Re: Bible classes in elementary schools
ges to others. > > -- > > Sent from Gmail Mobile > F. Elwood & Eleanor Davis Professor of Law > George Washington University > > ___ > 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. > > > -- Hillel Y. Levin Associate Professor University of Georgia School of Law Director, Georgia Law in Atlanta 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Religious objections to deportation policies
ions, 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 p > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > https://urldefense.proofpoint.com/v2/url?u=http-3A__lists. > ucla.edu_cgi-2Dbin_mailman_listinfo_religionlaw&d=DwICAg& > c=UT72XLgLSquXuWqngwXwRw&r=g1VX3BoZB_unYQxCiACrWJfXLfLiNC1KjpGKsGtdK5Y&m= > btA3ZixBXmFw87yJGZ4JJ7E2B1BTbGAc_WV25xSRSp0&s=P-7- > FYBIs1OPFHYgHSRYfU4WLqdNl1br771GvyfnWQQ&e= > > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law Director, Georgia Law in Atlanta 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
Religious Test for Immigration/Refugee--Lawsuits?
Is anyone aware of or involved in lawsuits that have been filed challenging the distinction between Christian and Muslim refugees/immigrants in Trump's EOs on Estab Clause grounds? -- Hillel Y. Levin Associate Professor University of Georgia School of Law Director, Georgia Law in Atlanta 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Jewish law, women's bodies, and accommodations
I confess I'm stymied by the objection Meir has articulated to my offending paragraph. Jewish laws regarding modesty surely *must* reflect certain assumptions about women's bodies . Why else would there be a religious law concerning mixed swimming (or women singing in front of men, or showing their elbows or knees, or in the case of married women, their hair, and so forth?). You'll note that Meir added a key word in brackets--that the assumptions I attribute to the law are "negative"--that was not present in my original. Is it good form to criticize someone for things s/ he did not say? I was taught not. I made no claim as to what those assumptions are, and this may well be open to debate. But *that* there are assumptions underlying this religious principle is, indeed, beyond dispute. Incidentally, I was taught in my roughly 20 years in various yeshivot that these assumptions relate to women's bodies being sexual, and therefore that they should be covered when men are present (except in the case of a spouse, and then only sometimes). Even in saying that, I am *still *not making a value-laden claim about the assumption--true, false, positive, negative, or otherwise. In any event, I have no objection to a co-religionist (or anyone else) challenging this account of the underlying assumption or framing it otherwise . I continue to think, as a normative matter at least ( I guess what Eugene means by "as a basis for political opposition"), that assumptions --whatever they are , and whether their source is religious or not -- about women's bodies in particular that relate to sexual modesty should not be reflected in and reinforced by the law. To be sure, this does not respond to the question both Eugene and Meir raise: should judges take into account an underlying , embedded assumption/message ? I'm not sure what the answer to that question is, but at the very least we do know that judges do take into account in estab clause cases the question of what a reasonable observer would likely understand -- how s/he would interpret the gov action. To get at that question, judges consider history and social context. That might distinguish this case from Eugene's Wiccan example --the history and social context may be different enough to matter . In the end, though, I'm not sure how this issue cuts in this case , and I don't have religion on the question. In any event, I'm not convinced there's an Establishment Clause problem here under the third party harms analysis. Random men (and women, boys, girls . . . . ) are excluded from the pool for all kinds of reasons at many times of the day, as Chris pointed out --to accommodate water polo, those learning to swim, learners with disabilities, adult lap swimmers, seniors, etc . Exclusion from the pool for the sake of others is just one of those things that this society has accepted for itself. At the very least, it suggests that the third party harm here is minimal indeed, since this society apparently tolerates that harm (exclusion from the pool) in spades. Recall that the problem with the statute in *Thornton v Caldor*, was that *only* religious people were permitted to impose on third parties; had the law allowed *everyone* to take off on the day of their choosing, or perhaps had it even allowed religious accommodations among a menu of other accommodations--it would not have violated the Establishment Clause. This is true even though a particular person choosing to take off a particular day--and thus imposing on someone else--may well be motivated by religious beliefs. As several have noted or implied, the swimming pool case presents obvious Equal Protection problems, more so than it does Establishment Clause issues (though I do not discount the possibility of an EC violation). Indeed, the fact that there are no "men's only" hours makes this an *easy* EP case. "Separate but equal" may be acceptable in some gender segregation cases under EP. Separate-gender bathrooms are presumptively permissible under EP; separate gendered schools may be tolerated in some circumstances. But offering *only* women's bathrooms or *only* boys' schools isn't an option, right? If they added men's only swim hours, the EP case becomes more difficult. My instinct (and it is only that) is that it would still be unconstitutional; but at a minimum the EP clause requires *at least* formal equality. On Monday, June 6, 2016, Meir Katz wrote: > Hillel's assumption that "Jewish laws relating to sexual modesty have > embedded within them, and reinforce, certain [negative] assumptions and > norms about women's and girls' bodies [that are contrary to public policy]" > is both incorrect and not widely held by those who observe those laws. The > laws have a rather different purpose, one certainly not contrary to public > policy, that was shared broadly by civil society until the 1950s. I would > be interested to learn from where Hillel'
Re: thoughts on constitutionality of single-sex hours for public pool?
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. > > > > > > -- > > 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 > > > > ___ > 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. > > > > -- > > 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 > > > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law Director, Georgia Law in Atlanta 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
an reach their own conclusions. > Again let me apologize for using such strong language. > > > > I continue to believe that requiring people to create art that sends a > state-mandated message is more than troubling. Such a power in the state, > if generalized, will eventually lead to a broader authoritarian result that > few of us on this list - probably none - will like. I specifically said > that Chip would not favor such an authoritarian result. > > > > With regard to the letter, I will add only a few comments to Doug's. > > > > The Supreme Court did copy the non-profit accommodation in the relevant > sense, as did Justice Kennedy in his concurrence: "[T]here is an existing, > recognized, workable, and already-implemented framework to provide > coverage." I think it was clear that the Court was requiring the > administration to give the same accommodation to Hobby Lobby and the > Greens. It was also clear, I think, that the administration had not yet > implemented it, else there would have been no need for the Court to rule > against the administration. > > > > I would have hoped that there might be more voices from those on the > other side of this issue to temper the overstatements made by politicians > and commentators with regard to the likely effect of a state RFRA. > > > > Mark > > > > Mark S. Scarberry > > Professor of Law > > Pepperdine Univ. School of Law > > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu ] On Behalf Of Graber, > Mark > > Sent: Monday, April 06, 2015 3:48 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights > > > > May I suggest that we return to the decorum that has more often than not > characterized this list. The best conclusion I can draw from the various > emails is that the issues are more difficult to many of us than they appear > to others and that RFRA is the classic example of a statue drawn with some > examples in mind that is now being applied to circumstances some people > claim is nearly identical to the original paradigm cases and some think is > quite different. > > > > MAG > > > > ___ > > 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. > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Anti-discrimination, legislative compromise, and strict scrutiny
I'm not sure I agree that it is a rule with no exceptions. But let's assume you are right about that. Let's also assume that a state RFRA, and thus strict scrutiny, applies. The asserted compelling interest is having a police force that appears professional and approachable, and does not appear disheveled, and recognizing that an arbitrary line must be drawn. How does this fare under strict scrutiny? Could any rule limiting beard length pass strict scrutiny? And what about my initial question. Assume there is a RFRA in place in the state. Can an arbitrary limit on the size of the business comport with strict scrutiny? On Wed, Feb 25, 2015 at 10:47 AM, Doug Laycock wrote: > That’s not even a rule with exceptions. As you describe it, it’s a > generally applicable rule that no beard can be longer than one inch. If > it’s enforced even handedly against religious and secular beards, i.e., > enforced as written, it is insulated from attack under the Free Exercise > Clause, even if the rule is entirely pointless and unnecessary, or serves > only the most modest of aesthetic interests. That of course is the problem > with *Smith*. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 10:33 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Thanks Doug. > > > > Would the same logic apply to beard length regulations on city police > forces? Suppose there was a legislative (or reasoned department) judgment > that well-kept beards are an acceptable exception to the general "clean > shaven" policy, and that in order to effectuate that judgment, they provide > that beards must be no longer than one inch. This will be true for people > with skin conditions, people with religious reasons for facial hair growth, > and people who enjoy the warmth or look of the beard. There is thus no > value judgment whatsoever, and an admittedly arbitrary line is drawn in > order to prevent members of the force from looking disheveled. > > > > Along comes a religious objector who claims that his beard must be 1.25 > inches long, or one who claims that his religion prohibits him from ever > shaving. (Assume sincerity, and indeed, there are such religious practices.) > > > > Does strict scrutiny apply? Does it pass strict scrutiny? > > > > On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock > wrote: > > Strict scrutiny would not be triggered under *Smith/Lukumi*, principally > because the legislated exemptions are for religious objectors, do not > discriminate on the basis of faith or denomination, and are a reasonable > legislative effort to exempt the cases where the claim to religious > exemption is strongest. Therefore, they do not imply a value judgment that > secular reasons for exemption are more important than religious reasons for > exemption. They imply only a judgment that religious reasons for exemption > are stronger in very small businesses that generally are personally run by > the owner than in larger and generally more impersonal businesses. Of > course that generalization is not perfect, and the precise line drawn > between large and small is inevitably arbitrary. But there is no > discrimination between religious and secular. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 5:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Friends: > > > > As you are likely aware, the LDS church recently announced support for > legislation prohibiting discrimination on the basis of sexual orientation > in Utah, so long as such legislation included religious accommodations. LDS > leaders were not explicit about the precise contours of the accommodations > they seek, but I have the distinct sense that they would insist on broader > accommodations than have been written into law elsewhere. > > > > Suppose that supporters of anti-discrimination legislation were able to > accept a compromise with
Re: Anti-discrimination, legislative compromise, and strict scrutiny
Thanks Doug. Would the same logic apply to beard length regulations on city police forces? Suppose there was a legislative (or reasoned department) judgment that well-kept beards are an acceptable exception to the general "clean shaven" policy, and that in order to effectuate that judgment, they provide that beards must be no longer than one inch. This will be true for people with skin conditions, people with religious reasons for facial hair growth, and people who enjoy the warmth or look of the beard. There is thus no value judgment whatsoever, and an admittedly arbitrary line is drawn in order to prevent members of the force from looking disheveled. Along comes a religious objector who claims that his beard must be 1.25 inches long, or one who claims that his religion prohibits him from ever shaving. (Assume sincerity, and indeed, there are such religious practices.) Does strict scrutiny apply? Does it pass strict scrutiny? On Wed, Feb 25, 2015 at 10:01 AM, Doug Laycock wrote: > Strict scrutiny would not be triggered under *Smith/Lukumi*, principally > because the legislated exemptions are for religious objectors, do not > discriminate on the basis of faith or denomination, and are a reasonable > legislative effort to exempt the cases where the claim to religious > exemption is strongest. Therefore, they do not imply a value judgment that > secular reasons for exemption are more important than religious reasons for > exemption. They imply only a judgment that religious reasons for exemption > are stronger in very small businesses that generally are personally run by > the owner than in larger and generally more impersonal businesses. Of > course that generalization is not perfect, and the precise line drawn > between large and small is inevitably arbitrary. But there is no > discrimination between religious and secular. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Wednesday, February 25, 2015 5:53 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Anti-discrimination, legislative compromise, and strict > scrutiny > > > > Friends: > > > > As you are likely aware, the LDS church recently announced support for > legislation prohibiting discrimination on the basis of sexual orientation > in Utah, so long as such legislation included religious accommodations. LDS > leaders were not explicit about the precise contours of the accommodations > they seek, but I have the distinct sense that they would insist on broader > accommodations than have been written into law elsewhere. > > > > Suppose that supporters of anti-discrimination legislation were able to > accept a compromise with LDS leaders that included accommodations for some > for-profit service providers/employers/landlords so long as gays and > lesbians could find alternative providers without much difficulty. (Similar > to pharmacist conscience clauses with respect to dispensation of > contraception in some states.) Alternatively, suppose that categorical > exceptions were carved out for small businesses and small-time landlords. > Hypothetically, what if businesses with fewer than 20 employees were > excluded from coverage, as were landlords with fewer than 5 properties. > > > > Now suppose that a religious objector who did not meet the criteria for > the religious accommodation or categorical exception sued under the FEC. > Given the exceptions built into the compromise legislation, would strict > scrutiny automatically apply, under the theory that with the compromise > legislation, the law is not generally applicable? And if so, how would the > case come out, given that the compromise legislation necessarily drew > somewhat arbitrary lines? > > > > I am aware that the question of what triggers strict scrutiny is subject > to considerable debate in the literature, and that those who require a > showing of animus to trigger Lukumi's strict scrutiny would not find any > here. But for those who do not believe that animus is required, how would > this come out? > > > > My sense is that this difficulty might stand in the way of any legislative > compromise. > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > > ___
Anti-discrimination, legislative compromise, and strict scrutiny
Friends: As you are likely aware, the LDS church recently announced support for legislation prohibiting discrimination on the basis of sexual orientation in Utah, so long as such legislation included religious accommodations. LDS leaders were not explicit about the precise contours of the accommodations they seek, but I have the distinct sense that they would insist on broader accommodations than have been written into law elsewhere. Suppose that supporters of anti-discrimination legislation were able to accept a compromise with LDS leaders that included accommodations for some for-profit service providers/employers/landlords so long as gays and lesbians could find alternative providers without much difficulty. (Similar to pharmacist conscience clauses with respect to dispensation of contraception in some states.) Alternatively, suppose that categorical exceptions were carved out for small businesses and small-time landlords. Hypothetically, what if businesses with fewer than 20 employees were excluded from coverage, as were landlords with fewer than 5 properties. Now suppose that a religious objector who did not meet the criteria for the religious accommodation or categorical exception sued under the FEC. Given the exceptions built into the compromise legislation, would strict scrutiny automatically apply, under the theory that with the compromise legislation, the law is not generally applicable? And if so, how would the case come out, given that the compromise legislation necessarily drew somewhat arbitrary lines? I am aware that the question of what triggers strict scrutiny is subject to considerable debate in the literature, and that those who require a showing of animus to trigger Lukumi's strict scrutiny would not find any here. But for those who do not believe that animus is required, how would this come out? My sense is that this difficulty might stand in the way of any legislative compromise. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: The racist prostitute hypothetical
Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to *you*. It surely does not make sense to someone who opposes interracial marriages on religious grounds. On Sat, Feb 14, 2015 at 7:41 PM, Brad Pardee wrote: > Let me clearer. There is a difference between saying you won't serve > certain people and saying you won't be a participant in a certain event. A > wedding cake is part and parcel of the event, same as providing the floral > settings and taking the photographs, although I realize don't agree with > that. That's why the baker, florist, or photographer should have the > freedom to choose not to be a part of events that their faith forbids them > to take part in. If the condition of their remaining in business is that > they abandon the tenets of their faith, then they don't have any religious > freedom that has any meaning. > > > > The problem with comparing a same sex wedding with an interracial wedding > is that the color of a person's skin is no different than the color of a > person's hair or the color of a person's eyes. I don't think anybody would > say that the difference in genders is a strictly cosmetic distinction. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Saturday, February 14, 2015 11:27 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: The racist prostitute hypothetical > > > > "Refusing to bake a wedding cake for [interracial] couples is about not > taking part in a specific event. Refusing to bake bread for someone who is > [black] is about not serving a specific type of person. Two very > different things." > > > > Brad -- with those bracketed alterations, do you stick with what I > perceive to be your view that the baker should have a right to refuse to > bake the wedding cake? > > If not, I would suggest that bakers making wedding cakes for the general > public do not fall within the intimate sphere of privacy that Eugene is > trying to identify with his hypothetical. Like Eugene, I think for-profit > ministers and freelance writers present more difficult cases, though I > disagree with him that most wedding photographer situations present > difficult cases. > > - Jim > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Homeschooling, vaccinations, and Yoder
o think that there is > a *bit* of sincerity, or perhaps cynicism with just a bit of hopefulness > and idealism mixed in, in such efforts; and I think our politics will > function better in the long run if we treat those legislators as > participants, however imperfect, in the constitutional interpretive > community. > > > > > > > > -- > From: hillelle...@gmail.com > Date: Mon, 2 Feb 2015 17:14:40 -0500 > Subject: Re: Homeschooling, vaccinations, and Yoder > To: religionlaw@lists.ucla.edu > > I'm skeptical that state legislators (for the most part) have formed any > informed views about the constitutionality one way or another. I think they > are motivated by the things legislators tend to be motivated by: > constituents, focused interest groups, the path of least resistance, > calculations of political cost, political priorities, what they understand > to be good policy, and what they think the courts might do based on what > the interest groups tell them. Paul is right that they *could* form an > independent view based on their own research and reading of the state and > federal constitutions, but i sincerely doubt they *have*. > > The California case I previously referenced didn't explicitly read Pierce > and Yoder to categorically allow home schooling, but it came very close, > saying that to do otherwise would raise grave constitutional questions. > http://californiahomeschool.net/howTo/B192878August8.pdf > > The Michigan Supreme Court construed Yoder and Smith to give a free > exercise right to homeschool under the US constitution. > http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html > > > > > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Homeschooling, vaccinations, and Yoder
The California case is (on its own terms) a terrible statutory interpretation decision. It came about after the same court initially interpreted the california statute to prohibit homeschooling. There was a massive public outcry and a huge amount of political pressure brought on the court. So the court reheard the case and used this convoluted constitutional avoidance argument to find in favor of homeschooling. If I recall correctly, the family in this case hadn't really made a credible free exercise type claim! If anyone wants the earlier ruling, I've got it (but I can't send it on the listserv). And I do my best to rehabilitate the court's second opinion in my article here, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1677689 I think I offer a better defense of the court's decision than the constitutional avoidance claim, but I'm not sure it is actually convincing. On Mon, Feb 2, 2015 at 5:49 PM, Volokh, Eugene wrote: >Very interesting, and thanks very much! The Michigan case > does indeed rely on *Yoder*, in holding that the statutory requirement > that the homeschooling parents be certified instructors was > unconstitutional, as to parents who had a religious objection to providing > certified instructors. (“Because the DeJonges' faith professes ‘that > parents are the ones that are responsible to God for the education of their > children,’ they passionately believe that utilizing a state-certified > teacher is sinful.”) The California decision is very odd, though, and > makes me wonder how it fits with the general body of religious exemption > law: > > > > The sole United States Supreme Court case directly addressing home > education concluded that members of the Old Order Amish religion possessed > a constitutional right to exempt their children from Wisconsin’s compulsory > education law after the eighth grade. (Wisconsin v. Yoder (1972) 406 U.S. > 205 (Yoder).) While the facts in Yoder are clearly different from the facts > in this case, we recognize that, if we interpret California’s compulsory > education law to prohibit home schools unless taught by a credentialed > teacher, California’s statutory scheme would present the same > constitutional difficulties as the scheme in Yoder if *applied to > similarly-situated parents* to the Old Order Amish. In other words, if > the Yoder parents were subject to California’s compulsory education law > (and without taking into account any issue with respect to a required > curriculum – see fn. 35, post), the law would be unconstitutional as to > them if home schools were not private schools, but the constitutional > difficulty would disappear under the interpretation that home schools may > be private schools. As such, the interpretation we adopt avoids the > constitutional difficulty. > > > > The point of religious exemption law, as I understand it, is > that a generally applicable statute can be generally constitutional, but > courts should carve out religious exemptions for the rare cases when a > religious exemption is both claimed and justified. Reading a statute to > avoid constitutional problems in the rare case brought by > “similarly-situated parents to the Old Order Amish” – as opposed to just > saying that those similarly-situated parents would get religious exemptions > if they claimed them – seems to be a misreading of *Yoder *and religious > exemption law more broadly. Or am I mistaken on this? > > > >Eugene > > > > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Monday, February 02, 2015 2:15 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Homeschooling, vaccinations, and Yoder > > > > I'm skeptical that state legislators (for the most part) have formed any > informed views about the constitutionality one way or another. I think they > are motivated by the things legislators tend to be motivated by: > constituents, focused interest groups, the path of least resistance, > calculations of political cost, political priorities, what they understand > to be good policy, and what they think the courts might do based on what > the interest groups tell them. Paul is right that they *could* form an > independent view based on their own research and reading of the state and > federal constitutions, but i sincerely doubt they *have*. > > > > The California case I previously referenced didn't explicitly read Pierce > and Yoder to categorically allow home schooling, but it came very close, > saying that to do otherwise would raise grave constitutional questions. > http://californiahomeschool.net/howTo/B1
Re: Homeschooling, vaccinations, and Yoder
I'm skeptical that state legislators (for the most part) have formed any informed views about the constitutionality one way or another. I think they are motivated by the things legislators tend to be motivated by: constituents, focused interest groups, the path of least resistance, calculations of political cost, political priorities, what they understand to be good policy, and what they think the courts might do based on what the interest groups tell them. Paul is right that they *could* form an independent view based on their own research and reading of the state and federal constitutions, but i sincerely doubt they *have*. The California case I previously referenced didn't explicitly read Pierce and Yoder to categorically allow home schooling, but it came very close, saying that to do otherwise would raise grave constitutional questions. http://californiahomeschool.net/howTo/B192878August8.pdf The Michigan Supreme Court construed Yoder and Smith to give a free exercise right to homeschool under the US constitution. http://law.justia.com/cases/michigan/supreme-court/1993/91479-5.html On Mon, Feb 2, 2015 at 4:44 PM, Ira Lupu wrote: > The idea that state legislators, faced with home schooling questions, are > reflecting on the "best reading" of Pierce, Yoder, or the Constitution (and > which parts of that would they be reading?) strikes me as spectacularly > fanciful. If they cared about what legal research disclosed (rather than > what their constituents, supporters, or the Board of Ed wants, and why), > they would know that many decisions have interpreted Pierce and Yoder as > NOT requiring a right of home schooling, and that no decisions have held > the opposite. They might be attentive to what other states have done, but > not to any constitution-based reasons that might explain that. > > On Mon, Feb 2, 2015 at 4:34 PM, Paul Horwitz wrote: > >> Of course, it is also possible that these legislators believe that it >> *is* unconstitutional to heavily regulate homeschooling, either because >> it's the best reading of Yoder and Pierce going forward (and given the >> premise that those decisions leave the point unresolved), or because they >> are independently obliged to read and follow the Constitution and believe >> this is what its best reading demands. Even if one believes that the Court >> has the last word on constitutional questions, no one need believe it has >> the only word. >> >> Sent from my iPad >> >> On Feb 2, 2015, at 2:25 PM, "Hillel Y. Levin" >> wrote: >> >> But the Court's decisions in Yoder and Pierce v. Society of Sisters play >> an important role too. Together, these cases leave the question of whether >> the state can prohibit or heavily regulate home schooling open, and they >> suggest (though do not explicitly find) a parental right of some sort. The >> pro-homeschooling groups make use of these cases when they lobby, leaving >> regulators with the impression that it might be unconstitutional to heavily >> regulate homeschooling. As a result--together with the political economy on >> the matter and the practical questions about how the state meaningfully >> *could* regulate homeschooling--they often throw their hands up and >> concede. >> >> >> ___ >> 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. >> > > > > -- > 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 > > ___ > 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
Re: Homeschooling, vaccinations, and Yoder
* > Paul Finkelman > > *Senior Fellow* > > *Penn Program on Democracy, Citizenship, and Constitutionalism* > > *University of Pennsylvania* > > *and* > > *Scholar-in-Residence * > > *National Constitution Center* > > *Philadelphia, Pennsylvania* > > > > 518-439-7296 (p) > > 518-605-0296 (c) > > > > paul.finkel...@albanylaw.edu > > www.paulfinkelman.com > > * > -- > > *From:* religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane [ > d...@crab.rutgers.edu] > *Sent:* Sunday, February 01, 2015 11:15 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Vaccine objectors > > Marty, > > I agree with # 1, except in states that might have a particularly robust > state free exercise doctrine. > > I also agree with # 2. > > The issue with respect to # 3, though, is this: What if it turns out that > an exemption regime limited to actual religious objections (and not > "personal" ones) did not produce serious third-party burdens because the > number of kids left unvaccinated would not be enough to compromise "herd > immunity"? > > Such a regime would, I believe, be constitutional. But it does raise at > least a question for folks who (a) argue that "religion is not special," > (b) it is generally unfair to limit exemption regimes to folks with > religious motives, and (c) the best remedy to such unfairness should > generally be to "level up" to include deep non-religious beliefs rather > than "level down" to eliminate exemptions entirely. > > Perry > > On 02/01/2015 10:38 pm, Marty Lederman wrote: > > I'm a bit confused as to which question Perry and Sandy (and Doug?) are > discussing. To break it down a bit for clarification: > > 1. It would be perfectly constitutional for the state to require everyone > to be vaccinated; a fortiori, vaccination can be made a condition of > attending school. That's basically what the Second Circuit case is about; > and of course it's correct. > > 2. It would also be perfectly constitutional for the state to exempt any > children whose parents have a "personal" objection to immunization, > religious or otherwise. The only question as to those exemption laws is one > of policy -- and I'd hope that recent events cause state legislatures to > seriously consider repealing such exemptions. > > 3. But if a state chooses to exempt people only for religious reasons, > that raises not only a policy question (which is the one I intended to > raise in starting this thread -- should other states follow MS and WV in > refusing to grant even religious exemptions?), but also a serious > Establishment Clause question, in light of the third-party burdens (those > borne by the children who are not immunized as well as the children who are > made more susceptible to disease). I haven't checked in a while, but I > believe no court has ever held such religious exemptions unconstitutional > except where they discriminate among religions. I am inclined to say that > they are unconstitutional even where not discriminatory; but the case law > does not, as far as I know, yet support that view. > > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
Little Sisters question
Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever else might object to the certification requirement (including, I guess, Hobby Lobby, if the agency takes the Court's invitation to offer a similar accommodation to for-profits. (As has been noted, the *Hobby Lobby *decision may not make such a future holding likely, but it certainly does not foreclose the possibility.) What could the government then do to ensure coverage of these forms of contraception (short of covering them directly, which seems politically untenable)? Four example, could it promulgate a rule as follows: - An employer that declines to provide such coverage for religious reasons must alert employees; - any employee may then file a form with the federal government (or the insurance company) attesting that the employer's plan will not cover the relevant contraception; - this notification from any employee then triggers the requirement that the insurance company provide coverage at no cost to all employees covered by the plan. Would this satisfy these religious employers? The difference between this and the current certification regime is that the employer doesn't file anything with the government; it merely provides information to the employees. Any employee can then decide what to do with that information--i.e. whether or not to file for coverage. I understand that this imposes an additional burden on at least one employee at the company to file the form. (And this rule is not what I'd prefer.) But as a practical matter, it would provide an avenue for the contraceptive coverage, and I imagine that some watchdog group could help employees navigate this. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
Hobby Lobby Question
As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: "Divisiveness"
I think we are agreeing, but I'm not actually sure. Consider the ADA. The ADA requires employers and businesses to make reasonable accommodations. That's a very vague standard for courts to apply. But I don't think that courts have been hopelessly inconsistent in doing so. Or consider exceptions to the ADA. If a proposed disability accommodation would impose an "undue hardship," the employer doesn't have to make the accommodation. That's a fairly vague standard that courts must apply, but it doesn't appear to me that in practice it has led to hopelessly inconsistent results (the way RFRA has). Perhaps the difference between the ADA and RFRA is that the legislature developed a fairly careful scheme, considered lots of possible applications, worked hard to give it some definition, and gave an agency some authority in interpreting and applying it. That's quite unlike RFRA, which is not specific to a particular characteristic; offers essentially no guidance; and leaves it entirely to the courts to sort out. I'm suggesting that the ADA model (whether the ADA as a whole or, more likely, the "undue hardship" exception) is better than the RFRA model. Let religious lobbying groups (and their allies) lobby for religious exceptions to general laws. When no one else's interests are affected (like Goldman and his yarmulke, the Amish and their narrow social security exemption, etc), such exceptions will readily be written into law. When other people's rights are at stake, there will be a lobbying battle. Sometimes the religious lobby will win; sometimes it will lose. It won't be consistent. It will produce poor public policy sometimes. Sometimes the tradeoffs will be ugly. Such is life under a majoritarian regime. On Mon, Jun 9, 2014 at 1:23 PM, Ira Lupu wrote: > Legislative (or administrative) exemptions are not a third way of > administering a generalized regime of exemptions under overarching > standards like substantial burdens and compelling interests. Legislative > and administrative exemptions will be in particular contexts, and will lead > to some degree of accountability on the part of those who make them. (In > the administrative setting, exemptions may even produce a regime of > reasonable consistency - e.g., excused absences from class or exams for > religious reasons). But even legislative/administrative exemptions, if > religion-specific, must meet constitutional criteria -- relieve > religion-specific burdens, avoid sectarian preferences, and not impose > significant costs on third parties. > > > On Mon, Jun 9, 2014 at 12:59 PM, Hillel Y. Levin > wrote: > >> Chip: >> >> I am in total agreement of your analysis, except that I think there is a >> third way. That would be for legislatures to consider religious exemptions >> when they enact individual laws (as they did before Smith, and after as >> well). The results would still be inconsistent over time ((1) sometimes the >> legislature will grant an exception; sometimes it won't; and (2) courts >> will still have to resolve disputes on the margins), but at least they >> would have a majoritarian pedigree on the whole. >> >> We tolerate all kinds of legislative inconsistency because we understand >> that political interests change over time, issues that seem similar may >> appear different at the time of enactment, lobbying groups gain and lose >> power, the legislators themselves change over time, and so on. We don't >> demand consistency of legislators the same way we do of courts. Legislators >> are allowed to be inconsistent (within some broad due process/equality >> boundaries, I suppose). >> >> We could still quibble about the role of courts in this system. They'll >> still have to resolve some kinds of disputes, no doubt. Which side should >> they err on? Should their guiding principle be to force majoritarian >> engagement? Reverse the burden of legislative inertia? Etc. But at least we >> would have legislative guidance beyond "do good stuff when it comes to >> legislative exceptions," which is what RFRA yields. This abdication of >> policy-making responsibility by legislators is indefensible. >> >> Eugene can correct me if I'm mistaken, but I think his proposed >> common-law approach to religious exceptions points in this direction. >> >> >> >> >> >> >> >> On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu wrote: >> >>> It's a very old lesson. Legislators support vague delegations aimed at >>> some general good (clean air, workplace safety, endangered species), and >>> claim political credit for doing so. Then they (or their suc
Re: Simple Hobby Lobby question
Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper wrote: > The question isn’t only whether Hobby Lobby (and other for-profit > corporations that sell secular goods/services) are persons, but rather > whether they are persons that “exercise religion.” If they are not > exercising religion, then RFRA is not triggered, no matter how much > personhood they have. > > > > On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin > wrote: > > > Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby > (whether RFRA applies to corporations)? "[T]he words “person” and “whoever” > include corporations, companies, associations, firms, partnerships, > societies, and joint stock companies, as well as individuals." > > > > Are the two sides really just arguing about whether [RFRA's] "context > indicates otherwise" (1 USC 1) sufficiently to overcome this strong > definitional statement? > > > > If so, much as I'd personally like for Hobby Lobby to lose this case, > I'd think that the on this question at least, the plaintiffs have to win. > After all, we have a strong statutory definition, with at best equivocal > contextual evidence to the contrary. > > > > What am I missing? Are there cases dealing with the "context" language > in 1 USC 1? > > ___ > > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: "Divisiveness"
Chip: I am in total agreement of your analysis, except that I think there is a third way. That would be for legislatures to consider religious exemptions when they enact individual laws (as they did before Smith, and after as well). The results would still be inconsistent over time ((1) sometimes the legislature will grant an exception; sometimes it won't; and (2) courts will still have to resolve disputes on the margins), but at least they would have a majoritarian pedigree on the whole. We tolerate all kinds of legislative inconsistency because we understand that political interests change over time, issues that seem similar may appear different at the time of enactment, lobbying groups gain and lose power, the legislators themselves change over time, and so on. We don't demand consistency of legislators the same way we do of courts. Legislators are allowed to be inconsistent (within some broad due process/equality boundaries, I suppose). We could still quibble about the role of courts in this system. They'll still have to resolve some kinds of disputes, no doubt. Which side should they err on? Should their guiding principle be to force majoritarian engagement? Reverse the burden of legislative inertia? Etc. But at least we would have legislative guidance beyond "do good stuff when it comes to legislative exceptions," which is what RFRA yields. This abdication of policy-making responsibility by legislators is indefensible. Eugene can correct me if I'm mistaken, but I think his proposed common-law approach to religious exceptions points in this direction. On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu wrote: > It's a very old lesson. Legislators support vague delegations aimed at > some general good (clean air, workplace safety, endangered species), and > claim political credit for doing so. Then they (or their successors) sit > back and criticize agencies and courts that have to apply those vague > standards to specific facts. Choices made from outside the veil of > ignorance are inevitably much more difficult than those made from behind it. > > But I am making a further point. The context of religious exemptions -- > because of all the variations among faiths (beliefs and practices) and all > the variations among regulatory or other government contexts in which > conflicts may arise, is uniquely vulnerable to the problem of > irreconcilable inconsistency over time. We can have a regime of no > exemptions under these kind of general standards, or a regime of ad hoc, we > know it when we see it, all things considered, interest-balancing > exemptions (that is, a regime that will appear lawless when scrutinized > over time). I don't think there is any other choice. RFRA represents the > latter choice, but (especially in a case made prominent by its culture war > salience) the judicial outcome will inevitably be seen as an act of bad > faith by the losers (whichever side that is). > > > On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin > wrote: > >> What's ironic to me is that the same legislators (I.e. All of them) who >> attack the courts for overreaching and making policy-decisions chose to >> bestow immense policy-making power on those same courts through RFRA. >> There's a legislative process lesson in there somewhere. >> >> >> On Monday, June 9, 2014, Ira Lupu wrote: >> >>> It is worth recalling that federal RFRA itself was anything but >>> divisive. Au contraire. It passed with overwhelming support from both >>> parties, and wide support among civil rights and civil liberties groups >>> (with Hobby Lobby under advisement, some of these groups are now running >>> from RFRA like it was the plague). >>> >>> The problem now is not divisiveness, per se. Like any controversial >>> Supreme Court decision, some will hate it and others will love it. >>> Inevitably, these folks will be divided by their disagreement. >>> >>> The problem is legitimacy. Free exercise standards, pre-Smith, were >>> incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and >>> sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's >>> concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has >>> proven in the lower courts to be equally plastic at every turn. What is a >>> substantial burden, a compelling interest, a less restrictive means? Does >>> RFRA restore U.S. v Lee, including its dictum about commercial actors >>> accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? >>> (See the Kagan -- Clement colloquy at oral argument about what RFRA >>> "restores.") >>> >
Simple Hobby Lobby question
Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? "[T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." Are the two sides really just arguing about whether [RFRA's] "context indicates otherwise" (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the "context" language in 1 USC 1? ___ 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.
"Divisiveness"
n) >> religious groups >> >> > would have an additional incentive to organize and mobilize as >> religious groups >> >> > in order to make sure that it was their faith that the government >> promoted and >> >> > that it was not their faith that was subject to government >> interference. Placing a >> >> > church-state issue beyond the scope of political decision-making by >> subjecting it >> >> > to constitutional constraints avoided (or at least mitigated) these >> kinds of >> >> > political/religious divisions. >> >> > >> >> > There is probably a better term for this concern than divisiveness. >> >> > >> >> > Alan Brownstein >> >> ___ >> 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. >> > > > > -- > 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" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
I'm fairly certain that the current court would uphold the current uga policy without extending it to secular excuses. I'm just not sure that we can come up with a justification for it that makes any sense as a policy matter. On Sunday, June 8, 2014, Volokh, Eugene wrote: >I’m not positive what the right answer is (though I don’t > agree with the Free Exercise Clause cases holding that, if the government > provides secular exceptions, it must also provide religious exceptions). > I’m just curious about what other people think should happen in situations > such as the ones involved in the New Jersey case. > > > > As I understand it, Cutter v. Wilkinson concludes that exemptions limited > to religious believers are generally constitutionally permissible, so the > UGA policy you describe is sound even in the absence of comparable secular > exemptions. The New Jersey decision, on the other hand, seems to point in > the opposite direction, albeit in an unusual procedural posture. Which is > right? > > > >Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu > > [mailto:religionlaw-boun...@lists.ucla.edu > ] *On > Behalf Of *Hillel Y. Levin > *Sent:* Sunday, June 08, 2014 3:12 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: FW: Religious Exemption From Vaccination Policy Requires > Acceptance of Secular Reasons As Well > > > > Eugene: > > > > Are you asking whether religion is a one way ratchet? Under at least one > reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are > (at least some kinds of) secular exceptions, then there must also be a > religious exception. But if there is a religious exception, must there also > be secular exceptions? And if so, what kinds of secular exceptions must > there be--those that rise to the level of conscientious objection status, > or others as well? > > > > For what it is worth, I get an email from UGA each year reminding me that > it is university policy to accommodate (to the maximum degree possible, > whatever that means) religious students' ability to miss class for > religious observances. I do not get such an email regarding students who > miss class because their siblings are getting married, their pets are in > poor health, or their great aunts (who were like second mothers) died. What > to make of that? > > On Saturday, June 7, 2014, Levinson, Sanford V > wrote: > > I would always want to know the rationale and why it didn't apply to the > religious person as well. But if ever I'm disinclined to be sympathetic to > the flat out equal treatment, it's in this instance, and I continue to > wonder why there's a religious exemption. I presume that a religious person > wouldn't be allowed to smoke on premises even if she belonged to a > religious sect that commanded chain smoking. I see no difference with > regard to the flu shot. But, by stipulation, if the rule had nothing to do > with patients' health, then I'd be inclined to treat secular and religious > alike. > > > > Sandy > > > > Sandy > > > Sent from my iPhone > > > On Jun 7, 2014, at 9:02 PM, "Volokh, Eugene" wrote: > >I agree entirely on the bottom line, but let me ask what > would happen in the absence of concerns about harm to the sick. Say an > employer has a uniform policy that bars headgear, but exempts religious > objectors; and say that a secular employee insists on wearing a hat to > work, and is fired for it. Should the employee be seen as constitutionally > entitled to unemployment compensation, on a rationale similar to that given > by the New Jersey appellate court? > > > >Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, > Sanford V > *Sent:* Friday, June 06, 2014 9:00 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Religious Exemption From Vaccination Policy Requires > Acceptance of Secular Reasons As Well > > > > OK, I’ll bite; Religious exemptions, at the end of the day, honor > beliefs that secularists by definition must regard as “irrational,” i.e., > incapable of being defended by reference to “standard-model” scientific > argument. There may be good reasons for allowing such exemption in the > name of preserving civil peace, etc., or it > > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_i
Re: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
Eugene: Are you asking whether religion is a one way ratchet? Under at least one reading of Smith/Lukumi, as typified in the Tenafly eruv case, if there are (at least some kinds of) secular exceptions, then there must also be a religious exception. But if there is a religious exception, must there also be secular exceptions? And if so, what kinds of secular exceptions must there be--those that rise to the level of conscientious objection status, or others as well? For what it is worth, I get an email from UGA each year reminding me that it is university policy to accommodate (to the maximum degree possible, whatever that means) religious students' ability to miss class for religious observances. I do not get such an email regarding students who miss class because their siblings are getting married, their pets are in poor health, or their great aunts (who were like second mothers) died. What to make of that? On Saturday, June 7, 2014, Levinson, Sanford V wrote: > I would always want to know the rationale and why it didn't apply to the > religious person as well. But if ever I'm disinclined to be sympathetic to > the flat out equal treatment, it's in this instance, and I continue to > wonder why there's a religious exemption. I presume that a religious person > wouldn't be allowed to smoke on premises even if she belonged to a > religious sect that commanded chain smoking. I see no difference with > regard to the flu shot. But, by stipulation, if the rule had nothing to do > with patients' health, then I'd be inclined to treat secular and religious > alike. > > Sandy > > Sandy > > Sent from my iPhone > > On Jun 7, 2014, at 9:02 PM, "Volokh, Eugene" wrote: > > I agree entirely on the bottom line, but let me ask what > would happen in the absence of concerns about harm to the sick. Say an > employer has a uniform policy that bars headgear, but exempts religious > objectors; and say that a secular employee insists on wearing a hat to > work, and is fired for it. Should the employee be seen as constitutionally > entitled to unemployment compensation, on a rationale similar to that given > by the New Jersey appellate court? > > > >Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, > Sanford V > *Sent:* Friday, June 06, 2014 9:00 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Religious Exemption From Vaccination Policy Requires > Acceptance of Secular Reasons As Well > > > > OK, I’ll bite; Religious exemptions, at the end of the day, honor > beliefs that secularists by definition must regard as “irrational,” i.e., > incapable of being defended by reference to “standard-model” scientific > argument. There may be good reasons for allowing such exemption in the > name of preserving civil peace, etc., or it may simply boil down to the > presence of the Free Exercise Clause and the collapse of the > belief/conduct distinction. But it is hard to think of “secular” reasons > for a nurse to refuse to get a flu vaccination, given the risk not only to > herself—which raises obvious questions about paternalism—but also potential > risks to her patients should she in fact come down with the flu and infect > others in the hospital, who are by definition more vulnerable than ordinary > persons with whom she might also come into contact. So, unless there > really is some good reason to refuse flu vaccines—perhaps she is unusually > sensitive to egg-based vaccines or something similar—I am disinclined to be > at all sympathetic to her argument and would regard her firing as fully for > cause. I think the “freedom of expression” argument in this case is wacky > given her job and responsibility for doing no harm to the sick. Were I to > receive this as an answer to a final exam question, I would be inclined to > give it a very bad grade. I leave it to my colleagues on this list, > including Eugene, to tell me if (and why) I am off-base in my response. > > > > sandy > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene > *Sent:* Friday, June 06, 2014 10:50 PM > *To:* Law & Religion issues for Law Academics ( > > ___ > 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 th
Re: Does UVA have its own Regnerus scandal?
Eugene: I take it you have no problem with Mr. Green's personal attacks on me? ;-) On Sunday, May 25, 2014, Volokh, Eugene wrote: >Mr. Green: This is an academic discussion list, for > substantive arguments of substantive legal questions having to do with the > law of government and religion. Please focus on substantive argument, > rather than personal attacks, whether on Prof. Horwitz, Prof. Laycock, or > me, and whether on a person’s being straight, being supposedly a closet > gay, or not living up to your high standards of what a “1st tier law > professor” would be. > > > >Eugene Volokh > > > > *From:* > religionlaw-boun...@lists.ucla.edu[mailto: > religionlaw-boun...@lists.ucla.edu] > *On Behalf Of *jim green > *Sent:* Sunday, May 25, 2014 4:27 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Does UVA have its own Regnerus scandal? > > > > Is this the same Eugene Volokh who is obsessed with gay men converting > him? The same one who supported ex-gay conversion therapy? The same one > who claimed gay sex was inherently dangerous? > > > > A stroll through your blog is a case study of a closet case... > > > > ---Jimmy Green > > > > On Sun, May 25, 2014 at 7:24 PM, jim green wrote: > > I see Horowitz is fast out of the gate defending Laycock as usual. I have > responded ad nauseum to you in your comments section of your blog but as > usual you deflect with a slew of questions as if I were your student in > some parody of The Paper Chase... > > > > Ask me a serious question and I'll give you an answer but I'm not going to > be bullied by some 2nd tier law professor... > > > > ---Jimmy Green > > > > On Sun, May 25, 2014 at 7:08 PM, Paul Horwitz > wrote: > > Could you be more specific? What is it you suppose Prof. Laycock to have > done that puts him in the same company as Regnerus? Are you suggesting that > his work fails academic standards? That any relevant work as counsel was > subject to different standards than those that apply to other lawyers? If > so, how would you apply it to the hundreds of other cases of academic > lawyers who also work as advocates? Do you see any potential problems with > requests for the compelled disclosure of emails by university professors? > Did you see any problems when similar issues came up recently in North > Carolina, Michigan, Virginia, and elsewhere? Did you see any problems with > the compelled disclosure of information, records, testimony, associations, > and other matters with respect to university professors in the 1950s, at > both the state and federal level? In thinking about these questions, do you > not see any potential problems of general application? Or do you just look > at them case by case? And if the latter, how do you distinguish among them? > Surely not on the basis of what you think about the morality of the > individual, or the individual argument, involved. What is the bravery > involved? The students making the request, and the group supporting them, > said that they were in no way attempting to interfere with academic > freedom. I take it then that you agree that using freedom of information > requests to compel the disclosure of emails by university professors raises > no questions of academic freedom. Or do you think that, sometimes, it just > might? > > > > For what it's worth, I agree with you that this story deserves attention. > But perhaps not for the same reasons that you do. > > > > Respectfully, > > > > Paul Horwitz > > Sent from my iPad > > > On May 25, 2014, at 5:42 PM, jim green wrote: > > Too bad it took a few brave college students to do what "responsible > academics" (including many on this list) have failed to do for years... > > > > > http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html > > > > > -- > > > > *---jwg* > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Does UVA have its own Regnerus scandal?
I don't agree with Doug's views on these issues, but this is an obscene witch hunt. On Sunday, May 25, 2014, jim green wrote: > Too bad it took a few brave college students to do what "responsible > academics" (including many on this list) have failed to do for years... > > > http://www.timesdispatch.com/news/latest-news-ap/lgbt-activists-take-u-va-professor-to-task-for-stance/article_fa5680ce-e36e-11e3-a4ed-0017a43b2370.html > > > - > --Jimmy Green > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Hobby Lobby transcript
Will beat me to it. There is a category of clothes that aren't kosher (clothes made with both linen and wool fibers). But of course this isn't a big category of clothing! On Tuesday, March 25, 2014, Alan Brownstein wrote: > My dad had a hardware/housewares store in the Bronx. He was not an > observant Jew. Everyone was closed on Sunday. He was open on Saturday. He > told me he did half of the week's business on Saturday and that it was > impossible to be in business and be closed both days. > > > > Alan > -- > *From:* > religionlaw-boun...@lists.ucla.edu[ > religionlaw-boun...@lists.ucla.edu] > on behalf of Ira Lupu > [icl...@law.gwu.edu > ] > *Sent:* Tuesday, March 25, 2014 3:00 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Hobby Lobby transcript > > Braunfeld did not sell meat. From the opinion: "Appellants are > merchants in Philadelphia who engage in the retail sale of clothing and > home furnishings within the proscription of the statute in issue." > > > On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V < > slevin...@law.utexas.edu> wrote: > > With regard to Braunfield, given that the customers are a distinct subset > of people who want Kosher meat, isn't the argument more that they are > decidedly inconvenienced by being unable to shop on Sunday (which is just > another day to them), but NOT that they will refrain from buying kosher > meat from Braunfield. After all, no other kosher meat market will be open > on Saturday, and they're not going to buy non-kosher meat on Sunday. Or is > (was) the argument that non-Sabbath observant Jews would no longer buy > general grocery products from Braunfield that were easily available from > Stop and Shop on Saturday? In the former case, then Braunfield's overall > income should be roughly the same even with the forced Sunday closing. Is > this even a relevant way of approaching the case, instead of being upset, > as I was almost fifty years ago when I read it, at the simple inegalitarian > aspects of Jewish butchers being forced to close two days a week (one day > by the state, one day by their ! > religious duty) while (mainstream) Christians could remain open six days > a week. But, to repeat, this would be a competitive advantage only if > Jewish shoppers really didn't care that much about where they brought their > meat and other grocery products. It would be a different case, presumably, > if we were talking about, say, paint stores, where there's no category > called "kosher paint." > > sandy > > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman > Sent: Tuesday, March 25, 2014 4:30 PM > To: Law & Religion issues for Law Academics > Subject: Re: Hobby Lobby transcript > > In the context of discussing Marty's substantial burden argument, Justice > Kagan invoked Braunfeld. I made a similar comparison on the listserv back > in December: > > > Braunfeld might support Marty's argument. The government provides an > option to all employers: (1) pay a tax, or (2) provide coverage. If (1) > doesn't burden religion, and even if it's somewhat more expensive, > Braunfeld seems to contemplate that laws will sometimes work in this way. > Provided a law doesn't directly compel anyone to violate their religious > beliefs, its imposition of additional costs on religious practice is not > sufficient to show a substantial burden. > > > > Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on > it. And maybe there are other problems with the analogy, but I wonder if > the "no employer mandate" argument turns on an empirical claim, at least if > the cost differentials are not so significant as to be tantamount to > coercion -- as in the 4980D tax for failing to comply with coverage > requirements. > > Here's Justice Kagan (transcript p. 24): > > > 15 JUSTICE KAGAN: Well, let's say that that's > > 16 right. Let's say that they have to increase the wages a > > 17 little bit. I mean, still we are talking about pretty > > 18 equivalent numbers. Maybe it's a little bit less; maybe > > 19 it's a little bit more. But this is not the kind of > > 20 thing that's going to drive a person out of business. > > 21 It's not prohibitive. > > 22 It's like the thing that we talked about in > > 23 Braunfeld where we said, you know, maybe if the store > > 24 can't stay open 7 days a week, it makes a little bit > > 25 less money. But so
Re: letter opposing Mississippi RFRA
Doug: I'm not trying to exaggerate anything. In trying to understand the doctrine. Would this be a fair description?: I am your employee. You owe me fifty dollars for work I've done. You could pay me the money directly, knowing fully that I might use it to purchase contraception. But I ask you instead to deposit it directly to my pharmacist. I don't tell you that the pharmacist will now dispense contraception for me, but you know that I might. Under the doctrine of complicity you object to depositing the check with my pharmacist but not with me directly. Is that correct? On Tuesday, March 11, 2014, Douglas Laycock wrote: > The line is between benefits that are earmarked for a particular item and > wages that are not. It is between what the employer purchases himself, and > what the employee purchases. > > First you wildly exaggerate their claim, then you say that the exaggerated > claim is ridiculous, then you infer that the actual claim is also > ridiculous. > > Which is not to say that some of the people on the religious fringes, both > left and right, don't make wildly exaggerated claims. But no religious > claimant has ever won on a claim about the use of money paid over without > restriction to someone else. The only claim of that sort I can think of is > claims about paying taxes that the government then spends for immoral > purposes. Zero for however many times they have tried. > > On Tue, 11 Mar 2014 22:17:40 -0400 > Steven Jamar > wrote: > >Still complicit--the employer knows the wages will sometimes be spent on > things the employer dislikes just as much as the employer knows some > employees will use insurance for things the employer dislikes. If the > theory is complicity, that line is a pretty lame one. > > > >Sent from Steve's iPhone > > > > > >> On Mar 11, 2014, at 9:26 PM, "Brad Pardee" > >> > > wrote: > >> > >> Because the employee's paycheck is a blank check. The employee can do > whatever they want with it because, as part of the salary, there are no > limits on what the employee can or can't spend the money on. However, > insurance is not a blank check. The policy specifies what it is covering > and what it is not covering and the employer, in determining the range of > the benefits they offer, is fully involved in the decision of what is being > covered and is fully accountable to his or her God for that decision. > >> > >> Brad > >> > >> From: religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu ] On Behalf Of Hillel Y. > Levin > >> Sent: Tuesday, March 11, 2014 7:36 PM > >> To: Law & Religion issues for Law Academics > >> Subject: Re: letter opposing Mississippi RFRA > >> > >> I have a question for those who have religious beliefs opposed to the > contraception mandate. I do not mean this question as a provocation, but > rather in the interest of helping me to understand the problem. Suppose a > religious employer knows with 100% certainty that an employee will spend a > small amount of her income on contraception. I take it that this does not > violate a religious belief. How is that different from directing a > percentage of the employee's salary towards health insurance, which will > cover contraception? > >> > >> > >> ___ > >> 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. > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga
Re: letter opposing Mississippi RFRA
I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar wrote: > I can get behind liberty. Can you (and others) get behind equality? > Often they work together, but sometimes they are in serious conflict. > State sanctioned liberty to exclude and discriminate against denies > equality to some. State sanctioned and enforced equality limits the > liberty of some who want to be free to exclude on liberty grounds. State > prohibition of discrimination on the basis of race, gender, age, and > religion mean in no small part those people are at liberty to do things and > to participate in things they could not without the anti-discrimination > laws -- so it increases their liberty (and equality) at the expense of some > liberty of others who want to treat some as less equal. > > It is not an easy calculus nor is consistency possible. But there are > values in the constitution beyond liberty and free exercise. > > Steve > > > -- > Prof. Steven D. Jamar vox: 202-806-8017 > Director of International Programs, Institute for Intellectual Property > and Social Justice http://iipsj.org > Howard University School of Law fax: 202-806-8567 > http://iipsj.com/SDJ/ > > > "I don't know whether the world is full of smart men bluffing > or imbeciles who mean it." > -- Morrie Brickman > > On Mar 11, 2014, at 3:18 PM, K Chen wrote: > > I indulge in the fantasy that liberty is a founding belief that we all > can believe in and come to reasonable compromise but > reality continuously disabuses me of the notion. > > > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: letter opposing Mississippi RFRA
Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the *absence* of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer "fully involved in the decision of what is being covered"? On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee wrote: > Because the employee's paycheck is a blank check. The employee can do > whatever they want with it because, as part of the salary, there are no > limits on what the employee can or can't spend the money on. However, > insurance is not a blank check. The policy specifies what it is covering > and what it is not covering and the employer, in determining the range of > the benefits they offer, is fully involved in the decision of what is being > covered and is fully accountable to his or her God for that decision. > > > > Brad > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Tuesday, March 11, 2014 7:36 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: letter opposing Mississippi RFRA > > > > I have a question for those who have religious beliefs opposed to the > contraception mandate. I do not mean this question as a provocation, but > rather in the interest of helping me to understand the problem. Suppose a > religious employer knows with 100% certainty that an employee will spend a > small amount of her income on contraception. I take it that this does not > violate a religious belief. How is that different from directing a > percentage of the employee's salary towards health insurance, which will > cover contraception? > > > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Mandatory Insurance Coverage of Abortion
Thomas: Thanks for that thoughtful analysis. I wasn't aware of that bill. I think religious groups that oppose abortion should vigorously oppose it, and I think they will win. It isn't easy to pass controversial legislation in the face of focused, determined opposition, particularly concerning a political football like abortion. FWIW I didn't sign the Establishment clause brief, and I think the argument you spin out helps to explain why: I'm in favor of the political process, except where it is broken. Messy compromises are a sign that it is working. Religious groups are natural political allies with other groups that care about individual liberty. I fear, however, that by working stridently against gay rights groups on these new RFRA bills they will sacrifice the long term viability of those alliances. Sophisticated lobbying groups pick their battles. On Tue, Mar 11, 2014 at 8:26 PM, Berg, Thomas C. wrote: > Hillel Levin writes: "Further, I'm not moved by the argument that the > logic for the contraception mandate could apply just as well to abortion. > Under the Court's logic in *Sebelius*, Congress could impose a broccoli > mandate (with a tax penalty) if it chose to, but it isn't going to because > people aren't interested in a broccoli mandate." > > > > The prospect of a mandate to cover abortion is (at least in some states) > far more likely than the broccoli-mandate notion. The Washington state > House just passed such a mandate on all insurers that provide coverage for > maternity care. Although it appears the bill will not get through the > Senate, our recent discussions suggest that bills that pass one house of a > state legislature are very much in political play and warrant serious > consideration. (I'm assuming that a mandate on insurers in Washington > would put substantial economic pressure on many employers, including many > religious non-profits; the self-insurance alternative might be available, > I'm assuming--at least, under this bill, for right now--but self-insuring is > difficult for smaller employers.) > > > > Text of bill (as best I can tell): > http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/2148.pdf > > Seattle Times: > http://seattletimes.com/html/localnews/2022845818_rpapassesxml.html > > > > The bill contains an exception, in section 7(a), for a "religiously > sponsored health carrier" that objects to covering abortion. But if I > correctly understand the position of some on the list--and some briefs filed > in Hobby Lobby--this exemption may violate the Establishment Clause, in > their view, because it allows a religiously grounded exception, in the > insurance market, to covering a service that the legislature has otherwise > determined is a statutory entitlement. Is that correct? > > > > I share Hillel's view that religious individuals and groups are often able > to protect themselves in the political process (FWIW, I also share his view > that Republicans would have done better to work with Democrats in the > drafting of the Affordable Care Act). But the position that "exemptions in > the for-profit sphere violate the Establishment Clause" would prohibit, I > think, a significant number of the political compromises/protections in > which Hillel places stock. > > > > - > > Thomas C. Berg > > James L. Oberstar Professor of Law and Public Policy > > University of St. Thomas School of Law > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2015 > > Phone: (651) 962-4918 > > Fax: (651) 962-4996 > > E-mail: tcb...@stthomas.edu > > SSRN: http://ssrn.com/author=261564 > > Weblog: > http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin > *Sent:* Tuesday, March 11, 2014 4:38 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: letter opposing Mississippi RFRA > > > > The Supreme Court tried to step out of the interest-balancing business in > *Smith*, in part because it was terrible at it. We should let it get out > of that business to the extent possible. As a religious person myself, I > don't like it when the court decides how substantial a burden something is > on my religious practices. How could the courts possibly assess that? > > > > I'd feel differently if I thought that religious groups were incapable of > protecting their interests in th
Re: letter opposing Mississippi RFRA
The Supreme Court has done an awful job of protecting religious practices. The legislature has been far more accommodating. On Tuesday, March 11, 2014, K Chen wrote: > I can say with supreme confidence that "my" religious group has not done a > particularly good job representing my interests. They cannot, as they do > not know me, and my sincere religious beliefs are in conflict in > significant ways with other members of my religion. Even if I was within > the majority of my group, however the political economy ends up slicing us > up, that group would have done a remarkably poor job representing me > several years ago when I was part of a different religious grouping. If > courts are poor arbiters of what a qualifies substantial burden on my > personal religious practicing, a legislature lobbied by the currently > leading faction of a religious group is even worse! At the very least, in > court, I, or my advocate, can stand for *my* beliefs, not the beliefs as > found on the about page of a church website. > > Which is the same problem as anytime rights are granted to abstracted > entities instead of to natural persons. Mr. Peabody (no relation to the > dog, I assume) just illustrated it well: the religious rights of the self, > trampled by the religious preferences of another. Whether against company > boss or lobbyist, the individual's religious rights are their own. > > -Kevin Chen > > > -Kevin Chen > > > On Tue, Mar 11, 2014 at 5:41 PM, Michael Peabody < > mich...@californialaw.org > > wrote: > >> >> I appreciate the sentiment in opposition to Mississippi SB 2681 in that >> this law would provide protection for business owners who wanted to >> discriminate through their corporation. (I still can't see how this >> wouldn't signal a breach in the corporate veil as the ultimate expression >> of an alter ego, but I digress.) >> >> I'm reminded of a case I was involved with a few years ago represented a >> plaintiff who was a member of a religious minority, employed for a secular >> small company, who was terminated by her employer soon after the owner of >> the company received a memorandum from a trusted staff member expressing >> concern about religious "influences" that conflicted with the evangelical >> world view of the owner. Had an Arizona-style RFRA been in place, the >> employer would have used the law against my client as a defense, and could >> have claimed that he was in fact a victim of an attempt to force him to >> maintain the employment of people who did not share his (i.e. the >> company's) religious beliefs. >> >> Conceivably this type of event would be repeated over and over and the >> discrimination would become systematic. >> >> However there does not seem to be a need to diminish the existing >> individual religious exercise rights which are protected under the existing >> state RFRAs. In many ways, RFRAs for individuals (not businesses) are the >> guardians of individual rights to free exercise of religion. >> >> Michael Peabody, Esq. >> ReligiousLiberty.TV >> >> ___ >> 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. >> > > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: letter opposing Mississippi RFRA
area of gay rights and > religious objections. Isn't it more likely that a state RFRA in > Mississippi would be used, say, by a mosque to protect itself from > indifference or cloaked discrimination that might not be reachable under > Employment Division v. Smith--or by other religious organizations to protect > themselves from a variety of other non-tolerant things that officials in > Mississippi have been known to do? (This is not a case like Arizona, where > a state RFRA already existed; and unless I'm mistaken, Mississippi's free > exercise clause has not been interpreted yet on the question whether claims > of substantial burdens on religious exercise deserve any heightened > scrutiny.) > > > > I want to emphasize that I, like the signers of the Lupu et al. letter (p. > 4), would like to see a state like Mississippi adopt "enforceable policy at > the state and local level" protecting gays and lesbians from > discrimination. I don't know if it ever has a chance of happening. But > one way to guarantee it won't happen is to suggest that there can be no > exemptions from such laws in the statute itself or under a general > religious-freedom act. (Although the Lupu letter frequently refers to > discrimination by for-profit businesses, it also speaks more generally of > rejecting exemptions from "civil rights laws," which could mean no > exemptions for religious non-profit organizations either. I wonder whether > the signers of the letter think, for example, that if a state law prohibits > sexual-orientation discrimination in housing including educational housing, > an evangelical or Orthodox Jewish college that provides married-student > housing but excludes same-sex married couples cannot be exempted, because > it's violating a statutorily-declared civil right?) > > > > There are complexities in the way these battles play out politically. > Those of us who have argued for several years for exemptions accompanying > same-sex marriage enactments in the blue states have done so with the > feeling that in those states, with marriage equality enacted and with > wide-ranging anti-discrimination laws, the objectors would become the > minority needing protection. So we've sought to protect religious > organizations, as well as a few very small businesses directly tied to > weddings or marriage support (marriage counseling etc.). Of course, we ran > into a lot of pushback, even as to religious organizations, because, well, > those were blue states and people didn't want exemptions from civil-rights > laws. Now, in the red states, it can be argued that some of the proposals > are highly imbalanced or are slaps at gays and lesbians: Kansas's certainly > was, and some would say Arizona's. But I really question whether these > would be the effects of enacting a RFRA for the first time in a state like > Mississippi, where there aren't gay-rights laws to be exempted from in the > first place, and where various religious minorities (many of them > non-Christian) can face indifference and cloaked hostility. > > > > This is another way of expressing the point Alan just made: there are > costs to opposing RFRAs, costs that people on the left ought to care about > too (perhaps especially in red states). Are those costs being weighed > accurately against the predicted costs on the > anti-discrimination/commercial side? > > > > - > > Thomas C. Berg > > James L. Oberstar Professor of Law and Public Policy > > University of St. Thomas School of Law > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2015 > > Phone: (651) 962-4918 > > Fax: (651) 962-4996 > > E-mail: tcb...@stthomas.edu > > SSRN: http://ssrn.com/author='261564 > > Weblog: > http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Tuesday, March 11, 2014 12:43 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: letter opposing Mississippi RFRA > > > > To be fair to Doug and others of us who fought for RFRA and RLPA and > RLUIPA way back when, we thought they were worth fighting for because of > all manner of cases that *did not involve the commercial sector* -- > including, for example, Doug's prisoner case that the Court just granted. > Doug is right that no one, back then, thought commercial sector cases could > prevail -- because they have vi
Re: letter opposing Mississippi RFRA
All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are *clearly* meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting *for* them? On Tue, Mar 11, 2014 at 2:05 PM, Greg Lipper wrote: > Yes, indeed. And whatever "substantial burden" means, it most certainly > does not mean - and could not be applied by courts, with a straight face, > to mean - burdens with respect to "long held and clearly stated teaching of > two of the largest religious groups in the country." > > > > > On Mar 11, 2014, at 1:42 PM, Marty Lederman > wrote: > > To be fair to Doug and others of us who fought for RFRA and RLPA and > RLUIPA way back when, we thought they were worth fighting for because of > all manner of cases that *did not involve the commercial sector* -- > including, for example, Doug's prisoner case that the Court just granted. > Doug is right that no one, back then, thought commercial sector cases could > prevail -- because they have virtually never received so much as a vote in > the Supreme Court. > > But that was then; this is now. If Hobby Lobby prevails, and if these > state laws are enacted against the backdrop of such a Supreme Court > decision and a manifest legislative and popular intent to promote > exemptions in the commercial sphere, well . . . that's a different > landscape entirely, isn't it? > > > On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin wrote: > >> I'm not sure I understand. If such RFRAs are so ineffectual then why are >> some people pushing so hard for them? If they aren't worth fighting >> against, why are they worth fighting for? >> >> >> On Tuesday, March 11, 2014, Douglas Laycock >> wrote: >> >>> There is of course nothing in the actual experience of state RFRAs to >>> support any of the speculative fears in the letter. Litigation has been >>> scarce; decisions favoring religious claimants have been scarcer. RFRAs >>> have been significantly under enforced compared to the aspirations of their >>> drafters. >>> >>> >>> >>> The recent string of wins under federal RFRA in the contraception cases >>> arise in a context where government attempted to override long held and >>> clearly stated teaching of two of the largest religious groups in the >>> country (Roman Catholics and evangelical Protestants). Even if those wins >>> hold up in the Supreme Court, which is far from assured, there is little >>> reason to think they would be replicated in other contexts. >>> >>> >>> >>> Douglas Laycock >>> >>> Robert E. Scott Distinguished Professor of Law >>> >>> University of Virginia Law School >>> >>> 580 Massie Road >>> >>> Charlottesville, VA 22903 >>> >>> 434-243-8546 >>> >>> >>> >>> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu >>> *Sent:* Tuesday, March 11, 2014 12:21 PM >>> *To:* Law & Religion issues for Law Academics >>> *Subject:* letter opposing Mississippi RFRA >>> >>> >>> >>> A group of ten legal academics, including myself and a number of others >>> who post on this list, have prepared a letter urging the legislative defeat >>> of a proposed Religious Freedom Restoration Act in Mississippi. The letter >>> has recently been delivered and made publicly available. It can be found >>> here: http:
Re: letter opposing Mississippi RFRA
I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock wrote: > There is of course nothing in the actual experience of state RFRAs to > support any of the speculative fears in the letter. Litigation has been > scarce; decisions favoring religious claimants have been scarcer. RFRAs > have been significantly under enforced compared to the aspirations of their > drafters. > > > > The recent string of wins under federal RFRA in the contraception cases > arise in a context where government attempted to override long held and > clearly stated teaching of two of the largest religious groups in the > country (Roman Catholics and evangelical Protestants). Even if those wins > hold up in the Supreme Court, which is far from assured, there is little > reason to think they would be replicated in other contexts. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* > religionlaw-boun...@lists.ucla.edu[mailto: > religionlaw-boun...@lists.ucla.edu] > *On Behalf Of *Ira Lupu > *Sent:* Tuesday, March 11, 2014 12:21 PM > *To:* Law & Religion issues for Law Academics > *Subject:* letter opposing Mississippi RFRA > > > > A group of ten legal academics, including myself and a number of others > who post on this list, have prepared a letter urging the legislative defeat > of a proposed Religious Freedom Restoration Act in Mississippi. The letter > has recently been delivered and made publicly available. It can be found > here: http://www.thirdway.org/publications/795 > > > > -- > > 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" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Mark: I don't accept your account of wedding cake designers. As you surely know, to qualify as expressive conduct, conduct must be both intended to convey a particular message and to be interpreted by the community in such a manner. I don't know why anyone would assume that baking a nice cake for money amounts to a message of support for a gay marriage. It isn't quite as articulate as burning a flag. Further, this is commercial speech that we are talking about, which also gets lesser protection. And if it is expressive conduct, I don't see why the same theory shouldn't extend to renting an apartment to a same-sex couple (or single mother). I assume that renting an apartment expresses the same thing as baking and decorating a cake. To me, neither one of them expresses anything, but if either one does, then they both do. On Wed, Feb 26, 2014 at 2:59 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > There certainly is reason to give particular protection to people with > regard to First Amendment expression, such as the creation of celebratory > art by wedding photographers. That is not an "accommodation" given as a > matter of legislative grace, at least not under any sensible approach to > the First Amendment. > > > > It is a separate question whether others' religious conscience should be > protected by "accommodations" under the regime created by Employment > Division v. Smith. > > > > 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 *Hillel Y. Levin > *Sent:* Wednesday, February 26, 2014 11:49 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > > > Doug: > > > > What do you mean by the following: "Apart from marriage, there is no > reason to have religious exemptions for businesses from laws on > sexual-orientation discrimination." > > > > There certainly are some religious people (I don't agree with them, but I > could give you their names and numbers) who would find it religiously > problematic to provide certain services to same-sex couples, including, for > example, renting them an apartment. Why is there "no reason" to accommodate > such people if you *would* accommodate the wedding photographer? Am I > misunderstanding you? > > > > On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock > wrote: > > Many state laws on sexual-orientation discrimination, and most laws on > same-sex marriage, have exemptions for religious organizations. Some are > broad; some are narrow. Some are well drafted; some are a mess. But they > are mostly there. > > > > Apart from marriage, there is no reason to have religious exemptions for > businesses from laws on sexual-orientation discrimination. No one in the > groups I have been part of has ever suggested such exemptions. Not even the > Kansas bill provides such exemptions. > > > > Chip is correct that no state has explicitly exempted small businesses in > the wedding industry, or in marriage counseling, from its same-sex marriage > legislation. All those laws so far have been in blue states. The absurd > overreach in the Kansas bill, and the resulting political reaction to the > radically different Arizona bill, and some bills caught in the fire > elsewhere with less publicity, may indicate that such exemptions will be > hard to enact even in red states. Or maybe not, if someone offers a well > drafted, narrowly targeted bill when or after same-sex marriage becomes the > law in those states. > > > > I agree with Alan Brownstein that part of the problem in red states is > that they want to protect religious conservatives without protecting gays > and lesbians. Not only does Arizona not have same-sex marriage; it doesn't > have a law on sexual-orientation discrimination. The blue states are mostly > the mirror image. More and more they want to protect gays and lesbians but > not religious conservatives. Hardly any political actors appear to be > interested in protecting the liberty of both sides. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Wednesday, February 26, 2014 11:34 AM > > > *To:*
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Doug: What do you mean by the following: "Apart from marriage, there is no reason to have religious exemptions for businesses from laws on sexual-orientation discrimination." There certainly are some religious people (I don't agree with them, but I could give you their names and numbers) who would find it religiously problematic to provide certain services to same-sex couples, including, for example, renting them an apartment. Why is there "no reason" to accommodate such people if you *would* accommodate the wedding photographer? Am I misunderstanding you? On Wed, Feb 26, 2014 at 2:22 PM, Douglas Laycock wrote: > Many state laws on sexual-orientation discrimination, and most laws on > same-sex marriage, have exemptions for religious organizations. Some are > broad; some are narrow. Some are well drafted; some are a mess. But they > are mostly there. > > > > Apart from marriage, there is no reason to have religious exemptions for > businesses from laws on sexual-orientation discrimination. No one in the > groups I have been part of has ever suggested such exemptions. Not even the > Kansas bill provides such exemptions. > > > > Chip is correct that no state has explicitly exempted small businesses in > the wedding industry, or in marriage counseling, from its same-sex marriage > legislation. All those laws so far have been in blue states. The absurd > overreach in the Kansas bill, and the resulting political reaction to the > radically different Arizona bill, and some bills caught in the fire > elsewhere with less publicity, may indicate that such exemptions will be > hard to enact even in red states. Or maybe not, if someone offers a well > drafted, narrowly targeted bill when or after same-sex marriage becomes the > law in those states. > > > > I agree with Alan Brownstein that part of the problem in red states is > that they want to protect religious conservatives without protecting gays > and lesbians. Not only does Arizona not have same-sex marriage; it doesn't > have a law on sexual-orientation discrimination. The blue states are mostly > the mirror image. More and more they want to protect gays and lesbians but > not religious conservatives. Hardly any political actors appear to be > interested in protecting the liberty of both sides. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Wednesday, February 26, 2014 11:34 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Subject: Re: Kansas/Arizona statutes protecting for-profit > businesses > > > > That is my understanding, Hillel. If Doug, Rick, Tom, or others know of > counterexamples, I'm sure they will bring them forward to the list. > > > > On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin > wrote: > > Chip: > > > > Thanks for the cite! I will take a look. > > > > And just so I understand: are you asserting that *none* have adopted the > broader exceptions (wedding vendors, etc)? > > > > On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu wrote: > > Hillel: > > > > The same sex marriage laws to which you refer do have "exceptions," for > clergy, houses of worship, and (sometimes) for religious charities and > social services. Bob Tuttle and I analyze and collect some of that here: > http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. > There is plenty of other literature on the subject. > > > > What has happened in other states since we wrote that piece is quite > consistent with the pattern we described. These laws do NOT contain > exceptions for wedding vendors (bakers, caterers, etc.) or public employees > like marriage license clerks. Those are the efforts that have failed, over > and over. > > > > Chip (not Ira, please) > > > > On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin > wrote: > > Ira: > > > > You say that these bills have failed over and over again. If I'm not > mistaken, several states that recognize same-sex marriage and/or have > non-discrimination laws protecting gays and lesbians *do* have religious > exceptions (as does the ENDA that passed the senate not long ago, only to > die in the House). Am I mistaken? Do you (or anyone else here!) know of any > literature that canvasses the laws in this context? > > > > Many thanks. > > > _
Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses
Marci: I am not sure whether you are responding to my email, but I don't believe that I posited such an either/or proposition. On Wed, Feb 26, 2014 at 12:49 PM, wrote: > The either/or posited between secularism and faith is actually false as > a sociological matter in the United States. What is happening is that > conservative Christians and Jews who oppose gay marriage > are now facing opposition from religious believers. Secularism is a small > portion of the population. This is a fight between believers who are now > lining up on both sides of the issue. Those opposed to gay marriage are > losing ground and allies, and know statistically that the younger > generation across all faiths do not agree with them. They are trying to > co-opt the government to preserve the world they are losing, and will not > get back. > > Marci > > > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Benjamin N. Cardozo School of Law > Yeshiva University > 55 Fifth Avenue > New York, NY 10003 > (212) 790-0215 > http://sol-reform.com > <https://www.facebook.com/professormarciahamilton?fref=ts> > <https://twitter.com/marci_hamilton> > > -Original Message- > From: Hillel Y. Levin > To: Law & Religion issues for Law Academics > Sent: Wed, Feb 26, 2014 12:05 pm > Subject: Re: Same-Sex Marriage and Proposed Religious Exemptions for > Businesses > > Jim is too humble to say so, but his article is required reading for > anyone interested in the Hobby Lobby, Notre Dame, and related cases. > > Jim, this is necessarily speculative, but I think that some religious > traditionalists/conservatives view themselves as under attack from > secularist forces. These forces are at play in the same-sex marriage > context, but also GLBT non-discrimination laws, the contraception mandate, > and others to boot. In the face of this (real or perceived) broad-based > attack, as well as perhaps the sense that public sentiment is moving > towards secularism in general (and GLBT rights in particular), they may be > trying to plant their flag right here in places that they still have a > majority. > > This could be called cynical, but it could also be called wise. After > all, it is extremely difficult to repeal a religious accommodation clause > once it is enacted, even if the majority comes to regret having enacted it. > > > > > On Wed, Feb 26, 2014 at 11:46 AM, James Oleske wrote: > >> In light of the recent discussions of this issue on the list, and in >> light the various proposals percolating in the states, I've got a question >> for the group and a shameless plug. >> >> First, the shameless plug -- I've just posted a new piece on the issue >> to SSRN (it won't be in print until next year, so comments and suggestions >> would be very welcome): >> >> *Interracial and Same-Sex Marriages: Similar Religious Objections, Very >> Different Responses* >> http://ssrn.com/abstract=2400100 >> >> The article addresses two major questions that have gone largely >> unexamined in the literature to date: First, why has the legal academy been >> so solicitous of religious objections to same-sex marriage when it was >> never receptive to similar objections to interracial marriage? Second, if a >> state were to adopt the leading academic proposal for religious >> exemptions--a proposal that would allow for-profit businesses to >> discriminate against same-sex couples--would the exemptions be vulnerable to >> an equal protection challenge? >> >> The "leading academic proposal" I discuss is the >> Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal >> discussion of that proposal begins on page 35 of the draft. A more general >> discussion of exemptions for commercial businesses starts on page 27 of the >> draft. >> >> Second, the question for the group: What explains the recent pivot from >> the "marriage specific" proposals (e.g., proposed amendment to Minnesota's >> 2012 marriage recognition legislation; proposed amendment to Washington's >> 2012 marriage recognition legislation; proposed 2014 ballot initiative in >> Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to >> the "expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an >> effort to tie into what is expected to be a victory for Hobby Lobby under >> the federal RFRA? >> >> - Jim >> >> P.S. My understanding is the same as Chip's -- no state has yet adopted >> marriage exemptions that extend to commercial vendors. Speaking of Ch
Re: Same-Sex Marriage and Proposed Religious Exemptions for Businesses
Jim is too humble to say so, but his article is required reading for anyone interested in the Hobby Lobby, Notre Dame, and related cases. Jim, this is necessarily speculative, but I think that some religious traditionalists/conservatives view themselves as under attack from secularist forces. These forces are at play in the same-sex marriage context, but also GLBT non-discrimination laws, the contraception mandate, and others to boot. In the face of this (real or perceived) broad-based attack, as well as perhaps the sense that public sentiment is moving towards secularism in general (and GLBT rights in particular), they may be trying to plant their flag right here in places that they still have a majority. This could be called cynical, but it could also be called wise. After all, it is extremely difficult to repeal a religious accommodation clause once it is enacted, even if the majority comes to regret having enacted it. On Wed, Feb 26, 2014 at 11:46 AM, James Oleske wrote: > In light of the recent discussions of this issue on the list, and in light > the various proposals percolating in the states, I've got a question for > the group and a shameless plug. > > First, the shameless plug -- I've just posted a new piece on the issue to > SSRN (it won't be in print until next year, so comments and suggestions > would be very welcome): > > *Interracial and Same-Sex Marriages: Similar Religious Objections, Very > Different Responses* > http://ssrn.com/abstract=2400100 > > The article addresses two major questions that have gone largely > unexamined in the literature to date: First, why has the legal academy been > so solicitous of religious objections to same-sex marriage when it was > never receptive to similar objections to interracial marriage? Second, if a > state were to adopt the leading academic proposal for religious > exemptions--a proposal that would allow for-profit businesses to > discriminate against same-sex couples--would the exemptions be vulnerable to > an equal protection challenge? > > > The "leading academic proposal" I discuss is the > Laycock/Berg/Garnett/Wilson proposal Chip mentions below, and the principal > discussion of that proposal begins on page 35 of the draft. A more general > discussion of exemptions for commercial businesses starts on page 27 of the > draft. > > > Second, the question for the group: What explains the recent pivot from > the "marriage specific" proposals (e.g., proposed amendment to Minnesota's > 2012 marriage recognition legislation; proposed amendment to Washington's > 2012 marriage recognition legislation; proposed 2014 ballot initiative in > Oregon; 2014 proposed bills in Kansas, Idaho, South Dakota, Tennessee) to > the "expansion of RFRA rights" proposals (Arizona, Missouri)? Is it an > effort to tie into what is expected to be a victory for Hobby Lobby under > the federal RFRA? > > > - Jim > > P.S. My understanding is the same as Chip's -- no state has yet adopted > marriage exemptions that extend to commercial vendors. Speaking of Chip, > his article with Bob on this topic is essential reading ( > http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp > ). > > On Wed, Feb 26, 2014 at 8:33 AM, Ira Lupu wrote: > >> That is my understanding, Hillel. If Doug, Rick, Tom, or others know of >> counterexamples, I'm sure they will bring them forward to the list. >> >> >> On Wed, Feb 26, 2014 at 11:28 AM, Hillel Y. Levin >> wrote: >> >>> Chip: >>> >>> Thanks for the cite! I will take a look. >>> >>> And just so I understand: are you asserting that *none* have adopted >>> the broader exceptions (wedding vendors, etc)? >>> >>> >>> On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu wrote: >>> >>>> Hillel: >>>> >>>> The same sex marriage laws to which you refer do have "exceptions," for >>>> clergy, houses of worship, and (sometimes) for religious charities and >>>> social services. Bob Tuttle and I analyze and collect some of that here: >>>> http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. >>>> There is plenty of other literature on the subject. >>>> >>>> What has happened in other states since we wrote that piece is quite >>>> consistent with the pattern we described. These laws do NOT contain >>>> exceptions for wedding vendors (bakers, caterers, etc.) or public employees >>>> like marriage license clerks. Those are the efforts that have failed, over >>>> and over. &g
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
Chip: Thanks for the cite! I will take a look. And just so I understand: are you asserting that *none* have adopted the broader exceptions (wedding vendors, etc)? On Wed, Feb 26, 2014 at 11:23 AM, Ira Lupu wrote: > Hillel: > > The same sex marriage laws to which you refer do have "exceptions," for > clergy, houses of worship, and (sometimes) for religious charities and > social services. Bob Tuttle and I analyze and collect some of that here: > http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp. > There is plenty of other literature on the subject. > > What has happened in other states since we wrote that piece is quite > consistent with the pattern we described. These laws do NOT contain > exceptions for wedding vendors (bakers, caterers, etc.) or public employees > like marriage license clerks. Those are the efforts that have failed, over > and over. > > Chip (not Ira, please) > > > On Wed, Feb 26, 2014 at 11:13 AM, Hillel Y. Levin > wrote: > >> Ira: >> >> You say that these bills have failed over and over again. If I'm not >> mistaken, several states that recognize same-sex marriage and/or have >> non-discrimination laws protecting gays and lesbians *do* have religious >> exceptions (as does the ENDA that passed the senate not long ago, only to >> die in the House). Am I mistaken? Do you (or anyone else here!) know of any >> literature that canvasses the laws in this context? >> >> Many thanks. >> >> >> On Wed, Feb 26, 2014 at 11:07 AM, Ira Lupu wrote: >> >>> The Kansas bill is very sex/gender specific, and it is not limited to >>> weddings in any way. The rights it creates appear absolute -- no interest >>> balancing. It would authorize all sincere religious objectors (persons and >>> entities, including businesses) to treat same sex marriages/domestic >>> partnerships, etc. as invalid, even if the 14th A required states to >>> license and respect such weddings. It would authorize those objectors to >>> refuse to provide goods and services to anyone celebrating such a wedding >>> or commitment, and to deny employee spousal benefits to same sex spouses. >>> >>> The Arizona bill protects religious freedom generally, and the amendment >>> extends the coverage explicitly to corporations.The same religious >>> objections to same sex weddings, marriages, etc. could be made under the >>> Arizona bill. The AZ bill permits a compelling interest defense (therefore >>> more "moderate"?), but it also is far more sweeping because it might be >>> invoked to justify religious discrimination against customers for all sorts >>> of reasons of status and identity, not limited to sexual orientation. >>> >>> Unlike federal RFRA, which was a generic response to Smith and brought >>> together a coalition of many faith groups and civil liberties groups, the >>> amendments to Arizona RFRA are driven by exactly the same political forces >>> as are driving the Kansas bill and others -- opposition to same sex >>> marriage and same sex intimacy, and an assertion of rights of some business >>> people to refuse to serve that population. So the good lawyers on this >>> list can parse the differences in the bills, and we can debate which bill >>> would do more harm or more good, if you think there is any good here to be >>> done. But no one can credibly deny that all of these current legislative >>> efforts are driven by the same political forces. >>> >>> Doug Laycock, Tom Berg, Rick Garnett, Robin Wilson and others have for >>> the past 5 years been pushing narrower versions of these bills in states >>> that have legislated same sex marriage (NY, Illinois, NH, Hawaii, etc.) >>> Those efforts have failed over and over again. Now that same sex marriage >>> seems headed for the red states, we are just seeing broader, uglier, less >>> nuanced versions of the same agenda. I hope and expect that Gov. Brewer >>> will veto the AZ bill, and it's nice to see the fierce national pushback >>> against these attempts to legitimate anti-gay bigotry, whatever its >>> religious underpinnings in some cases. >>> >>> >>> On Wed, Feb 26, 2014 at 10:03 AM, Scarberry, Mark < >>> mark.scarbe...@pepperdine.edu> wrote: >>> >>>> That should have been "much more moderate/less sweeping." >>>> >>>> Mark >>>> >>>> Mark S. Scarberry >>>> Pepperdine University
Re: Subject: Re: Kansas/Arizona statutes protecting for-profit businesses
fuse to accommodate the religious exercise of employees, or >>>> even terminate them on the basis of religious differences. >>>> >>>> The Hobby Lobby case may go a long way in showing what rights >>>> employers have, and it seems to be part of a general strike against the >>>> application of the Bill of Rights to the states (14th Amendment). >>>> >>>> Any time the principle argument in favor of a potentially dangerous >>>> law is, "What's the worse that can happen?" I think there's reason to get >>>> really nervous. >>>> >>>> There is probably an answer for those who don't want to violate their >>>> religious conscience by accommodating those members of protected classes >>>> that disagree with them, but this legislation is not it. >>>> >>>> Michael D. Peabody, Esq. >>>> Editor >>>> ReligiousLiberty.TV >>>> http://www.religiousliberty.tv >>>> >>>> >>>> >>>> >>>> ___ >>>> >>>> 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. >>>> >>> >>> >>> >>> -- >>> Michael Worley >>> BYU Law School, Class of 2014 >>> >>> ___ >>> 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. >>> >> >> >> >> -- >> Michael Worley >> BYU Law School, Class of 2014 >> >> ___ >> 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. >> > > > > -- > 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" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: Notre Dame-- where's the complicit "participation"? Sincerity
; Moreover - and while this is more a tendency of the left than the right, > the right is not without fault - we look to government and law to > accomplish societal goals, drowning out other voices, weakening > intermediary organizations, and ignoring the casualties when the blunt > force of law and government is wielded. This is the path that promises > continued conflict, as well as the continual erosion of freedom. If we are > not willing to acknowledge that value may lie in other points of view - and > then granting space to counter-cultural messages and groups (whatever may > be the counter to the culture at the moment) - we soon may find ourselves > living in an impoverished society that can no longer characterize itself as > truly free. As Learned Hand once said, the Spirit of the Liberty is the > spirit that is not too sure that it is right. More humility in political > leadership and greater tolerance for others of differing political views > could avoid many of these problems and produce creative means for solutions > that cause less conflict. > > > > > > Gregory Sisk > > Laghi Distinguished Chair in Law > > University of St. Thomas School of Law (Minnesota) > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2005 > > 651-962-4923 > > gcs...@stthomas.edu > > http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> > > Publications: http://ssrn.com/author=44545 > > > > > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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: On implausible burdens
Paul: I do think I am asking a different question from the one normally dealt with in the literature, for the reason you note. That said, I suspect that there is a good deal in the literature addressed to the question I pose--if anyone has some citations, I'd be grateful. Who are the religious "experts" that we outsource religious freedom questions to? Isn't everyone an expert on her own religious beliefs (contrary to medical questions), and (contra to medical questions again) aren't we forbidden from seeking religious experts who would undermine the person's religious freedom claim? That strikes me as quite a meaningful difference between medical accommodations and religious accommodations. I'm not ready to concede your point about speech rights functioning the same way. The normative reasons that we privilege and protect speech are of course debated extensively, but they all have in common (I think) that speech rights somehow redound to the benefit of the polity. Having made that decision in the abstract, we have to accept that we will protect some speech that isn't particularly worthy of such protection. In the case of religion, however, I'm asking why protecting religious exercise ever redounds to the benefit of the polity in the first place. If we can't identify any way in which it does, then protecting it above other things--like dignity or personal feelings of well-being--is difficult for me to understand. I should add that in a society in which religion is basically necessary to understand the way the world works, it makes sense to privilege religion and be pluralistic about it. But in today's society, in which huge swaths of the population find it entirely possible to explain the world (at least well enough) without reference to the supernatural, religion seems to me more like a personal choice akin to aesthetic preferences, a search for inner peace or communal structure. In other words, the increasing plausibility of atheism or agnosticism seems to me to change the normative playing field quite a bit. On Saturday, February 15, 2014, Paul Horwitz wrote: > The literature on this question, as a legal question. Is of course growing > like Topsy. But I am not sure that you are asking the same question. > Because this country does not tend to privilege conscience qua conscience > to the same degree as religion, the question usually asked is why religion > is special as against ostensibly similar conscience claims. But your > question seems to apply equally to either--and may, indeed, amount to > asking why any and every individual claim, say of autonomy or dignity, is > not subjected to some form of consequential analysis and balancing. > > A few other observations: > > 1) Along one relevant axis we do treat, eg., medical claims to > accommodation in the same way as we treat religious accommodation claims. > Both raise questions of the epistemic ability or legitimacy of legal > decision-makers, and involve substantial deference to the decisions of > outside experts, although in the case of medicine a) we are, or more often > pretend we are, able to second-guess those claims to a greater degree, and > b) those questions involve a less plural interpretive community. > > 2) In both cases, there are underlying normative issues that cannot be > fully answered by the expert community. Even under strict scrutiny regimes > we may, for normatively charged reasons, prefer compelling state interests > to religious claims. Even where there is medical or other expert > consensus--on, say, the capacity of a fetus to live outside the womb or of > an individual to decide whether to end his life, or the environmental risks > presented by nuclear power--that consensus does not tell us what we ought > to do. At best, we can more or less carefully separate the two kinds of > questions and argue about who ought to have the authority to decide each of > them. That, to refer back to the earlier discussion, is probably the core > academic responsibility in this area. > > 3) There are arguably some core conscience claims outside of religion that > we do treat essentially as black box decisions, at least in individual > cases, including many equality and speech claims. Having decided to > privilege artistic or political speech, for instance, we don't ask why > Andres Serrano needed Piss Christ not to be Waterlogged Christ, or rank his > artistic impulses against those of other artists, or do much by way of > balancing Serrano's artistic needs against the needs of the community. > > 4) Having started down the normative road, we might (and sometimes do, > but we could always do so) just as well ask why we privilege community > needs over individual claims, the state over other normative or > interpretive communities, equalit
Re: On implausible burdens
n (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. >> >> >> ___ >> 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. >> > > > > -- > 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 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > ___ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ 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.
