Religion Clause Blog

[Friedman, Howard M.]

Just to let you know that Religion Clause blog is back after a hiatus.

Howard Friedman
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Title IX Guidance Withdrawal

[Friedman, Howard M.]

I believe there is a greater amount of legal ambiguity than the media is 
suggesting in the wake of today's Joint Letter withdrawing Obama 
Administration's Guidance on transgender rights under Title IX. See 
http://religionclause.blogspot.com/2017/02/trump-administration-withdraws-obama.html
Links to the primary source documents are there too.

Howard Friedman
Religion Clause blog
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Gorsuch On Religion Issues

[Friedman, Howard M.]

I have just posted a summary of SCOTUS nominee Neil Gorsuch's opinions in 
church-state and religious liberty cases.
http://religionclause.blogspot.com/2017/01/judge-gorsuchs-record-on-religious.html

I would appreciate learning of other of his decisions in this area that I have 
missed.

Howard Friedman
Religion Clause Blog

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Cert Granted Today In ERISA Church Plan Cases

[Friedman, Howard M.]

http://religionclause.blogspot.com/2016/12/supreme-court-grants-cert-in-3-erisa.html
  At issue is billions of dollars of potential retirement plan underfunding for 
religiously affiliated hospitals and similar organizations.
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Supreme Court grants cert in transgender bathroom case

[Friedman, Howard M.]

http://religionclause.blogspot.com/2016/10/supreme-court-grants-review-in.html
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RE: Risk of job loss to employees who avail themselves of contraception?

[Friedman, Howard M.]

I agree that there have been few if any cases so far of firings for using 
contraceptives. Ironically there have been firings for becoming pregnant out of 
wedlock-- if you will, for NOT using contraceptives.  However past experience 
has shown that as these things become public issues, religious employers tend 
to raise questions about practices they overlooked before.  Before the dust-up 
over the Obamacare contraceptive mandate, a number of employers who now object 
to the mandate were carrying insurance that covered contraceptives.  But that 
became a position difficult to maintain once a spotlight was placed on it.  
Since some methods of contraception (certain IUD's for example, as well as 
emergency contraception) are seen by objectors as abortifacients, it may well 
be difficult for those attempting to maintain religious purity to overlook 
employee use of these.  And particularly for objectors who do not oppose 
artificial contraception that always operates before fertilization (i.e. which 
are not seen as abortifacients), the privacy issue becomes more salient.  For 
then the employer will not only need to discover whether the employee is using 
contraceptives, but will need to determine which kinds they are using. That is 
certainly an unacceptable privacy invasion.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Laycock, H Douglas (hdl5c) [hd...@virginia.edu]
Sent: Thursday, August 25, 2016 9:44 AM
To: Law & Religion issues for Law Academics
Subject: RE: Risk of job loss to employees who avail themselves of 
contraception?

I doubt that any one has first-hand knowledge. But I will offer two 
suppositions with reasonably high confidence.

First, the insurer paying for contraception directly should have no greater 
confidentiality risk than the insurer paying through the insurance plan. I 
doubt that a second insurance policy would be any different, but the government 
has strongly resisted that in any event.

Second, I have never heard of a religious employer firing someone for using 
contraception. If they started doing that, who would they have left? They 
couldn’t staff their facilities. I have heard about firings over in vitro 
fertilization (where the Church believes that discarded embryos are human 
beings who are killed), and over same-sex marriages. But not over 
contraception. My failure to hear about it doesn’t mean it’s never happened. 
But it is surely rare.

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 Case, Mary Anne
Sent: Wednesday, August 24, 2016 11:24 PM
To: Law & Religion issues for Law Academics 
Subject: Risk of job loss to employees who avail themselves of contraception?

As the quixotic quest for less restrictive alternatives to the contraception 
mandate accommodation proposed by the Obama Administration continues, am I 
right to think that, from the perspective of the employee contraceptive users, 
a concern has to be confidentiality because, to the extent their employer is a 
religious non-profit opposed to contraception, they risk being fired should it 
become known they are, through their use of contraceptives, not living up to 
the tenets of their employer’s religion?  I have seen no explicit discussion of 
the effect of a less seamless coverage (for example through a separate policy 
or card such as favored by Justice Alito in oral argument) on confidentiality.  
Is there one? And if there is not one, is that because a) confidentiality can 
be legally and practically assured to the same extent in any event or b) 
because, to the extent it is legal to require these employees to abide by 
Church prohibitions on contraception, factoring into the feasibility of an 
alternative to the accommodation the degree to which the alternative 
facilitates deceiving the employer is not something that can openly and 
properly be discussed?Please forgive my ignorance if the answers to these 
questions are obvious.
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New RFRA Opinion

[Friedman, Howard M.]

The Armed Forces Court of Appeals handed down an interesting RFRA decision 
yesterday-- with an extensive discussion of the "substantial burden" prong as 
well as some other unique issues:
http://religionclause.blogspot.com/2016/08/armed-forces-court-of-appeals.html

Howard Friedman
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Posts On Republican Convention

[Friedman, Howard M.]

For those following the Republican Convention closely, I have a series of posts 
today on Religion Clause http://religionclause.blogspot.com/ setting out the 
text of Platform planks on issues of religious liberty and moral values, as 
well as a post listing all those offering invocations and benedictions at 
Convention sessions.

Howard Friedman
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RE: Mississippi AG Hood declines to appeal adverse decision on HB1523

[Friedman, Howard M.]

By the way, even though the AG will not appeal,  the Governor has filed a 
notice of appeal so that the case will presumably move forward with the 
citizens of Mississippi paying a private law firm to carry the ball. Or perhaps 
an attorney in the governor's office will pursue the appeal, since that is who 
signed the notice of appeal.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Saturday, July 16, 2016 3:54 PM
To: Law & Religion issues for Law Academics
Subject: Re: Mississippi AG Hood declines to appeal adverse decision on HB1523

In his statement, the AG indicates that one of his two reasons for not 
appealing is that HB 1523 "did not change state or federal law" and, thus, is 
an "empty bill." However, while it is true that MS does not have a statewide 
LGBT rights law that would be affected by HB 1523, the city of Jackson recently 
enacted an LGBT rights ordinance that would be affected, as HB 1523 defines 
"state government" to include "a political subdivision of the state."

The conflict was highlighted by one of the attorneys challenging HB 1523 a 
month ago:

"Jackson lawyer Rob McDuff, who is challenging Mississippi's House Bill 1523, 
said the amended ordinance contrasts with the state's pending religious freedom 
law. 'One problem with 1523 is that it limits, in some situations, the legal 
protection that people have against discrimination,' McDuff said Wednesday. 
"This is illustrated by the Jackson city ordinance we just passed. 'The city of 
Jackson has a right to prohibit discrimination within the city limits, and 1523 
threatens to diminish that protection.'"

http://www.clarionledger.com/story/news/local/2016/06/14/jackson-council-passes-anti-discrimination-provision/85903510/

The second reason the AG gives for not appealing is his opposition to 
"discriminating against" "one segment of our population." This is where he 
invokes "Jesus' primary directives."

I think the AG would be on firmer ground if he instead (or at least in 
addition) invoked the Equal Protection Clause when making that second point.

- Jim


On Thu, Jul 14, 2016 at 8:47 AM, Michael Worley 
<mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote:
(of course, I think he should have appealed, but that is another story)

On Thu, Jul 14, 2016 at 9:45 AM, Michael Worley 
<mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote:
Thank you.  This is what I thought you meant, and it is internally consistent 
with what I know of your view on such issues.

My personal position is that he could have conveyed the same message in a way 
that served good purposes-- calming religious tensions-- without using the 
reasoning as part of his core decisions.

On Thu, Jul 14, 2016 at 9:39 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
Michael:  Thank you for asking.  Of course I have no objection to protecting 
the least among us, let alone to the Golden Rule.  Those are wonderful 
aspirations and guides to behavior, and they might even appropriately be 
considered in government decision-making, including even in deciding when to 
concede a lawsuit.  But this is a case of an Attorney General publicly 
suggesting that an official decision of his was made by virtue of "Jesus's 
directive."  And in an Establishment Clause case, at that!

I don't think it is necessarily unconstitutional for a state official to make 
decisions based upon injunctions of religious authorities (or, at least, that's 
not typically justiciable); but I do think it is inappropriate to publicly 
invoke such religious authority in explaining the basis for one's action on 
behalf of the state.  I've been involved in many such decisions, and can't 
imagine any government official so much as proposing to invoke Jesus's 
authority as the basis for an appeal decision, let alone actually announcing it.

If, however, my reaction is not universally shared (or my experiences are 
less-than-universal), please feel free to ignore the final word of my post -- 
suffice it to say that, at a minimum, an AG invoking Jesus certainly is 
noteworthy, whatever one thinks of its propriety.

[https://ssl.gstatic.com/ui/v1/icons/mail/images/cleardot.gif]
On Thu, Jul 14, 2016 at 11:05 AM, Michael Worley 
<mwor...@byulaw.net<mailto:mwor...@byulaw.net>> wrote:
Marty, I, for one, would be curious what you meant by "sigh."

On Thu, Jul 14, 2016 at 8:47 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
He claims he didn't appeal because "I don’t believe that’s the way to carry out 
Jesus’ primary directives to protect the least among us and to love thy 
neighbor."

Sigh.

On Thu, Jul 14, 2016 at 10:44 AM, Friedman, Howard M. 
<h

RE: New Version of Proposed First Amendment Defense Act

[Friedman, Howard M.]

Issuing a strong statement, Mississippi's attorney general says he will not 
appeal Judge Reeves' decision
http://religionclause.blogspot.com/2016/07/mississippi-ag-will-not-appeal.html

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Masinter [masin...@nova.edu]
Sent: Wednesday, July 13, 2016 9:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Version of Proposed First Amendment Defense Act

Agreed.  Any language that might have extended protection to all religious 
beliefs about marriage also would have encompassed beliefs specific to Islam, 
and that would be a deal breaker for many FADA supporters and a large 
percentage of the republican caucus in the House.  Isn’t the entire exercise 
just political chumming?

Mike

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, July 13, 2016 7:37 PM
To: Law & Religion issues for Law Academics 
Subject: Re: New Version of Proposed First Amendment Defense Act

Agreed.

That said, Judge Reeves's concern about "religious preference" in HB 1523 went 
beyond the "one side of same-sex marriage" issue. See Reeves Op. at 50 ("Some 
Jewish and Muslim citizens may sincerely believe that their faith prevents them 
from participating in, recognizing, or aiding an interfaith marriage Why 
should a clerk with such a religious belief not be allowed to recuse from 
issuing a marriage license to an interfaith couple, while her coworkers have 
the full protections of HB 1523?"). To fully address Judge Reeves's concerns, I 
think the FADA sponsors would have had to expand protection to all religious 
beliefs about marriage. So extended, however, the bill would likely lose any 
chance it previously may have had of passing in the House.

The other dynamic I think is at work here is a tension between the priorities 
of (1) achieving protection of religious dissenters though exemption bills and 
(2) using exemption bills to resist Obergefell. FRC's statement indicates that 
there will be reluctance among some FADA supporters to sacrifice #2 to achieve 
#1.

- Jim


On Wed, Jul 13, 2016 at 3:52 PM, Michael Masinter 
> wrote:
The “both sides” language may be a response to Judge Reeves’ injunction against 
enforcement of Mississippi’s HB 1523.  Judge Reeves enjoined enforcement of HB 
1523 in part because, in his view, it created a discriminatory religious 
preference, protecting those who for religious reasons opposed same sex 
marriage but not those who for religious reasons favored it.  Although the 
state has appealed his ruling and sought a stay of his injunction pending 
appeal, some FADA proponents might have thought it wise to account for it lest 
it fail in the House even before facing certain death in the Senate.

Mike


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



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of James Oleske
Sent: Wednesday, July 13, 2016 6:29 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: New Version of Proposed First Amendment Defense Act

Update: The Family Research Council has pulled it's support of FADA due to the 
change described below.

https://www.frcaction.org/updatearticle/20160713/fada-concession

It's been a very interesting week for FADA, between the RNC Platform Committee 
endorsement Monday, the House hearing yesterday, and conflicting messages from 
its supporters today (Heritage has invoked the "both sides" aspect of the 
revised FADA to defend it, while that is precisely what has led FRC to withdraw 
its support of the bill).

- Jim


On Wed, Jul 13, 2016 at 8:47 AM, James Oleske 
> wrote:
In the wake of yesterday's hearing on the proposed First Amendment Defense Act 
(FADA), which now has 171 co-sponsores in the House, there has been some 
confusion about the text of the bill. I believe the source of this confusion is 
the fact that the version discussed at the hearing was neither (1) the 
introduced version of the bill, which is the only version available on 
Congress.gov nor (2) the revised version of the bill posted by Senator Lee last 
September, which limited the definition of protected "persons" to exclude 
federal employees working within the scope of employment, for-profit federal 
contractors operating within the scope of their contract, and medical providers 
with respect to issues of visitation and provision of care.

The version discussed at the hearing is available here:

Mississippi HB 1523 Struck Down

[Friedman, Howard M.]

Judge Reeves presented a robust defense of the Establishment Clause yesterday 
in striking down Mississippi's attempt to allow religion- and conscience-based 
discrimination against the LGBT community. More on Religion Clause 
http://religionclause.blogspot.com/2016/07/federal-district-court-strikes-down.html
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RE: Muhammad Ali, conscientious objection, and the Supreme Court’s struggle to understand “jihad” and “holy war”: The story of Cassius Clay v. United States

[Friedman, Howard M.]

Interestingly, just yesterday the European Court of Human Rights in a Chamber 
Judgement held that Article 9 (Freedom of thought, conscience and religion) of 
the European Convention on Human Rights does not protect a Turkish 
conscientious objector who would not agree to military service for the secular 
Republic of Turkey, but would serve under a system based on the Qur'an and 
subject to its rules.  
http://religionclause.blogspot.com/2016/06/european-court-says-turkish-objector.html

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Wednesday, June 08, 2016 9:37 AM
To: Law & Religion issues for Law Academics
Subject: Muhammad Ali, conscientious objection, and the Supreme Court’s 
struggle to understand “jihad” and “holy war”: The story of Cassius Clay v. 
United States

Thought this might be of interest to some on the List; among other things, it 
raises an interesting question about the substance of the statutory 
requirement, discussed in Gillette, that a C.O. had to be opposed to 
participation in war "in any form"--namely, whether it encompasses someone 
(Ali) who was, in theory, willing to fight in a "holy war" in the unlikely 
event God called him to do so.

http://www.scotusblog.com/2016/06/muhammad-ali-conscientious-objection-and-the-supreme-courts-struggle-to-understand-jihad-and-holy-war-the-story-of-cassius-clay-v-united-states/
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4th Circuit on school rest rooms

[Friedman, Howard M.]

The 4th Circuit today deferred to DOE's interpretation of its own rules and 
held that Title IX requires schools to allow rest room use on basis of gender 
identity. More at Religion Clause:   
http://religionclause.blogspot.com/2016/04/4th-circuit-title-ix-requires-school.html

Howard Friedman
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RE: FSM not recognized as a religion for 1st Amendment purposes

[Friedman, Howard M.]

Civil marraige?
http://www.theguardian.com/world/2016/apr/18/worlds-first-pastafarian-wedding-takes-place-in-new-zealand


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Steven Jamar [stevenja...@gmail.com]
Sent: Monday, April 18, 2016 9:18 AM
To: Law & Religion issues for Law Academics
Subject: FSM not recognized as a religion for 1st Amendment purposes

http://www.atlasobscura.com/articles/pastafarianism-is-still-not-a-legally-recognized-religion-in-the-united-statesyet?utm_medium=email_source=digg

I don’t know, a good wine with friends and pasta can be a religious experience 
for some people, I think.  :)

Steve

--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

"I don't know whether the world is full of smart men bluffing
or imbeciles who mean it."
-- Morrie Brickman

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501c3 and Donald Trump

[Friedman, Howard M.]

Some of Donald Trump's anti-Muslim statements and some of his statements about 
women have triggered responses from a variety of individuals and groups.  It 
appears to me that at least some of the groups expressing concern through press 
releases and blog postings about Trump's language are 501(c)(3)'s.  How can 
they issue these statements consistent with the Internal Revenue Code's ban on 
electioneering by non-profits?  What am I missing?

Howard Friedman
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Garland's Religious Liberty Caselaw

[Friedman, Howard M.]

Chief Judge Merrick Garland hasn't had much to say about religion clause 
issues, but I have tracked what is there at 
http://religionclause.blogspot.com/2016/03/obamas-nominee-to-supreme-court-has.html
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Zubik and Pope Francis on Contraception

[Friedman, Howard M.]

News reports say that Pope Francis at a new conference in Mexico said that 
contraceptives may be used in the case of mothers who may be trying not to get 
pregnant because of the Zika virus.  He is quoted as saying that "avoiding 
pregnancy is not an absolute evil."  Should this affect the Court's view of the 
complicity-substantial burden argument in Zubik and the other cases being 
reviewed along with it.  for example, the Priests For Life cert petition 
asserted:

"The Gospel of Life is an expression of the Catholic Church’s position and 
central teaching regarding the value and inviolability of human life. 
Contraception, sterilization, and abortifacients are contrary to this teaching, 
and their use can never be approved, endorsed, facilitated, promoted, or 
supported in any way."

Or are the Pope's views on this irrelevant to the substantial burden argument 
if Priests for Life disagree with those views?

Howard Friedman


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RE: Excluding religious institutions from public safety benefits

[Friedman, Howard M.]

Note that the federal government is already making grants to houses of worship 
under the Department of Homeland Security's Nonprofit Security Grants program 
to strengthen security safeguards at nonprofit institutions that are 
particularly likely to be the targets of terror attacks. Apparently funded at 
$20 million in latest budget bill. In the past, a number of synagogues have 
received grants.

More broadly, does anyone think that with 6 Catholic justices on the Court 
there is a possibility that the Court might use the Trinity Lutheran case to 
find state Blaine Amendments unconstitutional because of the anti-Catholic 
sentiment that originally motivated their passage in many states?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, January 16, 2016 6:25 PM
To: Law & Religion issues for Law Academics
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 
free to say that “play in the joints” lets it deny all those safety grants 
(otherwise generally available to all other institutions) to religious 
institutions?

Eugene

Chip writes:

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, January 16, 2016 12:14 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Excluding religious institutions from public safety benefits

Neither Eugene's or Alan's questions invite quick or easy answers, but here's a 
start:

1.  Eugene's examples all involve health and safety. None can be diverted to 
religious use; all make religious use, and all other uses of the property, 
healthier or safer.  Compare Mitchell v. Helms -- in-kind aid to schools, 
public and private, in poor areas.  The aid included things like computers, 
books, AV equipment, etc.  Plurality said that neutral distributional criteria 
(public and private schools, no sectarian discrimination) is all you need.  
Dissent said divertibility of aid to religious use is fatal.  Controlling 
opinion, SOC-SB, said the Establishment Clause concern is actual diversion, not 
divertibility, so the program is OK because it contains adequate (and 
non-entangling) safeguards against religious use. That is the Establishment 
Clause right now.

Trinity Lutheran Church seems to me to fall between Eugene's examples and 
Mitchell.  The playground will be safer for play, but it will also be more 
useable as space for worship and religious instruction.  Improving the 
playground sufficiently would be (imperfectly) analogous to adding a new 
classroom to a religious school.  Divertible to religious use -- without 
safeguards, unconstitutional.  Missouri could reasonably conclude that a grant 
to churches and church schools for playground surfaces would require safeguards 
that would indeed entangle the church and the state (how do you enforce the 
restriction on religious instruction on the playground in a pre-school?)  So, 
whether or not the grant would ultimately violate the First Amendment, it would 
present a problem of direct government support for religious instruction, and 
Missouri wants to avoid that federal and state constitutional 

Cert Granted in Blaine Amendment case

[Friedman, Howard M.]

SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman
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RE: Research Queries

[Friedman, Howard M.]

Here is some evidence.  If you search WorldCat for Harvard Law Review, it 
indicates that it is held by 1611 different libraries. Somebody besides law 
schools must think at least some legal research is important.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Steven Jamar [stevenja...@gmail.com]
Sent: Tuesday, December 29, 2015 1:10 PM
To: Law Religion & Law List
Subject: Re: Research Queries

I didn’t think we had respect within our discipline or influence within our 
discipline through law reviews generally!  :)

On Dec 29, 2015, at 11:33 AM, Conkle, Daniel O. 
> wrote:

A colleague of mine, who is working on an interdisciplinary book, has asked me 
for ideas on the following:

First, to reply to the criticism that law reviews are not respected by other 
disciplines, I am searching for examples of important scholarship published in 
law reviews by social scientists, historians or religion scholars rather than 
academic lawyers. Second, to reply to the criticism that legal scholars have no 
influence outside their discipline, I am searching for examples where social 
scientists, historians or religion scholars have recognized the contribution to 
knowledge in their fields made by legal scholars with no additional credentials.

If anyone has thoughts that I might pass along to him, please let me know, 
off-list.  Thanks in advance.

Dan

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


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--
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

"I have nothing new to teach the world. Truth and nonviolence are as old as the 
hills."

Gandhi





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RE: North Carolina Magistrate Law

[Friedman, Howard M.]

Interestingly, one of the couples acting as plaintiffs are not a same-sex 
couple, but instead a heterosexual, blind, interracial couple who sued 
successfully in 1976 after two North Carolina magistrates refused on religious 
ground to perform their marriage.

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Walsh, Kevin [kwa...@richmond.edu]
Sent: Wednesday, December 09, 2015 3:18 PM
To: religionlaw@lists.ucla.edu
Subject: Re: North Carolina Magistrate Law

It looks like the sole named defendant is the State of North Carolina and a 
quick text search for “abrogate” or “consent” did not turn anything up. Am I 
overlooking something, or should we expect to see easy dismissal on sovereign 
immunity grounds absent the inclusion of a state official defendant?

Kevin
From: Anthony Michael Kreis >
Reply-To: Law & Religion List 
>
Date: Wednesday, December 9, 2015 at 10:25 AM
To: Law & Religion List 
>
Subject: North Carolina Magistrate Law

FYI: Same-sex couples backed by local LGBT rights organizations filed a 
complaint this morning in federal court challenging the NC magistrate exemption 
law that the legislature enacted this year.

http://s3.documentcloud.org/documents/2644126/001-NC-complaint-against-marriage-recusal-law.pdf

Anthony Michael Kreis, J.D.
University of Georgia
School of Public & Int'l Affairs
Sent from my iPhone
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RE: State RFRAs and their equivalents

[Friedman, Howard M.]

There is also an excellent tracker for enacted and pending state RFRA's at Don 
Byrd's Blog from the Capital: http://bjconline.org/state-RFRA-tracker-2015/ It 
is kept updated.  It does not however cover the state constitutional part.

Howard Friedman


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Saturday, December 05, 2015 3:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: State RFRAs and their equivalents

In addition to Doug's piece, this March 2014 post from Eugene has a map and 
comprehensive legend covering both RFRAs and state constitutional provisions 
that have been interpreted as providing exemption rights:

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/religious-exemptions-a-guide-for-the-confused/

Mississippi, Indiana, and Arkansas have since adopted RFRAs. I don't know if 
any additional states have interpreted their constitutions to require 
exemptions since March 2014, but Washington State's Supreme Court will soon be 
hearing a case (the florist/same-sex marriage case) in which it will be called 
upon to apply the state's constitutional provision on religious freedom. 
Although Eugene has Washington listed in the constitutional "strict scrutiny" 
category, and although the Washington Supreme Court has continued to use 
"compelling interest"/"narrow means" language, it has also used 
"reasonableness" language, which has muddied the waters. See City of 
Woodinville v. Northshore United Church of Christ, 211 P.3d 406, 410 n.3 (2009) 
("Of course, the government may require compliance with reasonable police power 
regulation.").

- Jim


On Sat, Dec 5, 2015 at 10:02 AM, Douglas Laycock 
> wrote:
I collect these in my Illinois piece, in footnotes in the 20s. Indiana and 
Arkansas have been enacted since.

On Sat, 5 Dec 2015 12:16:12 -0500
 Marty Lederman > 
wrote:
>Is there a reliable, up-to-date list of state RFRAs and state
>constitutional provisions that have, more or less, been construed to
>incorporate Sherbert/Yoder?  I know that many are compiled in Chris's 2010
>article.  Anything more recent?
>
>Thanks in advance.

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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Cert Granted in Non-Profit Contraceptive Mandate Cases

[Friedman, Howard M.]

The Supreme Court today granted review in 7 cases challenging the Affordable 
Care Act contraceptive mandate accommodation for religious non-profits. More at 
http://religionclause.blogspot.com/2015/11/supreme-court-grants-review-in-7-cases.html

Howard Friedman
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RE: Cert Granted in Non-Profit Contraceptive Mandate Cases

[Friedman, Howard M.]

Nor did it grant review of the issue raised in Zubik that the narrow total 
exemption for houses of worship somehow divides the Catholic Church in 
violation of RFRA.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, November 06, 2015 4:27 PM
To: Law & Religion issues for Law Academics
Subject: Re: Cert Granted in Non-Profit Contraceptive Mandate Cases

Note that the Court did not grant on the discrimination-based questions.

More here:

http://balkin.blogspot.com/2015/11/court-grants-all-seven-nonprofit.html

Court grants all seven nonprofit petitions in contraceptive coverage cases, 
henceforth to be collectively referred to as "Zubik v. Burwell"

Marty Lederman

Today the Court decided not to 
decide<http://www.supremecourt.gov/orders/courtorders/110615zr_j4ek.pdf> among 
the seven petitions in the contraceptive cases--it granted (and consolidated) 
them all on the RFRA question.  The Court did not grant on the two questions 
alleging that the government has impermissibly discriminated among religious 
organizations, one of which (in Zubik) was nominally a RFRA question and the 
other of which (in Little Sisters) was framed as a First Amendment question.

The case will be argued some time between March 21 and March 30.  Presumably 
only one of the five counsel of record for petitioners will present oral 
argument--if I had to guess, it'll be Paul Clement or Noel Francisco.  (The 
Court itself ordinarily leaves it to the parties in such a situation to figure 
out a way to decide which counsel will argue.)  The Court has also asked the 
parties<http://www.scotusblog.com/wp-content/uploads/2015/11/14-1418-et-al.-RFRA-Briefing-Proposal-Request-Letter.pdf>
 "to submit a joint proposal for briefing on the merits that will keep the 
number of briefs to a minimum and avoid repetition of argument."  Therefore I 
don't think we should expect to see 400+ pages of party briefs topside and 200+ 
pages on reply.  The petitioners might even decide to submit a single, unified 
brief at each stage.

The decision of the Court will likely be captioned, and popularly referred to, 
as No. 14-1418, Zubik v. Burwell, which was the first of the petitions to be 
filed.

Compendium of posts on Hobby Lobby and related 
cases<http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html>

Posted 4:18 PM by Marty Lederman [link]
<http://balkin.blogspot.com/2015/11/court-grants-all-seven-nonprofit.html>

On Fri, Nov 6, 2015 at 2:38 PM, Friedman, Howard M. 
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote:
The Supreme Court today granted review in 7 cases challenging the Affordable 
Care Act contraceptive mandate accommodation for religious non-profits. More at 
http://religionclause.blogspot.com/2015/11/supreme-court-grants-review-in-7-cases.html

Howard Friedman

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3rd Circuit's Interesting Religious Discrimination Decision

[Friedman, Howard M.]

The 3rd Circuit yesterday issued rather remarkable majority and concurring 
opinions in Hassan v. City of New York refusing to dismiss Muslims' attack on 
NYPD's surveillance program.
http://religionclause.blogspot.com/2015/10/3rd-circuit-challenge-to-nypd-muslim.html
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RE: What's happening in KY? -- my differences with Eugene

[Friedman, Howard M.]

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know there 
was talk of a criminal prosecution, but it seems to have faded away.)  If she 
faces no civil or criminal burden under Kentucky law, then the state (and the 
County) have not burdened her religious exercise.  The burden all comes from 
enforcement of the federal Constitution, and state RFRA can't help her there.  
If and when the State or County come after her with threat of punishment or 
loss of job, RFRA might be her defense (but then she will be stuck with the 
issue of denying licenses to everyone; RFRA cannot help her with that.)



On Sat, Sep 5, 2015 at 3:42 PM, Arthur Spitzer 
> wrote:
Marty says: "Davis is not seeking for the court to give her a 
just-not-with-my-name-on-them accommodation --- something he has in fact just 
given her!"

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

Thanks,
Art Spitzer



Warning:  This email is subject to monitoring by the NSA.

On Sat, Sep 5, 2015 at 3:33 PM, Marty Lederman 
> wrote:
1.  I don't understand Kim Davis to claim "that God would view her issuing such 
licenses with her name on them as authorization."  I can't even imagine what 
that would mean:  That God has a view of when the appearance of a name on the 
"issued in" line of a state licensing form constitutes one human being 
"authorizing" another to perform a marriage?  That God has a view about the 
actual legal operation of Kentucky law?  Of course not.  Davis instead argues 
that she 

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

[Friedman, Howard M.]

It is often the case that forms issued by offices of state and local officials 
prominently display the name of the current office holder. My impression is 
that this is a way of creating name recognition for the next election. I would 
guess that many incumbent office holders think there is a compelling interest 
in having the office holder's name on the form-- though maybe it is not a 
compelling "governmental" interest.  And of course Ms. Davis has found another 
way to get name recognition for the next election.

Howard

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Saturday, September 05, 2015 7:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

   It would depend on whether there’s a compelling government 
interest in maintaining this particular aspect of uniformity; I doubt that 
there would be.  Many religious exemptions, after all, undermine the uniformity 
of a legal rule that is generally uniform (e.g., no peyote) or at least 
uniform.  If uniformity is really critical (as it has been held to be with 
taxes), then exemptions could be denied on those grounds.  But there really 
would have to be a compelling interest in uniformity, and not just a general 
desire for uniformity.

   Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
Sent: Saturday, September 05, 2015 3:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: What's happening in KY? -- my differences with Eugene

In discussing the changes that Ms. Davis might have made in the license form to 
accommodate her religious beliefs, I don't believe anyone on this list has 
discussed this provision in Kentucky Rev. Stat. Sec. 402.110:

"The form of marriage license prescribed in KRS 402.100 shall be uniform 
throughout this state, and every license blank shall contain the identical 
words and figures provided in the form prescribed by that section. In issuing 
the license the clerk shall deliver it in its entirety to the licensee. The 
clerk shall see to it that every blank space required to be filled by the 
applicants is so filled before delivering it to the licensee."

Changes by her office would prevent the license from being uniform throughout 
the state.  Do her state RFRA rights trump this?

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Saturday, September 05, 2015 6:24 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene
A few questions, and forgive me if they have been asked and answered on this or 
related threads on this listserv:

1) Why did Ms. Davis stop issuing all marriage licenses?  God did not tell her 
that issuing licenses for different-sex couples was sinful or wrong.  Was this 
full closure on advice of counsel (don't discriminate, that will be harder to 
defend than a shut down for everyone)?  Was that sound advice, in light of the 
due process holding in Obergefell about the right to marry?  Whatever the 
reasons, what seems obvious is that Kentucky law did not burden her religious 
exercise with respect to different sex couples, so her Kentucky RFRA claim for 
a right to withhold licenses from those couples must be worth zero.

2) Obergefell was decided in late June.  Ms. Davis knew from then on that she 
eventually would be asked to issue a license for a same-sex couple.  Could she 
have gone to state court, seeking a a declaratory judgment (against whom?) that 
RFRA gave her the right to remove her name from some marriage licenses?  Who is 
the employer from whom she was seeking an accommodation?  Is anyone her boss?  
If she is her own boss, she could grant herself an accommodation.  (Let's take 
my name of some of those license forms.  Done.)  She didn't do any of these 
things.  She just waited, and then she shut down her office to everyone, 
including couples whose marriages did not implicate her religious freedom.  She 
wants equitable relief -- delay reopening my office until my religious concerns 
can be accommodated, even if that takes months.  Would it be appropriate to 
impose some form of equitable estoppel on her state RFRA claims now -- after 
all, she imposed the costs of her objection on every marriage applicant in the 
County.

3) Substantial burden -- to what coercive choice is Kentucky putting Ms. Davis? 
 Kentucky RFRA applies only to acts of Kentucky government, state or local.  
(Applying it fto ederal action would be an attempt at nullification, barred by 
the Supremacy Clause.)  Has she been indicted, fired, impeached?  (I know the

RE: What's happening in KY?

[Friedman, Howard M.]

Here is my post on the facts to this hour as I have been able to glean them: 
http://religionclause.blogspot.com/2015/09/recalcitrant-kentucky-county-clerk.html

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Finkelman, Paul [paul.finkel...@albanylaw.edu]
Sent: Thursday, September 03, 2015 6:12 PM
To: Marty Lederman; Cohen,David; Law & Religion issues for Law Academics
Cc: ConLaw LIst Prof
Subject: RE: What's happening in KY?

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 
> 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 | 
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RE: Question about the Kentucky County Clerk controversy

[Friedman, Howard M.]

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" 
To: "Law & Religion issues for Law Academics (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-to file above).  In particular, 
she says that she would accept the option of “Modifying the prescribed Kentucky 
marriage license form to remove the multiple references to Davis’ name, and 
thus to remove the personal nature of the authorization that Davis must provide 
on the current form” (PDF p. 40); presumably those forms might say “Clerk of 
Rowan County” or perhaps the name of a deputy clerk who is willing to have his 
or her name used for that (assuming there is one).

   Now I’m not sure this is a remedy that the federal courts could 
offer, or ought to offer.  But say that Davis asks for an injunction or for 
declaratory judgment from a Kentucky state court, under the Kentucky RFRA, 
seeking to exempt her from the statutory requirement of having her name appear 
on the form.  Should she prevail?

   Or stepping away from the same-sex marriage issue, say that 
every time a death warrant was issued in a county, the County Clerk was by 
statute required to sign off on it, as a purely ministerial task; but the 
County Clerk objected on religious grounds to the death penalty, and filed a 
RFRA claim asking to have that requirement waived, so that a deputy (who was 
willing to sign) would sign instead.  Should she prevail, again under a state 
RFRA?

   Finally, say that the County Clerk was an employee rather than 
an elected officeholder, so that Title VII would apply (it doesn’t apply to 
elected officeholders).  Would the County Clerk have a right under Title VII’s 
reasonable accommodation mandate to this sort of exemption?  Compare, e.g., 
American Postal Workers Union v. Postmaster Gen., 781 F.2d 772, 777 (9th Cir. 
1986) (concluding that government employer had a duty to reasonably 
accommodate, by arranging transfers to other jobs, postal workers who had a 
religious objection to processing draft registration forms); McGinnis v. United 
States Postal Serv., 512 F. Supp. 517, 523 (N.D. Cal. 1980) (finding the 
government had a duty to reasonably accommodate, by offering a transfer to 
another window that wasn't used for registration materials); Haring v. 
Blumenthal, 471 F. Supp. 1172 (D.D.C. 1979) (concluding that the IRS had an 
obligation to exempt an employee from having to work on tax-exempt status 
applications from abortion clinics and other organizations that the employee 
thought it sinful to deal with); Best v. California Apprenticeship Council, 207 
Cal. Rptr. 863, 868 (Ct. App. 1984) (concluding that an apprentice training 
organization--which was treated by state law as an employer--had an obligation 
to 

RE: Colorado Cakeshop decision

[Friedman, Howard M.]

A famous example of this many years ago involved the issue of whether Dow 
Chemical should stop selling napalm to the U.S. government for use in the Viet 
Nam War because of the terrible injuries it caused.  Some shareholders 
attempted to stop the company from continuing to manufacture the product. Dow 
argued that it had a moral and political responsibility to continue to furnish 
it in furtherance of government policy, even though the sales were not 
particularly profitable.  This got litigated in the context of an SEC 
shareholder proposal: Medical Committee for Human Rights v SEC 
http://openjurist.org/432/f2d/659/medical-committee-for-human-rights-v-securities-and-exchange-commission

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Jean Dudley [jean.dud...@gmail.com]
Sent: Friday, August 14, 2015 12:30 AM
To: Law  Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

There are moral/ethical dilemmas, and then there are legal ones;  In the case 
of the KKK and selling sheets, it could be argued that a shop owner could 
refuse to sell sheets and pillow cases because a legal argument could be made 
that the act would be complicit (not sure of the terminology here) in illegal 
activity, namely domestic terrorism.  (Yeah, yeah, peaceful protest, heritage 
not hate, blah, blah, blah.  I call BS.  The mere sight of a hooded and robed 
KKK member is terrifying to a significant section of American citizens. It’s 
domestic terrorism, whether it is prosecuted or not. If it makes you feel 
better, how about calling it “disturbing the peace”?)

In the case of pharmaceutical companies refusing to sell drugs for execution, 
it could be argued that they would be abetting in an act that is illegal where 
the drugs are made;  if those drugs are being shipped across state lines for 
use in an execution of a prisoner that would not be facing the death penalty in 
the drug manufacturers’ home state, isn’t that illegal, too?  This one I’ll 
admit is a bit blurry.

Then there’s the restaurant that refused to provide a public service to a 
clinic that provides safe, legal abortions.  This one is pretty clear cut to 
me; if they can’t provide that service to all, they shouldn’t be in that 
business.

As a photographer, I’ve watched stock photographs being used for all sorts of 
things that I find morally repugnant, but alas, are legal;  one case in 
particular sticks in my mind.  A mother brought her daughter in for “modeling” 
photographs, signed a release.  To her horror, her daughter’s image was used by 
a “pro-life” group on a poster that read “The most dangerous place for African 
American women is in the womb”.  Mother sued and lost.  She’d signed the 
release. The photographer had sold the image to a stock photography business, 
who in turn told it to the “Pro-life” group.

I’ve seen images of Yosemite in pseudo-scientific text books on “intelligent 
design”.  Again, bought and paid for through stock agencies.  That is why I 
donate my Yosemite images to public school teachers who promise not to use them 
to teach creationism or “intelligent design”.

These are indeed legal uses of images.  That is why I am not a stock 
photographer.


On Aug 13, 2015, at 7:58 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, though, that the civil rights laws was prohibits discriminating on 
grounds of race etc., and this should hold for sexual orientation as well.

Sandy

Sent from my iPhone

On Aug 13, 2015, at 7:25 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:

The various pharmaceutical companies refusing to sell certain drugs to death 
penalty states come to mind.

-Kevin Chen

On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   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 

RE: Developments in contraceptive coverage

[Friedman, Howard M.]

Marty-- Have you seen yesterday's 8th Circuit opinion that could open a whole 
new line of challenges?  
http://religionclause.blogspot.com/2015/07/8th-circuit-parents-have-standing-to.html

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Monday, July 20, 2015 12:23 PM
To: Law  Religion issues for Law Academics
Subject: Developments in contraceptive coverage

FYI, a post on developments of the past few months, in three parts:

http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html

First, a quick note on the government's new final rules regarding the religious 
accommodation (including its extension to some for-profit employers such as 
Hobby Lobby, Inc.).  Second, a summary of the courts of appeals' treatment of 
the nonprofit challenges.  And third, a discussion of the handful of cert. 
petitions that already have been filed in the nonprofit cases--with particular 
emphasis on the theories of complicity that those petitions allege in support 
of the argument that the accommodation imposes a substantial burden on the 
plaintiffs' religious exercise.

I'd be very grateful if listmembers would let me know if I've gotten anything 
wrong, or overlooked anything of note.  And if you become aware of any further 
court of appeals decisions or cert. petitions, please let me know ASAP, so that 
I can update.  Thanks
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RE: Damages based on a person's speaking out in defense of his tortious action

[Friedman, Howard M.]

As I read the opinion, the damage award for discrimination was not particularly 
based on the interview. Then there was a second piece: The Commissioner, going 
beyond the ALJ's conclusions, found a violation of ORS 659A.409 that prohibits 
anyone acting on behalf of a place of public accommodation from issuing any 
communication that indicates facilities or services will be denied to anyone on 
account, among others, of sexual orientation. The interview was seen as doing 
that. And that justified the cease and desist order regarding future 
communications.

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Worley [mwor...@byulaw.net]
Sent: Tuesday, July 07, 2015 2:56 PM
To: Law  Religion issues for Law Academics
Subject: Re: Damages based on a person's speaking out in defense of his 
tortious action

Would it make a difference for anyone here whether or not the baker was 
planning to deny service again at a later time?

On Tue, Jul 7, 2015 at 12:51 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
I agree with Eugene.

On Tue, Jul 7, 2015 at 12:35 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   Sure.  First, as a matter of the underlying law of damages, I 
don’t think that a statute that provides for damages flowing from a denial of 
service would also apply to damages flowing only as a result of public 
commentary about the denial of service (by the defendant or by third parties).

   Second, even if state law did provide for such damages, I don’t 
see how it would be constitutional.  The premise of allowing liability for the 
denial of service is precisely that the denial of service is itself punishable 
conduct directed at the plaintiff.  When liability is imposed on speech 
“stating [the defendants’] defense of their desire ... to discriminate,” even 
“related to the discriminatory act,” then the harm stems from hearing public 
speech (about an event in the news) that one finds distressing.  Given that 
such liability was rejected even in Hustler v. Falwell or Snyder v. Phelps, I 
can’t see how it would be allowed here.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of David Cruz
Sent: Tuesday, July 07, 2015 11:09 AM
To: Law  Religion issues for Law Academics
Subject: Re: Damages based on a person's speaking out in defense of his 
tortious action

Could you say more about the doctrinal route to that conclusion?

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


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
on behalf of Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Tuesday, July 7, 2015 at 10:56 AM
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Damages based on a person's speaking out in defense of his tortious 
action

   Well, say that someone denied service to a veteran (one-time 
service, of a sort the veteran has no plans to ask for again), because he 
thinks American soldiers are evil.  That violates Illinois public accommodation 
law.  That person goes on television and says, “Yes, I did this, and I’m proud 
of what I did, and I plan on doing it in the future.”

I would think it is indeed quite clear that the veteran can’t recover for the 
emotional distress caused by the statement on television.  That statement 
doesn’t deny service to him – it may defend the past denial of service to him, 
and it may threaten denial of service to the broad class in the future, but 
that threat isn’t particularized to the veteran (and indeed the veteran is 
unlikely to even want this service in the future).  Whatever the veteran can 
recover for the denial of service itself, I can’t see how he can recover for 
speech about the denial of service, even if the speech “was related to the 
discriminatory act” in the sense of having been motivated by the lawsuit 
related to the act.

   Eugene

David Cruz writes:

Michael Worley wrote:  “the Commissioner should have rejected emotional damages 
based on the TV interview.”  This takes/keeps us further in the law of free 
speech than directly law and religion, but here goes:

Is it so clear as a matter of free speech law that, even if a person has a 
right to give a TV interview stating their defense of their desire and claimed 
right to discriminate in the abstract, a calculation of emotional damages 
triggered by an act of unlawful discrimination must exclude harms from such an 
interview where the interview was related 

SCOTUS Rules Against Abercrombie Today

[Friedman, Howard M.]

Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation 
Case. See 
http://religionclause.blogspot.com/2015/06/supreme-court-rules-against-abercrombie.html

Howard Friedman
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Question on Establishment Clause and Same-Sex Marriage

[Friedman, Howard M.]

Almost everyone agrees that if the Supreme Court concludes that states must 
recognize same-sex marriages, still no state may force a member of the clergy 
to perform a same-sex wedding if that is inconsistent with his/her religious 
beliefs. But what about the converse?  States delegate to clergy the authority 
to create the civil marriage relationship at the same time he/she creates a 
religious marriage.  Could a state refuse to allow clergy who will not perform 
same-sex ceremonies to create any civil marriage relationships?  I.e. could the 
state say that a religious ceremony by a priest, or minister or rabbi who will 
not also conduct same-sex weddings will not be recognized for civil purposes 
(tax benefits, inheritance, etc.)  More specifically, could the state say that 
such a member of the clergy does not have authority to sign the couple's 
marriage license?  Or would such a rule violate the Establishment Clause by 
favoring some religions over others?

Howard Friedman
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Arkansas Passes Broader RFRA

[Friedman, Howard M.]

The Arkansas legislature today passed a state RFRA. While national media is 
reporting that the bill is similar to Indiana's, in fact it is broader in 
several ways. See 
http://religionclause.blogspot.com/2015/03/arkansas-legislature-passes-rfra-law.html
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RE: state RFRA's and local anti-discrimination laws

[Friedman, Howard M.]

For anyone interested, I have put up a lengthy post at Religion Clause setting 
out my take on the Indiana RFRA, 
http://religionclause.blogspot.com/2015/03/why-is-indianas-rfra-so-controversial.htmlhttp://religionclause.blogspot.com/2015/03/why-is-indianas-rfra-so-controversial.html

Howard Friedman


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Scarberry, Mark [mark.scarbe...@pepperdine.edu]
Sent: Monday, March 30, 2015 2:45 PM
To: Law  Religion issues for Law Academics
Subject: RE: state RFRA's and local anti-discrimination laws

Under the Indiana RFRA, the question is whether the government has a compelling 
interest, not whether a particular level of government has such an interest. So 
long as the local government is competent absent a state RFRA to enact such 
laws, the analysis of the application of the state RFRA should not depend on 
the level of government that asserts a compelling interest. Note that the 
definition of “governmental entity” includes local government. The compelling 
interest that the “governmental entity” must establish is a “governmental 
interest.” This appears to be a straightforward interpretation of the statute.

I suppose that the alternative means analysis might be affected. A state 
government might have more ability to provide alternative means to advance the 
compelling governmental interest than a local government might have. I suppose 
a court might find that there is an alternative means available in such a case 
(even if the local government cannot successfully persuade the state government 
to provide the resources or make the changes in law needed to provide the 
alternative). Or perhaps in such a case a court might find that the alternative 
is not available (which would cut against the religious liberty claimant).

It might be possible for a RFRA claimant to argue that state law affirmatively 
disclaims the view that a particular governmental interest is compelling. A 
particular state law, for example, might provide for religious and health 
exemptions from a general policy that state law enforcement officers must be 
clean-shaven. It would be hard then for the local sheriff to argue that there 
is a compelling interest in requiring deputy sheriffs to be clean-shaven. This 
kind of “preemption” (of a sort) would not seem to be applicable if state law 
is merely silent on the question.

At least this is my initial take.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, March 30, 2015 10:45 AM
To: Law  Religion issues for Law Academics
Subject: state RFRA's and local anti-discrimination laws

One very important question I have never seen discussed is the relationship 
between a state RFRA (say, Texas or Indiana) and a local anti-discrimination 
ordinance (say, San Antonio or Indianapolis) that covers public accommodations 
and protects the LGBT population.  This is a common configuration; most RFRA 
states do NOT have state-wide LGBT laws re: public accommodations, but many 
have cities or counties with such laws.  So, when the local wedding vendor 
refuses to sell to a same sex couple and is cited by the local Human Rights 
Commission for violating the public accommodations law, and the defense is 
state RFRA, how will the arguments play?  Can a local law ever present a 
compelling interest sufficient to defeat a state religious freedom law? If 
not, the outcome of these conflicts is pre-ordained; the vendor will win.  Or 
can the local interest be sufficiently compelling in that community to defeat 
the state RFRA defense? Does this depend on state-to-state generic principles 
of local government law?

All thoughts welcome.
--
Ira C. Lupu
F. Elwood  Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of Secular Government, Religious 
People ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Applying Holt v Hobbs to hard cases

[Friedman, Howard M.]

Some of us suggested earlier this year that the rules the Supreme Court set 
down in Holt v. Hobbs would be a lot more difficut to apply in less clear 
cases.  An example of that has now appeared in Stover v. Corrections Corp of 
America-- a transgender Native American inmate wants access to the prison's 
sweat lodge.  Details of the court's perhaps questionable reliance on the least 
restrictive alternative analysis is at 
http://religionclause.blogspot.com/2015/03/applying-holt-v-hobbs-to-complex-case.html

Howard Friedman
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RE: Holt

[Friedman, Howard M.]

For anyone who might be interested, I have just posted some initial thoughts on 
today's Holt opinion on Religion Clause 
http://religionclause.blogspot.com/2015/01/some-thoughts-on-todays-supreme-court.html
  Your reactions are welcomed.

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Tuesday, January 20, 2015 2:08 PM
To: Law  Religion issues for Law Academics
Subject: RE: Holt

And congratulations also to the Becket Fund lawyers on the case, especially 
Eric Rassbach and Luke Goodrich, who participate on this list and who defend 
free exercise of religion across a wide range of cases.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Tuesday, January 20, 2015 9:10 AM
To: Law  Religion issues for Law Academics
Subject: Holt

Congrats to Doug!

http://www.supremecourt.gov/opinions/14pdf/13-6827_5h26.pdf
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SCOTUS Grants Review In Same-Sex Marriage Cases

[Friedman, Howard M.]

Details at 
http://religionclause.blogspot.com/2015/01/supreme-court-grants-review-in-6th.html

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6th Circuit Upholds Same-Sex Marriage Bans

[Friedman, Howard M.]

The 6th Circuit today departed from 4 other Circuits and (2-1) upheld same-sex 
marriage bans in 4 states. More at 
http://religionclause.blogspot.com/2014/11/6th-circuit-upholds-same-sex-marriage.html
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RE: Holt v. Hobbs Oral Argument

[Friedman, Howard M.]

I think this case on its facts is likely to be easy for the Court because so 
many other states have found ways to accommodate beards.  That being the case, 
I fear that the Court may not be as careful as it should in formulating the 
strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward 
two kinds of justifications for refusals to accomodate religious beliefs-- 
security concerns (as in this case) and budgetary issues (e.g. in claims for 
kosher or Halal diets).  It seems to me that courts are fairly able to assess 
budgetary justifications. However I fear that they are less able to assess 
security concerns as they exist on the ground.  If the court imposes truly 
strict scrutiny when security is at issue, I fear that prisons may be unable to 
adequately deal with Racist, neo-Nazi, and similar groups that assert they are 
religious organizations.  Currently a number of prisons are facing the question 
of whether Nations of Gods and Earths should be recognized as a religion or 
classified as a security threat group.  How much deference should be given to 
prison officials there?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Failinger, Marie [mfailin...@hamline.edu]
Sent: Tuesday, October 07, 2014 6:38 PM
To: Law  Religion issues for Law Academics
Subject: Re: Holt v. Hobbs Oral Argument

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

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

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

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

On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C. 
tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote:
The oral argument transcript is up, 
http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf.
  I haven't read it yet, but from the SCOTUS Blog report, it looks like things 
went poorly for the state.  
http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/

We've had little discussion of this case on the list.  I've presumed that's 
because there is a wide consensus that the case is easy.  SCOTUS Blog likewise 
concludes that [t]he case, at least from the tenor of the oral argument, did 
not seem to be a difficult one.  But assuming that Holt wins, there remains 
the important question of the precise language the Court will use to explicate 
the compelling interest standard in the prison context, where officials get 
some deference.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918tel:651%20962%204918
Fax: 651 962 4881tel:651%20962%204881
E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com



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Cert granted in Abercrombie Fitch

[Friedman, Howard M.]

The Supreme Court today granted cert in the religious accommodation case 
involving Abercrombie's look policy. More at 
http://religionclause.blogspot.com/2014/10/supreme-court-grants-review-in.html

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New Hate Crimes decision

[Friedman, Howard M.]

Yesterday the 6th Circuit reversed convictions in the Amish beard cutting 
attack cases, in an important decision on required motivation under the Hate 
Crimes Prevention Act
http://religionclause.blogspot.com/2014/08/6th-circuit-reverses-hate-crime.html
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New Into Religious Freedom Ambassador Nominee

[Friedman, Howard M.]

President Obama today announced his intent to nominate Rabbi David Saperstein 
as Ambassador at Large for International Religious Freedom.  Those of you who 
know Rabbi Saperstein will agree, I believe, that he is immensely qualified.  
See more at 
http://religionclause.blogspot.com/2014/07/obama-to-nominate-rabbi-david.html

Howard Friedman
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RE: On a different strand of the seamless web

[Friedman, Howard M.]

It seems to me that Justice Alito rather nicely avoided having to deal with the 
question of how much a corporation is like a real person (including whether it 
has a soul, etc.), and also avoided dealing with the well-developed piercing 
the corporate veil doctrine by adopting a view of corporations long held by 
law-and-economics scholars.  In this view, a corporation is not primarily an 
artificial entity or person.  Instead it is merely a nexis of a large number of 
implicit and explicit contracts among investors, managers, employees, suppliers 
and customers that define their relative rights.  Alito says at pg. 18:

A corporation is simply a form of organization used by human beings to achieve 
desired ends. An established body of law specifies the rights and obligations 
of the people (including shareholders, officers, and employees) who are 
associated with a corporation in one way or another. When rights, whether 
constitutional or statutory, are extended to corporations, the purpose is to 
protect the rights of these people. [P]rotecting the free-exercise rights 
of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious 
liberty of the humans who own and control those companies.

Indeed many small businesses involved in other cases challenging the 
contraceptive mandate are organized as Limited Liability Companies instead of 
closely held corporations. LLC's are more clearly creatures of contract.  It 
will be interesting to see whether this nexis of contracts approach will be 
used in other corporate cases having nothing to do with RFRA.

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Sunday, July 06, 2014 7:11 PM
To: Paul Finkelman; Law  Religion issues for Law Academics; Douglas Laycock; 
Scarberry, Mark
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 dlayc...@virginia.edumailto:dlayc...@virginia.edu
To: Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com; 
Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu; Scarberry, 
Mark mark.scarbe...@pepperdine.edumailto: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.


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RE: Cert. denied in Elmbrook Schools

[Friedman, Howard M.]

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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RE: Notre Dame-- where's the complicit participation? Sincerity

[Friedman, Howard M.]

Does anyone know whether the trustees of Notre Dame perhaps interpreted Pope 
Benedict's remarks in his meeting with them in Rome on Jan. 31 as being a 
reference to Notre Dame's position on the contraceptive mandate.  The Pope said:

This commitment to “missionary discipleship” ought to be reflected in a 
special way in Catholic universities (cf. Evangelii Gaudium, 132-134), which by 
their very nature are committed to demonstrating the harmony of faith and 
reason and the relevance of the Christian message for a full and authentically 
human life. Essential in this regard is the uncompromising witness of Catholic 
universities to the Church’s moral teaching, and the defense of her freedom, 
precisely in and through her institutions, to uphold that teaching as 
authoritatively proclaimed by the magisterium of her pastors. It is my hope 
that the University of Notre Dame will continue to offer unambiguous testimony 
to this aspect of its foundational Catholic identity, especially in the face of 
efforts, from whatever quarter, to dilute that indispensable witness.

Full text of the Pope's remarks are at 
http://www.news.va/en/news/vatican-the-pope-to-the-university-of-notre-dame

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Penalver, Eduardo [penal...@uchicago.edu]
Sent: Sunday, February 16, 2014 6:48 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

There is a huge difference between the Church's teaching on contraception 
(which is clear), and its views on the permissibility of participating in an 
insurance scheme that covers contraception for employees who would likely 
already purchase it using their paychecks, let alone the permissibility of 
signing a form the consequence of which is that some contractual third party 
provides contraceptive coverage to said employees.  The sincerity of the 
recently asserted views on these later two questions is far from clear to my 
mind.  Again, though, the degree to which a court should probe this issue 
strikes me as a different and difficult question.  But it seems important to 
acknowledge the novelty of the position some Catholic institutions have adopted 
in this litigation.

On Feb 16, 2014, at 3:43 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I appreciate Marci's support on my other point, but I'm afraid I don't agree 
that the views of American Catholics writ large is especially relevant.  It's 
no secret that most Catholics, including ND students and faculty, disagree with 
ND's view, and with the Church's, on the morality of contraception and 
premarital sex.  That's why this is a losing battle for ND in the long run.  
But I think there can be little doubt but that, as an institution, Notre Dame 
believes (and at least nominally instructs its students) that such things are 
indeed sinful.


On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Feb 16, 2014, at 3:45 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said was that Notre Dame’s leadership 
may sincerely feel obliged to follow that teaching in their official capacity 
as leaders of a Catholic institution, whatever they may do in their private 
life.

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

From: 

RE: Notre Dame-- where's the complicit participation? Sincerity

[Friedman, Howard M.]

Whoops-- of course I meant Pope Francis.  Sorry for the Freudian(?) slip.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Friedman, Howard M. [howard.fried...@utoledo.edu]
Sent: Sunday, February 16, 2014 7:20 PM
To: Law  Religion issues for Law Academics
Subject: RE: Notre Dame-- where's the complicit participation? Sincerity

Does anyone know whether the trustees of Notre Dame perhaps interpreted Pope 
Benedict's remarks in his meeting with them in Rome on Jan. 31 as being a 
reference to Notre Dame's position on the contraceptive mandate.  The Pope said:

This commitment to “missionary discipleship” ought to be reflected in a 
special way in Catholic universities (cf. Evangelii Gaudium, 132-134), which by 
their very nature are committed to demonstrating the harmony of faith and 
reason and the relevance of the Christian message for a full and authentically 
human life. Essential in this regard is the uncompromising witness of Catholic 
universities to the Church’s moral teaching, and the defense of her freedom, 
precisely in and through her institutions, to uphold that teaching as 
authoritatively proclaimed by the magisterium of her pastors. It is my hope 
that the University of Notre Dame will continue to offer unambiguous testimony 
to this aspect of its foundational Catholic identity, especially in the face of 
efforts, from whatever quarter, to dilute that indispensable witness.

Full text of the Pope's remarks are at 
http://www.news.va/en/news/vatican-the-pope-to-the-university-of-notre-dame

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Penalver, Eduardo [penal...@uchicago.edu]
Sent: Sunday, February 16, 2014 6:48 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

There is a huge difference between the Church's teaching on contraception 
(which is clear), and its views on the permissibility of participating in an 
insurance scheme that covers contraception for employees who would likely 
already purchase it using their paychecks, let alone the permissibility of 
signing a form the consequence of which is that some contractual third party 
provides contraceptive coverage to said employees.  The sincerity of the 
recently asserted views on these later two questions is far from clear to my 
mind.  Again, though, the degree to which a court should probe this issue 
strikes me as a different and difficult question.  But it seems important to 
acknowledge the novelty of the position some Catholic institutions have adopted 
in this litigation.

On Feb 16, 2014, at 3:43 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

I appreciate Marci's support on my other point, but I'm afraid I don't agree 
that the views of American Catholics writ large is especially relevant.  It's 
no secret that most Catholics, including ND students and faculty, disagree with 
ND's view, and with the Church's, on the morality of contraception and 
premarital sex.  That's why this is a losing battle for ND in the long run.  
But I think there can be little doubt but that, as an institution, Notre Dame 
believes (and at least nominally instructs its students) that such things are 
indeed sinful.


On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Feb 16, 2014, at 3:45 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:

No doubt the Board and senior administration speaks for Notre Dame. But on 
faith and morals, they may (and may be expected to or required to) take their 
guidance from the bishops. There is no doubt what the Church’s teaching is, and 
no doubt that teaching is sincere. What I said

RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case

[Friedman, Howard M.]

To get this right, you have to look at some technicalities that generally cause 
even lawyers' eyes to glaze over.  When a religious non-profit offers its 
employees a group health insurance plan through an insurance company, the 
self-certification form does in essence say: let us know and we'll require 
someone else to do it. The government has statutory authority under the Public 
Health Service Act to require health insurance companies to do this.

 However, that authority does not extend to third party administrators of 
self-insured plans (which is what Little Sisters of the Poor have).  So the 
regulations invoke ERISA to make the compromise work for self-insured plans.  
Regulations promulgated under ERISA make the third party administrator's 
agreement to serve in that role the triggering mechanism.  The 
self-certification form notifies the third party administrator that it has this 
obligation. I.e. it amounts to just let us know, and tell this guy they have 
to do it.  It was only belatedly that the government realized that church 
plans (generally plans created by the diocese, but covering affiliated 
charitable organizations) are exempt from ERISA, so that the regulations don't 
really work for self-insured church plans (as opposed to other self-insured 
plans).  The government pounced on that belated discovery in ongoing litigation 
to argue that non-profits covered by church plans have suffered no injury and 
lack standing to sue.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Michael Worley [mwor...@byulaw.net]
Sent: Saturday, January 25, 2014 4:32 PM
To: Law  Religion issues for Law Academics
Subject: Re: Supreme Court Issues Compromise Injunction Pending Appeal In 
Contraceptive Mandate Case


ok, just let us know, and we'll require someone else to do it. 

No;  ok, just let us know, and tell this guy they have to do it. 

I'm aware Christian Brothers doesn't at this time commit grand theft auto; I'm 
confused why the government would have opposed LS if they weren't formulating a 
plan to compel Christian brothers to submit.



On Fri, Jan 24, 2014 at 5:23 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Great analogy, Michael!

Seriously?

I can't recall any case in which so many people have refused to take yes for 
an answer.

[To beat a dead horse . . . here's the actual situation:

The law provides that all women in the U.S. are entitled to reimbursement 
without cost for preventive care, including (but not limited to) contraception. 
 And the way this public benefit is provided is through the woman's insurance 
policy, whether provided by an employer or not.  An employer that chooses to 
offer an insurance plan accordingly must include the preventive services 
coverage in that plan.

The government says to religious nonprofit employers, however:  If you don't 
want to offer such coverage in your plan, ok, just let us know, and we'll 
require someone else to do it.  (The analogy I offer in my posts is the 
Catholic judge who recuses from a death penalty case, thereby obligating the 
nonreligious judge down the hall to cover the case.)  So, far, that's the Notre 
Dame case (see the last section of my post here - 
http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html) . . . 
which I would suggest has virtually nothing in common with the stolen car hypo.

OK, but in this case, we don't even have that -- here, once LS expresses its 
religious objection, no one else is required to provide the coverage and, 
whadda ya know?: the LS employees do not receive the benefit to which virtually 
all other women are entitled.

Grand theft auto, I tell ya.]


On Fri, Jan 24, 2014 at 7:08 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
If I say;  I oppose robbery but here are the keys to the car, and I give the 
keys to someone who is obligated by law (or may in the future be obligated) to 
rob my neighbor,  no matter how loudly I proclaim I oppose robbery, I'm still 
helping in the robbery.


On Fri, Jan 24, 2014 at 4:56 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
It is an implied message of support for what?  What rational human being 
would construe:  We have a religious objection to providing contraceptive 
coverage to mean we support coverage of contraceptive coverage?  Seriously, 
we are so far down the rabbit hole here . . .


On Fri, Jan 24, 2014 at 6:48 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
Sending the form to the third-party insurer is the burden, because it is an 
implied message of support Insurer, you need to provide contraception because 
we don't


On Fri, Jan 24, 2014 at 4:31 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
What exactly is the burden on the Little Sisters again?


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. 

Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case

[Friedman, Howard M.]

The Supreme Court today extended the injunction pending appeal in Little 
Sisters of the Poor case, but with unusual conditions-- see 
http://religionclause.blogspot.com/2014/01/supreme-court-enjoins-enforcement-of.html
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RE: The ability to practice one's religion

[Friedman, Howard M.]

There is another aspect to this which it seems to me has gone largely 
unnoticed.  The 2 cases that the Supreme Court has agreed to review are from 
individuals and businesses who do not object to contraception, but instead 
object to abortion and believe that some contraceptives are abotrifacients 
because they may prevent a fertilized egg from being implanted in the uterus.  
Generally here the objections are to Plan B, Ella and IUDs. So presumably any 
relief granted to these plaintiffs should only be for coverage of these 
particular contraceptive methods. Also (though I am no scientist), there 
appears to be considerable controversy about whether even these contraceptive 
methods in fact interfere with implantation as opposed to interfering with 
fertilization. At most, apparently, they only interfere with implantation some 
times, and may not at all. So this makes any complicity with evil even more 
attenuated.  And should the courts examine the science of all this?  Suppose 
the court finds that Plan B never really interferes with implantation, and that 
these objectors merely have a wrong view of the science.  Is it a burden on 
free exercise to require cooperation with something that is mistakenly believed 
to be an abortifacient?

On the other hand, the cases brought by Catholic objectors involve a broader 
objection-- abortifacients AND contraceptives. Though apparently Catholic 
objectors are all right with contraceptives that are prescribed for medical 
conditions, and not for the purpose of contraception. So that would seem to 
mean that the scope of relief-- and the kinds of insurance policies companies 
will need to write in response-- will be different in different cases.  At any 
rate, the relief would not seem to be a broad invalidation of coverage for all 
medications that can be used as contraceptives.

And one more thing-- to the extent that objections are only to abortifacients, 
Plan B is available over-the-counter to women 18 years of age and older.  Does 
the contraceptive coverage mandate apply to over the counter contraceptives 
when an insurance policy does not apply to other over the counter drugs?

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Conkle, Daniel O. [con...@indiana.edu]
Sent: Wednesday, November 27, 2013 11:25 AM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: RE: The ability to practice one's religion

These are fascinating questions.  Indeed, it may be that if the law prevents 
the exercise of conscience, then  – at least with respect to certain claims 
concerning complicity with evil – there is no violation of conscience after 
all.  Would conscience would demand civil disobedience and, if not, as Eugene 
suggests, is there nonetheless an injury (to conscience?) that we should 
recognize as a serious loss?

Speaking specifically on the question of Catholic opposition to the 
contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in 
the November 2012 issue of First Things, in an article that included the 
following observations (note the “when possible” and “available steps” caveats):

“one principle is clear: We should always seek to withdraw support and reduce 
material cooperation when possible. The failure to do so sends a message. It 
suggests that our material cooperation flows from assent, all the more so when 
we do not take the available steps to disentangle ourselves.”

Thomas Joseph White and R. R. Reno, A Mandate to Disobey, 
http://www.firstthings.com/article/2012/09/a-mandate-to-disobey

Dan Conkle
Maurer School of Law
Indiana University Bloomington


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SCOTUS grants cert in contraceptive mandate cases

[Friedman, Howard M.]

The Supreme Court today granted certiorari in Hobby Lobby and Conestoga--- more 
at 
http://religionclause.blogspot.com/2013/11/supreme-court-grants-review-in-two.html

Howard Friedman
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Supreme Court's Action On Muslim Beard Case

[Friedman, Howard M.]

Yesterday, the U.S. Supreme Court in an unusual move issued an injunction 
pending review of a Muslim prisoner's cert petition to prevent the Arkansas 
Department of Corrections from enforcing its grooming policy. The policy 
prevented petitioner from wearing his religiously mandated beard.  More at 
http://religionclause.blogspot.com/2013/11/supreme-court-in-unusual-move-gives.html

Howard Friedman
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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Friedman, Howard M.]

Renee L. Cyr, Esq.
Office of Steve S. Efron
237 West 35th Street, Suite 1502
New York, NY  10001
(212) 867-1067

-Original Message-
From: Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Thu, Aug 15, 2013 10:48 pm
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
Does anyone have a problem with a father, on religious freedom grounds, being 
able to deny his 18 and 19 year old daughters on his insurance policy coverage 
for contraception that the government has mandated generally?  Those are the 
facts in this case.
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New Twist On Challenge to ACA Contraceptive Mandate

[Friedman, Howard M.]

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Friedman, Howard M.]

 Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.

Timothy J. Tracey
Associate Professor of Law
Ave Maria School of Law

On August 15, 2013 at 11:42:29 AM, Len 
(campquest...@comcast.netmailto:campquest...@comcast.net) wrote:
Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer.




From: Eduardo Penalver penal...@uchicago.edumailto:penal...@uchicago.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Thursday, August 15, 2013 11:06:49 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo





From: Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu
Reply-To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: New Twist On Challenge to ACA Contraceptive Mandate

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
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RE: Closely-held corporations, owners of corporations, and RFRAs

[Friedman, Howard M.]

I think that there are at least two things going on here that have not been 
well articulated:

(1) Corporate lawyers have spent decades attempting to convince courts and 
legislatures that the corporate entity should be seen as a separate person 
from its shareholders, even when the corporation is closely held, or is a 
wholly-owned subsidiary of another company.  This is all in an attempt to 
prevent creditors holding shareholders personally liable for corporate debts.  
Usually in corporate law, once courts pierce the corporate veil for one 
purpose, they are likely to do so for other purposes as well.  So there is a 
fear that broadly allowing piercing in these contraceptive coverage cases to 
treat the corporation's obligation to furnish coverage as a burden on the 
individual shareholder will create precedent for unrelated cases in which 
creditors are seeking to reach shareholders' assets.

(2) The second consideration relates not so much to the strictly legal 
argument, but rather to the question of how the general public will react to 
the free exercise claim.  I think that many people are having trouble with the 
nature of the free exercise burden being asserted.  The claim is that it is 
participation in evil for a believer to pay for insurance that an employee 
might use for a procedure that the employer (or its shareholders) think is 
morally evil. (But this logically also should create the same problem with 
payment of taxes that support Meidcaid coverage of the same procedures.)  
Beyond this, the contraceptive coverage cases avoid dealing at length with the 
ultimate evil to which plaintiffs are objecting. That is because there are 
really two kinds of claims-- both problematic in the minds of at least some of 
the public.  One claim (usually by Catholic plaintiffs) is that the evil at 
issue is any kind of artificial contraception.  Many consider that moral 
position problematic. The second claim-- made by non-Catholic conservative 
Christian plaintiffs-- but also emphasized in many of the cases brought by 
Catholics -- is that certain of the mandated coverage is for abortifacients.  
This argument-- seen as an anti-abortion argument-- gets a generally more 
favorable public reaction.  But examining it more closely, the argument is that 
life begins at fertilization, not at implantation, so that Plan B, ella, and 
IUDs which may prevent implantation of a fertilized egg are morally equivalent 
to abortion at even much later stages of pregnancy.  It is less clear how much 
support among the public there is for this position. And there is substantial 
scientific debate over whether at least Plan B even does ever prevent 
implantation.  The claim comes from the FDA's required description that many 
contest.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, August 06, 2013 10:42 AM
To: Law  Religion issues for Law Academics
Subject: RE: Closely-held corporations, owners of corporations, and RFRAs

The distinctions offered in the first two paragraphs below 
might well represent a sensible moral judgment.  But I don’t see how it can 
affect the RFRA substantial burden analysis, if the owners sincerely consider 
that they are responsible to God for using slave labor, or paying for 
contraceptives, or having their stores open on the Sabbath.  I wouldn’t 
consider Thomas responsible for making war simply because he was doing the 
military-related manufacturing job that his employer assigned to him (even if I 
thought the war that his services were helping was unjust).  But Thomas thought 
that this behavior was against God’s will, and that was enough.

Now whether a corporation should have standing to raise these 
arguments, or whether they would have to be made through the corporations’ 
co-owners, is a separate question.  I think the success or failure of the 
arguments ought to ultimately rest on the burden being placed on real people, 
not on corporations – just as ultimately the soundness of all corporate law 
principles has to rest on their effects on real people.  But it’s possible that 
allowing corporate standing is a useful and effective means of protecting the 
owners’ religious freedom rights, just as it is a useful and effective means of 
protecting the owners’ property against taking without just compensation or 
deprivation of property without due process, or for that matter just as it is 
useful and effective in constructing contract law, tort law, and so on.  And in 
any event, in conducting this analysis we shouldn’t, I think, rest on our 
judgments of what’s immoral complicity, but instead ask what are the owners’ 
sincere beliefs about religiously forbidden complicity.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, 

Ohio's Refusal To Recognize Maryland Same Sex Marriage Invalidated

[Friedman, Howard M.]

An Ohio federal district court yesterday granted a temporary restraining order 
requiring the state to recognize the validity of a same-sex marriage performed 
in Maryland. More on the 15-page opinion at Religion clause blog
http://religionclause.blogspot.com/2013/07/ohios-refusal-to-recognize-maryland.html

Howard Friedman
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New Suit Argues Prop 8 Is Still Enforceable

[Friedman, Howard M.]

A petition for a writ of mandate was filed Friday with the California Supreme 
Court arguing that because of the narrowness of the injunction that was 
reinstated by the US Supreme Court, California county clerks must still enforce 
Prop. 8 that bans same-sex marriage.  More details on Religion Clause-- 
http://religionclause.blogspot.com/2013/07/new-petition-to-california-supreme.html

Any reactions on the merits of the arguments put forward by the petitiion?

Howard Friedman
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RE: The Hobby Lobby Case: Four Thoughts

[Friedman, Howard M.]

The ripeness issue has become more complicated in light of the Justice 
Department's July 3 filing in the Liberty University case-- see 
http://religionclause.blogspot.com/2013/07/justice-department-invokes-employer.html

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Monday, July 08, 2013 4:00 PM
To: religionlaw@lists.ucla.edu
Subject: The Hobby Lobby Case: Four Thoughts

In light of recent developments, including the Tenth Circuit's en banc decision 
holding that Hobby Lobby is likely to prevail on the merits of its RFRA 
exemption claim and the Administration's decision to delay enforcement of the 
employer mandate, this issue-rich case has suddenly become even more 
interesting. So with apologies in advance for the long post, here are four 
preliminary thoughts about the current landscape. Reactions and corrections 
would be very welcome -- I'm working on an exemptions piece this summer (albeit 
it in another context) and will be teaching a Religion and the Law seminar in 
the fall in which I'm inclined to spend considerable time on the 
contraceptive-coverage cases. Thanks. - Jim

I. THE TENTH CIRCUIT'S INCOMPLETE DISCUSSION OF UNITED STATES v. LEE

Given its conclusion that the purpose of RFRA was restoration of pre-Smith 
free exercise jurisprudence, not expansion of the scope of the Free Exercise 
Clause, Slip Op. at 9, the en banc majority in Hobby Lobby understandably 
focuses heavily on United States v. Lee, the pre-Smith case that is most 
directly on point. See Slip Op. at 55 (Hobby Lobby and Mardel stand in 
essentially the same position as the Amish carpenter in Lee, who objected to 
being forced to pay into a system that enables someone else to behave in a 
manner he considered immoral. That is precisely the objection of Hobby Lobby 
and Mardel.).

Yet, the majority opinion never addresses what is arguably the most relevant 
language from Lee:

When followers of a particular sect enter into commercial activity as a matter 
of choice, the limits they accept on their own conduct as a matter of 
conscience and faith are not to be superimposed on the statutory schemes which 
are binding on others in that activity. Granting an exemption from social 
security taxes to an employer operates to impose the employer's religious faith 
on the employees. 455 U.S. 252, 261.

If Lee did not have a pre-Smith free exercise right to an exemption that would 
affect the relatively few employees in his carpentry shop, it's not clear why 
Hobby Lobby is likely to have a RFRA right to an exemption that will affect 
thousands of employees in its stores around the country. Cf. Cutter v. 
Wilkinson, 544 U.S. 709, 720 (Properly applying RLUIPA, courts must take 
adequate account of the burdens a requested accommodation may impose on 
nonbeneficiaries.). At the very least, some effort by the en banc majority to 
engage the relevant language from Lee would seem to have been warranted, no?

II. NEW RIPENESS ISSUE MORE COMPLICATED THAN PORTRAYED

Following last week's announcement that the overall employer mandate would be 
delayed, Professor Friedman raised the question whether any of the pending 
business challenges to the contraception-coverage mandate might be dismissed on 
ripeness grounds. Since then, the Becket Fund and several commentators have 
offered a simple and straightforward argument for why the delay should have 
absolutely no effect on ripeness: The overall mandate and the contraception 
mandate are contained in different legal provisions; only those provisions 
relating to the overall mandate are covered by the delay; thus, while a large 
employer might not have to provide health coverage at all before 2015 due to 
the delay, if such an employer does provide coverage, as Hobby Lobby does, the 
burden of the contraception-coverage mandate remains fully in force. Becket 
Fund Statement, July 3.

This reasoning, however, is in tension with Hobby Lobby's brief to the Tenth 
Circuit, which ties the burden of the contraception-coverage mandate to the 
overall requirement that large employers provide health coverage. Br. at 7-8 
(The government has allowed numerous employers and plans to avoid the 
Mandate 'Small employers,' employing over 34 million people, need not offer 
health insurance at all and can therefore avoid the Mandate But Hobby Lobby 
does not qualify for any of these measures As a 'large employer' with 50 or 
more employees, Hobby Lobby must offer insurance covering all mandated 
services.).

Nonetheless, there would appear to be at least two alternative (and 
overlapping) arguments that Hobby Lobby's challenge is still ripe: (1) the 
temporary delay of the large employer mandate makes it no less certain that 
that mandate ultimately will be imposed and (2) it would be unreasonable to 
expect Hobby Lobby to drop health coverage to avoid the 

Hobby Lobby Scores Victory

[Friedman, Howard M.]

The 10th Circuit en banc yesterday gave a surprisingly strong endorsement to 
free exercise rights of for-profit corporations in Hobby Lobby case. More here 
http://religionclause.blogspot.com/2013/06/10th-circuit-en-banc-gives-big-win-to.html

Howard Friedman
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Today's Same-Sex marriage Deciaions

[Friedman, Howard M.]

While I know there is, and will be, no lack of ink spilled (or the online 
equivalent) on today's same-sex marriage decisions by the Supreme Court, I just 
wanted to let anyone interested know that I will have a series of posts over 
the next couple of days on Religion Clause analyzing the decisions. The first 
of the posts is now online: 
http://religionclause.blogspot.com/2013/06/analysis-of-todays-same-sex-marriage.html
   Thanks.

Howard Friedman
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Interesting Scholarship Tax Credit Decision

[Friedman, Howard M.]

New Hampshire court finds tax credit equals tax expenditure under state 
constitution's No Aid clause.  More on Religion Clause: 
http://religionclause.blogspot.com/2013/06/in-important-decision-new-hampshire.html

Howard Friedman
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RE: Liberty: A Vote or A Veto?

[Friedman, Howard M.]

Nate--

Very interesting piece.  I believe the vote, not a veto language originated 
in the writings of Rabbi Mordecai Kaplan who, departing from the Orthodox 
Jewish view that halacha [traditional Jewish law] was the sole standard for 
Jewish practice, said the past has a vote, not a veto.  The analogy in the 
health care mandate situation, it seems to me, would be religious conscience 
has a vote, not a veto.

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Nathan C. Walker [n...@whosegodrules.com]
Sent: Saturday, June 15, 2013 3:22 PM
To: religionlaw@lists.ucla.edu
Subject: Liberty: A Vote or A Veto?

Dear Religion  Law Colleagues,

I'm interested in your feedback about my article regarding the contraception 
mandate, Liberty: A Vote or A Veto? published by Sightings of the Martin 
Marty Center for the Advanced Study of Religion at the University of Chicago 
Divinity School.

Here's an excerpt:

* * * * *

Liberty is a vote not a veto.  Owners of for-profit companies have the freedom 
to vote their conscience, to speak their mind, to persuade and petition and 
parade in the public square. This free exercise of speech and religion does not 
give them the right to unilaterally veto the rights of their employees. Doing 
so would establish a de facto state religion, where corporations become the 
nation’s congregations and its owners the high priests.


* * * * *

I look forward to your input.

Cheers,
Nate



Nathan C. Walker,  co-editor of Whose God Rules?http://www.whosegodrules.com/ 
(Palgrave Macmillan 2011)
Foreword by Tony Blair with contributions by Alan Dershowitz, Martha Nussbaum,
Robert George, and Kent Greenawalt. Cornel West calls it provocative and 
pioneering.

Resident Fellow, Harvard Divinity School, '13
Legal restrictions on religious expression

Doctoral Candidate, Columbia University, '14
Interdisciplinary study of law, education  religion
Unveiling Freedom: Bans on Religious Garb.

nathan_wal...@mail.harvard.edumailto:nathan_wal...@mail.harvard.edu
Cell: (215) 701-9071
www.NateWalker.comhttp://www.natewalker.com/
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Cert Granted In City Council Prayer Case

[Friedman, Howard M.]

The Supreme Court this morning granted certiorari in Town of Greece v. 
Galloway.  Details at Religion Clause blog.
http://religionclause.blogspot.com/2013/05/supreme-court-grants-certiorari-in-city.html

Howard Friedman
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2nd Circuit Finds DOMA Unconstitutional

[Friedman, Howard M.]

In a 2-1 decision today, the 2nd Circuit found DOMA unconstitutional, applying 
intermediate-level scrutiny to discrimination against gays and lesbians.  More 
at Religion Clause blog 
http://religionclause.blogspot.com/2012/10/2nd-circuit-in-2-1-decision-finds-doma.html

Howard Friedman
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Court Rejects Religious Liberty Challenges To ACA Mandate

[Friedman, Howard M.]

In an important and carefully reasoned opinion yesterday, a 
Republican-appointed federal district judge rejected on the merits a series of 
RFRA and First Amendment challenges to the contraceptive coverage mandate under 
the Affordable Care Act. More at Religion Clause 
http://religionclause.blogspot.com/2012/09/court-rejects-religious-liberty.html

***
Howard M. Friedman
Professor of Law Emeritus
University of Toledo
***
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RE: Corporate donations to religious groups

[Friedman, Howard M.]

This may be relevant to your concerns-- Both Delaware Gen. Corp. L. Sec. 122 
and Model Business Corporation Act Sec. 3.02 that set out the general powers 
of corporations provide that they may make donations for the public welfare or 
for charitable, scientific or educational purposes, while Internal Revenue 
Code Sec 501(c)(3) uses the terms religious, charitable, scientific ... or 
educational purposes. I.e. the state corporate statutes omit religious from 
their list of donations that a corporation has the power to make. The MBCA 
though has an additional provision permitting donations of any kind that 
further the business or affairs of the corporation.

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 8/16/2012 11:37 PM
To: Law  Religion issues for Law Academics
Subject: Corporate donations to religious groups
 
Folks:  I'm trying to make an argument using religious contributions as an 
analogy, and wanted to make sure I'm not missing something in the thing I'm 
analogizing to.



I wanted to say something about the protecting shareholders rationale for 
limiting corporate campaign-related speech, and consider an analogy to 
corporate contributions to religious organizations (whether those contributions 
would go entirely to religious uses, or would also partly promote the 
charitable function of the organization).  As I understand the protecting 
shareholders argument, it goes something like this:  Many people don't want to 
have their money used to support or oppose candidates or ballot measures, even 
when the use is indirect (i.e., when they have rights under a retirement fund, 
the retirement fund buys stock in a corporation, and then the corporation 
spends the money, based on its managers' judgment that spending the money would 
be good for business).  Moreover, it's not so easy for people to avoid this, 
since many people can't meaningfully control where their retirement money is 
being invested.  Therefore, there's a sufficiently compelling interest in 
preventing this imposition on such involuntary shareholders by banning 
corporations from spending money to support or oppose candidates or ballot 
measures.



My questions:  (1)  Has anyone similarly argued that states should bar 
corporate donations to religious organizations, on the theory that this 
protects shareholders from having their money used to support religious 
beliefs they disagree with?  (2)  Would such a prohibition be constitutionally 
permissible, or would it violate the Lukumi Babalu / McDaniel 
no-discrimination-against-religion principle?



My inclination is to say that it wouldn't be proper, and would likely even be 
unconstitutional, to bar such corporate donations, and that protecting 
shareholders isn't a sufficient reason for such a bar - and it likewise 
wouldn't be as to a bar on corporate expenditures on campaign-related speech.  
But I wanted to make sure that I hadn't missed some arguments, or some 
situations in which some such bar has indeed been imposed.



I'm not talking here about the perennial question of whether public money can 
be given to various religious organizations; I'm speaking of hypothetical laws 
that would bar corporate funds from being given to such organizations.  (Note 
also that I'm not talking about evenhanded application of the business judgment 
rule to foreclose contributions that can't reasonably be seen as furthering the 
corporate interest; assume the prohibition also extends to contributions that 
do further the corporate interest, for instance because they build goodwill.)



Thanks in advance for any feedback people might have,



Eugene

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Preliminary Injunction Issued Against ACA Contraceptive Coverage Mandate

[Friedman, Howard M.]

In an interesting decision, a federal district judge today relied on RFRA to 
enjoin enforcement of the ACA mandate against a small manufacturing company 
whose officers and directors are Catholic. Details at 
http://religionclause.blogspot.com/2012/07/court-issues-preliminary-injunction-in.html

Howard Friedman
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RE: Same Sex Marriage in Scotland

[Friedman, Howard M.]

I think the problem is that currently the UK Equality Act creates a conscience 
exemption only where necessary to comply with the doctrine of a religious 
organization or to avoid conflict with the strongly held religious convictions 
of a significant number of the followers of the religion or belief. That would 
not cover the clergyman who disagrees with the majority view of his 
denomination.  

See 
http://religionclause.blogspot.com/2012/07/scottish-government-will-move-ahead.html
 for some additional information.

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Thu 7/26/2012 11:11 AM
To: Law  Religion issues for Law Academics; Scot Peterson
Subject: Re: Same Sex Marriage in Scotland
 
Hard to tell what they are proposing from this brief description. 

One possibility is that even if a denomination performs same-sex marriages, an 
individual pastor of that denomination who refuses cannot be penalized by the 
government. The government cannot regulate the individual pastor based on his 
denominational teaching. That is surely right.

The other possibility is that the government will protect the dissenting pastor 
from being penalized by his denomination. That is clearly an unjustified 
interference in internal church governance. In the United States, I think it 
would be unconstitutional under Hosanna-Tabor v. EEOC.

On Thu, 26 Jul 2012 10:52:42 +0100
 Scot Peterson scotmpeter...@gmail.com wrote:
Dear all,

I normally just lurk on this list, but I had a question that people might
help me out with. Yesterday, the Scottish government announced that it will
bring in a bill for same-sex marriage, including religious marriage, with
religious denominations and faiths having the ability to refuse to perform
same-sex marriages. The troubling statement by the government is this one:

[O]ur view is that to give certainty on protection for individual
celebrants taking a different view from a religious body that does agree to
conduct same sex marriages, an amendment will be required to the UK
Equality Act.

Seemingly, the Scottish government wants to provide an opt-out for
individual clergy even if their denomination decides to authorise
solemnisation of SSM and doesn't itself offer such an opt-out.

One way of thinking about this is that they are authorising individual
clergy to provide SSM, but they don't want to force anyone to have to act
in this way on behalf of the government. A more historical (and stricter
religious freedom) argument, which I think may be right is that this is
unwarranted tampering with the internal governance of the religious
organisation. (I think here of the Disruption of the Church of Scotland,
which came about in 1843 when the government forced clergy into posts over
the veto of the congregation; a situation that was supposedly rectified
following passage of the Church of Scotland Act, 1921). I haven't read
Robin Fretwell Wilson (et al.)'s work on SSM and religious freedom, but I'm
betting that some of you have strong opinions on this one way or the other,
and I would be very interested to know what they are.

I would be particularly interested in what people thought might happen
under the European Convention on Human Rights (my bet is that that court
would just authorise whatever the legislature decided on).

All best,
Scot Peterson
University of Oxford

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: Equivocal evidence, and the right to choose

[Friedman, Howard M.]

It seems to me that your paragraph (2) focuses the issue.  Should the Free 
Exercise clause understand religion only as a belief system?  Traditional 
Judaism does not define it that way. Instead (for those who are born of a 
Jewish mother) it is an identity that precedes a belief system. Can the 1st 
Amendment be seen as protecting a concept of religion that is different from 
the Christian notion that belief (acceptance of Jesus) defines religion? It was 
the insistence on seeing religion as only a belief system that led to the 
controversial decision by the Supreme Court of the United Kingdom in 2009 that 
ruled Jewish schools using the Orthodox Jewish definition of who is a Jew 
were engaged in ethnic origin discrimination (which British law equates with 
racial discrimination).

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 7/8/2012 12:29 AM
To: Law  Religion issues for Law Academics
Subject: RE: Equivocal evidence, and the right to choose
 
(1)  I'm not sure why A's interest in B's religion should give 
A the right to alter B's body - even if A is B's parent.

(2)  As to the sons' own interest in conforming to their 
religion, I don't think it's their religion at age 8 days, at least under 
what should be the secular legal system's understanding of religion (the 
subject's own belief system).

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brian Landsberg
Sent: Saturday, July 07, 2012 9:22 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Equivocal evidence, and the right to choose

Why consider only medical costs and benefits and ignore the parents' interest 
in the religious upbringing of their sons and the sons' own interest in 
conforming to their religion?

As to harms, shouldn't the burden be on the proponent of banning the procedure?

Sent from my iPhone

On Jul 7, 2012, at 3:40 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
Part of the reason, I think, is that irreversible decisions 
should, when possible, be left to the adult that the child will become; and 
while lack of circumcision is painful to reverse in adulthood, it's possible, 
while circumcision is at the very least much harder to reverse effectively.

Consider a few analogies.  It's not unreasonable for adults to 
tattoo themselves; it's not my choice, but a substantial minority of people do 
it.  Yet I think California law is right to bar all tattooing of minors, 
regardless of parental authorization - and it was even more correct when 
tattoos were very hard to reverse.  It's true that this is a decision by the 
state, but it's a decision that increases the decisionmaking authority of the 
adult that the child will become.

At the other extreme, it's not unreasonable for adults to get 
vasectomies or have their fallopian tubes tied - it's much rarer, especially in 
people who have no children at all, but it does happen.  Indeed, it may have 
some benefits, because it decreases the risk of pregnancy; and it can even 
provide some benefit to a teenage minor.  Plus if a child has especially 
serious genetic conditions, deciding on such a surgery may be especially 
plausible.  But I take it that parents would generally not be allowed to order 
such a surgery on their children (setting aside exceptional circumstances, such 
as when a child is mentally retarded, sexually active, and likely to get 
pregnant without such surgery), again because that is a decision that should be 
made by the adult that the child will become.

The same argument, I think, could be made about circumcision, 
depending on the evidence about medical costs and benefits (the case for 
allowing parents to decide becomes stronger when there are serious medical 
benefits) and on the evidence about whether circumcision indeed causes 
sufficient loss of sexual sensation.

Eugene

Brian Landsberg writes:

In the case of a newborn the possible decision makers are the parents and the 
state. Why should we trust the state's judgment more than the parents' on an 
issue as to which reasonable minds can differ?


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Relevance of Parham v JR To Circumcision Debate

[Friedman, Howard M.]

I think some guidance on relative rights of parents and children to make a 
decision that could arguably either harm the child or be in the child's best 
interest are found in the Supreme Court's 1979 decision in Parham v. J.R. on 
parental commitment of a minor to a state mental hospital.  While there is 
language in Chief Justice Burger's opinion that may point more than one way in 
the circumcision example, I call your attention to these excerpts:

Simply because the decision of a parent is not agreeable to a child, or 
because it involves risks, does not automatically transfer the power to make 
that decision from the parents to some agency or officer of the state. The same 
characterizations can be made for a tonsillectomy, appendectomy, or other 
medical procedure. Most children, even in adolescence, simply are not able to 
make sound judgments concerning many decisions, including their need for 
medical care or treatment. Parents can and must make those judgments. Here, 
there is no finding by the District Court of even a single instance of bad 
faith by any parent of any member of appellees' class The fact that a child 
may balk at hospitalization or complain about a parental refusal to provide 
cosmetic surgery does not diminish the parents' authority to decide what is 
best for the child

... [W]e conclude that our precedents permit the parents to retain a 
substantial, if not the dominant, role in the decision, absent a finding of 
neglect or abuse, and that the traditional presumption that the parents act in 
the best interests of their child should apply. We also conclude, however, that 
the child's rights and the nature of the commitment decision are such that 
parents cannot always have absolute and unreviewable discretion to decide 
whether to have a child institutionalized. They, of course, retain plenary 
authority to seek such care for their children, subject to a physician's 
independent examination and medical judgment.

Howard Friedman


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RE: Parental rights and physical conduct

[Friedman, Howard M.]

What has been absent from all of the discussion on this issue is the importance 
to Jewish belief of circumcision while the son is an infant. This ceremony at 
8-days of age (except where health precludes it that early) is the son's 
initiation into Jewish peoplehood. Waiting until adulthood is not the 
functional equivalent. Because the case in Germany involved a Muslim 
circumcision at a later age, the issue is muddled.  As I understand it, Islam 
has varying views on the proper age for circumcision, and even on how important 
it is. While centrality of religious belief has been a factor of declining 
importance in free exercise cases in recent years, here it perhaps should be 
revived. I think a better analogy for trying to come up with a rule is this:

Suppose there were a handful of cases in which infants drowned (or almost 
drowned) during full immersion baptism, and a court then ruled that because of 
the danger parents cannot baptize infants. They must wait until the child is an 
adult and then let him or her decide.  How would everyone come out on that case?

Howard Friedman 


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Thu 7/5/2012 10:57 AM
To: Law  Religion issues for Law Academics
Subject: Parental rights and physical conduct
 
This raises a fascinating and practically very important 
question (because there are more than 10 times as many American parents who 
authorize circumcision for nonreligious reasons than for religious reasons):  
Do Meyer/Pierce rights extend to the right to raise one's child in the sense of 
selecting an education for the child, setting behavior rules for the child, 
choosing a place to live with the child, and so on, or do they also have the 
constitutional right (not just a common-law right) to physically alter the 
child's body, including for nonmedical reasons?  When I last checked the 
caselaw on the subject, the Supreme Court cases weren't clear on that.  Are 
there cases I'm missing on that?

To be sure, I agree that parents are generally allowed to let 
their children put themselves at risk in various ways, such as by playing 
tackle football and not wearing enough sunscreen.  But that doesn't tell us 
much about whether that's a constitutional right.  And indeed I don't think 
that laws banning child labor, for instance, have been judged as interfering 
with parental rights (imagine Prince without the religious motivation), even 
though many such laws (again, imagine Prince) are pretty clearly overbroad.  
Likewise, I would think that a ban on ear piercing, tattooing, etc. of minors, 
even when the parents order such actions, would be constitutional, though of 
course that's part of the dispute between us.

Is there dispositive caselaw I'm missing here?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, July 05, 2012 7:38 AM
To: Law  Religion issues for Law Academics
Subject: Re: German circumcision decision

We are making this so much more complicated than it has to be.  I cannot speak 
to the particulars of the case in Germany, so I won't try.  But in the U.S, we 
have a longstanding tradition, initially at common law and ultimately in 
constitutional law (Pierce, Meyer, etc.) of parental control over the 
upbringing of their children.  The state can interfere with that control only 
for very good reason, and the state bears the burden of persuasion that it has 
such a reason.  Compulsory education, compulsory vaccination, and limiting 
child labor are the most obvious, specific policies that interfere with those 
rights of parental control.  (Perhaps I'm missing something on that list -- 
happy to learn of other such specific policies.)  Outside of such specific 
policies, parents (or other lawful guardians) presumptively control decisions 
about child well-being, unless the parents violate general norms about abuse or 
neglect.

Parents do all sorts of things that put their children's bodies at risk for 
permanent harm --  letting them play tackle football, go out in the sun all day 
without enough sunscreen, etc. Whether a particular practice of (more or less 
permanent) body-altering -- ear-piercing, nose-straightening, orthodonture -- 
is abusive depends on a social and medical judgment on the actuality of present 
harm, and in some cases the likelihood of future harm.

But two propositions control our approach to this -- 1) all parents/guardians 
have the same rights and face the same limits (religious motivation adds or 
subtracts nothing to parental rights); 2) the state has the burden of proof 
that a practice is abusive.  So, when reasonable people can and do differ about 
the social, medical, or hygienic benefits of a practice --as is obviously the 
case with infant male circumcision -- the state cannot meet its burden of 
showing the practice 

RE: Parental rights and physical conduct

[Friedman, Howard M.]

Many would argue that it is in the best interest of the child to welcome him 
into a supportive, religious community with shared values and age-old historic 
traditions-- that include circumcision or full immersion baptism or some other 
ritual that might create some small risk of injury (just as almost any activity 
might).  The problem is, how do you decide whether or not this is in the 
child's best interest without a prior value judgment about the religious 
tradition involved? There is no reason to believe that it is in the best 
interest of the child to raise him or her in a cultural or moral vacuum, or 
devoid of traditions which can give structure to his or her life, until the 
child reaches 18.  Of course there are some rituals that create an undue risk 
of harm-- and isn't the question one of how to identify those without imposing 
our own cultural or religious bias on the question of risk?

Howard


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Marci Hamilton
Sent: Thu 7/5/2012 2:59 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: Parental rights and physical conduct
 
I would like some clarification from those relying on purported parental 
rights. The use of the term parental right  is freighted w social and 
cultural value but very little legal value.

Pierce v Society of Sisters is balanced by Prince.  So the use of right in 
this context is a dead end in my view.

The best interest of the child is not in the context of parental rights as much 
as it is intended to treat the child as a separate person who deserves 
protection and respect even in opposition to a parent's demands or needs.

Marci

On Jul 5, 2012, at 12:42 PM, Eric Rassbach erassb...@becketfund.org wrote:

 
 Eugene --
 
 I don't think this makes sense because it posits an impossible universe of 
 zero-risk parenting. It is far riskier to drive your child on the freeway 
 (not to mention take him/her skiing, or letting him/her play soccer, or play 
 football (esp. in Texas)) than it is to baptize him/her. All those risks are 
 well within the set of risks that parents take in the normal course of 
 parenting. Indeed, for the state to interfere with the ability of parents to 
 expose children to those risks would be a gross interference with parental 
 rights. And I imagine that the danger to infants from either circumcision or 
 full immersion baptism is far lower than driving them around town, though I 
 claim no actuarial expertise on the matter.
 
 Eric
 
 
 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
 On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
 Sent: Thursday, July 05, 2012 12:31 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
I appreciate Howard's point, but the question is:  Why should 
 some children who by definition do not share a religious belief drown - or 
 otherwise be injured - for the sake of the beliefs of the adults who do have 
 that belief (and even for the sake of those children who, later in life, will 
 wish that they had been so baptized)?  I have great sympathy for people's 
 rights to risk their own lives (in the baptism example) or alter their own 
 bodies (in the circumcision example) for the sake of their religious beliefs, 
 or for that matter for the sake of their secular beliefs.  But why does it 
 follow that they should have the right to impose such risks on others, even 
 others to whom they are genetically linked?
 
Eugene
 
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M.
 Sent: Thursday, July 05, 2012 8:52 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: Parental rights and physical conduct
 
 
 What has been absent from all of the discussion on this issue is the 
 importance to Jewish belief of circumcision while the son is an infant. This 
 ceremony at 8-days of age (except where health precludes it that early) is 
 the son's initiation into Jewish peoplehood. Waiting until adulthood is not 
 the functional equivalent. Because the case in Germany involved a Muslim 
 circumcision at a later age, the issue is muddled.  As I understand it, Islam 
 has varying views on the proper age for circumcision, and even on how 
 important it is. While centrality of religious belief has been a factor of 
 declining importance in free exercise cases in recent years, here it perhaps 
 should be revived. I think a better analogy for trying to come up with a rule 
 is this:
 
 Suppose there were a handful of cases in which infants drowned (or almost 
 drowned) during full immersion baptism, and a court then ruled that because 
 of the danger parents cannot baptize infants. They must wait until the child 
 is an adult and then let him or her decide.  How would everyone

RE: German circumcision decision

[Friedman, Howard M.]

The basic issue, it seems to me, is the right of parents to instill a 
particular religious faith in their children.  Requiring parents to raise their 
children with no religious faith so the children can decide on their religion 
when they become adults is not a satisfactory alternative to anyone who takes 
religion seriously. And I think most people would find 1st or 14th Amendment 
problems with that kind of requirement.  Once it is conceded that parents can 
imprint religious beliefs in their children, why is it objectionable to imprint 
the religion physically, but not objectionable to imprint it mentally or 
psychologically?  When children become adults, they can often much more easily 
ignore the physical imprint than the psychological one. 

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sun 7/1/2012 11:56 AM
To: Law  Religion issues for Law Academics
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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RE: Defeat of RFRA constitutional amendment in North Dakota

[Friedman, Howard M.]

The website of the coalition opposing the measure http://ndagainst3.com/  
suggests some reasons for the loss in North Dakota.  The major newspapers in 
the state opposed it, as did the bishop of the Western North Dakota Synod of 
the Evangelical Lutheran Church of America. (North Dakota has a large Lutheran 
population).  There also seemed to be a good deal of concern about the use of 
Measure 3 as a defense in child abuse cases.  

Also, it may be that the matters which really drew people to the polls were  
different referendum issues-- whether the University of North Dakota could 
immediately get rid of the fighting Sioux nickname and logo for its athletic 
teams. The number of Yes votes on this was slightly higher than the number of 
No votes on RFRA. And a measure attempting to replace property taxes with other 
forms of taxation, which drew more voters than any of the other referenda and 
lost by 76%.

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 6/13/2012 11:06 AM
To: Law  Religion issues for Law Academics
Subject: Defeat of RFRA constitutional amendment in North Dakota
 
I was wondering whether list members had thoughts on the defeat 
of the RFRA constitutional amendment in North Dakota, see 
http://www.thedickinsonpress.com/event/article/id/58889/.  Relatedly, do people 
have a sense for why the RFRA enactment movement, which seemed so successful 
for a while - a constitutional amendment in Alabama, and statutes in 15 other 
states, Arizona, Idaho, and New Mexico in the West, Connecticut, Pennsylvania, 
Rhode Island in the North East, Florida, Louisiana, South Carolina, Tennessee, 
Texas, and Virginia in the South and Southwest, and Illinois, Missouri, and 
Oklahoma in the Midwest - seems to have fizzled?  (Note that Alaska, Indiana, 
Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, 
Ohio, Washington, and Wisconsin have adopted the Sherbert/Yoder model under 
their state constitutions, and New York has adopted a model that's less 
protective than Sherbert/Yoder but more protective than Smith.  See the map 
below, though that's from before the Kansas decision adopting the 
Sherbert/Yoder model.)

Thanks to Howard Friedman of the Religion Clause blog for the 
pointer.

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

[Friedman, Howard M.]

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 
vol...@law.ucla.edumailto: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: Court upholds prison no-pork policy against EstablishmentClausechallenge

[Friedman, Howard M.]

You are right. Except many of the cases in which prisoners are requesting 
kosher food involve inmates who are not Jewish (at least in the halachic 
sense). E.g. many times Muslims, having no hope of getting halal food, request 
kosher food which is apparently an acceptable alternative under Shariah law. Or 
groups like the Hebrew Israelites request a kosher diet. It is not clear 
whether these kinds of religious requests are from prisoners who care about the 
same strictures as traditional Orthodox Jews do.

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Eric Rassbach
Sent: Thu 4/12/2012 11:39 AM
To: Law  Religion issues for Law Academics
Subject: RE: Court upholds prison no-pork policy against 
EstablishmentClausechallenge
 


Chip is right that the supposedly inhumane methods of kosher/halal slaughter 
(something US law defines as humane, btw) is one of the main public 
justifications for banning the practice. But as our brief in the New Zealand 
kosher slaughter ban case pointed out -- 
http://www.becketfund.org/wp-content/uploads/2011/04/NZ-kosher-brief-FINAL.pdf 
-- more often than not this is pretext. For example, this was the same 
justification the anti-Semites of the 1930s used for banning the practice in 
several European countries. As we point out in our brief, one of the first 
things the Nazis did upon taking power was to pass a law banning kosher 
slaughter, supposedly in order to awaken and strengthen compassion as one of 
the highest moral values of the German people.  I don't think it's too much of 
a stretch to guess that anti-Muslim sentiment may be a subterranean motivation 
for the humane practices argument in the Netherlands, France and elsewhere.

The ironic part for me of the Mohr case was that my main experience of 
stand-alone prison pork bans is as a proposed compromise to settle kosher 
accommodation lawsuits. Of course pork bans don't work as a method of kosher 
accommodation, though prison administrators keep hoping that they do. In our 
now 6-year-old lawsuit against the Texas prison system (now on a return trip to 
the 5th Circuit), Texas at one point floated a pork ban as a solution, which 
only served to show that they didn't understand how kashrus works.

Eric

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Ira Lupu [icl...@law.gwu.edu]
Sent: Thursday, April 12, 2012 10:39 AM
To: Law  Religion issues for Law Academics
Subject: Re: Court upholds prison no-pork policy against EstablishmentClause
challenge

I think that at least part of the objections in Europe to serving only halal 
meat in some restaurants involves objections to methods of halal animal 
slaughter which (like kosher slaughter) may not be consistent with European 
standards for humane treatment of animals in their use as food.  Halal only 
means all diners are complicit in the that particular  slaughtering process.

On Wed, Apr 11, 2012 at 11:08 PM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:

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.edumailto: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

Something Peculiar With This Year's USCIRF Report

[Friedman, Howard M.]

Something peculiar seems to be going on with the annual report of the US 
Commission on International Religious Freedom. It was released this morning, 
but late this afternoon 5 of the Commissioners circulated a statement saying 
that Turkey should not have been on the recommended list to be named as a 
Country of Particular Concern. At the last minute (or later) a 5th Commissioner 
joined 4 dissenters-- turning their view into the majority view. But apparently 
the Report got issued and sent to the President without the change. I have 
posted a long discussion on Religion Clause 
http://religionclause.blogspot.com/2012/03/uscirf-releases-annual-report-with.html

I would be curious if anyone knows if there is more of a story behind this than 
I have been able to discover so far.


Howard Friedman
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Basketball Accommodation

[Friedman, Howard M.]

For those interested in religious accommodation in athletics and did not see 
this last year, the University of Toledo created a fascinating accommodation 
for their Orthodox Jewish star women's basketball player-- described here 
http://www.forward.com/articles/136770/ . The accommodation was made simpler by 
an unusually liberal interpretation by the player's Orthodox rabbi as to what 
is permitted on the Sabbath. He ruled it is OK to play in the Saturday game-- 
though it is not OK to practice on Saturday, or to drive to the game.

Howard Friedman
Professor Emeritus
University of Toledo
College of Law
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RE: Exemptions and accommodations

[Friedman, Howard M.]

Many exemptions can be described also as affirmative accommodations.  The 
person bringing his or her own meal into a restaurant is taking up table space 
that might otherwise be used by a patron ordering from the menu. Allowing it 
however may just be good business practice, since otherwise the remainder of 
the party might not patronize the restaurant. That is why so many restaurants 
have a vegetarian alternative-- the vegetarian in the group often has a veto.

I would suggest that the real issue in the basketball league is the special 
place of athletics in our society.  I would see sports leagues-- even privately 
sponsored ones-- as performing something like a public function as that term 
is used in state-action cases.  I suspect people feel differently about the 
need to reschedule a tournament basketball game, vs. the need for a privately 
endowed art museum to offer its art classes on a day other than Saturday.

Howard Friedman
Professor Emeritus
University of Toledo
College of Law



-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Mon 3/5/2012 3:16 PM
To: 'Law  Religion issues for Law Academics'
Subject: Exemptions and accommodations 
 
Eugene's distinction between the restaurant letting the Jewish member of the
party bring in his own kosher meal, and the restaurant changing its own
kitchen to provide a kosher meal for him, illustrates the difference between
a simple exemption from a rule and a the institution taking affirmative
steps to accommodate someone else's religious needs.  

 

This distinction is why I think it is  a mistake to talk about exemptions as
accommodations.  One who seeks only an exemption is merely asking to be left
alone, unregulated in some way. There may be reasons not to leave him alone,
if he is harming those around him. But to be left alone is all he is asking
for. One who seeks affirmative conduct by others to enable or facilitate his
religious observance is asking for something more, and accommodation would
be a good word to describe those cases, if we had not already used the word
to describe simple exemptions.  Accommodation has also been used widely and
variously to describe all sorts of other things that religious folks
sometimes want, up to and including school-sponsored prayer, and the range
of uses has deprived the word of any very precise meaning. 

 

The Court has repeatedly used accommodation to describe exemption cases,
and much of the scholarly literature uses it, so I suppose we are stuck with
it. But it has always seemed to me to be a mistake.

 

Part of what makes the calendar cases hard is that they so often require
active accommodation and not merely exemption. When the event must be
rescheduled for everyone, that is more complicated, and more costly, than
when the religious individual merely seeks to have his absence excused. 

 

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: Contraceptives and gender discrimination

[Friedman, Howard M.]

Is there another way around this? As I understand it, under the Affordable Care 
Act by 2014 every state must have a health benefits exchange on which 
individuals without coverage from their employers can purchase their own 
policies.  Can't institutions with objections to federal regulations on the 
insurance they provide instead just end coverage, increase employees' salaries 
by the cost of the coverage they had been getting, and remit employees to buy 
policies on the exchanges? I assume there are some tax disadvantages to 
purchasing a policy in this way, but is there enough of a disadvantage to 
preclude this as a solution? What am I missing?

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Douglas Laycock
Sent: Mon 2/13/2012 11:54 AM
To: 'Mae Kuykendall'; 'Ira Lupu'; 'Marc DeGirolami'
Cc: 'Law  Religion issues for Law Academics'; 'Con Law Prof list'
Subject: RE: Contraceptives and gender discrimination
 
The wars of religion were very much about the locus of religious authority. Men 
fought for, and men and women died for, the right to have a hierarchical church 
with teaching authority at the top, or a congregational church with ultimate 
authority in the lay people or in individual conscience, or a presbyterial 
church with authority in bodies composed partly of clergy and party of elected 
representatives. 

Individual Catholics of course determine their own religious position for RFRA 
purposes, but for religious institutions, the duly constituted religious 
authorities decide. In Catholicism, those authorities are the bishops, and the 
right to have a church in which bishops decide is very much a part of the 
religious liberty guaranteed by the Religion Clauses.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: conlawprof-boun...@lists.ucla.edu 
[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Mae Kuykendall
Sent: Monday, February 13, 2012 10:32 AM
To: Ira Lupu; Marc DeGirolami
Cc: Law  Religion issues for Law Academics; Con Law Prof list
Subject: Re: Contraceptives and gender discrimination

 

This explanation of the bishops' view from the NYT seems revealing of the 
actual goal:  The bishops will also renew their call for lawmakers to pass the 
Respect for Rights of Conscience Act, which would exempt both insurance 
providers and purchasers - and not just those who are religiously affiliated - 
from any mandate to cover items or services that is contrary to either's 
'religious beliefs or moral convictions.'  (The grammar belongs to the NYT, 
though I changed one typo.)

 

The demand is pretty radical stuff, unless I'm missing something.  It looks 
like an attack on contraception and a demand to be exempt from the general 
application of law--for anyone who provides medical care.

 

Finally, taking so much government money seems to involve religious groups in 
potential issues about what they really believe.  Since a majority of Catholics 
supported the original proposal (so polls say) and 98% use birth control, the 
question arises of who gets to say what the beliefs are.  With the hierarchy, I 
am unable to credit the extent of the claim as being non-political.  Hence, I 
see a rather wooden claim being made about religious liberty.  It would be 
interesting to debate the original meaning of free exercise--as applied to 
claims of exemption from general law in connection with large, heavily funded, 
substantially public institutions that provide critical services and are 
influenced by an affiliation with a hierarchical church based elsewhere where 
the adherents do not share the hierarchy's dogma about the matter at hand.  It 
would be hard to have a direct comparison, such as the attachment of a GPS 
tracker to a car.  

 

Last, and I hope someone reads this far, does anyone know if it's common for 
Catholic physicians to refuse to counsel patients on birth control?  Do they 
refuse to prescribe birth control and send their patients elsewhere?  Do 
non-Catholic physicians in Catholic hospitals have to advise patients that 
birth control is an evil?  How strong is the enforcement of the doctrine at 
ground level?  And do large Catholic hospitals have mainly Catholic doctors?  I 
wonder how many of the hospitals have a majority of doctors, including Catholic 
doctors, who have no problem with prescribing contraceptives?  If so, can a 
hierarchy really be the sole carrier of the beliefs around which a religious 
liberty claim would be constructed?  

 

Would I be wrong to think that the founders had individual liberty in mind, 
entirely without reference to hierarchical assertions of top-down belief edicts 
and, indeed, in opposition to the control over individual conscience of large, 
authoritarian church hierarchy?  Isn't the quest for liberation from 
authoritarian church power a large part of our 

RE: Contraceptives and gender discrimination

[Friedman, Howard M.]

The US Conference of Catholic Bishops in responding to the modified policy 
seems to believe that protections should go beyond religious entities and 
should cover secular employers and individuals with moral objections as well. 
They said ( http://usccb.org/news/2012/12-026.cfm ):

**the lack of clear protection for key stakeholders—for self-insured religious 
employers; for religious and secular for-profit employers; for secular 
non-profit employers; for religious insurers; and for individuals—is 
unacceptable and must be corrected.**

Is the religious liberty problem here an inevitable function of a system that 
relies on employer-based health insurance coverage? Or would coverage of 
similar services by Medicaid that is supported by taxpayers more broadly an 
equal problem?

Howard Friedman

-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Ira Lupu
Sent: Mon 2/13/2012 8:49 AM
To: Marc DeGirolami
Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law  Religion issues for Law Academics; 
Con Law Prof list
Subject: Re: Contraceptives and gender discrimination
 
On the burden question -- Religious entities may limit hiring to
co-religionists, and then make their best efforts to enforce religious
norms against employees.  Doesn't that option make the burden of the HHS
policy far less substantial?

I think a common reaction to the religious liberty claim being advanced
here is its leveraging effect on employees who are not of the faith.  So
even if some faiths have a religious mission to serve others, do they
similarly have a religious mission to employ others?  Or is it their
religious mission to impede access to contraception by all, whether or not
of the faith?  If it's the latter, I don't know why their position is any
different from or stronger than taxpayers who don't want to to support what
they see as immoral activity by their government.

On Sun, Feb 12, 2012 at 9:51 PM, Marc DeGirolami 
marc.degirol...@stjohns.edu wrote:

 Before one gets to how compelling the state's interest is, one needs to
 make a judgment under RFRA about whether the burden is substantial.

 Like Kevin, I'd also like to know how supporters of the mandate would
 characterize this burden as incidental, as opposed to substantial, as the
 latter term is used in the RFRA.  In the face of a claimant's sincere
 argument (if we may stipulate to sincerity) that the burden of complying
 with a regulatory scheme which coerces it to purchase a health plan that
 covers products and services as to which it has a conscientious objection
 is substantial (I am assuming that the alteration announced by the
 President on Friday retains this basic structure, though I am uncertain
 about that), what are the arguments that would be advanced to support the
 case for the burden's non-substantiality?  Would supporters of the mandate
 rely on an understanding of Catholic theology?  Would they claim that those
 who object have not understood well their commitments to the doctrine of
 cooperation with evil -- or some other religious doctrine -- and that
 courts are in a strong position to assess wh!
  ich rival understanding is the most plausible?  RFRA, as amended by
 RLUIPA, forecloses an inquiry into the centrality of a particular belief
 or practice within a belief system as a means of determining the
 substantiality of the burden imposed on the claimant.  What would a court
 rely on to conclude that, notwithstanding the sincere testimony of the
 claimant about the burden's substantiality, the burden was actually
 incidental?

 Marc DeGirolami

 -Original Message-
 From: conlawprof-boun...@lists.ucla.edu [mailto:
 conlawprof-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
 Sent: Sunday, February 12, 2012 9:11 PM
 To: Zietlow, Rebecca E.; Richard Dougherty; Marci Hamilton
 Cc: Con Law Prof list
 Subject: RE: Contraceptives and gender discrimination

 Suppose one accepts the argument about incidental burdens. What about the
 RFRA's least restrictive means requirement? See 42 U.S.C. 2000bb-1(b)(2).
 Do supporters of the contraceptives mandate concede that it cannot satisfy
 this part of the RFRA and fall back on the no-substantial-burden argument?
 If so, how does that argument go? Or is there instead an argument that
 forcing private employers with religious objections to offer a policy for
 free contraceptives is the _least restrictive means_ of providing access
 to low-cost contraceptives?

 Kevin Walsh
 
 From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu]
 On Behalf Of Zietlow, Rebecca E. [rebecca.ziet...@utoledo.edu]
 Sent: Sunday, February 12, 2012 8:52 PM
 To: Richard Dougherty; Marci Hamilton
 Cc: Con Law Prof list
 Subject: RE: Contraceptives and gender discrimination

 No one is denying a constitutional right to birth control to women.  Lack
 of access to insurance for birth control may effectively bar low income
 women who work for Catholic run 

First citation of Hosanna Tabor

[Friedman, Howard M.]

In an interesting opinion issued last week, the South Dakota Supreme Court may 
be the first court to cite Hosanna-Tabor as the basis for a decision-- and 
outside the employment area. The court refused to order dissolution of a 
Hutterite church created as a non-profit corporation because it involves using 
religious criteria to determine leaders and members who are entitled to 
distribution of assets.  More at Religion Clause blog 
http://religionclause.blogspot.com/2012/01/south-dakota-supreme-court-refuses-to.html

This creates the interesting situation in which the state cannot dissolve a 
corporation that the state itself created.

Howard Friedman
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RE: Hosanna-Tabor

[Friedman, Howard M.]

I think that the decision has much broader implications for church autonomy. I 
have just developed this argument in some detail in a posting on Religion 
Clause, for those who may be interested in reading it. 
http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html
  I welcome any reactions.

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor
Sent: Wed 1/11/2012 3:26 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hosanna-Tabor
 
There was a very good panel on the case at AALS Saturday morning (organized by 
Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie 
Griffin) and it included, among other things, an exchange between Rick Garnett 
and Bob Tuttle on the rationale for the ministerial exception.  While both 
acknowledged that they were overstating their differences, the contrast (as I 
understood it) was one between viewing the ministerial exception as completely 
(or almost completely) about the judicial disability to decide religious 
questions (a.k.a. the hands-off principle, the no religious decisions 
principle per Eugene) and viewing it as protecting certain kinds of decisions 
made by religious groups whether religious questions have to be decided or not. 
 (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.)   
 
While I agree that autonomy is a loaded word that the majority did not use 
and I agree that this case doesn't and isn't meant to reach beyond employment 
discrimination claims by ministers, the second view does seem to me 
potentially a bit broader than the first.  For example, Caroline Corbin and 
Leslie Griffin suggested at the panel that since this was a retaliation case, 
all the court really had to decide was whether there had been retaliation and 
this was not a religious question.  (Their argument, I think, was that the 
church's response -- it was retaliation based on religious principle -- is 
irrelevant unless there's a religious exemption from the retaliation provisions 
in the ABA.  Since Smith forecloses the latter argument, they suggested, you 
could decide the case without getting beyond the fact of retaliation, which was 
essentially admitted by the church.)  That argument may have some force if one 
thinks that the ministerial exception is entirely about disability to decide 
religious questions, but it has little force if one simply says, Look, the 
idea that religious groups get to decide who will play important spiritual 
roles without state interference is very old, and state interference in the 
selection of clergy is at the core of what the Establishment Clause meant to 
forbid.  If she's a minister, the state can't second-guess that decision in an 
employment discrimination suit.  Period.
 
At least to me, the majority opinion reads like the quote at the end of the 
last paragraph.  It doesn't seem to hold out any possibility that some 
employment discrimination cases might be within the judiciary's competence to 
decide if only it could do so without getting into religious questions.  One 
could perhaps reach the same result by saying Where it's a discrimination 
claim, religious questions will always be involved and thus the 
no-religious-decisions principle explains everything.  Some panelists on 
Saturday appeared to express that view, and it might be correct.  But it's 
striking to me that this argument is made only by Alito.  The majority opinion 
seems to me closer in spirit to Rick's idea that maybe the hiring and firing of 
ministers is a matter of sphere sovereignty -- the state's authority to 
regulate here just runs out.  I think this is also the approach Doug asked them 
to take, and it's pretty similar to what we used to call church autonomy back 
in the day.  I understand the (good) reasons for some discomfort with the term, 
but I'm not sure the idea is all that different.  (At least in this context, 
I'm not sure that the difference between autonomy and internal church 
governance amounts to much.  Again, I agree with Marci and Doug that if this 
is church autonomy, it doesn't reach outside employment discrimination.)
 
John Taylor
Professor and Associate Dean for Academic Affairs
WVU College of Law
 


 Alan Brownstein aebrownst...@ucdavis.edu 1/11/2012 2:08 PM 
While there is a lot of merit in what Eugene writes, it seems to me that he is 
identifying three arguments in support of the ministerial exemption:

1. It has strong historical roots.

2. There is a freedom of association dimension to it.

3. It is very circumscribed in its scope and involves far less judicial 
intrusion into executive and legislative decisions.

All are valid points. But I'm not sure they adequately distinguish why this 
particular set of religious decisions gets constitutional protection while 
others do not.  

1. Other religious exemptions have strong historical roots. 

2. Many individual religious practices have an 

Hosanna Tabor Decided By Supreme Court

[Friedman, Howard M.]

http://religionclause.blogspot.com/2012/01/supreme-court-upholds-ministerial.html

Howard Friedman
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RE: Hosanna-Tabor and the Ministerial Exception

[Friedman, Howard M.]

It seems to me the SG is arguing that there is no ministerial exception from 
the anti-retaliation provisions of the ADA, but is not necessarily arguing the 
same as to the anti-discrimination provisions. This makes some sense, since-- 
to the extent that the ministerial exception doctrine is broader than the 
related ecclesiastical abstention doctrine-- it is designed to protect against 
imposing a burden on a religious organization to prove the reason for its 
employment action.  I.e. we should not require a church to show that it 
dismissed an employee, who had a disability, for doctrinal reasons rather than 
because of the disability.  There is likely less risk of erroneous 
determination of motive in retaliation cases.

Beyond this, it seems to me that a missing piece in all of this is the 
employee's perspective.  The cases and briefs posit the church's interest vs. 
the state's interest.  However, from the perspective of the employee, the issue 
is protection against arbitrary employment action based on factors such as 
race, national origin or disability, where admittedly those have no relation to 
doctrinal concerns of the religious organization.  Employees of religious 
organizations often tend to be underpaid as it is. Anyone who has worked with 
boards of non-profits knows that the possibility of petty motivations for 
employment actions are not eliminated just because of the religious overlay.  
Do we really want to make it riskier for individuals to pursue challenging 
positions with non-profits because they lack protection that every other 
employee in our society has?  Is the risk or erroneous determination of motive 
strong enough to justify this? Particularly if we add the rule, as the SG's 
brief suggests, that reinstatement would not be a remedy?

Howard Friedman


-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund
Sent: Tue 8/16/2011 10:08 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Hosanna-Tabor and the Ministerial Exception
 
Marty asked for opinions on the briefs.  Here is what I've been thinking,
for whatever it's worth (probably very little).  At the outset, I should
say that my own views may be atypical, so I'm particularly interested in
what others think.

 

Anyway, I was a bit surprised by the briefs.  The lower courts have
uniformly recognized the ministerial exception.  So I assumed that this
would be a fight mostly over its scope-does Cheryl Perich, because of her
job duties and ecclesiastical office, fall within the ministerial
exception or not?

 

But the plaintiffs (the SG and Perich) do not go that way.  They don't
believe in any ministerial exception, at least as such.  Relying on Smith
and Jones v. Wolf, they say the ADA is neutral and generally applicable-so
there's no general constitutional problem with applying it to religious
groups.  The Solicitor General says that the relevant constitutional
concerns should instead be handled by a bunch of discrete, narrower rules:
(1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and
(3) a ban on cases where (a) the church claims it fired the plaintiff for
failing to adequately perform his or her religious duties and (b) the
plaintiff has no separate evidence that this is pretext.

 

Maybe it's just me, but I thought this a surprising position for the SG.
This is, to my knowledge, a narrower view of the ministerial exception
than any federal court has adopted.  Courts have divided on what jobs and
persons fall within the ministerial exception.  But they have agreed that,
for those jobs and persons, the ministerial exception is a categorical
bar.  The SG doesn't believe in a categorical bar.  If I understand the
SG's position right, a dismissed Catholic bishop could bring suit against
the church under any of the discrimination laws, provided he only seeks
damages and has evidence of pretext.

 

In particular, there's a huge fight about the scope of the church autonomy
precedents.  Hosanna-Tabor relies heavily on them to establish a broad
principle.  The Solicitor General treats them just as older cases
concerning church-property disputes (p. 11).  All that dicta in Kedroff
and other cases about church autonomy is now overruled by Smith; neutral
and generally applicable laws control.  Of course, the NLRA in Catholic
Bishop was neutral and generally applicable.  The principles of property,
trust, and agency in Milivojevich were neutral and generally applicable
(as then-Justice Rehnquist made clear in his dissent).  But the SG's brief
deals with these cases quickly, as if they were self-evidently irrelevant.
Milivojevich gets just a few lines in the middle of p. 25.  The SG quotes
an in-chambers solo opinion by Justice Rehnquist, adopting his view of
Milivojevich's holding-which, I note parenthetically, is weird because (1)
it's just Justice Rehnquist speaking, (2) he wrote the dissent in
Milivojevich, and (3) he was the one in Milivojevich who 

RE: Hosanna-Tabor and the Ministerial Exception

[Friedman, Howard M.]

Chris-- 

There are a number of statements in the SG's brief that suggest the government 
is limiting its argument to the anti-retaliation provisions, without taking a 
position beyond that.  E.g. the policy arguments in part III of the brief all 
focus on policies relating to retaliation claims. The headings on parts I. and 
II. of the brief refer only to the anti-retaliation provisions.   And at pp. 
19- 20, the brief argues:

**In particular, petitioner urges the Court to adopt a categorical rule that 
would bar adjudication of any suit— including the ADA retaliation suit at issue 
in this case— concerning a religious employer’s termination of an employee who 
performs important religious functions  This Court, however, has repeatedly 
made clear that it will not “formulate a rule of constitutional law broader 
than is required by the precise facts to which it is to be applied.” ...  
Although significant constitutional questions may arise in other cases 
concerning the application of the civil rights laws to religious entities, 
neither the Free Exercise Clause, nor the right to freedom of association, nor 
the Establishment Clause, stands as an impediment to adjudication of Perich’s 
claim that she was unlawfully terminated from her teaching position for 
exercising her rights under the ADA.**

As for your issue of religion as voluntary, that is certainly so for adherents 
of a faith. But for employees who rely on religious institutions for their 
livelihood-- often under contracts with them-- it is more than just a voluntary 
relationship.  The civil rights laws are exceptions to the common law 
employment-at-will doctrine. A broad ministerial exception is a rule that 
religious institutions (and only such institutions) are constitutionally 
entitled to rely on the employment at will doctrine without legislative 
modification. 

There is good reason for that kind of rule when the issue is whether a 
teacher's views conform to beliefs of the church, or when the issue is whether 
congregants like the minister's sermon or the cantors voice. There is reason 
for it when the denomination only recognizes male clergy and refuses to hire a 
woman pastor (or priest or rabbi or imam). It may even be that an exception is 
arguably justified for the church that espouses white supremacist racial 
doctrines when it refuses to hire clergy that are not Caucasian. But it seems 
to me there is less reason to give a pass to the church board that is bigoted 
and refuses to hire-- or fires-- an employee on racial grounds in the face of 
formal church doctrine that calls for racial equality.  There the only 
justification is that usually there is a dispute about whether the firing was 
racially motivated, and subjecting the church to a remedy (particularly of 
reinstatement) when the court's determination on motive could have been 
erroneous is a risk we are unwilling to impose.

Howard


Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund
Sent: Tue 8/16/2011 1:49 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Hosanna-Tabor and the Ministerial Exception
 
Thanks, Howard.  Is there something in the SG's brief that suggests that
it thinks there would be a ministerial exception to the
anti-discrimination provisions, but not the anti-retaliation provisions?
I may have missed it.  The idea is interesting, but I have trouble seeing
why the ministerial exception would apply to one but not the other.  You
say that there may be less risk of erroneous determination of motive in
retaliation cases.  Maybe you could explain further, I'm not sure I know
what you mean.  In both discrimination and retaliation cases, courts use
the McDonnell Douglas burden-shifting scheme, where juries pass on the
church's alleged nondiscriminatory reasons in deciding the existence of
discrimination or retaliation.  Won't the problematic considerations of
job performance (i.e., did the plaintiff-who, by hypothesis, had
significant religious duties-do those religious duties well or not?) enter
equally into both sets of cases?

 

As for the reasons for the ministerial exception, part of it is surely
about erroneous determination of motive.  And part is about reinstatement.
But I think there's something else too.  Religion is supposed to be this
voluntary thing.  We can all think of how this is true for religious
beliefs and practices-we see it everywhere from Torcaso v. Watkins to
Santa Fe v. Doe.  But it's true too for religious associations, which
should be chosen by people and not imposed by the state.   The ministerial
exception is part of that voluntary principle.  By creating a kind of
constitutionalized at-will employment, it guarantees that when
congregations and clergy stay together, it's because they choose to do so.
Now I don't know if it will survive, but I think that's a big part of why
the ministerial exception has persisted all these years.

 

Best,

Chris

 

Suit Seeks To Void NY Marriage Equality Law

[Friedman, Howard M.]

A suit filed today seeks to void New York's same-sex marriage law and void 
marriages under it performed so far. It relies on alleged procedural defects in 
the adoption of the law. More information and link to complaint at 
http://religionclause.blogspot.com/2011/07/suit-seeks-to-invalidate-new-york-same.html

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

[Friedman, Howard M.]

The new New York same-sex marriage bill has several different-- and apparently 
hastily drafted--exemptions.  One merely preserves the existing exemption in NY 
Executive Law Sec. 296. Sec 296 provides: 

   Nothing  contained  in this section shall be construed to bar any
  religious  or  denominational  institution  or  organization,   or   any
  organization  operated  for charitable or educational purposes, which is
  operated, supervised or controlled by or in connection with a  religious
  organization,  from  limiting  employment  or sales or rental of housing
  accommodations or admission to or giving preference to  persons  of  the
  same  religion  or  denomination  or  from  taking  such  action  as  is
  calculated by such organization to promote the religious principles  for
  which it is established or maintained.

Another provision in the new same-sex marriage bill protects a long list of 
institutions if they deny services, accommodations, advantages, facilities, 
goods or privileges for the solemnization or celebration of a marriage.  One 
of the sets of organizations protected are those listed in New York's 
Benevolent Orders Law.  That law lists 58 different organizations by name in 
Sec. 2. Presumably drafters were concerned with protecting Knights of Columbus 
from having to rent their halls for same-sex weddings. KofC is listed in Sec. 
2.  But so are numerous other organizations that are not religious in nature-- 
e.g. the American Legion which apparently now can refuse to rent out its 
facilities for same-sex ceremonies. Though I am not sure that any of these 
would have been considered a public accommodation subject to NY's 
anti-discrimination law in the first place.

Howard Friedman

-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Saperstein, David
Sent: Sun 6/26/2011 3:30 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: The religious exemptions in the new NY same-sex marriage law
 
Marty,

Are you suggesting there is no religious tenet component to the title Vii 
exemption? It is just on religious identity? And if a tenet component? How does 
it apply to this question?

David

Sent from my iPhone

On Jun 26, 2011, at 2:24 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

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

I have no idea what the existing NY religious exemption looks like -- perhaps 
it simply exempts religious organizations from the antidiscrimination rules for 
assisted living facilities generally, in which case Chip's example is surely 
correct.  But if, instead, such organizations only have an exemption to favor 
*coreligionists,* as under title VII -- i.e., in Chip's words, to exclude 
occupants on [certain] religious grounds, namely, that they are not 
coreligionists -- and *if* such an organization permits only its own 
coreligionists to live in the facilities (unlikely but not inconceivable), then 
it likely could not exclude same-sex partners who are of the favored religion.  
The coreligionists exception, that is to say, is not a license to discriminate 
on the basis of other prohibited criteria (race, sex, sexual orientation, etc.) 
merely because such discrimination is religiously motivated -- it only permits 
discrimination in favor of coreligionists.

On Sun, Jun 26, 2011 at 10:44 AM, Ira Lupu 
mailto:icl...@law.gwu.eduicl...@law.gwu.edumailto:icl...@law.gwu.edu 
wrote:
Whatever the current law in NY is, this doesn't change it.  So if a religious 
organization owns and operates an assisted living facility, and it excludes 
occupants on religious grounds, and it preaches against same-sex intimacy, it 
probably would be free to exclude same-sex partners.  Their marital status 
wouldn't change this.  I very much doubt that the organization's power to 
discriminate extends to investment property.  But that's a question of NY Human 
Rights law, and perhaps someone can enlighten on those details.  The important 
point about the the same-sex marriage law is that it appears to leave that 
power to discriminate (whatever its scope) undisturbed.


On Sat, Jun 25, 2011 at 4:49 PM, 
mailto:hamilto...@aol.comhamilto...@aol.commailto:hamilto...@aol.com 
wrote:
How do folks read the rental of housing language?   What if a religious 
organization owns rental property as an investment--does this mean they can 
reject gay partners even if the property is not otherwise used for religious 
purposes?
Does this differ from current law?

Marci


Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University

Sent from my Verizon Wireless BlackBerry

-Original 

Certiorari granted in ministerial exception case

[Friedman, Howard M.]

The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  
More at
http://religionclause.blogspot.com/2011/03/supreme-court-grants-review-in.html

Howard Friedman
Professor of Law Emeritus
University of Toledo
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European Court Upholds Crucifixes In Italian Classrooms

[Friedman, Howard M.]

The Grand Chamber of the European Court of Human Rights today held that Italy's 
required placement of crucifixes in state school classrooms does not violate 
protections of the European Convention on Human Rights.  More at Religion 
Clause blog: 
http://religionclause.blogspot.com/2011/03/european-courts-grand-chamber-upholds.html

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

[Friedman, Howard M.]

To be appointed a chaplain, a person needs an ecclesiastical endorsement from a 
recognized endorsing agency connected with the person's faith group. See 
http://www.goarmy.com/chaplain/about/requirements.html

Howard Friedman



-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Steve Sanders
Sent: Mon 1/3/2011 6:27 PM
To: Law  Religion issues for Law Academics
Cc: Law  Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators,pursuant
to an arbitration agreement?
 

Is someone applying for a military chaplaincy required or expected to have some 
religious qualification or membership in a religious order? Could a nonbeliever 
who nonetheless has an extensive academic knowledge of religion sue for 
discrimination if she's denied such employment?  

On Jan 3, 2011, at 1:11 PM, Volokh, Eugene vol...@law.ucla.edu wrote:

I'm not sure whether BFOQ doctrine as to religion helps us much as to the 
 First Amendment analysis.  That private entities aren't barred from 
 discriminating based on religion in some contexts doesn't necessarily tell 
 us, I think, that the government has an equally free hand.
 
Eugene
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
 boun...@lists.ucla.edu] On Behalf Of Steve Sanders
 Sent: Monday, January 03, 2011 12:53 PM
 To: religionlaw@lists.ucla.edu
 Subject: RE: May American court appoint only Muslim arbitrators, pursuant to
 an arbitration agreement?
 
 I recognize this isn't an employment discrimination case, but is the
 constitutional problem eased if the religion of the arbitrators could
 be considered a bona fide occupational qualification?  We recognize
 constitutional exceptions for those, right?
 
 Per Marc's question, presuming the contract was otherwise valid under
 state law, it's not clear to me that merely appointing arbitrators who
 are qualified according to the terms of a contract amounts to a court
 applying sharia law.  Evidently it's the arbitration panel, not the
 court, that is called on to apply sharia law in the course of
 interpreting the contract.
 
 Generally, the whole point of arbitration is to avoid the courts as
 much as possible through a private, extrajudicial mechanism for
 settling disputes.  Parties typically agree on arbitrators without the
 involvement of a court.  Thus, it seems to me that if an arbitration
 agreement is properly drafted, the constitutional issue of a court's
 discriminatory appointment process shouldn't arise as a matter of
 design.
 
 Steve Sanders
 
 Quoting Marc Stern ste...@ajc.org:
 
 But would this agreement be enforceable in Oklahoma ,with its ban on courts
 applying sharia law?
 
 Marc D. Stern
 Associate General Counsel
 165 East 56th Street
 NY NY 10022
 
 ste...@ajc.org
 212.891.1480
 646.287.2606 (cell)
 
 
 
 
 
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
 Sent: Monday, January 03, 2011 02:33
 To: Law  Religion issues for Law Academics; Eric Rassbach
 Subject: Re: May American court appoint only Muslim arbitrators,pursuant to
 an arbitration agreement?
 
 The court could apparently comply with the contract, and avoid all
 entanglement iwth religion, by appointing three Saudis.  Does anybody see a
 problem with that?
 
 I assume that all Saudis are Muslim, or at least that the percentage is so
 high that the odds of appointing a non-Muslim Saudi are negligible.
 
 
 
 On Mon, 3 Jan 2011 12:34:05 -0500
 Eric Rassbach erassb...@becketfund.org wrote:
 
 Here is the relevant provision (in translation) from the case-link Eugene
 sent around:
 
 The Arbitrator must be a Saudi national or a Moslem foreigner chosen
 amongst the members of the liberal professions or other persons. He may
 also
 be chosen amongst state officials after agreement of the authority on which
 he depends. Should there be several arbitrators, the Chairman must know the
 Shari'a, commercial laws and the customs in force in the Kingdom.
 
 
 
 
 
 From: religionlaw-boun...@lists.ucla.edu
 [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
 [vol...@law.ucla.edu]
 Sent: Monday, January 03, 2011 11:46 AM
 To: Law  Religion issues for Law Academics
 Subject: RE: May American court appoint only Muslim arbitrators, pursuant
 toan arbitration agreement?
 
  I agree with Nate's neutral principles / entanglement
 argument.  But I wonder whether one can so easily dismiss the equal
 protection argument from the enforcement of the contract.  The court, after
 all, would have to decide who gets to perform an important and lucrative
 task based on that person's religion, whether or not it's merely enforcing a
 private contract.  Of course the judge won't be acting based on religious
 animus, but he will be deliberately treating people differently based on
 religion.

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

[Friedman, Howard M.]

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 using merely neutral 
principles, but that isn't your argument here.  Rather, I take it that your 
objection rests on a non-discrimination principle.  Where is the discriminatory 
legal principle at issue?


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

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

  Eugene

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RE: Avitzur

[Friedman, Howard M.]

Some Conservative rabbis use (or at least in the past used) ketubot that added 
the Lieberman clause to the traditional language.  See 
http://www.ritualwell.org/lifecycles/intimacypartnering/Jewishweddingscommitmentceremonies/sitefolder.2005-06-07.5921979856/LiebermanClause.xml

Avitzur enforced such a provision.

-Original Message-
From: religionlaw-boun...@lists.ucla.edu on behalf of Finkelman, Paul 
paul.finkel...@albanylaw.edu
Sent: Mon 1/3/2011 10:36 PM
To: Law  Religion issues for Law Academics
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 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

RFRA Debate

[Friedman, Howard M.]

Pardon the self-promotion. Public Square has posted a 4-part debate between 
Marci Hamilton and me on the Religious Freedom Restoration Act at 
http://publicsquare.net/religious-freedom-restoration-act-bad-law-or-bad-lawyering
  The essays were actually written a number of months ago-- there was a good 
deal of delay in their getting posted. But except for a few dated references, 
the debate remains relevant.
 
*
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
E-mail: howard.fried...@utoledo.edu 
* 
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Supreme Court Decides Buono v. Salazar

[Friedman, Howard M.]

The Supreme Court this morning in an extremely fragmented decision reversed the 
9th Circuit's order that had barred the federal government from transfering the 
Sunrise Rock Cross war memorial to the VFW.  Details are on Religion Clause:
 
http://religionclause.blogspot.com/2010/04/supreme-court-reverses-order-barring.html
 
*
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: howard.fried...@utoledo.edu 
* 
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RE: JFS Decision by Britain Supreme Court

[Friedman, Howard M.]

I posted a follow-up this afternoon on Religion Clause setting out some initial 
reactions I had to  the JFS opinion. I think it is a more important opinion, 
with implications beyond Britain, than initial coverage has suggested. Here is 
the link to the commentary: 
http://religionclause.blogspot.com/2009/12/commentary-my-initial-reactions-to.html
  I would welcome any reactions either here or as comments to the posting.
 
*
Howard M. Friedman 
Disting. Univ. Professor Emeritus
University of Toledo College of Law
Toledo, OH 43606-3390 
Phone: (419) 530-2911, FAX (419) 530-4732 
E-mail: howard.fried...@utoledo.edu 
* 



From: religionlaw-boun...@lists.ucla.edu on behalf of rabbimsi...@aol.com
Sent: Thu 12/17/2009 4:01 PM
To: religionlaw@lists.ucla.edu
Subject: JFS Decision by Britain Supreme Court


 
I'm wondering if anyone on this list has any thoughts about this case
 
Here's a link from Prof Friedmans site
 
http://religionclause.blogspot.com/2009/12/britains-supreme-court-holds-jewish.html
 
thank you

 
Rabbi Michael Simon 
Temple Beth Kodesh 
Boynton Beach, Fl (954) 257-6159 
www.TempleBethKodesh.org http://www.templebethkodesh.org/ 
http://www.facebook.com/RabbiMichaelSimon
http://simonsense.blogspot.com http://simonsense.blogspot.com/ 


-Original Message-
From: Volokh, Eugene vol...@law.ucla.edu
To: 'Law  Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Thu, Dec 17, 2009 3:22 pm
Subject: FW from Chip Lupu: Elane Photography




-Original Message-
From: Ira (Chip) Lupu [mailto:icl...@law.gwu.edu mailto:icl...@law.gwu.edu? ] 
Sent: Thursday, December 17, 2009 12:19 PM
To: Volokh, Eugene
Subject: Elane Photography

Eugene:

I'm at a computer from which I cannot post to the list.  But here's one 
question 
about your compelling interest argument re: New Mexico RFRA  -- What difference 
does it make that  NM does not legally recognize same-sex marriage?  The claim 
here is about the refusal of a commercial photographer to perform her offered 
professional service at a ceremony.  It happens to be a wedding ceremony, but 
its legal significance (or absence of legal significance) has absolutely 
nothing 
to do with the claim.  The state protects gays and lesbians against 
discrimination in private markets for goods and services, and this claim arises 
in one of those markets.

Chip

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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Cert Granted in Christian Legal Society (Hastings Law School)

[Friedman, Howard M.]

The Supreme Court this morning granted cert in a CLS case in which the 9th 
Circuit upheld application of university nondiscrimination provisions to a law 
school religious group.
http://religionclause.blogspot.com/2009/12/supreme-court-grants-review-in-hastings.html
 
Howard Friedman
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RE: UK Jewish school denies racial discrimination - Yahoo! News

[Friedman, Howard M.]

The problem in this case is not ethnicity in the way we usually use that 
term. If the mother had converted to Judaism under an Orthodox rabbi, the 
school would have admitted the student. The problem was that in this case she 
had converted under a rabbi in Britain's equivalent of the Reform movement.  If 
the mother had been born Jewish and the father converted, or was never Jewish, 
the child would have been admitted to the school because under Orthodox Jewish 
law, religious identigy passes through the mother.  Britain allows it faith 
schools to select students on the basis of religion, just not on the basis of 
race.  Jewish groups have always maintained that the Orthodox definition of 
who is Jewish is not racial, because anyone can convert into Judaism-- unlike 
the immutability of race. So in a sense, the debate within Judaism over whether 
the Orthodox rabbinate will recognize conversions by rabbis in other 
denominations has gotten pigeon-holed as a race question.
 
Howard Friedman



From: religionlaw-boun...@lists.ucla.edu on behalf of Vance R. Koven
Sent: Sat 10/31/2009 11:19 AM
To: Law  Religion issues for Law Academics
Subject: Re: UK Jewish school denies racial discrimination - Yahoo! News


Indeed. And in order to uphold the racial discrimination charge, does the court 
have to rule that the mother is not, in fact, Jewish, because Judaism is 
defined under British law as an ethnic group rather than a religion? That, it 
seems to me, is the principal error here. If the father had converted to 
Christianity instead of the mother to Judaism, would it still be racial 
discrimination to keep the boy out? 

Vance


On Sat, Oct 31, 2009 at 5:27 AM, Joel Sogol jlsa...@wwisp.com wrote:


So who decides the criteria for being Jewish?  The court or the Rabbi?

http://news.yahoo.com/s/ap/20091027/ap_on_re_eu/eu_britain_jewish_school



Joel Sogol


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-- 
Vance R. Koven
Boston, MA USA
vrko...@world.std.com

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