New Esbeck Article on SSRN
Professor Carl Esbeck of the University of Missouri School of Law has published a new article entitled When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis. It is available on SSRN at the following URL: http://ssrn.com/abstract=992885 Greg Baylor Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Article re 60th Anniversary of Everson
Professor Carl Esbeck of the University of Missouri School of Law has published an article examining the six decades of Establishment Clause jurisprudence since Everson. The article is entitled, The 60th Anniversary of the Everson Decision and America's Church-State Proposition. The abstract is on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=984926 Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Christian Legal Society Center for Law Religious Freedom Launches Blog
The CLS Center has joined the blogosphere: http://religiousfreedom.blogspot.com/ Recent posts address things like ENDA's religious exemption, academic articles about health care conscience rights, and a lawsuit over school distribution of fliers to students. Comments welcome. Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
California Supreme Court Decision in Tax-Exempt Bond Finance Case
Earlier this week, the California Supreme Court issued a decision in California Statewide Communities Development Authority v. All Persons Interested. The opinion is available on the web at http://www.courtinfo.ca.gov/opinions/documents/S124195.PDF The lower courts had concluded that article XVI, section 5 of the California Constitution (sometimes called California's Blaine Amendment) forbid the agency (CSCDA) from issuing tax-exempt bonds for construction projects at Azusa Pacific University, California Baptist University, and the Oaks Christian School if such schools were pervasively sectarian. By a 4-3 vote, the state supreme court held that a school's eligibility for tax-exempt bond finance does *not* turn on whether it is pervasively sectarian. It remanded the case back to the lower courts for further proceedings. [The dissenters concluded that the proposed bond issues were plainly unconstitutional and that remand was unnecessary.] The supreme court instructed the lower courts to ask two questions in determining the constitutionality of the proposed bond issues: (1) whether the schools offer a broad curriculum in secular subjects; and (2) whether the schools' secular classes consist of information and coursework that is neutral with respect to religion. In discussing the neutrality requirement, the court invoked Establishment Clause cases requiring religious neutrality in various settings, including Epperson v. Arkansas and McCreary County v. ACLU. At the same time, the court said that the expression of a religious viewpoint in otherwise secular classes held in financed buildings would not render the bond issue unconstitutional. I am particularly interested in whether other subscribers believe whether a bond issuing agency would violate the federal constitution if it denied a religious school access to conduit financing on the ground that its secular classes are NOT neutral with respect to religion. Federal and state tax codes exempt from income tax the interest earned on government-issued bonds. Government agencies issue bonds for the benefit of a huge variety of entities, including for-profit industrial enterprises, housing facilities, airports, hospitals, and schools. Because the investors don't pay tax on the interest they earn, they are willing to accept a lower rate of return. This benefits the borrowers, who pay a lower interest rate. Of course, government tax revenues are lower than they otherwise might be. Given the indirect nature of the government benefit to religious schools, is California justified in requiring religious neutrality in financed buildings? Or is this an unjustifiable viewpoint discriminatory condition on an otherwise available benefit? Greg Baylor Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Esbeck Article re Play in the Joints
I thought list members might be interested in this: Carl H. Esbeck, Play in the Joints Between the Religion Clauses and Other Supreme Court Catachreses, 34 Hofstra L. Rev. 1331 (2006). http://ssrn.com/abstract=934410 Abstract: Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Courts task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. This conception that the free-exercise and no-establishment texts are in frequent tension, and at times are in outright war with one another, is quite impossible. Each substantive clause in the first eight amendments to the Bill of Rights was designed to anticipate and negate the assumption of certain powers by the national governmenta government already understood to be one of limited, enumerated powers. Thus, for example, the free-speech clause further limited national power and the free-press clause did so as well. These two negatives on powerspeech and presscan overlap and thus reinforce one another but they cannot conflict. Simply put, it is logically impossible for two negations of a governments delegated power to conflict. Similarly, the free-exercise provision further restricted the nations powers and no-establishment did likewise. These two negatives can overlap and thereby doubly deny the field of permissible governmental action, but they cannot conflict. To be sure, each clause in its own way works to protect religious freedom. And when circumstances are such that the scope of the clauses overlap, they necessarily compliment rather than conflict with each other. However, the Courts imagining these two negations of governmental power as frequently clashing is at a conceptual level simply not possible. Gregory S. BaylorDirector, Center for Law Religious FreedomChristian Legal Society8001 Braddock Road, Suite 300Springfield, VA 22151(703) 642-1070 x 3502(703) 642-1075 fax[EMAIL PROTECTED]http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Decision in Wisconsin State Employee Charitable Campaign Case
I thought list members might be interested in knowing that a federal district in Wisconsin held last Friday that state officials violated the Constitution by denying certain religious charities access to their state employee charitable campaign. Access to the campaign was conditioned on compliance with a rule banning religious discrimination in choosing employees and members of the governing board. The case is Association of Faith-Based Organizations v. Bablitch, W.D. Wis No. 06-C-175-S. The opinion is online at http://www.wiwd.uscourts.gov/bcgi-bin/opinions/district_opinions/C/06/06-C-1 75-S-09-29-06.PDF. The court held that it was unreasonable under the circumstances for Wisconsin to exclude these religious charities from the campaign. The court distinguished the Second Circuit's decision in Boy Scouts v. Wyman. My organization represents the plaintiff in the case. Greg Baylor Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 4th Circuit rules (again) in favor of the Good News Club
CLS did not take a position in the Wiccan case. Greg Baylor Gregory S. BaylorDirector, Center for Law Religious FreedomChristian Legal Society8001 Braddock Road, Suite 300Springfield, VA 22151(703) 642-1070 x 3502(703) 642-1075 fax[EMAIL PROTECTED]http://www.clsnet.org From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Friday, August 11, 2006 10:59 AMTo: religionlaw@lists.ucla.eduSubject: Re: 4th Circuit rules (again) in favor of the Good News Club I ask the following question for edification-- How does one square this decision with the 4th Cir's willingness to permit the Wiccan woman to be excluded from delivering prayers at city council meetings? I'm blanking on the name of the latter case, but it would seem that equality is at issue in both cases, and the results would seem at first blush in conflict with each other. And what position did CLS take on the Wiccan case, if any? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University This is the case's second trip to the 4th Circuit, and once again thecourt invalidates the Montgomery County School District's variousmachinations to prevent the Good News Club access on equal terms to theforum of take-home flyers given to the students. http://pacer.ca4.uscourts.gov/opinion.pdf/051508.P.pdf ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 4th Circuit rules (again) in favor of the Good News Club
This dispute has been to the Fourth Circuit twice. In the first appeal, Americans United for Separation of Church and State, the ACLU of the National Capitol Area, the ACLU Foundation of Maryland, the Anti-Defamation League, People for the American Way, the National Education Association, the National School Boards Association, the Maryland Association of Boards of Education, the National Parent Teacher Association, the American Association of School Administrators,and Montgomery Soccer filed amicus briefs supporting Montgomery County Public Schools. In the second appeal, the National School Boards Association and the Maryland Association of Boards of Education filed an amicus brief supporting the school district. Greg Baylor Gregory S. BaylorDirector, Center for Law Religious FreedomChristian Legal Society8001 Braddock Road, Suite 300Springfield, VA 22151(703) 642-1070 x 3502(703) 642-1075 fax[EMAIL PROTECTED]http://www.clsnet.org From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Friday, August 11, 2006 11:21 AMTo: Law Religion issues for Law AcademicsSubject: Re: 4th Circuit rules (again) in favor of the Good News Club [EMAIL PROTECTED] wrote: I ask the following question for edification-- How does one square this decision with the 4th Cir's willingness to permit the Wiccan woman to be excluded from delivering prayers at city council meetings? I'm blanking on the name of the latter case, but it would seem that equality is at issue in both cases, and the results would seem at first blush in conflict with each other. And what position did CLS take on the Wiccan case, if any?Excellent question. One might add another: what position did the ACLU and/or Americans United take in this most recent case? There might well be hypocrisy on both sides of this one. The earlier case you're referring to was Simpson v Chesterfield Co. Board of Supervisors. That ruling can be found at http://pacer.ca4.uscourts.gov/opinion.pdf/041045.P.pdf. It appears at first blush that the court did not even consider the question of this being a public forum of any kind, and looked primarily at Marsh v Chambers as the controlling precedent. From that ruling:The parties here differ as to which lines of precedent govern thiscase. Simpson rejects the Countys argument that the principles ofMarsh v. Chambers suffice to resolve the dispute. She instead offers,and the district court accepted, Larson v. Valente, 456 U.S. 228(1982) (finding "denominational preference" to violate the EstablishmentClause), as well as Lemon v. Kurtzman, 403 U.S. 602, 612-13(1971) (creating a general framework to evaluate EstablishmentClause challenges). We think her reliance on these cases is misplacedand conclude that Marsh v. Chambers controls the outcome of thiscase.The court went on to note that Marsh was more on point and that it post dated both Larson and Lemon, and the court did not apply either of those cases in March. So it appears that the plaintiffs did not raise the public forum issue and the court did not consider it. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 4th Circuit rules (again) in favor of the Good News Club
The first appeal addressed (and resolved)the question whether school distribution of Good News Club fliers violated the Establishment Clause. The second appeal did not, instead focusing on whether MCPS's somewhat peculiar new flier distribution policy violated the Free Speech Clause. I suspect that this explains why numerous groups participated in the first but not the second appeal. Greg Baylor CLS From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed BraytonSent: Friday, August 11, 2006 4:41 PMTo: Law Religion issues for Law AcademicsSubject: Re: 4th Circuit rules (again) in favor of the Good News Club Greg Baylor wrote: This dispute has been to the Fourth Circuit twice. In the first appeal, Americans United for Separation of Church and State, the ACLU of the National Capitol Area, the ACLU Foundation of Maryland, the Anti-Defamation League, People for the American Way, the National Education Association, the National School Boards Association, the Maryland Association of Boards of Education, the National Parent Teacher Association, the American Association of School Administrators,and Montgomery Soccer filed amicus briefs supporting Montgomery County Public Schools. In the second appeal, the National School Boards Association and the Maryland Association of Boards of Education filed an amicus brief supporting the school district. Interesting. Does anyone know why the change? Did the ACLU, PAW and AU feel that the new policy from the school board resolved the constitutional questions?Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Seventh Circuit Decision in Christian Legal Society v. Southern Illinois University
On Monday, the Seventh Circuit issued a decision in a dispute between Southern Illinois University School of Law and the law school's Christian Legal Society chapter. Law school officials revoked the CLS chapter's recognition and attendant benefits on the ground that the chapter's statement of faith and conduct requirements violated university bans on religious and sexual orientation discrimination. A majority of the Seventh Circuit panel directed the district court to enter a preliminary injunction requiring the law school to reinstate the chapter during the pendency of the litigation. The opinions can be found on the Seventh Circuit's website at the following URL: http://www.ca7.uscourts.gov/tmp/UK0P676W.pdf The undersigned is among the lawyers representing the chapter in this case. Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Christians Sue for Right Not to Tolerate Policies
The article is also poor in that it attributed to me comments I didn't make. The reporter wrote that I conveyed the idea that same-sex sexual attraction is a matter of choice rather than a genetically determined trait. I said no such thing. It also said that I predicted that the IRS would eventually revoke the tax-exempt status of religious organizations that take homosexual conduct into account in their employment decisions. I didn't say this either. I have communicated this to the reporter and her editor. Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Monday, April 10, 2006 2:15 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: Christians Sue for Right Not to Tolerate Policies [EMAIL PROTECTED] wrote: This story was sent to you by: michael newsom Some might find this interesting. Christians Sue for Right Not to Tolerate Policies What a terrible article. It lumps a wide range of different policies together, from diversity training to hate speech codes to anti-discrimination codes, some of which are clearly unconstitutional and some of which are not. It pretends that only Christians want to get rid of some of them, which is blatantly false. I'm not a Christian, and I'm also a strong supporter of gay righs, and I'm a staunch opponent of hate speech codes, and I would argue that such codes at public universities are clearly unconstitutional. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression
My organization represented CEF in the Stafford case. Prof. Volokh is correct that the school district argued that the Establishment Clause required it to deny CEF benefits available to other community organizations. The essence of their argument was that they needed to protect little kids from religion. Greg Baylor Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 04, 2005 12:15 PM To: Law Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression I suspect that Alito's response was in large part a reaction to two cases that he heard on the Third Circuit: Child Evangelism Fellowship of New Jersey Inc. v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004), and C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000). In both, the government's lawyers -- presumably not ones who are easily duped by unrelenting rhetoric we hear from the right -- apparently argued that the Establishment Clause required government entities to discriminate against private religious speech (i.e., religious speech by students or by private organizations, not religious speech by school officials in their official capacity) in schools. In Oliva, the lower court seemed to at least partly endorse this view, though its comments are a little cryptic. (And of course in Oliva, the Third Circuit ultimately concluded that the school was entitled to discriminate against the religious speech, though it didn't hold that such discrimination was required.) I haven't read the briefs in those cases, but if I were the government lawyer making that argument, I'd certainly have something to point to in the Court's decisions -- for instance, the concurrences in Pinette, which seem to suggest that the Establishment Clause sometimes may require discrimination against private religious speech, and even the plurality in Pinette, which says that compliance with the Establishment Clause is a compelling interest justifying what would otherwise be a violation of the Free Speech Clause (rather than that compliance with the Free Speech Clause is an adequate justification for what would otherwise be a violation of the Establishment Clause). My guess is that if Alito did say that the Court's doctrine really gives the impression of hostility to religious speech and religious expression and that the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual expression of religion -- I say if because my sense is that it's hard to be confident of the accuracy of such second-hand quotes -- he was likely alluding to what he saw while participating in those cases: The Court's doctrine has created, among many government officials (as well as among critics of those officials) an impression that private religious speech is in some measure constitutionally disfavored, and that private religious speech can be and perhaps must be subject to special restrictions. And that strikes me as quite a sensible criticism of the Court's doctrine, though of course there are also quite sensible defenses of the Court's doctrine. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Friday, November 04, 2005 8:42 AM To: 'Law Religion issues for Law Academics' Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Friday, November 04, 2005 9:21 AM To: Law Religion issues for Law Academics Subject: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression I don't want to be too picky here, but Alito is saying impression of hostility, not necessarily hostility. So, in a sense, he does not disagree with Marty. Alito says impression, and Marty says misperception. A misperception is in fact an impression, but an inaccurate one. I do think that Alito is correct that there is an impression of hostility. Now whether that impression is justified is ever or always justified is another question. But clearly Alito is justified in saying that many ordinary people in fact have that impression. I'm going to suggest that a large part of this misconception is the result of the almost unrelenting rhetoric we hear from the right claiming that the courts are hostile to religion, want to stamp it out from society, have thrown God out of the schools and so forth. I've had countless conversations with people who are shocked to find out what the courts have actually ruled on various religious expression
RE: Faith tests okayed for campus Christian group at ASU
Title: Message
I agree that courts have struggled to implement Justice
Scalia's "hybrid rights" concept.
Interestingly, in the section of his Smith opinion
discussing so-called "hybrid rights," Justice Scalia stated as
follows:
And
it is easy to envision a case in which a challenge on freedom of association
grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts
v. United States Jaycees,
468 U.S. 609, 622, 104 S.Ct. 3244, 3251-52, 82 L.Ed.2d 462 (1984) ("An individual's freedom to speak, to worship, and to
petition the government for the redress of grievances could not be vigorously
protected from interference by the State [if] a correlative freedom to engage in
group effort toward those ends were not also
guaranteed").
Roberts, of course, concerns the application of a
non-discrimination rule (albeit one that concerns sexrather than religion
or sexual orientation).To the extent lower courts are willing and able to
implement "hybrid rights" theory, the theory would seem to apply squarely to the
situation we've been discussing, i.e., the application of a religion
and/or sexual orientation non-discrimination rule to a religious
group.
Again, it seems to me that a court trying faithfully to apply the
Free Exercise Clause as interpreted inSmith to the CLS chapter
cases would impose strict scrutiny. I also believe that if courts
correctly apply strict scrutiny, they will conclude that the government lacks an
interest that is sufficiently compelling to justify the substantial burden on
the religious student group's right to exercise its religion
freely.
Greg Baylor
From: Alan Brownstein
[mailto:[EMAIL PROTECTED] Sent: Monday, October 24, 2005
12:54 PMTo: [EMAIL PROTECTED]; Law Religion issues for Law
AcademicsSubject: RE: Faith tests okayed for campus Christian group
at ASU
With regard to Gregs
last point, the case law is decidedly mixed regarding so-called hybrid
rights. It is not surprising that courts are reluctant to accept this
doctrinal fabrication manufactured out of whole cloth by Scalia in Smith since the principle is intellectually
and/ or normatively indefensible.
Alan
Brownstein
UC
Davis
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Gregory S.
BaylorSent: Thursday, October
20, 2005 3:24 PMTo:
'Law Religion issues for Law
Academics'Subject: RE: Faith tests okayed for campus
Christian group at ASU
I would argue that
under cases like BSA v.
Dale, a rule forbidding a religious organization from
taking religious belief and extramarital sexual conduct into account in its
personnel decisions infringes upon the religious organization's right of
expressive association and, therefore, that the government in such a
circumstance would be required to provide a compelling
justification.
Prof. Jamar is correct
that some of these cases involve "a benefit that need not be given at all." I
may be misreading him, but I believe he is suggesting that the government
may withhold benefits under a
rule that it could not apply to the party in question by virtue of a direct
regulation of behavior (as opposed to a condition on access to a benefit). If I
am reading him correctly, I believe that this argument conflicts with existing
precedent. The Supreme Court has repeatedly applied strict scrutiny to rules
governing access to government benefits, e.g., Speiser v. Randall, Perry v. Sindermann, O'Hare
Trucking, Velazquez v. LSC,
etc.
In other words, I do
not agree with Prof. Jamar's apparent assertion that these non-discrimination
rules are not subject to strict scrutiny because they do not target religion or
religious groups. [Note that even as a matter of Free Exercise Clause law, these
rules are subject to strict scrutiny despite Smith given that they burden
hybrid rights.]
Are these arguments not
correct, as a matter of existing case law?
___
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