RE: TRO against Oklahoma "no use of Sharia Law"
Perhaps principles from the common law of defamation can do some work in the Catholic League case -- the allegedly injured party must show that the defamatory statement was of and concerning the plaintiff (so named church officials, yes; all unnamed Catholics, no?) Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Wed, 10 Nov 2010 15:25:37 -0500 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" >) >Subject: RE: TRO against Oklahoma "no use of Sharia Law" >To: "'Law & Religion issues for Law Academics'" > > But the resolution was non-binding and > unenforceable; how then, on your view of standing > are they harmed? > > > > > > Marc D. Stern > > Associate General Counsel > > for Legal Advocacy > > ste...@ajc.org > 212.891.1480 > > 646.287.2606 (cell) > > > > [IMG] > > > > > > NOTICE > > This email may contain confidential and/or > privileged material and is intended for the sole use > of the intended recipient(s). If you are not the > intended recipient, please be advised that you have > received this email in error and that any use, > disclosure, copying, distribution or other > transmission is prohibited, improper and may be > unlawful. If you have received this email in error, > you must destroy this email and kindly notify the > sender by reply email. If this email contains the > word CONFIDENTIAL in its Subject line, then even a > valid recipient must hold it in confidence and not > distribute or disclose it. In such case ONLY the > author of the email has permission to forward or > otherwise distribute it or disclose its contents to > others. > > > > > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On > Behalf Of Volokh, Eugene > Sent: Wednesday, November 10, 2010 3:20 PM > To: Law & Religion issues for Law Academics > Subject: FW: TRO against Oklahoma "no use of Sharia > Law" > > > > Well, the Catholic League minority > reasoned that "the parties who are personally the > subjects of the resolution, such as Cardinal Levada, > Archbishop Niederauer, and Catholic Charities, could > demonstrate cognizable harm," because they were > singled out by name in the resolution; but that > people who are simply offended by the condemnation > of Catholicism do not have standing. I would think > that the plaintiff in the Oklahoma case falls more > in the latter category than in the former. > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On > Behalf Of Marc Stern > Sent: Wednesday, November 10, 2010 11:36 AM > To: 'Law & Religion issues for Law Academics' > Subject: RE: TRO against Oklahoma "no use of Sharia > Law" > > > > The five judges who dissented on the standing issue > stated explicitly that while the Catholic League did > not have standing, the Catholic Church would have. > Why isn't that caveat controlling here? > > > > Marc D. Stern > > Associate General Counsel > > for Legal Advocacy > >___ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: TRO against Oklahoma "no use of Sharia Law"
I'm inclined to think that Eugene's original post (no standing, no ripeness) is spot-on in this case. Maybe there is an argument that anyone who resides in Oklahoma has "frequent regular contact" with any principle in the Oklahoma Constitution, but I wouldn't buy it. (How would we distinguish this case from any other objection, based on insult, disparagement, or offense, to a constitutional provision? Perhaps standing would be OK in any such case -- suppose the voters declared the state to be a White Supremacist state?) I think the deeper problem here -- and the reason why we have so many anomalous standing doctrines in Establishment Clause law, like taxpayer standing and observer standing -- is that the Clause primarily stands for a polity principle, and not a rights-based principle. So, for example, if Oklahoma voters had approved a provision declaring the state to have a Christian identity, we'd all know that the incorporated Establishment Clause had been violated, but we'd have the same trouble finding a proper plaintiff (one who satisfied Art. III standards) to challenge it in a federal court. Perhaps the Oklahoma state courts would be a more legally hospitable forum (though we would of course want to know more about re-elections or recall elections for state court judges in Oklahoma). Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Tue, 9 Nov 2010 14:11:32 -0800 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Volokh, Eugene" >) >Subject: RE: TRO against Oklahoma "no use of Sharia Law" >To: Law & Religion issues for Law Academics > > A A A A A A A A A A A A A A I'm not sure whether > Prof. Jamar is making a point about what standing > law should be, or what it is now.A But as to the > latter, as best I can tell, the Court has never held > that anyone has standing to challenge a law just > because the law itself endorses or disapproves of a > religion.A And Newdow v. Levefre (9th Cir. 2010), > http://scholar.google.com/scholar_case?case=753698042392989497, > seems to hold that there is no standing in such > cases: > > > > Newdow lacks standing to challenge 36 U.S.C. AS: > 302, which merely recognizes "In God We Trust" is > the national motto. Unlike AS:AS: 5112(d)(1) and > 5114(b) [which provide for the placement of the > motto on currency], AS: 302 does not authorize or > require the inscription of the motto on any object. > Without AS:AS: 5112 and 5114, the motto would not > appear on coins and currency, and Newdow would lack > the "unwelcome direct contact" with the motto that > gives rise to his injury-in-fact. Although Newdow > alleges the national motto turns Atheists into > political outsiders and inflicts a stigmatic injury > upon them, an "abstract stigmatic injury" resulting > from such outsider status is insufficient to confer > standing. > > > > Other lower court cases recognizing standing to > challenge monuments, city seals, and the like have > likewise all stressed the objectors' "frequent > regular contact" with the offending inscriptions and > symbols.A Or am I missing something here? > > A A A A A A A A A A A A A A Eugene > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On > Behalf Of Steven Jamar > Sent: Tuesday, November 09, 2010 2:04 PM > To: Law & Religion issues for Law Academics > Subject: Re: TRO against Oklahoma "no use of Sharia > Law" > > > > Simplest establishment standing case ever. >Disfavoring one religion is an establishment > violation -- that gives anyone standing. Of course > the current court could change the rules and > restrict standing in this area as they have in > others. Since it is at least theoretically possible > that someone in Oklahoma could suffer actual harm > from this provision (enforcement of an > internationally valid Will which is compliant with > Hanafi or Shafai or Wahabi or other schools of > Islamic jurisprudence, for example), the court could > use this to trim establishment claim standing. > > > > > > On Nov 9, 2010, at 4:47 PM, Volokh, Eugene wrote: > > I thought I'd ask list members what they thought > about this. Here's my post on the subject, in case > it's of interest - I'd love to hear whether others > on the list agree. > > > > > > > http://volokh.com/2010/11/09/district-court-temporarily-enjoins-oklahoma-no-use-of-shariah-law-in-court-constitutional-amendment > > > > > > > > -- > > Prof. Steven D. Jamar >vox: 202-806-8017 > > Associate Director, Institute for Intellectual > Property and Social Justice http://iipsj.org > > Howard Univer
Re: Principles of sincerity/credibility determination
Perhaps there is a connection between the Supreme Court's adoption in Thomas of this principle of individual self-determination of religious belief, and the almost-immediate decline of free exercise protection in the Supreme Court (Thomas, 1981; Lee, 1982; Bob Jones, 1983; Goldman, 1986; Bowen, 1986; Lyng, 1988; Jimmy Swaggart, 1990; Smith, 1990). The only exceptions to the trend are Hobbie (1987) and Frazee (1989), both in the accepted and limited context of Sabbath observance and unemployment compensation. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Tue, 26 Oct 2010 13:03:52 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach >) >Subject: Principles of sincerity/credibility determination >To: Law & Religion issues for Law Academics > > > >I thought this paragraph from a post Eugene made on his blog would be a good >one to discuss on the list: > > > >*** > > > >A claimant may prevail only if his beliefs are sincerely held: If a court >concludes that the claimant is lying about his beliefs, then his claim will be >rejected. (Courts may often be especially likely to scrutinize a claimant’s >sincerity when his beliefs seem to coincide neatly with his secular interests, >especially secular financial interests.) And my sense is that courts are >indeed, rightly or wrongly, more likely to find a belief to be sincere if it >is familiar, probably because it is shared by many of the claimant’s >coreligionists. But in principle courts ought not focus on that, and should >treat beliefs that are minority beliefs even in the claimant’s own >denomination, or even beliefs that are highly idiosyncratic, as fully >protected at the same level as standard majority Muslim, Jewish, Baptist, >Methodist, etc. beliefs might be. > > > >*** > > > >What I don't understand about Eugene's statement here is what "principle" says >that a court ought not look at whether anyone else shares a claimed religious >belief in making a credibility determination about whether the belief is truly >*held*. Courts are more likely to find that a Jewish inmate asking for kosher >food is sincere than an "Orthodox Catholic" inmate asking for kosher food. >Cf. Guzzi v. Thompson, 470 F.Supp.2d 17 (D. Mass. 2007). That's because the >belief that Jews should keep kosher has been around for a long time--and has >been adhered to as a practice in many different contexts--indicating that the >belief is not contingent on the circumstances and interests of a particular >person in a particular situation. That lack of historical or personal >contingency is rightfully seen as an indicator of the credibility of the claim >that the plaintiff holds the belief. That doesn't mean that the lack of >evidence that others hold a plaintiff's "idiosyncratic" belief should be >treated as a strike against a plaintiff's credibility. But it is a positive >factor that is, and should be, available to "familiar" faiths. > > > >I don't think that this approach to credibility determinations is any >different than those in other contexts. If I am prosecuted/sued for fraud >based on my telling others that space aliens have abducted many people from >Roswell, NM, my sincerity defense will definitely be helped if many other >people hold the same belief, just as it will be harmed if I have a financial >interest in leading others to share my claimed belief. > > > >So I think Eugene's statement mixes up the credibility determination about >whether someone is truly holding a belief with a forbidden determination about >whether the content of the belief is true. Courts can legitimately look at >whether others hold the same belief in making the former determination, but >cannot engage in the latter determination at all. > > > >And as a practical matter, the two determinations really should be kept quite >separate for the practical reason that courts aren't going to want to help a >cheat. Adhering to a formal rule that courts determine sincerity/credibility >ensures that judges deal with that concern squarely, rather than by using >other parts of the law -- say the compelling government interest test -- to >ensure that plaintiffs they suspect are insincere lose in the end. The lack of >reliance on sincerity ends up deforming other parts of the law. > > > >It may be that Eugene has an underlying concern about whether this approach >undermines equal treatment among faiths, and if so, I would be interested to >hear him articulate that concern more fully than he was able to within the >confines of his post. > > > >Eric > > > > > > > > >___ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get passwor
RE: N.J. public transit employee fired for blasphemy
I'm surprised no one is talking about (speech) market failure. False cries of fire in a crowded theater, incitements of your audience to imminent lawless action, and face-to-face fighting words are classic examples of likely market failure. In the Terry Jones example, the market was producing enormous volumes of speech to the effect of "this guy's being a bigoted jerk; this is not the way most Americans think about Islam." If violence erupted overseas in response to a Koran burning, it couldn't have been because the market had no competing ideas in it, or because there wasn't time for those ideas to be expressed. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 16 Sep 2010 12:33:00 -0700 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" >) >Subject: RE: N.J. public transit employee fired for blasphemy >To: Law & Religion issues for Law Academics > >Eric is certainly correct that the First amendment protects the expression of >ideas -- even if they have the tendency to make audience members so angry that >will react violently to the speech. European countries are far less protective >of speech. > >The connection between other kinds of speech and criminal conduct can get more >complicated and can't be fully captured by the idea of incitement. But that's >another topic. > >Alan > > > >-Original Message- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach >Sent: Thursday, September 16, 2010 11:34 AM >To: Law & Religion issues for Law Academics >Subject: RE: N.J. public transit employee fired for blasphemy > > > >The issue Alan raises has come up in the debate over "defamation of religions" >because many European countries have laws regarding incitement to racial or >religious hatred, many of which were designed during the post-war period to >respond to Nazi tactics against Jewish Germans. These incitement laws would >have trouble being applied in the US unless they qualified under Brandenburg. > >But I don't think what we are talking about with respect to defamation of >religions, or burning the Koran or Talmud (apparently Pastor Jones wanted to >burn both) is really "incitement." There is a big difference between (1) A >saying to B "C is evil, C should be killed"and then B goes out and tries to >kill C; and (2) A saying to B "your religious beliefs are wrong" and B >responds by trying to kill A (or innocent third parties C or D, if they happen >to be closer). > >Situation (1) is what is typically meant by incitement and is a lot closer to >conspiracy to commit a crime; one can envision some scenarios where A could be >held liable. Situation (2) is what French law calls "provocation"; under >French law (and several other Continental legal systems) such a provocation >might give grounds for tort liability but it would not justify B's retaliating >with violence. I don't see how in situation (2), even when B predictably >riots and kills innocent third parties C or D, A can be held responsible for >B's actions. B is the agent at fault, not A. > >There are also some interesting parallels to the crime-facilitating speech >issue that Eugene has written about, though I have not really thought those >through. > > > >From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] >On Behalf Of Brownstein, Alan [aebrownst...@ucdavis.edu] >Sent: Thursday, September 16, 2010 1:24 PM >To: Law & Religion issues for Law Academics >Subject: RE: N.J. public transit employee fired for blasphemy > >While I believe that desecrating sacred objects is protected speech, I'm not >sure that I'm persuaded by the argument that the critical issue is whether the >response of the audience to speech is "justifiable" or not. In the South, 100 >years ago, spreading a false statement that an African-American had attacked >or threatened a white woman would have been understood to risk provoking a >violent assault on the African-American. Is the speaker's knowingly false >statement protected speech in that case because lynching is never justified. I >think there are many situations in which expressing a false statement will >predictably provoke acts of violence against an innocent person. I'm not >convinced that all such statements are protected speech because the acts of >violence are unjustified. > >Alan Brownstein > >-Original Message- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach >Sent: Thursday, September 16, 2010 9:31 AM >To: Law & Religion issues for Law Academics >Subject: RE: N.J. public transit employee fired for blasphemy > > >Pa
National Religious Freedom Moot Court Competition
I would appreciate it if members of the listserv who serve on law faculties would share the following announcement with the appropriate people at their respective schools: "The George Washington University Law School is pleased to present the Fifth Annual National Religious Freedom Moot Court Competition, hosted by the law school's J. Reuben Clark Law Society, to be held February 4-5, 2011 in Washington, DC. Judge Thomas B. Griffith of the U.S. Court of Appeals for the D.C. Circuit, Professor Michael McConnell of Stanford University's Constitutional Law Center and formerly of the U.S. Court of Appeals for the 10th Circuit, and Melissa Rogers of Wake Forest University will judge the final round. This year's problem will deal with the Religious Land Use and Institutionalized Persons Act as it applies to zoning decisions. For more information about registration, deadlines, and other details, go to http://www.religionmootcourt.org/."; Many thanks. Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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.
Public vs. Private Responsibility for Religious Speech
Several weeks ago, we had discussions on this list re: how to allocate governmental versus private responsibility for various instances of speech with religious content (e.g., whether the transfer to the VFW of the land under the cross in the Mojave Desert National Preserve cures any Establishment Clause problem). Claudia Haupt (a former student of mine, currently an International and Comparative Law Fellow at GW), has now posted on SSRN an insightful paper entitled "Mixed Public-Private Speech and the Establishment Clause. Here is the link: http://ssrn.com/abstract=1616167. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 13 May 2010 12:01:44 -0400 (EDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Christopher Lund" >) >Subject: The Theft of the Mojave Cross >To: "'Law & Religion issues for Law Academics'" > > Has anyone thought about how the theft of the Mojave > Cross will affect the legal issues on remand?A > A Here are some recent facts-an anonymous letter now > claims that the cross was taken by a Veteran who > rejects Justice Kennedy's opinion and believes the > cross should be removed and replaced with a more > ecumenical symbol.A > http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html.A > (Thanks to Mary Jean Dolan for sending the link to > me.) > > > > It seems to me though that the thief's actions may > lead to the opposite of what they intended.A That > is, I think the cross is now on a more secure > footing than ever. A Remember that plaintiff's > counsel at oral argument conceded that, if the cross > were taken down before the land transfer, the land > transfer would then be consistent with the terms of > the injunction.A So now, if the VFW and the > government just wait to replace the cross until > after the land transfer goes through, the plaintiff > would probably have no case.A I mean, I think it's > possible to read the injunction (which bars the > government from "permitting" the cross) as still > inconsistent with the land transfer, but the > plaintiff has already disavowed this reading and > even Justice Ginsburg seemed to find it untenable. > > > > Final note:A The last line of the anonymous letter > reads, "Perhaps this was an inappropriate form of > protest if so I humbly request your forgiveness and > understanding for the actions that I have taken > here."A I think the writer misunderstands the > gravity of his or her actions. A I would think that, > among other things, removing the cross like this at > least violates 18 U.S.C. AS: 1369, which gives up to > a ten year sentence to whoever "willfully injures or > destroys" a war memorial.A Whoever did this needs > to seek counsel immediately to hopefully give back > the cross and negotiate a good resolution to this. > > > > Best, > > Chris > > > > ___ > > Christopher C. Lund > > Assistant Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MIA 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > (313) 577-9016 (fax) > > Papers: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > >___ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: the stolen Mojave Desert cross
Some additional information re: the theft, the perpetrator, and his/her motives: http://www.desertdispatch.com/news/explaining-8465-anonymous-letter.html Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 13 May 2010 15:05:29 -0400 (EDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Ira (Chip) Lupu" >) >Subject: RE: A real-life on-campus example >To: "Law & Religion issues for Law Academics" > >Eric: > >I would need a thick and objective description of what happened at Washburn in >order to evaluate its significance in this larger argument. For example, >what was the Mormon student saying (or planning to say) about the Bible that >caused such consternation and conflict? Was there a back story of conflict >between Mormons (or this particular student) and CLS members that preceded >this incident? That would all be quite useful to know, but I have to say >that it's still only one story, and I would guess that CLS lawyers (who have >been litigating these cases for years) would have been on the lookout for such >incidents. So one story and one story only would not change my basic >intuition that an all-comers policy in a school-created forum presents a >cooperation game, where everyone understands that aggressive challenges and >takeovers will invite reciprocal action, and that such tit-for-tat responses >will quickly destroy the forum. > >Chip > >Ira C. Lupu >F. Elwood & Eleanor Davis Professor of Law >George Washington University Law School >2000 H St., NW >Washington, DC 20052 >(202)994-7053 >My SSRN papers are here: >http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > Original message >>Date: Thu, 13 May 2010 13:59:20 -0400 >>From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach >>) >>Subject: RE: A real-life on-campus example >>To: Law & Religion issues for Law Academics >> >>Chip - >> >>Does the situation where the Mormon student shut down the Washburn chapter of >>CLS represent the sort of "dynamism, openness and challenge" you are talking >>about? (That's the real-life on-campus example you asked for earlier and was >>cited in Petitioner's brief at page 33.) >> >>That scenario seems to create the opposite of dynamism, by allowing one >>student to enlist the government in shutting down the dialogue altogether. >>Remember, we aren't talking about the ability to create dialogue--CLS >>meetings are open to all students--we are talking about the ability of one >>group of students to get the government to withdraw permission from another >>group of students to use email, bulletin boards, etc. to communicate with the >>rest of the student body. Conditioning permission to speak to the entire >>student body on relinquishing any ability to affirm a specific set of beliefs >>burdens freedom of association under Healy. >> >>The sort of open-source associational dynamic you describe sounds nice if you >>don't get too specific about how it actually works in practice, but in >>reality even open-source systems always need exclusionary rules for there to >>be a coherent dialogue. Even Wikipedia has rules against vandals. >> >>Eric >> >> >> >> >>From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] >>On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] >>Sent: Thursday, May 13, 2010 1:30 PM >>To: Law & Religion issues for Law Academics >>Subject: RE: A real-life on-campus example >> >>Alan asks a good question about the standard of review. This is a designated >>public forum. The "reasonableness" standard (that is, reasonable in light of >>the purposes of the forum) ordinarily applies to exclusion of speech content >>(by subject matter, or by viewpoint, but the latter will be never be >>reasonable). But the Hastings LS all-comers policy is not an exclusion of >>speech content -- it's a policy regarding associational freedom. It only >>indirectly and occasionally (perhaps rarely, perhaps never) operates to >>exclude any speech content at all. Because the challenged policy covers >>association and not content, I think the requirements of reasonableness (in >>light of the purposes of the forum) might be even weaker than would be the >&
RE: A real-life on-campus example
Eric: I would need a thick and objective description of what happened at Washburn in order to evaluate its significance in this larger argument. For example, what was the Mormon student saying (or planning to say) about the Bible that caused such consternation and conflict? Was there a back story of conflict between Mormons (or this particular student) and CLS members that preceded this incident? That would all be quite useful to know, but I have to say that it's still only one story, and I would guess that CLS lawyers (who have been litigating these cases for years) would have been on the lookout for such incidents. So one story and one story only would not change my basic intuition that an all-comers policy in a school-created forum presents a cooperation game, where everyone understands that aggressive challenges and takeovers will invite reciprocal action, and that such tit-for-tat responses will quickly destroy the forum. Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 13 May 2010 13:59:20 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of Eric Rassbach >) >Subject: RE: A real-life on-campus example >To: Law & Religion issues for Law Academics > >Chip - > >Does the situation where the Mormon student shut down the Washburn chapter of >CLS represent the sort of "dynamism, openness and challenge" you are talking >about? (That's the real-life on-campus example you asked for earlier and was >cited in Petitioner's brief at page 33.) > >That scenario seems to create the opposite of dynamism, by allowing one >student to enlist the government in shutting down the dialogue altogether. >Remember, we aren't talking about the ability to create dialogue--CLS meetings >are open to all students--we are talking about the ability of one group of >students to get the government to withdraw permission from another group of >students to use email, bulletin boards, etc. to communicate with the rest of >the student body. Conditioning permission to speak to the entire student body >on relinquishing any ability to affirm a specific set of beliefs burdens >freedom of association under Healy. > >The sort of open-source associational dynamic you describe sounds nice if you >don't get too specific about how it actually works in practice, but in reality >even open-source systems always need exclusionary rules for there to be a >coherent dialogue. Even Wikipedia has rules against vandals. > >Eric > > > >____ >From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] >On Behalf Of Ira (Chip) Lupu [icl...@law.gwu.edu] >Sent: Thursday, May 13, 2010 1:30 PM >To: Law & Religion issues for Law Academics >Subject: RE: A real-life on-campus example > >Alan asks a good question about the standard of review. This is a designated >public forum. The "reasonableness" standard (that is, reasonable in light of >the purposes of the forum) ordinarily applies to exclusion of speech content >(by subject matter, or by viewpoint, but the latter will be never be >reasonable). But the Hastings LS all-comers policy is not an exclusion of >speech content -- it's a policy regarding associational freedom. It only >indirectly and occasionally (perhaps rarely, perhaps never) operates to >exclude any speech content at all. Because the challenged policy covers >association and not content, I think the requirements of reasonableness (in >light of the purposes of the forum) might be even weaker than would be the >case for a policy of subject matter exclusion. And, because the challenged >all-comers policy rarely if ever will compromise the group's message (and >hasn't been shown to do so here), there is no substantial burden on >associational freedom. >And -- to your question, Rick -- the forum can have more than one purpose. It >can be designed to have diverse groups (e.g., by allowing a very small number >to form a group), and it can simultaneously be designed to permit dynamism, >openness, and challenge within a group if a student wants to do that (hence >all-comers). If these policies are reasonable, it is not an unconstitutional >condition to make compliance with them a condition of access to the forum. >(The most orthodox CLS students can still meet outside the forum, and may >exclude anyone they choose to exclude in that separate associational context.) > >Ira C. Lupu >F. Elwood & Eleanor Davis Professor of Law >George
RE: A real-life on-campus example
Alan asks a good question about the standard of review. This is a designated public forum. The "reasonableness" standard (that is, reasonable in light of the purposes of the forum) ordinarily applies to exclusion of speech content (by subject matter, or by viewpoint, but the latter will be never be reasonable). But the Hastings LS all-comers policy is not an exclusion of speech content -- it's a policy regarding associational freedom. It only indirectly and occasionally (perhaps rarely, perhaps never) operates to exclude any speech content at all. Because the challenged policy covers association and not content, I think the requirements of reasonableness (in light of the purposes of the forum) might be even weaker than would be the case for a policy of subject matter exclusion. And, because the challenged all-comers policy rarely if ever will compromise the group's message (and hasn't been shown to do so here), there is no substantial burden on associational freedom. And -- to your question, Rick -- the forum can have more than one purpose. It can be designed to have diverse groups (e.g., by allowing a very small number to form a group), and it can simultaneously be designed to permit dynamism, openness, and challenge within a group if a student wants to do that (hence all-comers). If these policies are reasonable, it is not an unconstitutional condition to make compliance with them a condition of access to the forum. (The most orthodox CLS students can still meet outside the forum, and may exclude anyone they choose to exclude in that separate associational context.) Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 13 May 2010 09:26:48 -0700 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan" >) >Subject: RE: A real-life on-campus example >To: Law & Religion issues for Law Academics > >Just to make sure I understand your argument, Chip. Is it your position that >reasonableness is the appropriate standard of review in this case with regard >to the CLS freedom of association claims because CLS associational freedom >will not be substantially burdened by the Hastings policy? Or is there another >reason why you believe a reasonableness standard of review is appropriate in >this case and your analysis of the magnitude of the burden goes to the >application of the standard. Are you analogizing the review of freedom of >association claims challenging a broadly applicable policy to the review of >content discrimination claims in a designated limited public forum? > >Alan Brownstein > >-Original Message- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu >Sent: Thursday, May 13, 2010 8:11 AM >To: Law & Religion issues for Law Academics; hamilto...@aol.com; Esenberg, >Richard >Subject: RE: A real-life on-campus example > >Marc Stern is overstating the holding of Gilmore. Most of the opinion is >about a state action question -- whether the city is complicit in the >segregation of certain facilities. With respect to those private entities or >groups with which the city is not so complicit, Gilmore has a brief passage at >the end of the opinion recognizing their freedom of private association, and >concluding that they cannot be excluded by an injunction from the right to >participate in recreational activities in a public park. > >But Hastings is not running a park where children come to play. It has >created a limited public forum, with access to various communications >facilities. Its rules have to be non-discriminatory and reasonable in light >of the forum's purposes. The all-comers policy is certainly >non-discriminatory. We're arguing about whether it's reasonable (there might >have been an argument about whether it was pretextual, but the parties' >stipulation seems to eliminate that argument completely.) Some of us on this >list think the policy is quite reasonable; it is not likely to disturb any >group's message, because of the incentives of mutual respect and forebearance, >but it leaves open the possibility of challenge to a group's message. A law >school might reasonably see that openness to challenge -- and the imposition >of a corresponding duty to include all-comers -- as a healthy and necessary >quality in a student organization. The fact that students are only at the >school for three years ! m! > ak! >es this even more reasonable; the next cohort of students may want a different >
RE: A real-life on-campus example
Marc Stern is overstating the holding of Gilmore. Most of the opinion is about a state action question -- whether the city is complicit in the segregation of certain facilities. With respect to those private entities or groups with which the city is not so complicit, Gilmore has a brief passage at the end of the opinion recognizing their freedom of private association, and concluding that they cannot be excluded by an injunction from the right to participate in recreational activities in a public park. But Hastings is not running a park where children come to play. It has created a limited public forum, with access to various communications facilities. Its rules have to be non-discriminatory and reasonable in light of the forum's purposes. The all-comers policy is certainly non-discriminatory. We're arguing about whether it's reasonable (there might have been an argument about whether it was pretextual, but the parties' stipulation seems to eliminate that argument completely.) Some of us on this list think the policy is quite reasonable; it is not likely to disturb any group's message, because of the incentives of mutual respect and forebearance, but it leaves open the possibility of challenge to a group's message. A law school might reasonably see that openness to challenge -- and the imposition of a corresponding duty to include all-comers -- as a healthy and necessary quality in a student organization. The fact that students are only at the school for three years m! ak! es this even more reasonable; the next cohort of students may want a different kind of CLS. They can show up and challenge, or (more likely, if the local CLS views are entrenched) form their own student organization. CLS wants the right to exclude, but it has real trouble demonstrating a tangible harm (rather than a harm "in principle") from its inability to do so for purposes of access to the forum. One argument for unreasonableness that seems to me out of bounds is that CLS national has an unwaivable statement of faith. If Hastings CLS can't comply with that, that's a problem between the national and the local affiliate, but that's not a problem for Hastings LS. Likewise if the national ACLU, or any other national organization, does not like the local Hastings chapter policy on some issue. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Thu, 13 May 2010 09:35:34 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" >) >Subject: RE: A real-life on-campus example >To: ,"Law & Religion issues for Law Academics" >,"Esenberg, Richard" > > >Nothing CLS has said challenges Hastings' duty to enforce rules against >its own discrimination on the basis of inter alia sexual orientation or >religion. As Gilmore v. City of Montgomery holds, however, a city's duty >not to engage itself in (there racial) discrimination ) does not >authorize it to deny non-exclusive access to public spaces to groups >that engage in such discrimination. The Court held there that to enforce >non-discrimination rules against such private groups (schools!) would >deny the segregation academies freedom of association. Why isn't Gilmore >controlling here? >Marc Stern > >-Original Message- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of >hamilto...@aol.com >Sent: Thursday, May 13, 2010 9:19 AM >To: Esenberg, Richard; Law & Religion issues for LawAcademics >Subject: Re: A real-life on-campus example > >Of course the marketplace works as I described it especially in the US. >Groups thrive and shrivel and respond to and interact with the culture >and if they cannot adapt to broadbased moral and social changes by >changing their beliefs and practices, they become marginalized. Groups >spin off of other groups. >The many religions that supported slavery and the subjection of women >and children to state-sponsored patriarchal control have had to adjust >or choose the sidelines. Hasn't CLS conceded that the school can >enforce race discrimination laws? > >Marci > >Sent from my Verizon Wireless BlackBerry > >-Original Message- >From: "Esenberg, Richard" >Date: Thu, 13 May 2010 12:32:59 >To: hamilto...@aol.com; Law & Religion issues for >LawAcademics >Subject: RE: A real-life on-campus example > >The right of expressive association is not a demand for government >protection in the market place of ideas or a demand for government >support. It is, rather, a shield against government compulsion, i.e., >the demand that an organization not define itself by adherance to any >particular creed or that it engage in practices inconsistent with its >expressive message or core beliefs. While in the public forum context, >it might in
RE: Factual Clarification re CLS
Rick writes "If all groups must allow everyone and anyone to participate in the formation of its beliefs, there will be no diversity of ideas in the marketplace. Just a lot of watered down, least common denominators of expression." But this is more fantasy and fear. Students do and will self-select. The moderate feminists group will not take over the radical feminists group. The Republicans and Democrats will not co-opt each other and form the single political group of the "mushy middles." Groups can form and reform at will (most schools require only a very small number of students to form a new, recognized group.) What some on the list seem concerned about is a group's right to maintain a constant and religiously orthodox message. Congregations have every right to insist on that, and to chose members, leaders, and even attendees at worship or lectures accordingly. But state schools do not have to support a structure that protects religiously orthodox messages. The forum can have many purposes, including not only diversity (which Hastings and others will inevitably have), but the opportunity for students to join a group and challenge its orthodoxy (however infrequently that happens, because of self-selection, exit options, and mutual forbearance). It's that "right to join and challenge" purpose that the all-comers policy may advance. And that purpose -- quite legitimate in this context -- is in perfect tension with the "right to exclude" that CLS advances in this case. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 10 May 2010 15:28:12 -0700 (PDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan >) >Subject: RE: Factual Clarification re CLS >To: Law & Religion issues for Law Academics > > Alan asks a great question: > > "I understand that the facts of CLS v. Martinez case > are limited to voting membership and eligibility for > leadership positions. But if the foundation of the > CLS claim is that it is being required to sacrifice > its freedom of association rights to obtain access > to a designated public forum, why wouldn’t those > associational freedom rights also extend to deciding > to who may attend meetings and participate in > discussions? > > > > Just asking." > > I think the essence of expressive association is > that an expressive group speaks through its leaders, > and leaders are elected by voting members. > > Hastings has created a limited public forum for the > express purpose of creating a diverse marketplace of > ideas. Even if the all comers policy is viewpoint > neutral, Hastings reason for excluding a student > group from its forum must be reasonable in light of > the purpose of the forum. This policy is not > reasonable in light of the purpose of the forum; it > is destructive of a marketplace of ideas, of a forum > in which groups with diverse beliefs come together > to debate and express very different views about the > good life and what is true, what is good, and what > is beautiful. > > If all groups must allow everyone and anyone to > participate in the formation of its beliefs, there > will be no diversity of ideas in the marketplace. > Just a lot of watered down, least common > denominators of expression. > > Rick > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "And against the constitution I have never raised a > storm,It's the scoundrels who've corrupted it that I > want to reform" --Dick Gaughan (from the song, > Thomas Muir of Huntershill) > >___ >To post, send message to Reli
RE: Factual Clarification re CLS
I was at the oral argument in CLS v. Hastings. I think Marci's interpretation of Breyer's questions and comments is quite right. We'll know soon enough, but (from his questions, tone, and facial expression -- the latter two don't come through in a transcript -- at argument) I will be very surprised if Breyer joins an opinion that says an "all-comers" policy in this context is unconstitutional. If social liberals join a conservative Christian group, and succeed in changing the message, conservative Christians can leave and form a new, conservative Christian group. Do list members think the socially liberal Christians will just keep hunting down and infiltrating such groups? This seems fantastical (and slightly paranoid) to me. I'm still waiting for real-life, on-campus examples of such behavior. To Art Spitzer's question -- I don't know how you can say the purpose of an "all-comers" policy is "fully served" by allowing dissenters to attend meetings, but not vote or hold office. This is a matter of degree -- the more that dissenters can exercise political influence in the group, the more the interchange within the group may be open, dynamic, and non-dogmatic. Those may not be purposes that religious congregations may prefer, but the law school can have its own, independent purposes for insisting on access to full membership for all comers. (Whether anyone at Hastings LS really thought all of this through is another question, but CLS did stipulate that "all comers" is among the relevant policies.) Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 10 May 2010 14:45:10 -0700 (PDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan >) >Subject: RE: Factual Clarification re CLS >To: Law & Religion issues for Law Academics > > Perhaps democrats will not attempt to take control > of the Young Republicans. > > But I think there is a good chance that socially > liberal Christians may take control of a > conservative Christian group that can't protect its > doctrinal beliefs through its membership policy. > > By the way, it is clear that the CLS allows all > comers to attend its meetings. This case is strictly > about who can control an organization's beliefs and > speech, not about who may attend meetings. > > I have read the oral argument transcript several > times. And it is clear to me that Breyer believes an > all comers membership policy is silly and completely > inconsistent with a marketplace of ideas in which > many groups with different beliefs debate and > express different ideas from very different > perspectives. > > Rick Duncan > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > >___ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Salazar
Marci wrote: "I would not have thought it possible that a majority of the Supreme Court today would agree that white crosses are the standard marker for our diverse array of soldiers." Such an agreement did not occur in Salazar. (Of the six Justices who addressed the merits, three would have affirmed.) Justices Scalia and Thomas concurred in the judgment, on the ground that Mr. Buono lacked standing to seek what Scalia called an expansion of the injunction, to cover a display of the cross on land that the U.S. sought to transfer to a private party. Scalia may well have felt somewhat trapped by his McCreary County dissent, in which he strongly emphasized that the Ten Commandments were a text shared by western monotheists -- Jews, Christians, and Muslims. I also think Scalia may have been (appropriately) chagrined by his exchange in the oral argument in Salazar, when the ACLU counsel reminded him that Jewish cemeteries will not display crosses on gravestones. So we don't really know what Justice Scalia would say on the merits of government sponsorship of a cross as a war memorial (and perhaps he will forever argue that no one has Article III standing to ! ch! allenge such a display, so he never has to reach those merits.) Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 10 May 2010 17:07:15 EDT >From: religionlaw-boun...@lists.ucla.edu (on behalf of hamilto...@aol.com) >Subject: Re: Factual Clarification re CLS >To: religionlaw@lists.ucla.edu > > I think Rick misreads Justice Breyer's comments. He > was playing Michael, saying, tongue-in-cheek, that > it would be "fantastical" that there would be this > open exchange between opposing views on a law school > campus. Michael was resisting agreeing that such an > exchange was likely or good, and so Breyer needed to > bring him back to another view of the universe to > get Michael to answer the question he wanted > answered. Careful reading of the transcript does > not support Rick's interpretation. > >I think a law school has a compelling interest in > having an all-comers policy, because it encourages > lawyers to see all sides of every issue, regardless > of their existing predispositions, which is crucial > to becoming a good lawyer, no? > > In any event, this case is not about whether or not > this group can protect its associational rights to > exclude certain believers and actors. It is about > whether a public university law school must provide > certain meeting rooms and certain bulletin boards > and money to a group that insists on exclusionary > practices among its voting membership and > leadership. There are no rules that forbid the > group from meeting or holding the beliefs it holds. > It is an attempt to move Rosenberger beyond its > facts. I thought Rosenberger was wrongly decided, > but cleverly argued. I think the Court needs to > draw the line on this foolhardy doctrine before > schools are required to have to pay for all worship > services, which surely is not required by the First > Amendment. Only Chief Justice Roberts and Justice > Alito made any real effort to defend CLS's position, > which seems to me to bode well for Martinez. But I > would not have thought it possible that a majority > of the Supreme Court today would agree that white > crosses are the standard marker for our diverse > array of soldiers, so as usual, it will be > interesting to see what happens. > > Marci > > > In a message dated 5/10/2010 4:41:46 P.M. Eastern > Daylight Time, icl...@law.gwu.edu writes: > > This concern about associations getting taken over > by hostile forces is completely ungrounded -- it > never happens, and for an obvious reason. These > kinds of fora are cooperation games -- no group is > ever a majority (even the Democratic law students > at a liberal law school have a relatively small > number of active members), and every group is > vulnerable to takeover. But takeover would invite > tit-for-tat counter-takeover. CLS members could > intrude on the GLBT group, and vice versa. > Everyone knows this, so all of the incentives are > lined up in ways that make this extremely unlikely > to occur. (Yes, if the KKK had a campus group, > enraged others might try to "invade and destroy" > the association, but that example is sui generis, > just like the Bob Jones case.) > > If CLS had not litigated this, and had filed > by-laws with Hastings LS that said CLS was open to > all comers, there is no reason to expect that > those who reject orthodox Christianity would try > to join. Someone just has to show
RE: Factual Clarification re CLS
Did this attempted takeover of the anti-cult group by Scientologists happen in a law school, or other educational institution, where the cooperation incentives are maximized? If you are going to offer real examples, more details would be helpful. In the world of truly private associations (like religious congregations, or the Boy Scouts)), the right to exclude is of course a trump against any state-imposed policy of mandatory inclusion of "all comers." But that doesn't mean that a state university must recognize that right to exclude when it sets a policy about access to the forum -- in that context, nondiscrimination among groups is the controlling norm. And "all-comers" is nondiscriminatory. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 10 May 2010 16:49:55 -0400 >From: religionlaw-boun...@lists.ucla.edu (on behalf of "Marc Stern" >) >Subject: RE: Factual Clarification re CLS >To: "Law & Religion issues for Law Academics" > >It is not true that it never happens. I think it was scientology in the >late 70's or early 80's Scientology tried to take over an anti-cult >group,invokng the Unruh Act. The California courts saw through the >effort. >Marc > >-Original Message- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira (Chip) Lupu >Sent: Monday, May 10, 2010 4:41 PM >To: Law & Religion issues for Law Academics >Subject: RE: Factual Clarification re CLS > >This concern about associations getting taken over by hostile forces is >completely ungrounded -- it never happens, and for an obvious reason. >These kinds of fora are cooperation games -- no group is ever a majority >(even the Democratic law students at a liberal law school have a >relatively small number of active members), and every group is >vulnerable to takeover. But takeover would invite tit-for-tat >counter-takeover. CLS members could intrude on the GLBT group, and vice >versa. Everyone knows this, so all of the incentives are lined up in >ways that make this extremely unlikely to occur. (Yes, if the KKK had a >campus group, enraged others might try to "invade and destroy" the >association, but that example is sui generis, just like the Bob Jones >case.) > >If CLS had not litigated this, and had filed by-laws with Hastings LS >that said CLS was open to all comers, there is no reason to expect that >those who reject orthodox Christianity would try to join. Someone just >has to show forbearance -- either the school by allowing discrimination >based on beliefs (which could be a pretext for other kinds of >discrimination), or the groups by being open to "all comers" (confident >that the process of selecting and joining would bring them no hostile >members). In a law school, there is certainly a rational basis for >coming down on the side of non-exclusivity as a condition of access to >the forum and its privileges -- among other things, all-comers >increases the likelihood of dynamic exchange of views, something a law >school may legitimately value. CLS is not a church, and neither is >Outlaw, and yet (if Hastings prevails) both will wind up with (only) the >members sympathetic to their respective purposes. > > >Ira C. Lupu >F. Elwood & Eleanor Davis Professor of Law George Washington University >Law School 2000 H St., NW Washington, DC 20052 >(202)994-7053 >My SSRN papers are here: >http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > Original message >>Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) >>From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan >) >>Subject: RE: Factual Clarification re CLS >>To: Law & Religion issues for Law Academics > >> >> Interestingly, Hastings takes the position that the >> policy it is enforcing against the CLS is not a >> sexual orientation policy, but an "all comers" >> policy, a policy that forbids any group from >> discriminating against any person who wishes to be a >> member. Under this policy, an NAACP student group >> would have to admit racists as voting members and >> even leaders of the group, and the Young Republicans >> would have to allow democrats to be voting members >> and leaders. >> >> I think t
RE: Factual Clarification re CLS
This concern about associations getting taken over by hostile forces is completely ungrounded -- it never happens, and for an obvious reason. These kinds of fora are cooperation games -- no group is ever a majority (even the Democratic law students at a liberal law school have a relatively small number of active members), and every group is vulnerable to takeover. But takeover would invite tit-for-tat counter-takeover. CLS members could intrude on the GLBT group, and vice versa. Everyone knows this, so all of the incentives are lined up in ways that make this extremely unlikely to occur. (Yes, if the KKK had a campus group, enraged others might try to "invade and destroy" the association, but that example is sui generis, just like the Bob Jones case.) If CLS had not litigated this, and had filed by-laws with Hastings LS that said CLS was open to all comers, there is no reason to expect that those who reject orthodox Christianity would try to join. Someone just has to show forbearance -- either the school by allowing discrimination based on beliefs (which could be a pretext for other kinds of discrimination), or the groups by being open to "all comers" (confident that the process of selecting and joining would bring them no hostile members). In a law school, there is certainly a rational basis for coming down on the side of non-exclusivity as a condition of access to the forum and its privileges -- among other things, all-comers increases the likelihood of dynamic exchange of views, something a law school may legitimately value. CLS is not a church, and neither is Outlaw, and yet (if Hastings prevails) both will wind up with (only) the members sympathetic to their respective purposes. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 10 May 2010 11:47:00 -0700 (PDT) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Rick Duncan >) >Subject: RE: Factual Clarification re CLS >To: Law & Religion issues for Law Academics > > Interestingly, Hastings takes the position that the > policy it is enforcing against the CLS is not a > sexual orientation policy, but an "all comers" > policy, a policy that forbids any group from > discriminating against any person who wishes to be a > member. Under this policy, an NAACP student group > would have to admit racists as voting members and > even leaders of the group, and the Young Republicans > would have to allow democrats to be voting members > and leaders. > > I think the school took this tack to avoid the > viewpoint discrimination argument, but may have > substituted an even greater problem for the one it > seeks to avoid. > > The school may even lose Justice Breyer, who in the > oral argument referred to the policy as > "fantastical" and as creating a silly kind of forum > in which "everyone gets together in a nice > discussion group and hugs each other." > > That led Mike McConnell to conclude that the policy > does not even provide a rational basis for excluding > a student group from a forum with the stated purpose > of creating a diverse marketplace of ideas. As Mike > put it, the all comers policy does not even slightly > advance the stated purpose of the forum, and indeed > is destructive of that purpose by prohibiting groups > from having a membership policy based upon its > organizing principles and beliefs. > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > "And against the constitution I have never raised a > storm,It's the scoundrels who've corrupted it that I > want to reform" --Dick Gaughan (from the song, > Thomas Muir of Huntershill) > >___ >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 post
RE: Cert. granted in Snyder v. Phelps.
The penultimate sentence of Alan's message ("Although there are important
limiting facts in this case that distinguish it from a clearer “picketing at a
funeral case,” at its core this case raises the question of whether speakers
can choose a location for their offensive speech that targets their victims in
an egregiously hurtful way when alternative sites for communicating their
message to the public are equally accessible and at least as likely to be heard
by potentially willing listeners") evokes for me the planned march by the
American Nazi party in Skokie, Illinois in the 1970's. But in that case, there
was reason to believe that the Nazi Party really wanted to reach (and frighten)
the Jews of Skokie as well as reach others. In Snyder, is there any reason to
think that Phelps and his crew wanted to reach the Snyder family (and other
funeral-goers) at all? Perhaps the inclusion by Phelps of anti-Catholic as
well as anti-gay messages suggests that the answer is yes.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
Original message
>Date: Tue, 9 Mar 2010 13:13:32 -0800
>From: religionlaw-boun...@lists.ucla.edu (on behalf of "Brownstein, Alan"
>)
>Subject: RE: Cert. granted in Snyder v. Phelps.
>To: Law & Religion issues for Law Academics
>
> Eugene notes an important distinction (between
> targeted speech and public speech) and I agree with
> a lot of what he says. But I still find this case to
> be a difficult one that lies somewhere between the
> dissent in Pacifica and the situation in Rowan. If
> making sure that people who are potentially willing
> to receive the speaker's message have an opportunity
> to do so is our primary concern, restricting
> picketing at a funeral allows the speaker the
> freedom to communicate his message everywhere else
> in the city through any medium that is available to
> communicate public messages. The choice of the
> funeral as the side for expression does not maximize
> the likelihood that the speech will be heard by
> potentially willing listeners. It probably does the
> reverse. It does maximize the offense and injury the
> speech will cause to the targeted audience.
>
>
>
> I think that bans on public broadcasting as in
> Pacifica are far more restrictive of speech to a
> willing audience than restricting speech at
> funerals. I agree with Eugene that speech on a labor
> picket line should be more protected than telephone
> calls to strikebreakers, but that is in part because
> the picket line directly addresses the people the
> union is trying to reach for legitimate, persuasive
> reasons - those who do business with the targeted
> company. "I'm glad your strikebreaker son is dead"
> signs at a strikebreaker's funeral would be a harder
> case for me.
>
>
>
> Although there are important limiting facts in this
> case that distinguish it from a clearer "picketing
> at a funeral case," at its core this case raises
> the question of whether speakers can choose a
> location for their offensive speech that targets
> their victims in an egregiously hurtful way when
> alternative sites for communicating their message to
> the public are equally accessible and at least as
> likely to be heard by potentially willing listeners.
> I'm still thinking about the answer to that
> question.
>
>
>
> Alan Brownstein
>
>
>
>
>
>
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On
> Behalf Of Volokh, Eugene
> Sent: Tuesday, March 09, 2010 11:36 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Cert. granted in Snyder v. Phelps.
>
>
>
> I've thought some about the problem, and
> my view is that there is a substantial difference
> between speech that is said just to a particular
> person who one is sure is not interested in hearing
> the message, and speech that is said to a broader
> group that might well include willing listeners.
> The former speech is likely to have at most modest
> value, at least to the listener; the latter speech
> might have considerably more value. That's a rough
> cut, and there might be a different result as to,
> for instance, speech to political candidates or
> political officials (see, e.g., the U.S. v. Popa
> telephone harassment case from the D.C. Circuit
> several years ago). And there might be some
> contexts where the listener would have to say no,
> and the speaker would thus get one bite at the
> apple, rather than having liability be imposed even
> for the first approach on the theory that the
> speaker must have known the listener was
> uninterested. But I think some such distinction is
>
Re: Cert. granted in Snyder v. Phelps.
The 4th Circuit held, on First Amendment grounds, that the state could not attach tort liability (intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy) to the protests engaged in by Phelps and others near the funeral of the deceased soldier, or to the later-posted comments on Phelps website. Is there a Circuit split on cases of this sort? I am wondering what led four (or more) Justices to vote for a cert grant in this case (especially in light of what seems to be the well-recognized state power to create content-neutral and viewpoint-neutral regulations about picketing in close proximity to a funeral service). Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg Original message >Date: Mon, 8 Mar 2010 08:14:39 -0800 (PST) >From: religionlaw-boun...@lists.ucla.edu (on behalf of Jeffrey Shulman >) >Subject: Cert. granted in Snyder v. Phelps. >To: religionlaw@lists.ucla.edu > > Though not framed by the Court as raising a question > of religious liberty, this case will be of interest > to those concerned with issues related`to religious > speech. From ScotusBlog: "The Supreme Court, > taking on the emotionally charged issue of picketing > protests at the funerals of soldiers killed in > wartime, agreed Monday to consider reinstating a $5 > million damages verdict against a Kansas preacher > and his anti-gay crusade. . . . The funeral > picketing case (Snyder v. Phelps, et al., 09-751) > focuses on a significant question of First Amendment > law: the degree of constitutional protection given > to private remarks made about a private person, > occurring in a largely private setting. The family > of the dead soldier had won a verdict before a jury, > but that was overturned by the Fourth Circuit Court, > finding that the signs displayed at the funeral in > western Maryland and later comments on an anti-gay > website were protected speech. The petition for > review seeks the Court’s protection for families > attending a funeral from “unwanted” remarks or > displays by protesters." > > Jeffrey Shulman > > Jeffrey Shulman > Associate Professor > Legal Research and Writing > Georgetown University Law Center > >___ >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.
marc stern's question re: Prop 8
Please reply to the list if you have any of the data that Marc Stern is seeking (see below). Thanks. Original message >Date: Fri, 5 Jun 2009 15:32:51 -0400 >From: "Marc Stern" >To: "Law & Religion issues for Law Academics" > > > > > > > > > >Ha anyone seen statistics on the religious > breakdown of pro-and anti- Proposition 8 voters in > California.I am working on a piece on the voting > patterns of American Jews (4/5's of whom opposed > Proposition 8) .I am looking for comparative data > > Marc Stern > >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Iqbal and the Free Exercise Clause
Doesn't Iqbal's context of a Bivens action for damages against public officials
help explain this statement? The issue is not just whether a government policy
might violate the Free Exercise Clause(think the "no beards" rule in FOP v.
Newark), but whether the defendant public official intentionally violated a
known constitutional right. In that context, one cannot expect to recover
damages in a case in which reasonable lawyers and judges will differ about
"neutrality" or "general applicability." In such a case, there may be a
violation of the Free Exercise Clause, but not a violation of the sort that
will overcome the qualified immunity of officers.
Original message
>Date: Wed, 27 May 2009 12:00:13 -0500
>From: "Christopher Lund"
>Subject: Iqbal and the Free Exercise Clause
>To:
>
> There's this potentially troubling line in the
> Supreme Court's recent decision in Ashcroft v. Iqbal
> (at least I find it potentially troubling) that I
> wanted to raise with you all. Here's the passage:
>
> "The factors necessary to establish a Bivens
> violation will vary with the constitutional
> provision at issue. Where the claim is invidious
> discrimination in contravention of the First and
> Fifth Amendments, our decisions make clear that the
> plaintiff must plead and prove that the defendant
> acted with discriminatory purpose. Church of Lukumi
> Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540-541
> (1993) ( First Amendment ); Washington v. Davis, 426
> U. S. 229, 240 (1976) ( Fifth Amendment )."
>
> I am a little distressed by this language and even
> more by the back-to-back citations of Washington v.
> Davis and Lukumi. I fear it may tend to suggest
> that the Free Exercise Clause now only guards
> against intentional discrimination.
>
> I'd read this language another way. I'd read it to
> say that when a plaintiff argues a violation of
> neutrality ("where the claim is invidious
> discrimination"), he must plead and prove it with
> the requisite detail ("the plaintiff must plead and
> prove that the defendant acted with discriminatory
> purpose"). But a plaintiff can go another route
> altogether. He can argue that the law is not
> generally applicable, and thus avoid all inquiries
> about discriminatory purpose. Under my reading,
> nothing in Iqbal speaks to the general applicability
> requirement.
>
> I think my reading is the most plausible one. But
> it may be that I am being unduly influenced by
> my attraction to a strong substantive conception of
> Free Exercise. So I'd be interested in what other
> people think.
>
> P.S. In my defense, surely the Court did not mean
> to change the Free Exercise Clause standard in a
> case about pleading standards, right? Although
> maybe this is meaningful as an inadvertent
> disclosure about where the Free Exercise Clause is
> going. (Also note that Justice Alito, who wrote the
> Newark opinion while on the Third Circuit, joined
> this opinion.)
>
>
>
> __
> Christopher C. Lund
> Assistant Professor of Law
> Mississippi College School of Law
> 151 E. Griffith St.
> Jackson, MS 39201
> (601) 925-7141 (office)
> (601) 925-7113 (fax)
> Papers:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>___
>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
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
___
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: Bowman v. U.S.
And how would you, Rick, analyze the free speech issue if the the exclusion covered: "participation in activities of organizations teaching about, counseling, advocating, or performing abortions"? In Locke, and in the abortion case, and in your hypothetical, the government must only have a non-arbitrary reason for the exclusion. In Locke, the non-arbitrary reason had to do with not funding the training of clergy; in my hypothetical, the reason would be just like that in Rust v. Sullivan and its progeny (that the government is "pro-life," and does not want its resources to support a certain cause, thought immoral by many citizens). Perhaps your hypothetical would similarly be OK, particularly on the gay marriage point. Excluding organizations that teach "about the need to reduce global warming" is a bit tougher, but not much -- the cause is controversial, and the state does not want to be creating incentives for people to advance that cause. They remain free to advance it with their own resources. In Bowman, the non-arbitrary reason for exclusion is not so easy to find, but perhaps it is designed to keep the government away from the question of whether a particular religious organization serves any public good (the organization might get a tax exemption, but those who help it can't get this sort of credit toward a military pension). If all religions must be included in the retirement credit system, perhaps the government would be a bit stingier in recognizing a religion for tax exemption purposes. That doesn't sound to me like a healthy constitutional trade-off. The rule upheld in Bowman is a product of a now abandoned constitutional regime, which is why Bob Tuttle and I were surprised that DoD still had this rule, and that DOJ defended it. But its provenance does not make it unconstitutional, especially in light of Locke. Chip Original message >Date: Mon, 4 May 2009 12:38:43 -0700 (PDT) >From: Rick Duncan >Subject: Re: Bowman v. U.S. >To: Law & Religion issues for Law Academics > >How would you all analyze the Free Speech Clause issue in a >case that was like Bowman except ?" > >Would it violate the Free Speech Clause to allow military >service personnel to accumulate pension rights via volunteer >service in all non-profits except those excluded in the hypo >above? If so, don't we have the same free speech issue when >the exclusion concerns volunteering for schools teaching >from a religious perspective? > >Again, if the dictum in Locke v. Davey applies, it applies >to these secular speech exclusions as well, since Rehnquist >merely concluded that a scholarship is not a forum >triggering the Free Speech Clause. So, under Davey, a >scholarship exclusion for students majoring in "gender >studies from a feminist perspective" would also have failed >to trigger the Free Speech Clause. If this seems wrong, it >is because it does indeed implicate the FSC to take the >viewpoint of the major into account when awarding >scholarships such as the Promise Scholarship. The Rehnquist >dictum in Davey is both unreasoned and wrong. > >Rick Duncan >Welpton Professor of Law >University of Nebraska College of Law >Lincoln, NE 68583-0902 > >--- On Mon, 5/4/09, Volokh, Eugene >wrote: > > From: Volokh, Eugene > Subject: Bowman v. U.S. > To: "Law & Religion issues for Law Academics" > > Date: Monday, May 4, 2009, 9:41 AM > > Any thoughts on Bowman v. U.S., a Sixth Circuit case > decided last > December but just redesignated two weeks ago as being for > publication? > Federal law allows a wide range of public and community > service by > military personnel - including working for organizations > that provide > "elementary, secondary, or postsecondary school teaching," > or "any other > public or community service" -- to "count toward [one's] > years of
Re: Bowman v. U.S.
Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip Original message >Date: Mon, 4 May 2009 09:41:16 -0700 >From: "Volokh, Eugene" >Subject: Bowman v. U.S. >To: "Law & Religion issues for Law Academics" > >Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last >December but just redesignated two weeks ago as being for publication? >Federal law allows a wide range of public and community service by >military personnel - including working for organizations that provide >"elementary, secondary, or postsecondary school teaching," or "any other >public or community service" -- to "count toward [one's] years of >service needed to obtain a full twenty-year military retirement." But >the program excludes participation in activities of "organizations >engaged in religious activities, unless such activities are unrelated to >religious instructions, worship services, or any form of >proselytization" (as well as in activities of for-profit businesses, >labor unions, and partisan political organizations). > >Thus, for instance, if someone were volunteering to teach in a school >program aimed at spreading various controversial views on environmental >responsibility, or social justice, or civil liberties, that would >presumably count. But if someone were volunteering to teach in a school >program aimed at spreading religious views, that would not count. The >Sixth Circuit upheld this against a Free Exercise Clause challenge, >citing Locke v. Davey. Is that right? What should the result have been >under the Free Speech Clause, if such a claim had been made (presumably >relying on Rosenberger)? > >Eugene >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Same-sex marriage and religious exemptions
Doug writes: "On the gay rights issues, religious conservatives are pretty much getting exemptions only within the church itself -- not even their affiliated religious organizations -- which is to say, they are getting only those exemptions that no sensible person on the gay rights side actually opposes." >From everything I have heard, no version of ENDA (the bill that would extend >Title VII to discrimination based on sexual orientation) can possibly pass >unless it includes the same exemption for religious organizations (not just >"houses of worship") as the current Title VII exemption for such organizations >to engage in religious selectivity. If that is right, such an exemption will >include a broad range of religiously affiliated entities (i.e., schools, >charities, etc, organized for religious purposes). So Doug's "pretty much" in >the first sentence above may be obscuring some very important matters. Original message >Date: Fri, 10 Apr 2009 12:46:30 -0400 >From: Douglas Laycock >Subject: Re: Same-sex marriage and religious exemptions >To: religionlaw@lists.ucla.edu > > It is patently easier to do one deal than to do > fifty. And on this issue, it is easier to do a deal > in a legislature where both Vermont and Alabama are > represented than to do a deal in Vermont or to do a > deal in Alabama. Maybe we want to let Vermont and > Alabama each go their own way on marriage; maybe we > even want to let them each go their own way on free > exercise of religion; those are two distinct issues > different from the political possibilities of deal > making. > > American legislatures have enacted lots of religious > exemptions, but not many controversial exemptions > with an organized interest group in active > opposition. On the gay rights issues, religious > conservatives are pretty much getting exemptions > only within the church itself -- not even their > affiliated religious organizations -- which is to > say, they are getting only those exemptions that no > sensible person on the gay rights side actually > opposes. > > Quoting hamilto...@aol.com: > > > Boerne only makes the deal harder to strike if one > assumes the > > federal government should drive social policy in > every state from > > Washington DC and only if one is inclined to > engage in blind > > lawmaking that operates at an abstract level > without reference to > > facts. All Congress could do here is foreclose > the 50 state > > experiment in finding the right balance for > everyone. > > In light of history, it is patently ridiculous to > argue that it is > > ever too late for religious exemptions in this > country. Religious > > entities have both political access and power > disproportionate to > > their numbers even if they do not win every single > request they make. > > J Scalia was empirically correct when he said in > Smith that the > > American legislative system is inclined toward > exemptions. > > Marci > > Sent from my Verizon Wireless BlackBerry > > > > -Original Message- > > From: Douglas Laycock > > > > Date: Fri, 10 Apr 2009 10:51:08 > > To: > > Subject: Same-sex marriage and religious > exemptions > > > > > > ___ > > 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. > > > > > > > > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > >___ >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
RE: Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases
For a number of years, religious conservatives have been using these religious liberty arguments as a sword (a club might be a better word) to buttress political campaigns against same-sex marriage. Roger Severino's article fits that model -- he included over-the-top "threats to religious liberty" (like "hate speech" prosecutions of pastors for anti-gay sermons -- Roger never mentioned that U.S. law would firmly preclude that) -- along with many other more realistic threats as a means to argue against same-sex marriage and other gay rights, and that set of arguments made its way into the political debate in California and elsewhere. Now that the winds have started blowing the other way (backlash to Prop 8, Iowa court ruling, Vermont legislation, legal results in cases involving commercial enterprises and public accommodations), religious conservatives want to use religious liberty as a shield. With respect to legitimate claims of right (sermons by pastors, faith community selectivity about who may get the sacrament of marriage), virtually no one on this list or elsewhere wants to break that shield. But religious conservatives also want discretionary political accommodations, such as exemptions from laws governing adoption agencies, employment practices by government contractors, and conditions of access to publicly subsidized benefits. So my question is this -- are the proponents of these exemptions really interested in "live and let live"? Or is this just "let us live" and we'll keep fighting against the right of others to live in equal dignity? If the latter -- this is one-way toleration -- it deserves no respect. If the former, I think that people need to see some evidence of good faith. So how about these for starters: In explicit exchange for carefully crafted exemptions for religious organizations and communities (not landlords and doctors and photographers), those communities promise to support repeal of federal DOMA, repeal of state DOMA's, non-interference by the U.S. House of Reps with same-sex marriage policy in DC, and promise the end of opposition to the extension of same-sex marriage (no more Prop 8's). Is there a political deal that can be struck here? (I could support it.) Or is all this just a one-way demand for respect? Original message >Date: Fri, 10 Apr 2009 06:40:07 -0400 >From: Roger Severino >Subject: RE: Impact of same-sex marriage rulings on strict scrutinyinreligious >exemption cases >To: > > Art, it sounds like you think houses of worship will > retain their power to solemnize civil marriages out > of sheer inertia more than anything else. But that > suggests to me that the status quo can be moved even > in the absence of a widespread clamor for change so > long as the interests are passionate enough and > well-organized. And I think both criteria are met > in this case. Take for example Harry Knox, director > of the religion and faith program of the Human > Rights Campaign, who recently told a San Francisco > newspaper that "the Knights of Columbus do a great > deal of good in the name of Jesus Christ, but in > this particular case [supporting Proposition 8], > they were foot soldiers of a discredited army of > oppression." > http://www.ebar.com/news/article.php?sec=news&article=3805. > If religiously motivated opponents of Prop. 8 are > seen as foot soldiers of oppression, what are their > clergy if not the officers who wield a club of their > own via the solemnization power? Given that Knox > has been selected to the President's new Faith-Based > Advisory Council, shouldn't his rhetoric, and its > implications, be taken seriously? > Though relevant, I think the fact that no state has > yet withdrawn clergy's power to solemnize civil > marriage is a poor indicator of the future because > it obscures the rapidly changing forces and trends > at work that may well lead to that first domino > falling. In this regard, I try to avoid thinking of > the Anglo-American tradition of civil marriage in > Goodridge terms, that is, as beginning and ending as > a pure creation of the state. Firstly, I don't > think the Goodridge view is accurate historically. > Secondly, and more to the point, that view utterly > fails to account for clergy's current role in civil > marriage solemnization. Rather, I find it useful to > see civil marriage as arising from state recognition > of preexisting religiously-regulated institutions > whose civil function over the centuries has > secularized to the point where religious marriage is > no longer required by the state, but is still > recognized as having civil effect when and where > performed. In some countries, this secularizing > trend has gone further and at times turned into > outright hostility to religion such as during the > French Revolution and the Kulturkamp. In fact, to > this day in F
RE: Using religion for government purposes
Eugene has been criticizing arguments, including some of mine, without offering
any affirmative account of his own as to whether the Constitution imposes any
limits on government religious speech. Let me offer a few more comments, and
then put the matter back to him:
1. I never suggested that "divisiveness" is a useful test. It's not. For
reasons to which Doug alludes, it is a justification for some restrictions, but
it's much stronger in some cases (sectarian legislative prayer; the cross on
the roof of City Hall) than others (school vouchers that can be used at any
private school). It was not strong either way (as a reason for courts to remove
the monument, or as a reason for courts to refuse to remove the monument)in Van
Orden.
2. My reference to totalitarianism was not meant to equate Chanukah menorahs
on City Hall lawn with the repressive practices of Nazi Germany or Soviet
Russia. It was meant to suggest a theory of the penultimacy of the American
state. Totalitarian states co-opt or outlaw religion because they seek to
establish the state as an object of veneration or worship; curbing that
tendency should be an aim of Establishment Clause jurisprudence (as John Ely
once wisely wrote, the Establishment Clause is a separation of powers
provision).
3. That governments frequently ignore the Madisonian injunction not to use
religion as an instrument of social policy doesn't make such a practice
normatively acceptable. Governments frequently try to repress dissent, too.
Any such instrumental use is bound to produce religious favoritism.
4. No one has yet formulated a good and simple "test" in this area. The
"no-endorsement test" is a failure because it asks the wrong question (i.e.,
who might be made to feel excluded and why), because it is infinitely
manipulable, because the qualities of the "reasonable observer" are doing all
the work, and because the back and forth among O'Connor, Blackmun, and Brennan
with respect to the Christmas tree, the Chanukah menorah, and the peace sign in
Allegheny County made the whole enterprise into a bad joke.
5. My own view (talking and writing with Bob Tuttle has helped me greatly on
this, but this post is entirely my own)) is that religious speech by government
should be limited to 1) accommodation of the needs of those under substantial
government control (e.g., prisoners, members of armed forces); 2) ceremonial
acknowledgments (e.g., God save this Honorable Court), which to preserve their
ceremonial character should be as non-sectarian as possible; and 3) historical
acknowledgments (names of cities, perhaps others as well). Cultural
acknowledgments (Merry Christmas!) are on the borderline, because they can
shade into what I would definitely rule out -- government-sponsored veneration
of a deity, and government assertions of theological truths. Those kinds of
statements do tend to be the most inclined to involve the state in religious
conflict (and therefore to be divisive), to make the state a partner in
ultimate claims, and to "establish" an official faith.
So the permanent cross on the roof of City Hall is a very easy case for me,
because it cannot be explained in our culture as anything but a veneration of
Christianity and/or a symbolic proclamation of Christian truth and authority.
How about for you, Eugene? Are you with Rick Duncan in saying that decisions
about governmental sponsorship of such a symbol should be left to local
politics? Or, if you think such a cross is not constitutionally acceptable,
what "test" are you applying?
Chip
Original message
>Date: Sun, 29 Mar 2009 16:09:56 -0700
>From: "Volokh, Eugene"
>Subject: RE: Using religion for government purposes
>To: "Law & Religion issues for Law Academics"
>
> As I understand it, throughout American history the government
>has repeatedly, in a vast range of contexts, invoked a particular
>conception of God -- one God, who created the world, who sets a moral
>code for us, who judges us ("the Supreme Judge of the world"), and who
>may protect us in certain situations ("a firm reliance on the protection
>of Divine Providence"). This is a pretty broadly ecumenical conception
>of God, but it is still one view of God. So I don't really see how
>history supports rejection of the continued use of this conception in
>government speech.
>
> Likewise, while there is some strand of constitutional case law
>that would condemn every government reference to that conception of God,
>the case law is pretty clear deeply mixed, with the bottom line
>supporting the constitutionality of at least some such reliance (see
>Marsh and Van Orden). So I'm not sure that arguments based on
>constitutional case law on balance support rejection of the continued
>use of this conception in government speech.
>
> Finally, while there has been an evolving cultural commitment in
>favor of religious inclusivity, my sense is that the acceptance
RE: Using religion for government purposes
Perhaps it would be useful to quote the following from Madison's Memorial and Remonstrance (a document that some would claim has constitutional significance, though of course that is contested): "5. Because the Bill implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation. Chip Original message >Date: Fri, 27 Mar 2009 09:51:06 -0700 >From: "Volokh, Eugene" >Subject: RE: Using religion for government purposes >To: "Law & Religion issues for Law Academics" > > Whether or not that > distinction is sound as an empirical matter – and, > given the tradition of using religious invocations > for ceremonial purposes, for national mourning, and > other similar reasons, it’s hard to see all or > most political use of religious talk as “crassly > instrumental [and] low-political” – I take it > that this is not a distinction that constitutional > law can easily draw, no? > > > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On > Behalf Of Sanford Levinson > Sent: Friday, March 27, 2009 9:37 AM > To: religionlaw@lists.ucla.edu > Subject: Re: Using religion for government purposes > > > > May I respectfully suggest that one difference > between Lincoln and perhaps) all of his successors > is that he was a profoundly serious man who was not > using religion for crassly instrumental > low-political purposes. > > Sandy > >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Summum
I can see that Rick just doesn't accept the idea that religion is constitutionally distinctive for purposes of non-coercive government support. And, without an Establishment Clause, I suppose it's not. So, in some towns, we'll get crosses on City Hall and "Christians welcome" signs. (Recall that in my hypo, no one was told they were unwelcome, homophobes or not.) I don't want to live in a town that would put a cross (or a Star of David, or other sectarian symbol) on City Hall, so I'm quite glad that the Estab Clause does apply to the states. And once we return to the legal status quo, we're back to the question of religious distinctiveness. As Doug says, the government may (sometimes must) have policies on war vs. peace, or civil rights of gays. There is no reason for government to have a religious view. Religious people are not "silenced" by this; they are free in the private sector to express their view. But they don't get government amplification. Eugene suggests that the "endorsement" test causes divisiveness. I'm no fan of the test, but it's obvious that all Religion Claus litigation causes divisiveness; what does that prove? Fighting in court over religion clause limits sees far less destructive of the polity than fighting in politics over whose faith gets amplified by the government. I noticed that no one wanted to take on the idea that government is "under God," and not one with God, nor is it free to claim the loyalties associated with God. That's the core here, not the idea of "offense," to which Rick endlessly returns. Chip Original message >Date: Fri, 27 Mar 2009 08:22:09 -0700 (PDT) >From: Rick Duncan >Subject: RE: Summum >To: Law & Religion issues for Law Academics > > I think Eugene makes a great point about the > divisiveness caused by the endorsement test. > > When you enjoin a governmental religious display > (such as the Nativity scene I keep "harping" about), > you don't merely silence the govt. You also impose > silence on the willing audience (private citizens > who wish to see the display). These are many of the > same people who were told to avert their eyes when > they were offended by the Gay Pride display. This > adds insult to injury, and results in people > reasonably feeling like outsiders who must play a > "heads you win tails we lose" game with their > secular counterparts in the marketplace of ideas. > > Rick Duncan > >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Summum
Rick likes to call the restriction on government religious speech a "heckler's veto," because that's a pejorative. And I must say that the "endorsement" approach, and a focus on "offense" taken by viewers, feeds that way of framing the issue. But there are far more powerful and persuasive arguments against permitting government to express religious sentiments, especially highly sectarian ones. First, there is the age-old problem of destructive fights over whose sentiments will prevail. (In which American cities will Allah be praised? In which ones will officials pray only in the name of Jesus?) Second, our government is supposed to be "under God," not one with God, or identified with a particular conception of God. Totalitarian states co-opt God, and loyalty to God, for their own purposes; the Establishment Clause forbids that in the U.S. Rick keeps harping on "liberty" and the problems of incorporating the Establishment Clause; those problems are well-known. Suppose the Clause were disincorporated. Does Rick see any constitutional problem with a city that puts a permanent cross on City Hall and a sign on the lawn of City Hall that says "Christians welcome here"? There is no explicit expression that says anyone is unwelcome, and no showing of material discrimination against non-Christians. Are that cross and that sign constitutionally OK, Rick? (please don't hide behind Christmas displays -- deal with the hypothetical). Chip Original message >Date: Thu, 26 Mar 2009 20:00:19 -0700 (PDT) >From: Rick Duncan >Subject: RE: Summum >To: Law & Religion issues for Law Academics > >I agree with Doug that unlike political issues, "we don't >need to vote to determine what religion we are." > >But much govt speech is not about political issues and >elections. A lot of government speech "endorsing" religion >has to do with govt recognizing religious holidays and >recognizing religious cultural subgroups in the community or >as part of the community's history. > >If the EC endorsement test only prohibited government speech >taking an official position on religious doctrines such as >the doctrine of election or the divinity of Christ, I would >not be too concerned (although I might still wonder how >anyone has a liberty interest to justify such a claim under >the incorporated EC). And frankly, the political process is >almost always a sufficient check on govt endorsing specific >religious doctrines. > >But, of course, much govt religious speech is of the >cultural type--Christmas displays or Ten Commandment >displays and the like. In other words, it is not about >elections, but about recognizing we are a nation of many >different communities with many different cultures, >including religious subgroups and religious cultures, and >religious history. > >Religious subgroups are part of the culture as well--if a >public school may celebrate Gay Pride Week and Black History >Month and Earth Day and Cinco de Mayo, there is no reason to >forbid it from recognizing Christmas. Those who are offended >by any of these displays can avert their eyes. There is no >liberty to silence govt speech recognizing religious >holidays and religious subgroups as part of a pluralistic >community. > >Liberty is best served by protecting the right of the govt >to recognize that religion is part of the culture and by >protecting the right to receive govt speech of those who >wish to view religious displays as part of the govt's >recognition of our culture and pluralism. The heckler's veto >created by the endorsement test is a liberty-restricting, >not a liberty-protecting, interest. It is a right to control >what kind of govt expression a willing audience can view, >even though the only burden on the Pl is the burden of >averting the eye. > >This is the kind of issue I love discussing in class. And my >students understand that the solution is not as simple as >saying that religious speech is different from secular >speech under the First Amendment. Sometimes it is, and >sometimes it isn't. > >Rick Duncan >Welpton Pro
Re: An Interesting Govt School Censorship Case
Equal access does not mean the school must be totally indifferent to the content of the posters and flyers. Especially in a context in which the school has a history of Establishment Clause violations, it should have some discretion to make certain that it does not violate court orders or invite a new lawsuit. The posters for "See You at the Pole" were allowed. Mentioning that what will happen "at the Pole" is group prayer among students should also be allowed. And we can all see that censoring "In God We Trust" is foolish and unnecessary. But the Establishment Clause interdicts some religious speech by government (that is, religious speech does not get "equal access" in the competition for what government may promote), and government (especially with this sort of history) has to have some room to ensure that it is not complicit in another violation. Does Rick or others think that students in this school (or any other) have a 1st A right not simply to advertise the event, but to add to their posters "All those who seek salvation through Jesus are welcome"? Chip Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: An Interesting Govt School Censorship Case
I appreciate Rick's calling our attention to this case, and I deeply appreciate Allen's amplification of the historical record. I forwarded Rick's post yesterday to several students who are writing papers for me on issues related to this case, but I warned them not to take the ADF release at face value. I of course forwarded Allen's post to those students this morning. Chip Original message >Date: Wed, 4 Mar 2009 10:46:42 EST >From: aa...@aol.com >Subject: Re: An Interesting Govt School Censorship Case >To: religionlaw@lists.ucla.edu > > Although I'm not claiming the school was correct in > this instance, there is a context to the case that > the ADF press release completely leaves out. I used > to be surprised at the dishonesty of these ADF press > releases, but now I see them as puzzles where the > challenge is to find the actual facts. From this > press release, for example, you'd never know that > the ACLU successfully challenged several practices > in this school district that violated the > Establishment Clause. The closest the press release > comes to revealing that information is the two > sentence paragraph: > > "The American Civil Liberties Union previously sued > the school to stop it from recognizing such events, > including “See You at the Pole” and the National > Day of Prayer. In May 2008, a federal judge refused > to grant the ACLU’s request." > > Now, if you follow that link, it leads to an ADF > page that, again, never mentions the school's > Establishment Clause violations and describes the > May 2008 result like this: "“This is a win for > religious freedom and, if not a total loss for the > ACLU, certainly a hollow, shallow victory." Even > worse, that ADF page provides a link to the ACLU > complaint that starts on page 19, again cutting out > the most pertinent facts. Similarly, the link to the > judge's decision on that page leads to another ADF > page that includes only the order, cutting out the > memorandum describing in detail the school's > Establishment Clause violations. > > The full judge's decision is included in the May 30, > 2008, ACLU press release on the Wilson County case > at: > > http://www.aclu.org/religion/schools/35742prs20080530.html > > Here are five pertinent paragraphs: > > > The lawsuit, Doe v. Wilson County School System, > filed by the American Civil Liberties Union of > Tennessee (ACLU-TN) charged that a variety of > religious activities occurring at Lakeview > Elementary School in Mt. Juliet, including praying > during school hours by a group of parents who then > distributed fliers in classrooms informing > individual students they had been prayed for, were > unconstitutional. > > "In a strongly worded 59-page decision, the Judge > ruled that school officials were engaged in a > systematic pattern of religious violations and that > the school supported and tolerated religious > activities taking place on its campus," said Hedy > Weinberg, ACLU-TN Executive Director. > > After nearly two years of litigation, the Court > ruled that Lakeview Elementary School administrators > can not continue to give preferential treatment to a > religious group called the Praying Parents. In the > past, this religious group was given nearly > unfettered access to students and faculty to promote > Christianity and prayer. In finding that these > activities violated the First Amendment, the Court > found that the effect of the group's predominant > religious purpose was to advance Christianity at > Lakeview. > > The school administration apparently agreed with the > group's purpose and activities and did not properly > monitor and supervise their activities on school > property, and, by allowing these activities, the > school tacitly or overtly endorsed the group's > activities. By doing so the school became > excessively entangled with the group's religious > activities, and abandoned the school's > constitutional obligation to maintain strict > neutrality toward religion. > > The Court issued an injunction preventing any group > from being given preferential treatment and ordering > that all individuals and groups requesting access to > the school request permission and be treated > equally. The Court also admonished the school for > allowing teachers and administrators to be active > participants in religious activities at the school, > for displaying the Ten Commandments in the school > hallway and for allowing the distribution of > Gideon's Bibles to students. > > > > One reason I've been such a loyal member of the ACLU > for so long is because I've always been impressed > with the way the ACLU sticks to its principles and > sticks to the truth. I've seen occasional errors > in ACLU press releases, but never the
Re: Statue of Jesus and the FHA
Micah's post below suggests the problem analogous to that sometimes raised under RFRA or RLUIPA -- may the state accommodate by statute a religious message, but not its secular analogue? The standard answer is that the appropriate remedy is to extend the right to all, rather than to strike the accommodation, in large part because the secular expression has its own First Amendment provenance. When the accommodation does not involve constitutional rights (e.g., exemption for religious use of peyote, and others want to use peyote for non-religious reasons), the argument for remedy by extension is frequently more troublesome. Original message >Date: Thu, 6 Nov 2008 12:55:33 -0500 >From: "Micah Schwartzman" <[EMAIL PROTECTED]> >Subject: Statue of Jesus and the FHA >To: > > In response to Bloch v. Frischholz (7th Cir. 2008), > which held that residents were not entitled under > the Fair Housing Act (FHA) to post mezuzahs, > Congress has been considering legislation to amend > the FHA to protect religious symbols. Here is the > text of the proposed amendment, titled the Freedom > of Religious Expression in the Home Act of 2008 > (H.R. 6932): > > Section 804 of the Fair Housing Act (42 U.S.C. 3604) > is amended by adding at the end the following: > "(g) To establish a rule or policy that prevents a > person from displaying, on the basis of that > person's religious belief, a religious symbol , > object, or sign on the door, doorpost, entrance, or > otherwise on the exterior of that person's dwelling, > or that is visible from the exterior of that > dwelling, unless the rule or policy is reasonable > and is necessary to prevent significant damage to > property, physical harm to persons, a public > nuisance, or similar undue hardship." > Suppose this amendment to protect religious symbols > is passed. What would be the legal status > of non-religious displays? If a > homeowners' association adopts a policy barring all > forms of displays (as was the case in Bloch), and if > the FHA creates an accommodation for religious > expression, would someone who wants to post a > non-religious display have grounds to object? > Suppose a resident posts a sign saying, "God loves > McCain." Now another resident posts a sign that says > "Vote Obama." The homeowners' association removes > both signs. The McCain supporter makes a claim under > the amended FHA to protect his religious expression. > What about the Obama supporter? > > Here are a couple possibilities: (1) The Obama > supporter might have an Establishment Clause > challenge to the FHA amendment. The claim would be > that the amendment is an accommodation that burdens > non-beneficiaries. Citizens whose political views > are religiously informed gain an advantage over > citizens who aren't religious (or whose political > views aren't religiously informed). (2) Perhaps the > Obama supporter could also claim that the amendment > in effect creates a public forum by restricting > homeowners' associations from > preventing certain forms of speech. But if that's > the case, the amendment is viewpoint discriminatory, > because it only protects religious speech. > > Any thoughts about those possible challenges? > >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Virginia ban on state troopers mentioning Jesus Christ in public prayers
Chaplains speaking at public events are not ministering to the particular religious needs of state troopers (in that private context, chaplains can pray in ways that accommodate and facilitate the beliefs of those to whom they are ministering). At public events, open to all (and sometimes mandatory) chaplains are the voices of the state, and should be limited to ceremonial, non-sectarian prayer. Bob Tuttle and I discuss this question in our paper on the military chaplaincy, 110 W. Va. L. Rev. 89, 148-159 (2007). There is lurking here a prior question of whether the government should be free to appoint chaplains in the first place for police officers, firefighters, or public employees generally (as Indiana recently did, only to back down in the face of a lawsuit). Police officers and firefighters, unlike prisoners and members of the armed forces, are not under the care and control of the government. Why is government ministering to police officers and firefighters, who are free to seek their own private, spiritual counsel? Original message >Date: Fri, 26 Sep 2008 11:21:42 -0500 >From: "Christopher Lund" <[EMAIL PROTECTED]> >Subject: Re: Virginia ban on state troopers mentioning Jesus Christ in public >prayers >To: > > A necessary travesty? More proof that religious > liberty and legislative prayer are like Harry Potter > and Voldemort - neither can live while the other > survives? > Best, > Chris > > __ > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > Papers: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > >>> [EMAIL PROTECTED] 9/26/2008 10:08 AM >>> > Thoughts? > > > http://www.washingtonpost.com/wp-dyn/content/article/2008/09/24/AR2008092403471.html?hpid=sec-religion > > -- > Prof. Steven Jamar > Howard University School of Law > Associate Director, Institute of Intellectual > Property and Social Justice (IIPSJ) Inc. > >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: summer seminar in law and religion
Follow up to my e-mail of a few moments ago with the announcement of this seminar -- there is still room in the seminar, and late applications are welcome. Original message >Date: Tue, 29 Apr 2008 15:47:50 -0400 (EDT) >From: "Ira (Chip) Lupu" <[EMAIL PROTECTED]> >Subject: summer seminar in law and religion >To: religionlaw@lists.ucla.edu > >The Institute for Constitutional Studies (directed by Maeva Marcus) at George >Washington University Law School is sponsoring a seminar this summer on law >and religion. The seminar - which is primarily for grad students & junior >faculty - is being led by Judge Michael McConnell and Professor Mark Noll. >The details are here: > >http://docs.law.gwu.edu/ics/Religion%20and%20Constitution%20Announcement.pdf >Ira C. Lupu >F. Elwood & Eleanor Davis Professor of Law >George Washington University Law School >2000 H St., NW >Washington, DC 20052 >(202)994-7053 >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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.
summer seminar in law and religion
The Institute for Constitutional Studies (directed by Maeva Marcus) at George Washington University Law School is sponsoring a seminar this summer on law and religion. The seminar - which is primarily for grad students & junior faculty - is being led by Judge Michael McConnell and Professor Mark Noll. The details are here: http://docs.law.gwu.edu/ics/Religion%20and%20Constitution%20Announcement.pdf Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Establishment Clause and government action outside the U.S.
Eugene: The case is Lamont v. Woods, 948 F.2d 825 (1991). John Mansfield has a good article about this problem in the DePaul L Rev in 1986. And Bob Tuttle and I discuss the problem of U.S. overseas expenditures on religion in a comment, located here, http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=26, on US AID participation in the faith-based initiative. Chip Original message >Date: Thu, 21 Feb 2008 15:19:06 -0800 >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >Subject: Establishment Clause and government action outside the U.S. >To: "Law & Religion issues for Law Academics" > > I vaguely recall that there was a case dealing with an >Establishment Clause challenge to some government action outside the >U.S. -- perhaps government funding of certain religious institutions or >some such. But my quick searches couldn't find it; can anyone help me? >Or am I just making it up? (I did find the cases challenging our >reactions with the Vatican, one involving Fred Phelps of funeral >picketing infamy.) > > Eugene >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Scalia and Motive
Bob Tuttle has asked me to forward this response to Eugene's post: "Eugene, The point is not about the age of the chapel or cross, but rather what message the government is sending through maintenance of the particular religious display. If the message is "Jesus Christ should be venerated," then there's a problem (even to Scalia, at least if the limit he accepted in McCreary County applies). But if the message is "religion was an important part of the history of this place," then the display seems to be an appropriate acknowledgment - in a detached sense - of religion's signficance, rather than a government call to worship. So we argue that the Wren Chapel at W&M could survive scrutiny as an acknowledgment, because it's restored to look like the mid-18th century, which Williamsburg and W&M both celebrate (or fetishize). But placement of an early 20th century cross in that space loses the message of acknowledgment conveyed by the rest of the chapel; it has no connection to the history otherwise reflected in the space, but represents only a claim ! th! at this is a Christian worship space. In other words, no one's trying to celebrate the status of the college in 1907 (the vintage of the cross - coincidentially when W&M became a state school), or 1940, when the cross was donated to W&M. That's why I think the college could have had the Lord's Prayer or Ten Commandments displayed behind the altar (a common practice during the relevant era), because such a display would place the religious message in historical context, but the cross lacks that context. Acknowledgment needs to mean something other than just antiquity. Bob Original message >Date: Tue, 19 Feb 2008 09:34:26 -0800 >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >Subject: RE: Scalia and Motive >To: "Law & Religion issues for Law Academics" > > Not having read your article, I can't say much on the subject. >For everyone on the Court (except Justice Thomas) context -- especially >the historical meaning -- seems to matter, so one would need to know >more of the details. The presence of a 200+-year-old chapel on campus >would pretty clear be constitutional even for the Ten Commandments >majority, and possibly also for Justice O'Connor and perhaps Souter, >Ginsburg, and Breyer. The question is whether the same would apply to a >cross that had been there for 70 years (is that right?), and which way >the liturgical inconsistency you describe with traditional Anglicanism, >but the broader consistency between chapels and a cross, cuts. That's >hard to tell without focusing a lot more on the historical details. > > Eugene > >> -Original Message- >> From: [EMAIL PROTECTED] >> [mailto:[EMAIL PROTECTED] On Behalf Of Ira >> (Chip) Lupu >> Sent: Tuesday, February 19, 2008 9:29 AM >> To: Law & Religion issues for Law Academics >> Subject: RE: Scalia and Motive >> >> So what do you expect Scalia would say about the default >> placement of that cross on the altar table in the chapel at >> Willima & Mary? >> >> Original message >> >Date: Tue, 19 Feb 2008 09:21:31 -0800 >> >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >> >Subject: RE: Scalia and Motive >> >To: "Law & Religion issues for Law Academics" >> > >> > >> >Chip Lupu writes: >> > >> >> I think we have to go back to Prof. Finkelman's "realist" >> >> question: Justice Scalia has (both before and after >> Smith) voted to >> >> uphold Free Exercise claims (Frazee, Lukumi, Locke v. >> Davey), but I >> >> don't believe he has EVER voted against the government in an >> >> Establishment Clause case (including Edwards v. Aguillard, >> and Santa >> >> Fe Ind. School District v. Doe, which are probably the two >> toughest >> >> Est CL cases in which to side with the government during >> his tenure >> >> on the Court.) So will Justice Scalia ever see an Establishment >> >> Clause claim that he likes? Or does he just find reasons to vote >> >> against them all? >> > >> >I take it that Justice Scalia simply has a >> substantively very narrow >> >view of the Establishment Clause, such as (for instance) Justices >> >Stevens, Souter, Ginsburg, and Breyer have a substantively >> very narrow >> >view of the judicially enforceable article I section 8 >> constraints on >> >fedearl power. I don't see why we should cast
RE: Scalia and Motive
William & Mary was a private college when the chapel was first built in the 18th century. By the time the chapel was restored in the 1930's, however, W & M had become a state school, though the Supreme Court had not yet held that the Estab Clause applies to the states. Once the Clause did apply, surely there was a strong question about whether it permitted such a prominent position for a cross in the college chapel (especially when the cross is only about 24 inches square, and is easily moved.) So the argument from "history" or "tradition" is a bit facile in this context. As for Mark Scarberry's comment re: the president's failure to consult -- that might have been wise for a college president in these circumstances, and it might have led to the current compromise (putting the cross in a display case, marked with a plaque containing historical info about how the cross came to be in the chapel, and placing the case against a side wall of the chapel except during Christian worship) more smoothly if he had done so. But that's an argument about institutional process, not about establishment of religion. Making Christianity the default designation of a state university chapel seems rather hard to square with any version of a non-Establishment norm, unless you believe in some sort of adverse possession theory of non-Establishment (or, like Justice Thomas, you just think the Clause doesn't apply to the states -- but that's not Scalia's position). An adverse possession! t! heory would be very convenient for Christians, and very hostile to any attempt by a faith newly prominent in the U.S. to have its symbols displayed in a privileged position by the state. Original message >Date: Tue, 19 Feb 2008 09:34:26 -0800 >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >Subject: RE: Scalia and Motive >To: "Law & Religion issues for Law Academics" > > Not having read your article, I can't say much on the subject. >For everyone on the Court (except Justice Thomas) context -- especially >the historical meaning -- seems to matter, so one would need to know >more of the details. The presence of a 200+-year-old chapel on campus >would pretty clear be constitutional even for the Ten Commandments >majority, and possibly also for Justice O'Connor and perhaps Souter, >Ginsburg, and Breyer. The question is whether the same would apply to a >cross that had been there for 70 years (is that right?), and which way >the liturgical inconsistency you describe with traditional Anglicanism, >but the broader consistency between chapels and a cross, cuts. That's >hard to tell without focusing a lot more on the historical details. > > Eugene > >> -Original Message- >> From: [EMAIL PROTECTED] >> [mailto:[EMAIL PROTECTED] On Behalf Of Ira >> (Chip) Lupu >> Sent: Tuesday, February 19, 2008 9:29 AM >> To: Law & Religion issues for Law Academics >> Subject: RE: Scalia and Motive >> >> So what do you expect Scalia would say about the default >> placement of that cross on the altar table in the chapel at >> Willima & Mary? >> >> Original message >> >Date: Tue, 19 Feb 2008 09:21:31 -0800 >> >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >> >Subject: RE: Scalia and Motive >> >To: "Law & Religion issues for Law Academics" >> > >> > >> >Chip Lupu writes: >> > >> >> I think we have to go back to Prof. Finkelman's "realist" >> >> question: Justice Scalia has (both before and after >> Smith) voted to >> >> uphold Free Exercise claims (Frazee, Lukumi, Locke v. >> Davey), but I >> >> don't believe he has EVER voted against the government in an >> >> Establishment Clause case (including Edwards v. Aguillard, >> and Santa >> >> Fe Ind. School District v. Doe, which are probably the two >> toughest >> >> Est CL cases in which to side with the government during >> his tenure >> >> on the Court.) So will Justice Scalia ever see an Establishment >> >> Clause claim that he likes? Or does he just find reasons to vote >> >> against them all? >> > >> >I take it that Justice Scalia simply has a >> substantively very narrow >> >view of the Establishment Clause, such as (for instance) Justices >> >Stevens, Souter, Ginsburg, and Breyer have a substantively >> very narrow >> >view of the judicially enforceable article I section 8 >> constraints on >> >fedearl power. I don't see wh
RE: Scalia and Motive
So what do you expect Scalia would say about the default placement of that cross on the altar table in the chapel at Willima & Mary? Original message >Date: Tue, 19 Feb 2008 09:21:31 -0800 >From: "Volokh, Eugene" <[EMAIL PROTECTED]> >Subject: RE: Scalia and Motive >To: "Law & Religion issues for Law Academics" > >Chip Lupu writes: > >> I think we have to go back to Prof. Finkelman's "realist" >> question: Justice Scalia has (both before and after Smith) >> voted to uphold Free Exercise claims (Frazee, Lukumi, Locke >> v. Davey), but I don't believe he has EVER voted against the >> government in an Establishment Clause case (including Edwards >> v. Aguillard, and Santa Fe Ind. School District v. Doe, which >> are probably the two toughest Est CL cases in which to side >> with the government during his tenure on the Court.) So will >> Justice Scalia ever see an Establishment Clause claim that he >> likes? Or does he just find reasons to vote against them all? > > I take it that Justice Scalia simply has a substantively very >narrow view of the Establishment Clause, such as (for instance) Justices >Stevens, Souter, Ginsburg, and Breyer have a substantively very narrow >view of the judicially enforceable article I section 8 constraints on >fedearl power. I don't see why we should cast this as "[the Justices] >find reasons to vote against [all or nearly all the claims]" -- they >*have* reasons, flowing from their understanding of the substantive >scope of the constitutional right. > > Likewise, Justice Stevens has generally taken a very broad view >of the Establishment Clause; he has occasionally voted to reject an >Establishment Clause claim that has reached the Court, but quite rarely >(and the only cases that come to mind, at least recently, have been >unanimous or nearly-unanimous decisions, such as Witters, Widmar, and >Lamb's Chapel). That doesn't mean that "he just finds reasons to vote >[for] them all" -- only that his understanding of the breadth of the >Establishment Clause is such a reason. > > Eugene >___ >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Scalia and Motive
I think we have to go back to Prof. Finkelman's "realist" question: Justice Scalia has (both before and after Smith) voted to uphold Free Exercise claims (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against the government in an Establishment Clause case (including Edwards v. Aguillard, and Santa Fe Ind. School District v. Doe, which are probably the two toughest Est CL cases in which to side with the government during his tenure on the Court.) So will Justice Scalia ever see an Establishment Clause claim that he likes? Or does he just find reasons to vote against them all? I'll use this question to slide into a piece of shameless self-promotion. Gene Nichol just resigned from the William & Mary presidency, in part over a controversy re: his removing a cross from its default place on the altar table in the school's chapel (the cross can be returned to the table during Christian worship). W & M is a state university. Wasn't Nichol just acting as the Constitution requires in removing that cross from its permanent place on the altar table? What would Justice Scalia say if the new W & M President returns the cross to that space, and the matter is litigated? Bob Tuttle and I have explored the question raised by the William & Mary situation (though we of course did not focus on Scalia) in "The Cross at College: Accommodation and Acknowledgment of Religion at Public Universities," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090218. I suspect that Scalia would vote to uphold such a placement of the cross in that chapel on some sort of "historical acknowledgment" ground, though (as we show in the piece) that argument is very weak in this case, because the Wren Chapel at W & M is designed to look like an 18th century Anglican chapel, and such chapels would not have included a cross. So the cross in that chapel is, as we say in the piece, "glaringly anachronistic." Original message >Date: Tue, 19 Feb 2008 09:56:24 -0500 >From: Douglas Laycock <[EMAIL PROTECTED]> >Subject: RE: Scalia and Motive >To: religionlaw@lists.ucla.edu > > Mark and Eugene have plausible theories on Tx > Monthly and Smith. But no one seems to have a > plausible theory on Lukumi and Kiryas Joel. > > The Kiryas Joel argument about motive is not just > accepting existing establishment clause doctrine > arguendo, because existing establishment clause > doctrine was Lemon, where either a religious purpose > or a religious effect or entanglement was fatal. > Certainly no requirement of motive. > > He might have been accepting and importing equal > protection doctrine, but for someone as hostile to > motive as he claims to be, it makes no sense to > import motive into a new doctrinal area. > > Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > > > I had thought that the Texas Monthly dissent > was simply accepting > > the pre-Smith Free Exercise Clause caselaw, > whether because Scalia at > > the time hadn't yet squarely focused on the > question -- recall that he > > joined the majority in Hobbie two years before, > and didn't join > > Rehnquist's dissent, and that he joined the > unanimous Court in Frazee a > > month or two after Texas Monthly -- or because he > thought the Court's > > majority still supported the Sherbert/Yoder regime > and wasn't ready to > > go along with what eventually became his view in > Smith. > > > > Eugene > > > > > > > > > > From: > [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On > Behalf Of Douglas Laycock > > Sent: Monday, February 18, 2008 7:24 > PM > > To: religionlaw@lists.ucla.edu > > Subject: RE: Scalia and Motive > > > > > > > > I certainly agree that Smith is > inconsistent with his Texas > > Monthly dissent. There he said the the > Constitution permits, "and > > sometimes requires," exemptions for religion. > > > > Quoting "Brownstein, Alan" > <[EMAIL PROTECTED]>: > > > > > At least in free exercise and > establishment clause cases, I > > have > > > never thought it was possible to > reconcile what Justice Scalia > > says > > > in his various opinions. Compare his > opinion in Employment > > Division > > > v. Smith with his dissenting opinion > in Texas Monthly, one > > year > > > earlier. I thought his opinion in > the Watchtower Bible Society > > case > > > was inconsistent with the hybrid > rights language in Smith as > > well. > > > > > > Alan Brownstein > > > > > > > > > > > > From: > [EMAIL PROTECTED] on behalf of > David > > Cruz > > > Sent: Mon 2/18/2008 6:37 PM > > > To: Law & Religion issues for Law > Academ
Re: InnerChange Litigation
Following up on Steve Green's answer, I would say that PFM was an agent of the state of Iowa in the administration of the faith-based program. If prison guards can be sued for their actions (e.g., beating a prisoner)as state agents, why not PFM likewise? Most Establishment Clause cases do not involve money damages. But here the plaintiffs sought recoupment. An unusual remedy, to be sure, but on a theory that taxpayers have been wronged by the expenditure, forced recoupment puts the money back into the state treasury, even if the state hasn't asked for it. And naming PFM as a defendant is necessary if recoupment is among the remedies being sought. If all the plaintiff seeks is an injunction, suing only the official defendants makes sense (in the student prayer case, the offending students will be gone by the time the case is decided). Perhaps one could recover attorneys' fees against students who pray as "agents" of the school, but no plaintiffs' group is going to make that move -- it would seem cruel to recover the fees from students, who perhaps cannot be expected to know better, especially if they are being encouraged by school personnel (who can be expected to know better). Original message >Date: Tue, 04 Dec 2007 14:44:26 -0600 >From: "Christopher Lund" <[EMAIL PROTECTED]> >Subject: Re: InnerChange Litigation >To: > > Maybe I can explain what I'm missing a bit better. > You say, "The state cannot escape constitutional > restrictions (8th A, 14th A, here the Establishment > Clause) by delegating power to run prisons to > private parties. That delegation is what makes PFM > a state actor, liable in the same ways as the state > (and probably without any of the immunities)." > > I have no question about the first part of this (up > until the part I've boldfaced). Iowa cannot escape > its constitutional obligations by getting PFM to run > its prisons. The state is accountable for what PFM > does - that's what we mean when say PFM is a state > actor, when we say that PFM's actions are > "attributable to the state." And because Iowa is > responsible for what PFM does, PFM's religious > programming is the state's religious programming, > and the state having this sort of religious > programming violates the Establishment Clause under > Mitchell v. Helms and the rest. > > But while this explains why Iowa should be liable > (for both its own actions and for PFM's), it does > not explain or justify why PFM itself should be > liable. I get that PFM's actions are "attributable > to the state." That's what PFM being a "state > actor" means. But why is the state's constitutional > duty attributable to PFM? > > I am definitely open to the possibility that I'm > missing something big. > > Best, > Chris > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > > >>> [EMAIL PROTECTED] 12/4/2007 12:31 PM >>> > PFM was not a state actor just because it accepted > the state's money to run this program; many private > grantees take government money, and don't thereby > become "state actors". Ordinarily, private grantees > are not even defendants in these sorts of cases; > only state officials are sued. But here PFM was > effectively running a wing of the prison (general > administrative responsibilities, including > discipline). The state cannot escape constitutional > restrictions (8th A, 14th A, here the Establishment > Clause) by delegating power to run prisons to > private parties. > > That delegation is what makes PFM a state actor, > liable in the same ways as the state (and probably > without any of the immunities). And that's why > (contrary to its press release) PFM can't keep > running this particular program, even if no money > changes hands between the state and PFM. > > Original message > >Date: Tue, 04 Dec 2007 12:05:05 -0600 > >From: "Christopher Lund" <[EMAIL PROTECTED]> > >Subject: Re: InnerChange Litigation > >To: > > > > There's one thing that I feel like I'm missing, > > although (forgive me, moderator) it may be more > of a > > con law or remedies question than a First > Amendment > > question. I understand that PFM is a "state > actor," > > because its actions are attributable to the > state > > and the state is therefore responsible for PFM's > > conduct. But I don't really understand how PFM > > could itself be liable here or how they could be > > forced to pay money damages or enjoined. > > > > I mean, PFM can't itself violate the > Establishment > > Clause. And when we say that PFM's acts are > really > > "attributable to the state," that just means > that > > they are also really Iowa's actions.
Re: InnerChange Litigation
PFM was not a state actor just because it accepted the state's money to run this program; many private grantees take government money, and don't thereby become "state actors". Ordinarily, private grantees are not even defendants in these sorts of cases; only state officials are sued. But here PFM was effectively running a wing of the prison (general administrative responsibilities, including discipline). The state cannot escape constitutional restrictions (8th A, 14th A, here the Establishment Clause) by delegating power to run prisons to private parties. That delegation is what makes PFM a state actor, liable in the same ways as the state (and probably without any of the immunities). And that's why (contrary to its press release) PFM can't keep running this particular program, even if no money changes hands between the state and PFM. Original message >Date: Tue, 04 Dec 2007 12:05:05 -0600 >From: "Christopher Lund" <[EMAIL PROTECTED]> >Subject: Re: InnerChange Litigation >To: > > There's one thing that I feel like I'm missing, > although (forgive me, moderator) it may be more of a > con law or remedies question than a First Amendment > question. I understand that PFM is a "state actor," > because its actions are attributable to the state > and the state is therefore responsible for PFM's > conduct. But I don't really understand how PFM > could itself be liable here or how they could be > forced to pay money damages or enjoined. > > I mean, PFM can't itself violate the Establishment > Clause. And when we say that PFM's acts are really > "attributable to the state," that just means that > they are also really Iowa's actions. So Iowa could > be liable for them, could be forced to pay for them, > or could be enjoined from allowing them to continue > in the future. But saying Iowa is responsible for > PFM's actions is completely different from saying > that PFM is responsible for Iowa's actions (which is > what I think what the Court is doing when it > makes PFM liable). And I wonder if the Eighth > Circuit feels this way at least implicitly. By > denying the reimbursement remedy, the Eighth Circuit > punishes Iowa, but lets InnerChange off the hook > with just a stern warning. > > Finally, if PFM here can be liable here (which would > be not only for damages but also things like > attorneys' fees), then doesn't that have > far-reaching consequences? The student speaker in > Santa Fe v. Doe, the rabbi in Lee v. Weisman - are > they all really individually liable for money > damages and attorneys' fees? > > I just feel like there's something about the Court's > state-action jurisprudence that I'm not getting. > > Best, > Chris > > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > > >>> <[EMAIL PROTECTED]> 12/4/2007 10:51 AM > >>> > Pretty devastating for the future of faith-intensive > prison programs of this kind. But not unexpected, > of course -- there really wasn't much of an argument > on the other side. (For my previous thoughts on the > case, see here > (http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html) > and here > > (http://balkin.blogspot.com/2006/06/trial-court-enjoins-unconstitutional.html). > > The reversal on the reimbursement remedy is based on > the notion that although everyone knew damn well > this was illegal, they were well-motivated. I'm > dubious about such logic, but I'm not surprised the > court reversed on the remedy -- the precedent set by > the decision itself is a sufficient deterrent to all > such programs going forward. > > The most important aspect of the case is the holding > that the PFM was itself a state actor, given the > prison setting and the control they had over the > prisoners. I've argued that this follows fairly > easily from West v. Atkins, but many were dubious. > Thus, even if there were no state funding, as such, > such a program could not continue within the prison. > > It might be a different story if a prison simply > allowed many outside groups to come into the prison > occasionally to lead rehab programs. But that's a > far cry from these sorts of programs. > > -- Original message > -- > From: "Christopher Lund" <[EMAIL PROTECTED]> > > Attached is a copy of the opinion in Americans > United v. Prison > > Fellowship Ministries, which was issued > yesterday. The Eighth Circuit > > affirmed the district court's finding of > unconstitutionality, but > > modified the injunction so that PFM now doesn't > have to pay back the > > $1.5 million it received from the state under its > contract before the > > finding of unconstitutionality. Thoughts? > >
Re: 7th Circuit Taxpayer Standing Decision
Dan Conkle's post, about the 7th Circuit's application of Hein v. FFRF to
Hinrichs v. Indiana House Speaker, legitimates my shamless plug for a piece
about Hein that Bob Tuttle and I have now posted on SSRN:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1022398
Several things are striking about Hinrichs:
1. Neither majority nor dissent really wrestles with questions of how Flast v.
Cohen (with all its emphasis on Art. I, taxing and spending) should apply to
state taxpayers;
2. As the dissent in Hinrichs points out, Hein emphasized executive branch
discretion -- but Hinrichs is entirely about legislative branch behavior
(Indiana House Rules, practices, and budget); and
3. The expenditures alleged in Hinrichs are flimsy ("thank you" notes, and
photos for invited clergy, none of which are necessary for the practice of
prayer). But it is quite apparent that an observer of legislative prayer would
have standing to challenge it, and, indeed, Hinrichs had alleged observer
standing (he was a lobbyist) but had dropped that basis for standing along the
way. So we can now expect a new lawsuit, with an observer-plaintiff -- seems
like quite a waste re: the efforts in this litigation, though Bob and I
speculate in our paper that Hein may be the first step toward getting rid of
observer standing in Establishment Clause cases as well. In any event, the 7th
Circuit has side-stepped a difficult case (because of the highly sectarian
quality of many of the prayers) about the merits of prayer practices in the
Indiana House.
Original message
>Date: Tue, 30 Oct 2007 15:09:57 -0400
>From: "Conkle, Daniel O." <[EMAIL PROTECTED]>
>Subject: 7th Circuit Taxpayer Standing Decision
>To: "'Law & Religion issues for Law Academics'"
>
> The 7th Circuit, 2-1 (majority opinion by Judge
> Ripple, joined by Judge Kanne), has extended Hein v.
> Freedom from Religion Foundation to a case involving
> a claim of *state* taxpayer standing. The case
> involves a taxpayer challenge to sectarian
> legislative prayer in the Indiana House of
> Representatives. The plaintiffs earlier had won a
> district-court injunction against this practice, and
> the 7th Circuit had tentatively agreed in denying a
> stay, but the 7th Circuit now concludes that Hein,
> combined with DaimlerChrysler Corp. v. Cuno, calls
> for dismissal for lack of standing.
>
> Judge Wood dissents, arguing that the majority
> misreads Hein. Judge Wood also suggests that proper
> plaintiffs would not be difficult to find, based on
> more direct encounters with the prayers, etc., but
> she argues that the existing taxpayer plaintiffs
> should themselves have been permitted to proceed.
>
> Hinrichs v. Speaker of the House of
> Representatives,
> http://www.ca7.uscourts.gov/tmp/7S0THZZJ.pdf
>
> Daniel O. Conkle
> ***
> Daniel O. Conkle
> Robert H. McKinney Professor of Law
> Indiana University School of Law
> Bloomington, Indiana 47405
> (812) 855-4331
> fax (812) 855-0555
> e-mail [EMAIL PROTECTED]
> ***
>
>___
>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
George Washington University School of Law
2000 H St., NW
Washington, DC 20052
(202)994-7053
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
Religious Freedom Moot Court Competition
George Washington University Law School will be hosting the 2nd Annual National Religious Freedom Moot Court Competition. Last year's competition was a great success, due primarily to very hard work by GW law students and a very impressive cadre of judges (well-versed in the law of religious freedom). Bob Tuttle and I are continuing to serve as advisors in the preparation of this year's problem. The competition will be limited to 24 teams. The registration deadline is October 12, 2007. The oral arguments will be held Feb. 22-23, 2008, here in Washington, DC. More information is available at http://www.religiousfreedommootcourt.org/, or by e-mail at [EMAIL PROTECTED] Please pass this on to those at your school who may be interested. Many thanks. Chip Lupu Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University School of Law 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Church-State Fellowship position at the Pew Forum
Set forth below is an announcement of a job search for a position as Research Fellow in Religion and Law at the Pew Forum on Religion & Public Life (www.pewforum.org) in Washington, D.C. I pass this along to list members for several reasons: 1. The Forum is a highly-respected organization that does excellent work as a non-partisan distributor and producer of information about a wide variety of issues pertaining to religion and public life (doemestic and foreign, legal and political); and 2. My colleague Bob Tuttle and I have an ongoing relationship with the Forum. We will thus be working with the Fellow in many aspects of his or her job, and we have a vested interest in attracting a talented person to the position. The position would be ideal for a relatively recent law school graduate with some background in church-state law, and an interest in remaining in that field (perhaps in the academy, in other aspects of the non-profit world, in journalism, or in future law practice). Contact information is at the bottom of the notice. Thanks for passing this on to anyone who might be interested. Church-State Position The Pew Forum on Religion and Public Life is seeking a Research Fellow in Religion and Law with expert knowledge in church-state issues and excellent communications skills. The fellow will focus on such First Amendment topics as disputes over religious displays in public buildings, religion in public schools and the workplace, and the provision of public funding to religious institutions. The fellow must have significant understanding of these issue areas, acquired either through academic study or professional experience. The fellow’s primary duties include tracking a wide array of church-state issues, conducting research and writing legal backgrounders and analyses on important cases and issues, fielding press calls, and making public presentations on church-state topics to journalists, government officials and other opinion leaders. The fellow must have excellent research skills and be able to quickly master new material. He or she must be able to take complex issues and render them in clear, readable prose that helps non-experts understand the issues at hand. The fellow also must be a good speaker, who can easily convey conceptually difficult topics in a simple and clear style to both small and large groups. In keeping with the Forum’s mission of serving as a source of impartial information, the fellow must be committed to the non-partisan, non-advocacy approach that characterizes all Pew Research Center projects. The fellow will work closely with the existing senior fellow in religion and law, who focuses more on “culture war” issues such as abortion and gay marriage. He or she also will work closely with our partners at the George Washington University Law School, who conduct research and writing for the Forum on various church-state topics. CONTACT: David Masci, Senior Research Fellow, Pew Forum on Religion and Public Life, [EMAIL PROTECTED], 202-419-4566 >___ >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 George Washington University School of Law 2000 H St., NW Washington, DC 20052 (202)994-7053 ___ 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: Supreme Court Decides Hein
Marty says that Kennedy's opinion is the controlling one in Hein. But Kennedy
says that he joins the Alito opinion in full, so it appears that he's not
trying to narrow it in any way -- he's trying to explain it further in the
context of this case. Do others think that the Alito plurality opinion is
"controlling" in this case? Or do you think Marty is correct that Kennedy's
opinion is in some way "narrower" than the plurality, and therefore becomes the
controlling opinion?
Chip
Original message
>Date: Mon, 25 Jun 2007 15:45:30 +
>From: [EMAIL PROTECTED]
>Subject: Re: Supreme Court Decides Hein
>To: Law & Religion issues for Law Academics
>,
>Cc: "Friedman, Howard M." <[EMAIL PROTECTED]>
>
> I jotted down these points, among others on Hein and
> Morse (in which Justice Alito's controlling
> concurrence is obviously written with an eye to
> protecting student religious and political
> expression), over at SCOTUSblog
>
> (http://www.scotusblog.com/movabletype/archives/2007/06/quick_prelimina.html):
>
>
> 4. The majority opinion in Hein states at one point
> that "the expenditures at issue here were not made
> pursuant to any Act of Congress." That is of course,
> not true -- indeed, if it were true, the
> expendistures would be unconstitutional for that
> reason (a violation of the Appropriations Clause).
> What Justice Alito obviously means is that, in his
> terminology, there was no "specific," "direct" or,
> especially "express" provision of a statute
> directing the religious use of the appropriations --
> the expenditure was instead pursuant to a broad
> grant of discretion to the Executive to spend as he
> sees fit. I agree with Justice Scalia and the
> dissent (i.e., with six of the Justices) that it's
> hard to see why that should make any constitutional
> difference for purposes of Article III -- but be
> that as it may, that's now the test.
>
> 5. Importantly, the case is limited to taxpayer
> standing. As the plurality stresses ("respondents
> make no effort to show that [other
> executive-initiated] abuses could not be challenged
> in federal court by plaintiffs who would possess
> standing based on grounds other than taxpayer
> standing"), in many cases involving executive
> expenditures for religious purposes, there may be
> plaintiffs with other grounds for standing, as in
> the countless cases challenging state government
> displays of creches, Ten Commandments, etc., and all
> of the school prayer cases.
>
> 6. Moreover, as Justice Kennedy (the controlling
> vote) emphasizes, just because something is
> nonjusticianble does not mean that the President can
> do it -- at least, not in an Administration that
> takes seriously the President's obligation to
> faithfully execute the law: "It must be remembered
> that, even where parties have no standing to sue,
> members of the Legislative and Executive Branches
> are not excused from making constitutional
> determinations in the regular course of their
> duties. Government officials must make a conscious
> decision to obey the Constitution whether or not
> their acts can be challenged in a court of law and
> then must conform their actions to these principled
> determinations."
>
> 7. Kennedy's controlling concurrence emphasizes that
> the case, in his view, involved a challenge to
> executive branch speechmaking -- something he is
> loathe to allow the courts to superintend:
>
> The public events and public speeches respondents
> seek to call in question are part of the open
> discussion essential to democratic
> self-government. The Executive Branch should be
> free, as a general matter, to discover new ideas,
> to understand pressing public demands, and to find
> creative responses to address governmental
> concerns. The exchange of ideas between and among
> the State and Federal Governments and their
> manifold, diverse constituencies sustains a free
> society. Permitting any and all taxpayers to
> challenge the content of these prototypical
> executive operations and dialogues would lead to
> judicial intervention so far exceeding traditional
> boundaries on the Judiciary that there would arise
> a real danger of judicial oversight of executive
> duties. The burden of discovery to ascertain if
> relief is justified in these potentially
> innumerable cases would risk altering the free
> exchange of ideas and information. And were this
> constant supervision to take place th! e court s
> would soon assume the role of speech editors for
> communications issued by executive officials and
> event planners for meetings they hold.
>
>
>
> -- Original message --
> From: "Friedman, Howard M."
> <[EMAIL PROTECTED]>
> The Supreme Court this morning decided the Hein
> case
