mentioned in the article?  Also, I am wondering what precisely the 
inspectors after the decision.  Finally, does anyone know why the inspectors 
were set up in the first place?  Why wasn't the issue simply solved by having 
private kosher audits by reputable bodies?  The idea of a state Kosher 
inspector just seems perverse and unnecessary to me.  What am I missing?

http://online.wsj.com/article/SB10001424052748704735304576058100916662270.html?mod=WSJ_hps_sections_newyork

Nathan B. Oman
Associate Professor
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919

"I beseech you, in the bowels of Christ, think it possible you may be 
mistaken." -Oliver Cromwell
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RE: Avitzur

[Finkelman, Paul]

thanks


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Monday, January 03, 2011 11:14 PM
To: Law & Religion issues for Law Academics
Subject: Re: Avitzur
Importance: Low

The Ketubah at issue in Aviztur provided (in the English version): "[W]e, the 
bride and bridegroom * * * hereby agree to recognize the Beth Din of the 
Rabbinical Assembly and the Jewish Theological Seminary of America or its duly 
appointed representatives, as having authority to counsel us in the light of 
Jewish tradition which requires husband and wife to give each other complete 
love and devotion, and to summon either party at the request of the other, in 
order to enable the party so requesting to live in accordance with the 
standards of the Jewish law of marriage throughout his or her lifetime. We 
authorize the Beth Din to impose such terms of compensation as it may see fit 
for failure to respond to its summons or to carry out its decision."

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

From: "Finkelman, Paul 
mailto:paul.finkel...@albanylaw.edu>>" 
mailto:paul.finkel...@albanylaw.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Mon, 3 Jan 2011 19:36:35 -0800
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Avitzur

I am in California for AALS and can't dig out Avitzur; but if I recall 
correctly (and please, someone correct me if i am wrong); but Ithought that the 
case involved in the enforcement of the N Y Get law (which is of dubious 
constitutionality) which requires a man who is the moving party in a Orthodox 
of Conservative Jewish divorce to give the wife a get (a Jewish divorce 
document) and that it is not based on anything in the Ketubah (the Jewish 
marriage Contract).  Please clarify, if you can, or correct me if I am wrong.  
There is no such thing as "Lieberman" clause in a traditional Ketubah (after 
all, there were no Liebermans around at the time). So again, perhaps I am 
misremembering and this was not a traditional Ketubah but some modernized 
contract


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com
___
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Avitzur

[Finkelman, Paul]

I am in California for AALS and can't dig out Avitzur; but if I recall 
correctly (and please, someone correct me if i am wrong); but I thought that 
the case involved in the enforcement of the N Y Get law (which is of dubious 
constitutionality) which requires a man who is the moving party in a Orthodox 
of Conservative Jewish divorce to give the wife a get (a Jewish divorce 
document) and that it is not based on anything in the Ketubah (the Jewish 
marriage Contract).  Please clarify, if you can, or correct me if I am wrong.  
There is no such thing as "Lieberman" clause in a traditional Ketubah (after 
all, there were no Liebermans around at the time). So again, perhaps I am 
misremembering and this was not a traditional Ketubah but some modernized 
contract


--

Paul Finkelman
President William McKinley Distinguished Professor of Law and Public  Policy
Albany Law School
80 New Scotland Avenue
Albany, NY  12208-3494

518-445-3386 (o)
518-445-3363 (f)

www.paulfinkelman.com

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Monday, January 03, 2011 9:23 PM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan 
arbitration agreement?


I think the 1983 New York Court of Appeals decision in Avitzur v. Avitzur, 446 
NE2d 136 is relevant to this discussion. There a court enforced the so-called 
"Lieberman clause" in a Jewish marriage contract (Ketubah) which bound the 
parties to appear before a Jewish religious court so the wife could obtain a 
religious divorce once the parties were divorced civilly.  The New York court 
enforced the agreement over Establishment Clause objections, saying:

"In short, the relief sought by plaintiff in this action is simply to compel 
defendant to perform a secular obligation to which he contractually bound 
himself. In this regard, no doctrinal issue need be passed upon, no 
implementation of a religious duty is contemplated, and no interference with 
religious authority will result. Certainly nothing the Beth Din can do would in 
any way affect the civil divorce. To the extent that an enforceable promise can 
be found by the application of neutral principles of contract law, plaintiff 
will have demonstrated entitlement to the relief sought."

Howard Friedman

-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan
Sent: Mon 1/3/2011 6:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators, pursuant toan 
arbitration agreement?

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

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

Alan Brownstein




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

I wrote:


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

Nathan Oman writes:

Why say that the government is discriminating on the basis of religion if it is 
simply apply neutral principles of contract law.  I understand that there is a 
question as to whether the contract can be enforced usin

RE: Religious arbitration

[Finkelman, Paul]

Eugene:

I do not think there is a "witness" limitation for a Bet Din.  Only observant 
Jewish men can serve on an orthodox bet din -- a reform or conservative bet din 
is more flexible


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, November 11, 2010 12:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious arbitration

I'm not sure whether 42 USC 1981 would apply to arbitral tribunals' 
decisions about which witnesses to consider; but if it does, I wonder how it 
would apply to Beth Dins.  As I understand it, certain kinds of witnesses 
before those tribunals must be adult, male, Sabbath observing Jews.  That is an 
age, sex, and religion classification, but also, I take it, an ethnic 
classification:  A Sabbath-observing child of a Jewish mother would qualify, 
but a Sabbath-observing child of a non-Jewish mother would not qualify, unless 
he had converted in a way that the tribunal accepts -- and this is so even if 
the actual religious beliefs of the two people were identical.  And as I 
understand it "race" in 42 USC 1981 & 1982 has been interpreted (consistently 
with late 1800s practice) to include ethnicity.

Eugene

Michael Masinter writes:

> The question seems as likely to arise when one party to the agreement
> seeks a judicial rather than an arbitral forum, the other party moves
> to compel arbitration, and the suing party opposes enforcement of the
> arbitration clause on the ground that the arbitral procedure, as
> structured, is unconscionable or otherwise unenforceable.  See the
> briefs and argument in AT&T Mobility, LLC v. Concepcion, recently
> argued in SCOTUS for a discussion of whether courts may on
> unconscionability grounds refuse to enforce arbitration agreements.
> http://www.scotusblog.com/case-files/cases/att-mobility-v-concepcion/
>
> I think the more interesting question is whether a court must decline
> to enforce the agreement, since the answer would seem to have a great
> deal to do with the state action doctrine in its application to the
> equal protection rights of excluded witnesses.  Were the witness
> exclusion racially based, 42 USC 1981 (a) likely would make it
> judicially unenforceable without regard to the resolution of the state
> action question, but although race is broadly construed under section
> 1981, its provisions have never been construed to reach sex
> discrimination.
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messages to others.

RE: Evaluating candidates based on their religious views

[Finkelman, Paul]

Is there a differenced between a stated "belief" and an assertion of scientifc 
fact or accepted knowledge?  Or is this too fine a point.  Is there a 
difference between "belief" and "action."  In another context a store clerk 
says, "I believe unmarried people should not have sex" but that it would not 
stop me from ringing up condoms at the checkout counter for people who I know 
are unmarried.  Of the assistant DA says, "I belive Playboy is immoral and 
obscence" but as and Assitant DA I will not try to bring a grand jury 
indictment against the store selling it because the courts have ruled otherwise.

I am not sure if we can frame this distinction here -- between the "belief" 
that dinasaurs and humans "roamed the earth" togetherand acceptance of the 
reality that no scientist in the world thinks this statement of "belief" can be 
supported by any scientific evidence?

Alternatively, if someone "believes" something that is clearly not true -- such 
as 2+2 equals 3 -- does that belief indicate that they person is incapable of 
making rational decisions based on available evidence.  If that is so, then Mr. 
Foster should not be appointed to an office of public trust because he is not 
capable of making a rational decision based on available evidence.  He is not 
then being punished for his religous belief but for his inability to think and 
use evidence to decide issues that come before him.

Let me offer a hypo on this.  A person who believes dinasaurs and humans roamed 
the earth and decides issues accoringly is in charge of the  public parks.  In 
excavating for a part a dinasaur skeleton is uncovered.  The man stops all 
excavation and bans paleontologists from examining the find because he 
"believes" it may also distrub human graves or human remains which could be 
with the dinasaur bones.

Tongiht I will celebrate the "Birthday of the World" as 5770.  I "believe" that 
world according to the Jewish calendar is 5770 years old.  I know that in the 
scientific world this simply not so. I might "believe" the first; I will act on 
the second.  If Mr. Foster can do that then he could be appointed to office; 
otherwise not.


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu
www.paulfinkelman.com
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Friday, September 18, 2009 12:34 PM
To: 'Law & Religion issues for Law Academics'
Subject: Evaluating candidates based on their religious views

   Here’s a story that gives a concrete example related to our 
earlier discussion.  This one involves a candidate for election, and I assume 
that there’s no constitutional prohibition (judicially enforceable or not) on 
voters considering anything they please about this candidate.

But say that Mr. Foster was being considered for appointment to a position of 
roughly the prominence, authority, or duty of a mayor.  (Say, for instance, 
that state law provided for the city council to appoint a mayor pending a new 
election when the elected mayor dies in office.)  Would there be a 
constitutional problem – again, whether or not a judge could do anything about 
it – with the appointing or confirming officials’ considering Mr. Foster’s 
views in making the decision?  Could the officials properly only consider his 
views to the extent that he has specific scientific responsibilities, or could 
they also consider those views as (1) evidence of his general reasonableness, 
or (2) relevant to likely public perceptions of the city?

   Eugene


http://www.tampabay.com/news/politics/can-bill-fosters-creation-beliefs-evolve-into-valid-issue-in-st-petersburg/1036480

In an interview at his law office, [St. Petersburg mayoral candidate Bill 
Foster] talked about some of his beliefs and refused to talk about others.

"Dinosaurs are mentioned in 
Job, so I don't 
have any problem believing that dinosaurs roamed the earth,'' he said, 
referring to the book of Job, which mentions the "behemoth." He said he 
believes dinosaurs and humans lived at the same time, though most scientists 
say there is a gap of at least 60 million years between dinosaurs and 
mankind.

"If you look at all the data that are out there … they all support the theory 
of evolution,'' said Peter Harries, an associate professor of 
paleontology at the University of South 
Florida. "The only way the theory of evolution

RE: Ireland Charities Act 2009: Regulating the Sale of Catholic 'Mass Cards'

[Finkelman, Paul]

Probably so unconstitutional that it would not even be a good exam question.  
It is also an incredible threat to free exercise.  Who would want the state 
telling the church how to run its business?  


*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pf...@albanylaw.edu
www.paulfinkelman.com
*

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [layco...@umich.edu]
Sent: Tuesday, August 04, 2009 8:48 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Ireland Charities Act 2009: Regulating the Sale of Catholic
'Mass Cards'

Unconstitutional.  There is an analogous line of US cases on the sale of food 
labeled as kosher but not kosher in accordance with government standards.  All 
struck down.  If there's a fraud problem, the government can require the label 
to say who certified the food as kosher.  That is a question that can be 
answered in this world.  But government can't decide for itself what counts as 
kosher, or designate a particular rabbi or association as the only approved 
certifying agent.

The sale of Mass cards sounds like the same problem.  The state could require 
disclosure of who authorized the Mass card.  Or a disclosure of whether and how 
the priest who signed the Mass card will be informed of the sale and of who 
purchased the card.  Those are verifiable facts.  But the state can't decide 
that only a bishop or a head of an order can authorize the sale of Mass cards.  
That's a matter of internal church governance.

Quoting Mairead Enright :

> Dear All,
> A colleague and I hoping to write a short article on s. 99 of the Irish
> Charities Act, 2009  (
> http://www.oireachtas.ie/documents/bills28/acts/2009/a0609.pdf).  The
> section regulates the sale of Catholic Mass cards. A Mass card is a greeting
> card given to someone to let them know that they, or a deceased loved-one,
> will be remembered and prayed for by a priest during a Catholic Mass. The
> person who purchases the card makes a donation to the church in exchange for
> the Mass and Mass cards are a significant source of revenue to Irish
> churches. Ordinarily, the card is signed by the priest who will say the
> Mass, at the time that the Mass is requested. However, in recent years,
> controversy has arisen regarding the sale of pre-signed Mass cards in
> ordinary shops (
> http://www.irishtimes.com/newspaper/weekend/2009/0307/1224242428583.html).
> Section 99 of the new Charities Act provides that a person who sells a Mass
> card ?other than pursuant to arrangement with a recognised person? is guilty
> of a criminal offence. A ?recognised person? is defined as a bishop of the
> church, or the head of an order recognised by it. In any proceedings it will
> be presumed, unless proved to the contrary, that an offence has been
> committed.
>
> We were wondering whether one of the subscribers to this list might be
> willing - for fun - to venture an opinion on what the position of this
> section might be under U.S. constitutional law. Information on analogous
> U.S. cases would also be useful. A former Irish Attorney General has
> suggested that the legislation falls foul of the Irish constitution because
> (1) it is disproportionate to the aim sought to be achieved and (2) it
> represents
> a serious interference with the religious practice of some priests and
> others who are members of non-Catholic churches.
>
> The relevant section reads:
>
> 99.?(1) A person who sells a Mass card other than pursuant to an
> arrangement with a recognised person shall be guilty of an offence
>
> (2) In proceedings for an offence under this section it shall be
> presumed, until the contrary is proved on the balance of probabilities,
> that the sale of the Mass card to which the alleged offence relates
> was not done pursuant to an arrangement with a recognised person.
>
> (3) In this section?
> ?Church? means the Holy Catholic Apostolic and Roman Church;
> ?Mass card? means a card or other printed material that indicates, or
> purports to indicate, that the Holy Sacrifice of the Mass (howsoever
> described) will be offered for?
> (a) the intentions specified therein, or
> (b) such intentions as will include the intentions specified
> therein;
> ?priest? means a priest ordained according to the rites of the Church;
> ?recognised person? means?
>
> (a) a bishop of the Church, or
> (b) a provincial of an order of priests established under the
> authority of, and recognised by, the Church;
> ?sell? includes, in relation to a Mass card, offer or expose the card
> for sale or invite the making by a person of an offer to purchase
> the card.
>
>
> Many thanks,
>
> Mairead Enright.
>
> --
> Máiréad Enright
> IRCHSS Scholar in Gender