Re: Civil determination of a religious question in Rowan County?

[Len]

These reports put The Onion to shame. 



- Original Message -

From: "Marty Lederman"  
To: "Law & Religion issues for Law Academics"  
Sent: Monday, September 21, 2015 3:19:16 PM 
Subject: Civil determination of a religious question in Rowan County? 

A report to the court of another of the Rowan County Deputy Clerks today 
includes the following: 




"Mrs. Plank reports that, to the best of her knowledge, all requests for 
marriage licenses requested by legally qualified couples have been issued. The 
only denial of a marriage license application that has occurred within the last 
two weeks was to a gentleman who stated that he wanted a license that would 
permit him to marry 'Jesus'. When it was explained to the individual that both 
parties had to be present, he stated, 'Jesus is always present'. After being 
denied, the gentleman returned later and presented a type of Power of Attorney 
document issued by his church granting him authority to sign 'Jesus'’ name. 
Since both parties were not present these requests were denied." 



Impermissible civil assessment of a fundamentally religious question? 

(P.S. The passage from the filing today, quoted above, is 100% true. My "legal" 
question, however, is of course facetious -- although given the Court's recent 
movement toward almost absolute deference to private religious assessments (cf. 
Hobby Lobby ), it's not obvious on first glance why the Clerk's Office was 
permitted to act on the basis that "Jesus was not present.") 

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Re: law suit on behalf of Jesus

[Len]

Please pardon the intrusion. Apparently the filing is real: 

http://dockets.justia.com/docket/nebraska/nedce/8:2015cv00158/69317 

I hope Judge Gerrard isn't too hard on her when he tosses it. 



-Leonard A. Zanger 

- Original Message -

From: Paul Finkelman paul.finkel...@albanylaw.edu 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, May 6, 2015 12:11:32 AM 
Subject: law suit on behalf of Jesus 

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


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

* 
Paul Finkelman 
Senior Fellow 
Penn Program on Democracy, Citizenship, and Constitutionalism 
University of Pennsylvania 
and 
Scholar-in-Residence 
National Constitution Center 
Philadelphia, Pennsylvania 
518-439-7296 (p) 
518-605-0296 (c) 
paul.finkel...@albanylaw.edu 
www.paulfinkelman.com 
* 









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

[Len]

Isn't there a significant difference between placing a religious monument in a 
public park vs placing a religious monument in a State capitol building? 

- Original Message -

From: Steven Jamar stevenja...@gmail.com 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc: religionlaw@lists.ucla.edu 
Sent: Sunday, December 8, 2013 9:46:54 PM 
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature 

Sunnum handles this, no? 

Sent from Steve's iPhone 


On Dec 8, 2013, at 9:43 PM, hamilto...@aol.com wrote: 




Inevitable. 

Marci 

Marci A. Hamilton 
Paul R. Verkuil Chair in Public Law 
Benjamin N. Cardozo School of Law 
Yeshiva University 
55 Fifth Avenue 
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com 



-Original Message- 
From: Joel Sogol  jlsa...@wwisp.com  
To: Religionlaw  religionlaw@lists.ucla.edu  
Sent: Sun, Dec 8, 2013 9:24 pm 
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature 

Satanists want statue beside Ten Commandments monument at Oklahoma Legislature 
http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite
 
Joel L. Sogol 
Attorney at Law 
811 21st Ave. 
Tuscaloosa, Alabama 35401 
ph (205) 345-0966 
fx (205) 345-0971 
email: jlsa...@wwisp.com 
website: www.joelsogol.com 
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts. 
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blockquote

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messages to others. 

/blockquote

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

[Len]

apologies for the previously unsigned post. 
  
Leonard A. Zanger 
Camp Quest of Michigan, Inc. 
  

- Original Message -

From: Len campquest...@comcast.net 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Monday, December 9, 2013 5:31:33 AM 
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature 

Isn't there a significant difference between placing a religious monument in a 
public park vs placing a religious monument in a State capitol building? 

- Original Message -

From: Steven Jamar stevenja...@gmail.com 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc: religionlaw@lists.ucla.edu 
Sent: Sunday, December 8, 2013 9:46:54 PM 
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature 

Sunnum handles this, no? 

Sent from Steve's iPhone  


On Dec 8, 2013, at 9:43 PM, hamilto...@aol.com wrote: 




Inevitable.    

Marci 

Marci A. Hamilton 
Paul R. Verkuil Chair in Public Law 
Benjamin N. Cardozo School of Law 
Yeshiva University 
55 Fifth Avenue 
New York, NY 10003  
(212) 790-0215   
http://sol-reform.com 

      


-Original Message- 
From: Joel Sogol  jlsa...@wwisp.com  
To: Religionlaw  religionlaw@lists.ucla.edu  
Sent: Sun, Dec 8, 2013 9:24 pm 
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature 

Satanists want statue beside Ten Commandments monument at Oklahoma Legislature 
  
http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite
 
  
  
Joel L. Sogol 
Attorney at Law 
811 21st Ave. 
Tuscaloosa, Alabama 35401 
ph (205) 345-0966 
fx (205) 345-0971 
email: jlsa...@wwisp.com 
website: www.joelsogol.com 
  
Ben Franklin observed that truth wins a fair fight - which is why we have 
evidence rules in U.S. courts. 
  
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blockquote

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/blockquote

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Re: 1764 Rhode Island incest law exemption for uncle-niece marriages among Jews

[Len]

This: 

http://webserver.rilin.state.ri.us/Statutes/title15/15-1/15-1-4.HTM 

a few citations : 

page 128 
http://books.google.com/books?id=WuKfMAAJprintsec=frontcoversource=gbs_ge_summary_rcad=0#v=onepageqf=false
 

page 447 
http://books.google.com/books?id=PQ-tyPMD-rUCpg=PA447lpg=PA447dq=rhode+island+jewish+marriage+consanguinity+1798source=blots=2a2QFqseXhsig=OTNg8yzm5lyMgn645ObVT7Pi_2ohl=ensa=Xei=ubpdUvXlC-bbyQHpj4HABwsqi=2ved=0CDcQ6AEwAg#v=onepageqf=false
 



Len Zanger 


- Original Message -
From: Douglas Laycock dlayc...@virginia.edu 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Tuesday, October 15, 2013 5:39:11 PM 
Subject: RE: 1764 Rhode Island incest law exemption for uncle-niece marriages 
among Jews 




I once cited it as An Act Regulating Marriage and Divorce § 7 (1798), reprinted 
in 2 The First Laws of the State of Rhode Island 481, 483 (1798) (John D. 
Cushing ed., 1983). 



I don’t know if the law was really 1798, or if an over eager editor took that 
from the date of the compilation and also put it in as the date of the law. 




Douglas Laycock 

Robert E. Scott Distinguished Professor of Law 

University of Virginia Law School 

580 Massie Road 

Charlottesville, VA 22903 

434-243-8546 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene 
Sent: Tuesday, October 15, 2013 5:18 PM 
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu) 
Subject: 1764 Rhode Island incest law exemption for uncle-niece marriages among 
Jews 



I’ve seen articles talking about a 1764 Rhode Island incest law exemption for 
uncle-niece marriages among Jews, but now that I’m trying to find the actual 
statute, I’m having a hard time. Does anyone happen to have a good citation for 
it? Thanks, 



Eugene 
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Re: 1764 Rhode Island incest law exemption for uncle-niece marriages among Jews

[Len]

This. Evidently the law is still on the books as of 2009. 

http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_15-1-4
 


Len Zanger 

- Original Message -
From: Douglas Laycock dlayc...@virginia.edu 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Tuesday, October 15, 2013 5:39:11 PM 
Subject: RE: 1764 Rhode Island incest law exemption for uncle-niece marriages 
among Jews 




I once cited it as An Act Regulating Marriage and Divorce § 7 (1798), reprinted 
in 2 The First Laws of the State of Rhode Island 481, 483 (1798) (John D. 
Cushing ed., 1983). 



I don’t know if the law was really 1798, or if an over eager editor took that 
from the date of the compilation and also put it in as the date of the law. 




Douglas Laycock 

Robert E. Scott Distinguished Professor of Law 

University of Virginia Law School 

580 Massie Road 

Charlottesville, VA 22903 

434-243-8546 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene 
Sent: Tuesday, October 15, 2013 5:18 PM 
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu) 
Subject: 1764 Rhode Island incest law exemption for uncle-niece marriages among 
Jews 



I’ve seen articles talking about a 1764 Rhode Island incest law exemption for 
uncle-niece marriages among Jews, but now that I’m trying to find the actual 
statute, I’m having a hard time. Does anyone happen to have a good citation for 
it? Thanks, 



Eugene 
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Re: A right not to be compelled to create expression?

[Len]

You may be pretty sure, but I'm absolutely certain that the photos I purchased 
from our wedding photographer, as well as all school and graduation photos, are 
owned by me and not the photographer. I purchased them, and own the rights. 
That's what I paid for. For the photographer to retain any rights to these 
photos, I would have had to sign a model waiver, which I did not. 

Thanks, 

-Z 


- Original Message -
From: Alan Hurst alan.hu...@aya.yale.edu 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, August 25, 2013 12:33:30 PM 
Subject: Re: A right not to be compelled to create expression? 

I'm pretty sure that Eugene is correct--freelance wedding photographs 
are generally protected under the category of pictorial, graphic, or 
sculptural works, and as such are not eligible to be works for hire. 
(Photographs submitted to magazines or newspapers are treated 
differently, as they are contributions to a collective work.) 
Ownership of the copyright may be assigned, but the author of the work 
for purposes of copyright law remains the photographer regardless of 
any prior agreement between the parties. 

Eugene is also correct that it's hard to see what this has to do with 
the photographer's Free Speech rights. Regardless of who the author is 
for purposes of copyright law, the photographer is clearly creating 
the expression contained in the photographs by selecting the shots, 
composing and framing them, Photoshopping them, etc. 


 On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 
 (1) A freelancer’s work can be treated as a “work for hire” 
 only if there’s an agreement and the work falls into one of several classes: 
 “a work specially ordered or commissioned for use as a contribution to a 
 collective work, as a part of a motion picture or other audiovisual work, as 
 a translation, as a supplementary work, as a compilation, as an 
 instructional text, as a test, as answer material for a test, or as an 
 atlas, if the parties expressly agree in a written instrument signed by them 
 that the work shall be considered a work made for hire.” 17 USC 101. A 
 press release would not be a work for hire, for instance. 
 
 
 
 (2) A photographer’s work would generally not qualify for 
 being a work for hire, either. 
 
 
 
 (3) Of course, even if a work isn’t a work for hire, the 
 copyright can be assigned by a signed writing. But I don’t see what that 
 has to do with the compelled-creation-of-expression issue. If I go into 
 freelance press release writing, I think I ought to be free to say to the 
 Church of Scientology, “No, I’m not going to write a press release for you 
 promoting your religious events, because I disapprove of your religion.” 
 And that is true regardless of who would own the copyright in the resulting 
 press release. My objection isn’t to being required to own a copyright. My 
 objection is to having to write things that I think it’s wrong for me to 
 write. 
 
 
 
 Eugene 
 
 
 
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton 
 Sent: Saturday, August 24, 2013 10:26 AM 
 
 
 To: Law  Religion issues for Law Academics 
 Cc: Law  Religion issues for Law Academics 
 Subject: Re: A right not to be compelled to create expression? 
 
 
 
 Point of law-- Most freelancers are subject to work for hire agreements 
 that divest copyright and make the purchaser the owner of the speech for 
 all purposes. 
 
 
 Marci A. Hamilton 
 
 Verkuil Chair in Public Law 
 
 Benjamin N. Cardozo Law School 
 
 Yeshiva University 
 
 @Marci_Hamilton 
 
 
 
 
 
 
 On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: 
 
 Well, New Mexico law covers “any establishment that provides 
 or offers its services ... to the public, but does not include a[n] ... 
 establishment that is by its nature and use distinctly private.” That does 
 mean that a freelance writer who only writes on behalf of a limited set of 
 clients, rather than offering his services to the public at large, wouldn’t 
 be covered by this particular statute. But a freelance writer who does 
 promote his services to the public would qualify, even if he exercises some 
 selectivity. (Indeed, Huguenin says that there are other photography 
 commissions she won’t take, such as for pornography, horror films, and the 
 like, though chances are that she won’t even be approached for them in the 
 first place. Conversely, my sense is that many freelance writers who offer 
 to hire themselves out to the public will take the great majority of jobs 
 that come their way, even though they too would draw the line somewhere.) 
 So I can’t see how such freelance writers would be immune. 
 
 
 
 But in any event, even if a freelance writer or photographer 
 is unselective, I can’t see how that person’s expression isn’t “her own.” 
 To be sure, the public might not see an unselective 

Re: A right not to be compelled to create expression?

[Len]

I am absolutely certain because that is what is stated in the purchase 
agreement. 

Thanks, 

-Z 



- Original Message -
From: Steven Jamar stevenja...@gmail.com 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, August 25, 2013 2:06:55 PM 
Subject: Re: A right not to be compelled to create expression? 

We've wandered far from religion -- but that is very wrong, Z. 


You own the copies -- the specific photos that you purchased. And if you 
photographer gave you negatives (in the old days) or a CD with electronic 
versions you can copy or print from (semi-old days) or access to or electronic 
copies that you can download and distribute and copy and print (more recently) 
then you have whatever rights your photographer licensed to you -- which might 
be everything you would want to do with the pictures. 


But that photographer owns the copyright in the pictures. 


It is possible that the photographer assigned his or her rights to you, but 
that is rare. 


As a model, you would retain rights in your own image -- and the photographer 
would have limited rights as to what if anything the photographer could do with 
those photos since the photographer does not own your publicity rights in your 
own image. 


So, there are least three different rights involved -- the rights in the 
physical copies; the copyrights; and the publicity rights. They are not the 
same thing. 


So, what you are absolutely certain about is quite wrong. 




-- 
Prof. Steven D. Jamar vox: 202-806-8017 
Director of International Programs , Institute for Intellectual Property and 
Social Justice http://iipsj.org 
Howard University School of Law fax: 202-806-8567 
http://iipsj.com/SDJ/ 






I care not what subject is taught if only it be taught well. 




Thomas H. Huxley 






On Aug 25, 2013, at 1:25 PM, Len  campquest...@comcast.net  wrote: 




You may be pretty sure, but I'm absolutely certain that the photos I purchased 
from our wedding photographer, as well as all school and graduation photos, are 
owned by me and not the photographer. I purchased them, and own the rights. 
That's what I paid for. For the photographer to retain any rights to these 
photos, I would have had to sign a model waiver, which I did not. 

Thanks, 

-Z 


- Original Message -
From: Alan Hurst  alan.hu...@aya.yale.edu  
To: Law  Religion issues for Law Academics  religionlaw@lists.ucla.edu  
Sent: Sunday, August 25, 2013 12:33:30 PM 
Subject: Re: A right not to be compelled to create expression? 

I'm pretty sure that Eugene is correct--freelance wedding photographs 
are generally protected under the category of pictorial, graphic, or 
sculptural works, and as such are not eligible to be works for hire. 
(Photographs submitted to magazines or newspapers are treated 
differently, as they are contributions to a collective work.) 
Ownership of the copyright may be assigned, but the author of the work 
for purposes of copyright law remains the photographer regardless of 
any prior agreement between the parties. 

Eugene is also correct that it's hard to see what this has to do with 
the photographer's Free Speech rights. Regardless of who the author is 
for purposes of copyright law, the photographer is clearly creating 
the expression contained in the photographs by selecting the shots, 
composing and framing them, Photoshopping them, etc. 


 On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene  vol...@law.ucla.edu  
 wrote: 
 (1) A freelancer’s work can be treated as a “work for hire” 
 only if there’s an agreement and the work falls into one of several classes: 
 “a work specially ordered or commissioned for use as a contribution to a 
 collective work, as a part of a motion picture or other audiovisual work, as 
 a translation, as a supplementary work, as a compilation, as an 
 instructional text, as a test, as answer material for a test, or as an 
 atlas, if the parties expressly agree in a written instrument signed by them 
 that the work shall be considered a work made for hire.” 17 USC 101. A 
 press release would not be a work for hire, for instance. 
 
 
 
 (2) A photographer’s work would generally not qualify for 
 being a work for hire, either. 
 
 
 
 (3) Of course, even if a work isn’t a work for hire, the 
 copyright can be assigned by a signed writing. But I don’t see what that 
 has to do with the compelled-creation-of-expression issue. If I go into 
 freelance press release writing, I think I ought to be free to say to the 
 Church of Scientology, “No, I’m not going to write a press release for you 
 promoting your religious events, because I disapprove of your religion.” 
 And that is true regardless of who would own the copyright in the resulting 
 press release. My objection isn’t to being required to own a copyright. My 
 objection is to having to write things that I think it’s wrong for me to 
 write. 
 
 
 
 Eugene 
 
 
 
 From: religionlaw-boun...@lists.ucla.edu

Re: A right not to be compelled to create expression?

[Len]

Regardless of the models, I did not pay thousands for my photos. A few hundred 
for the graduation photos, and a few hundred for the wedding photos 30 years 
ago. 

It is my understanding that the studio protects all photos by way of copyright 
that are posted and accessed via its website services. That condition would 
make sense, as it protects the clients as well as itself. However, that was a 
service I wasn't interested in, and purchased one of their more traditional 
packages. 

How interesting that my experience was so unusual. 


So, in your opinion, I retain copyright to the oil-on-canvas portraits I was 
commissioned to do in the mid 1970's? Interesting. True, there aren't many 
(seven) and I was paid cash, but I was able to eat and to put gas in my place 
of lodging. Would I now be able to demand access to these works, photograph 
them and use them in a portfolio? 

I apologize to all, but I've had some disappointing experience with 
intellectual property rights. A firm I worked for many years ago demanded that 
I sign over rights to a RD project I had worked on for two years, in exchange 
for wages already paid. I had not been under such an agreement up until that 
time. The license to that work was then sold to a high-profile client for an 
amount in the low seven figures. The firm's attorney threatened me with legal 
action if I did not sign off and accept the token $1. I did, and was terminated 
three weeks later. My name remains on six of the patents, however. To me 
they're worth exactly the value of the paper they're printed on. 

I have been required to sign over intellectual property rights as a condition 
of hire ever since. The conditions even include any items I might design or 
invent on my own time that are unrelated to the company's business. Many people 
I've worked with have also had to sign non-compete clauses, which have kept 
talented (and well-paid) engineers out of work for years, effectively ending 
their careers. 

I therefore don't have a high regard for such laws. 

More relevant to the topic, I think it is rather sad and pathetic that the work 
of an artisan who mechanically produces work for hire is considered to be on 
par with an artist who produces creative work. This lumps in and treats as 
equals the neighborhood photographer with Annie Leibovitz and Ansel Adams. 

Producing memorabilia is not art, it is a craft. I'm sure all present know the 
difference, or should. 

I understand what the laws say and have read the commentaries with great 
interest. In my opinion mere competence with a camera is not art. Art, and 
therefore speech is something else. I'm sure no one here will mind that I don't 
repeat the obvious Dickensian reference. 

Thanks for your patience. 

-Z 

- Original Message -
From: Mark Scarberry mark.scarbe...@pepperdine.edu 
To: religionlaw@lists.ucla.edu 
Sent: Sunday, August 25, 2013 6:11:09 PM 
Subject: Re: A right not to be compelled to create expression? 


My wife tells me there are now two models. 


1. Photographer retains copyright, and you buy the photos you want. 


2. You pay multi-thousands of dollars up front. Then the photographer takes 
lots and lots of pictures and sends you the CD (or DVD), and you do what you 
want with them. This approach would require an assignment of copyright from the 
owner (the photographer) to you. 


Mark Scarberry 
Pepperdine University School of Law 





Sent from my Verizon Wireless 4G LTE Smartphone 


 Original message  
From: Len campquest...@comcast.net 
Date: 08/25/2013 10:28 AM (GMT-08:00) 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Subject: Re: A right not to be compelled to create expression? 




You may be pretty sure, but I'm absolutely certain that the photos I purchased 
from our wedding photographer, as well as all school and graduation photos, are 
owned by me and not the photographer. I purchased them, and own the rights. 
That's what I paid for. For the photographer to retain any rights to these 
photos, I would have had to sign a model waiver, which I did not. 

Thanks, 

-Z 


- Original Message -
From: Alan Hurst alan.hu...@aya.yale.edu 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Sunday, August 25, 2013 12:33:30 PM 
Subject: Re: A right not to be compelled to create expression? 

I'm pretty sure that Eugene is correct--freelance wedding photographs 
are generally protected under the category of pictorial, graphic, or 
sculptural works, and as such are not eligible to be works for hire. 
(Photographs submitted to magazines or newspapers are treated 
differently, as they are contributions to a collective work.) 
Ownership of the copyright may be assigned, but the author of the work 
for purposes of copyright law remains the photographer regardless of 
any prior agreement between the parties. 

Eugene is also correct that it's hard to see what this has to do with 
the photographer's Free

Re: A right not to be compelled to create expression?

[Len]

That is not my experience. I retained all copies and negatives of our wedding 
photos, and more recently we we purchased a CD of our son's graduation photos, 
from which I can print (or email or whatever) whatever I like. 

Also, I fail to see how a photographer is participating in a wedding ceremony 
and reception, any more than the bartender or the limo driver is 
participating. Rather, it seems to me that a photographer is merely service 
for hire, and is recording the event. When one hires a plumber or an 
electrician, it is their knowledge and expertise you're paying for, above the 
cost of materials. They are not participating in your lifestyle -- whatever 
that is. 

Wouldn't a businessperson acting in a professional manner instead be more 
diplomatic -- and steer a customer he/she didn't like to another professional 
whose tastes and experience may be better suited to your expectations. My 
point is that a customer can be redirected in such a way that they feel they 
are being served with some respect. Instead, the photographer in question 
appears to have acted otherwise. 

- Original Message -
From: Mark Scarberry mark.scarbe...@pepperdine.edu 
To: religionlaw@lists.ucla.edu 
Sent: Saturday, August 24, 2013 2:23:51 PM 
Subject: Re: A right not to be compelled to create expression? 


Professional photographers generally retain copyright to graduation photos, 
wedding photos, etc., so you have to go back to them for additional prints. At 
least that's my experience. 


Mark Scarberry 
Pepperdine University School of Law 





Sent from my Verizon Wireless 4G LTE Smartphone 


 Original message  
From: Gaubatz, Derek dgaub...@imb.org 
Date: 08/24/2013 10:57 AM (GMT-08:00) 
To: 'religionlaw@lists.ucla.edu' religionlaw@lists.ucla.edu 
Subject: Re: A right not to be compelled to create expression? 



Actually, the creator is the copyright owner of the work unless the purchaser 
successfully negotiates for a work for hire agreement. 



From : Marci Hamilton [mailto:hamilto...@aol.com] 
Sent : Saturday, August 24, 2013 01:26 PM 
To : Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc : Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Subject : Re: A right not to be compelled to create expression? 


Point of law-- Most freelancers are subject to work for hire agreements that 
divest copyright and make the purchaser the owner of the speech for all 
purposes. 

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





On Aug 24, 2013, at 12:37 PM, Volokh, Eugene  vol...@law.ucla.edu  wrote: 







Well, New Mexico law covers “any establishment that provides or offers its 
services ... to the public, but does not include a[n] ... establishment that is 
by its nature and use distinctly private.” That does mean that a freelance 
writer who only writes on behalf of a limited set of clients, rather than 
offering his services to the public at large, wouldn’t be covered by this 
particular statute. But a freelance writer who does promote his services to the 
public would qualify, even if he exercises some selectivity. (Indeed, Huguenin 
says that there are other photography commissions she won’t take, such as for 
pornography, horror films, and the like, though chances are that she won’t even 
be approached for them in the first place. Conversely, my sense is that many 
freelance writers who offer to hire themselves out to the public will take the 
great majority of jobs that come their way, even though they too would draw the 
line somewhere.) So I can’t see how such freelance writers would be immune. 



But in any event, even if a freelance writer or photographer is unselective, I 
can’t see how that person’s expression isn’t “her own.” To be sure, the public 
might not see an unselective photographer’s/writer’s speech as equally 
expressing her own ideology. But the writer or photographer would still be 
creating the expression herself, using her own artistic and literary creative 
judgment. 



The question, then, is: Should people have a right not to be compelled to 
create expression they think is wrong, just as they have a right not to be 
compelled to distribute expression they think is wrong? It seems to me that the 
logic of Wooley should extend equally to both rights. If Maynard can’t be 
required to carry the motto “Live Free or Die” on his car, then a Maynard who 
is a generally will-take-most-commissions freelance writer can’t be required to 
write a press release or organizational newsletter that expresses the view 
“Scientology is good.” Indeed, the requirement to actually create expression 
seems much more burdensome than simply the requirement to carry a slogan on 
one’s car. 



Finally, note that the New Mexico Supreme Court expressly disclaimed any 
argument that mere wedding photography is just too banal to be expressive for 
purposes of this analysis (not that 

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

Next up, a lawsuit  seeking on religious liberty grounds the ability to obtain 
a health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 







- Original Message -


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




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


Eduardo 












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





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


Howard Friedman ___ 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. 
___ 
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messages to others.

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

 I assume they were serious and hope they were.   



Some of both. 



May I also suggest a compelling interest to provide coverage for late-term 
theraputic abortion, for the purpose of saving the life of the mother?  For 
example:  fetal death at 28 weeks, with no natural expulsion of the fetus, 
resulting in sepsis and death of the mother when the fetus is not removed 
surgically.  Unfortunately, this is not a hypothetical -- my wife's mother died 
this way. 



Thanks 



- Original Message -


From: Marci Hamilton hamilto...@aol.com 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu, 
Len campquest...@comcast.net 
Sent: Thursday, August 15, 2013 12:33:14 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


I assume they were serious and hope they were.   


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

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





On Aug 15, 2013, at 11:53 AM, Tracey, Timothy  ttra...@avemarialaw.edu  
wrote: 





I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.   


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


On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 
blockquote




Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 

  

  

  

- Original Message -




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




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


Eduardo 












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





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


Howard Friedman ___ 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. 



CONFIDENTIALITY NOTICE: This e-mail transmission

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

I also suggest that in the interest of compassion  consideration might be given 
to ectopic and anencephalic pregnancies. 



Thanks. 





- Original Message -


From: Len campquest...@comcast.net 
To: Marci Hamilton hamilto...@aol.com 
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Thursday, August 15, 2013 2:03:32 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




 I assume they were serious and hope they were.   

  

Some of both. 

  

May I also suggest a compelling interest to provide coverage for late-term 
theraputic abortion, for the purpose of saving the life of the mother?  For 
example:  fetal death at 28 weeks, with no natural expulsion of the fetus, 
resulting in sepsis and death of the mother when the fetus is not removed 
surgically.  Unfortunately, this is not a hypothetical -- my wife's mother died 
this way. 

  

Thanks 



- Original Message -




From: Marci Hamilton hamilto...@aol.com 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Cc: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu, 
Len campquest...@comcast.net 
Sent: Thursday, August 15, 2013 12:33:14 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


I assume they were serious and hope they were.   


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

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





On Aug 15, 2013, at 11:53 AM, Tracey, Timothy  ttra...@avemarialaw.edu  
wrote: 





I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.   


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


On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 
blockquote




Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 

  

  

  

- Original Message -




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




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


Eduardo 












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





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


Howard Friedman ___ 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

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

 As far as I understand the situation, no one legally objects to the health 
 (unrelated to reproduction) use of the pill.  

If an employer objects to coverage for contraceptives, how is he to tell the 
difference without prying into his employee's medical condition? Isn't there a 
potential HIPAA violation in there somewhere? 



- Original Message -
From: Ed Darrell edarr...@sbcglobal.net 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Thursday, August 15, 2013 3:16:01 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


A good, too-often, too-badly needed reality check, Marci. Thanks. 

I still wonder whether there is any controversy here to adjudicate. Why cannot 
the plaintiff simply refuse the coverage? Or refuse contraception? 

I'm partly reminded by my 7th-Day Adventist end of the family, and my Uncle 
Roland Christian. He was a bit up in the hierarchy of the church, and as some 
Adventists do, he and his wife abstained from coffee. 

So, we were surprised at one visit when, at a restaurant, he made a relatively 
big deal about ordering a therapeutic cup of coffee after dinner. Eventually 
he explained that both of them had been diagnosed with low blood pressure at 
Loma Linda Hospital. Their Adventist physician gave them a choice of a pill, at 
about $1 a day each, or taking a cup of coffee in the morning, and one in the 
evening. Back then you could still get a decent cup at most restaurants for 
less than 50 cents. They chose the coffee. 

He said with a wink that it was not a sin if he didn't enjoy it, too much. 

There are alternative solutions well short of the legal system for a lot of 
these issues, it seems to me. 

Ed Darrell 
Dallas 








From: Michael Worley mwor...@byulaw.net 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Thursday, August 15, 2013 11:52 AM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




As far as I understand the situation, no one legally objects to the health 
(unrelated to reproduction) use of the pill. 

As to those whose religion requires contraception, religious adherents cannot 
force the government to buy for them wine for sacraments, or even bandaids for 
cuts, even if they are mandated by religion. We do not have laws forbidding 
reproduction by certain couples if there is a risk of disability-- thus, while 
we approach the issue from different angles, Marci's compelling interest 
arguments do not strike me as plausible given present jurisprudence. Unjust 
from a point of view, sure, but hardly a compelling interest by the 
government-- certainly a personal compelling interest, but so is three meals a 
day. 

We don't have a constitutional right to food (though government programs 
thankfully assist with this). To state someone's personal compelling interest 
in purchasing a product translates to the state's compelling interest in 
providing a product is not supported by case law. Personal interests provide 
governmental rational basis, of course, but not a governmental compelling 
interest. 


Just my 2¢, 


Michael 




-- 
Michael Worley 
BYU Law School, Class of 2014 



On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton  hamilto...@aol.com  wrote: 




I assume they were serious and hope they were. 


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling. If you cannot go to 
work for 5 days every month because of the severity of your periods, there is a 
compelling interest for the employer, employee, and the govt to make such 
treatments available. If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

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







On Aug 15, 2013, at 11:53 AM, Tracey, Timothy  ttra...@avemarialaw.edu  
wrote: 


blockquote


I hope that neither you nor Eduardo are serious in your responses. The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion. The government obviously has a compelling interest in the former 
but certainly not in the latter. 


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

On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 
blockquote



Next up, a lawsuit seeking on religious

Re: Marriage -- the Alito dissent

[Len]

How so, Bob? Please explain why the state may interfere in our decision whether 
to have children or not, or HOW, and why procreation should be a prescribed 
goal of marriage? 

Marriage is a contract between two consenting individuals. The terms of that 
marriage are up to the parties involved, presumably so long as no laws are 
broken. 

I think a good argument may be made that population growth is unsustainable, 
but I don't recall that its ever been asserted by government that whether one 
has children or not is a state interest. Except in China, and we see it's 
working well for them. 


- Original Message -
From: b...@jmcenter.org 
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 10, 2013 11:26:02 PM 
Subject: Re: Marriage -- the Alito dissent 


Len, 

Given the extreme overpopulation of the U.S. and the world, the state does 
indeed have a substantial interest -- at least in the number of children 
parents produce. (The current population footprint is not environmentally 
sustainable.) 

Bob Ritter 

On July 3, 2013 at 10:17 PM Len campquest...@comcast.net wrote: 



This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age. Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests. 

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.) 



From: Sanford V Levinson slevin...@law.utexas.edu 
To: Mark Scarberry mark.scarbe...@pepperdine.edu, Law  Religion issues 
for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 3, 2013 9:49:40 PM 
Subject: RE: Marriage -- the Alito dissent 




I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age? Why can’t the state come to the altogether rational conclusion that 
it is really unwise for, say, a 55-year-old couple to have children unless the 
couple has enough resources to cover the costs of taking care of children even 
after their retirement (not to mention covering the costs of likely medical 
care)? I agree that is probably not a compelling state interest, at least in a 
quasi-libertarian society, but I certainly think it is at least a rational, 
say, as the defenses being asserted for DOMA. Of course it may be that medical 
advances in the future will make Sarah and Abraham models to emulate, though I 
tend to be skeptical. In any event, Abraham was a dreadful father who proved 
willing to kill his child because of a totally arbitrary command to do so. (It 
is irrelevant that, at least according to the Bible, God sent the innocent lamb 
to be sacrificed instead There are Midrash, incidentally, that suggest that no 
lamb appeared, which explains why only Abraham climbed down the mountain and 
Isaac was not heard from again for three years, by which time Sarah was dead. 
One can only imagine the conversation that ensued when Abraham came back to the 
tent without Isaac and had to explain why he was alone. He’s lucky that she 
didn’t kill him then and there. But I digress….) 



sandy 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark 
Sent: Wednesday, July 03, 2013 8:12 PM 
To: religionlaw@lists.ucla.edu 
Subject: Re: Marriage -- the Alito dissent 




The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 





With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 





With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 





Mark Scarberry 






Sent from my Verizon Wireless 4G LTE Smartphone 
___ 
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Re: Marriage -- the Alito dissent

[Len]

I am going to step out of lurking mode for a change. Some of this conversation 
is fascinating. 

Someone please answer me this: Why cannot both the conjugal and consent 
definitions also apply to SSM's rather than only the latter? Obviously the 
conjugal view requires a third party at a certain crucial point, but some gay 
couples do happen to commit for the purpose of raising families, whether 
blended or new (via adoption, surrogate or in vitro), so long as intrinsically 
ordered is not a sneaky euphemism for biologically. 

The way I see it (and have seen it), either view applies regardless of the 
orientation of the couple. 

For that matter, being biologically ordered also doesn't work for some 
straight couples, who are biologically incapable of conceiving, sometimes for 
purely natural reasons. I'm sure many on this list know of a few examples. 


Thanks, 

Len Zanger 
Camp Quest 



- Original Message -
From: Stuart Buck stuartb...@msn.com 
To: Religion Law religionlaw@lists.ucla.edu 
Sent: Wednesday, July 3, 2013 5:24:24 PM 
Subject: RE: Marriage -- the Alito dissent 


Marty-- 


Why do you say that footnote is extraordinary? 


Best, 
Stuart 



From: lederman.ma...@gmail.com 
Date: Sat, 29 Jun 2013 10:55:27 -0400 
Subject: Marriage -- the Alito dissent 
To: conlawp...@lists.ucla.edu; religionlaw@lists.ucla.edu 

I'm surprised there hasn't been more attention paid to the quite remarkable 
dissent that Justice Alito filed in Windsor. In it, he contrasts two competing 
views of marriage: what he calls the conjugal view, in which marriage is the 
solemnizing of a comprehensive, exclusive, permanent union that is 
intrinsically ordered to producing new life, even if it does not always do so 
(citing Robby George); and the “consent-based” concept of marriage, a vision 
that primarily defines marriage as the solemnization of mutual 
commitment—marked by strong emotional attachment and sexual attraction—between 
two persons. As Alito notes, At least as it applies to heterosexual couples, 
this [consent-based] view of marriage now plays a very prominent role in the 
popular understanding of the institution. Indeed, our popular culture is 
infused with this understanding of marriage. [Just as an aside: What is the 
purpose and implication of his adding At least as it applies to heterosexual 
couples?] 

Altio's view is that the judiciary can't possibly give preference to one or the 
other of these two views: Windsor and the United States implicitly ask us to 
endorse the consent-based view of marriage and to reject the traditional view, 
thereby arrogating to ourselves the power to decide a question that 
philosophers, historians, social scientists, and theologians are better 
qualified to explore. [FN7 -- on which more below] Because our constitutional 
order assigns the resolution of questions of this nature to the people, I would 
not presume to enshrine either vision of marriage in our constitutional 
jurisprudence. 

Legislatures, on the other hand, apparently can do so: Legislatures, however, 
have little choice but to decide between the two views . We have long made 
clear that neither the political branches of the Federal Government nor state 
governments are required to be neutral between competing visions of the good, 
provided that the vision of the good that they adopt is not countermanded by 
the Constitution. Accordingly, both Congress and the States are entitled to 
enact laws recognizing either of the two understandings of marriage. 

I'd be curious what others think of this reasoning. For now, just some short, 
initial observations about Alito's view of the legislative function, before 
turning to his extraordinary footnote 7: 

First, Alito does not appear to distinguish at all between the meaning of 
marriage in religious and philosophical traditions, and the meaning of 
state-conferred marriage licenses . Windsor and Perry, of course, only involve 
the latter -- that is to say, they are merely about state action , and the 
meaning and effect of a state-conferred status , not the institution of 
marriage through the ages. 

Second, in light of how states in this nation actually implement that 
governmental function -- most obviously, by affording marital status to many 
heterosexual couples who cannot or will not procreate -- is it really fair to 
say that those states' marriage laws are designed to solemnize a 
comprehensive, exclusive, permanent union that is intrinsically ordered to 
producing new life, even if it does not always do so? That is to say, haven't 
the states chosen the consent-based view of marriage . . . and, if so, 
shouldn't the exclusion of same-sex couples be considered on that basis? (As 
Alito acknowledges, the consent-based view now plays a very prominent role in 
the popular understanding of the institution. Indeed, our popular culture is 
infused with this understanding of marriage. Wouldn't we therefore expect that 
state marriage laws reflect

Re: Marriage -- the Alito dissent

[Len]

I think the assumption is, that opposite-sex couples are expected to have 
children in the normal way, while same-sex couples cannot. This is a poor 
assumption. My point is that with increasing frequency straight couples cannot, 
which puts them (us) in the same predicament as same-sex couples. 

With increasing frequency, same-sex couples choose to raise a family -- by 
whatever means, and I think that our reasonable observer realizes this, and it 
will soon become a normal expectation if it hasn't already. Just like straight 
folks. I think that the conjugal view is actually elastic enough to 
incorporate this. In any case I do not see exclusionary language in the 
definition. 

Thanks again. 

-Z 


- Original Message -
From: Mark Scarberry mark.scarbe...@pepperdine.edu 
To: religionlaw@lists.ucla.edu 
Sent: Wednesday, July 3, 2013 9:12:14 PM 
Subject: Re: Marriage -- the Alito dissent 


The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 


With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 


With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 


Mark Scarberry 



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Re: Marriage -- the Alito dissent

[Len]

This is going to sound awfully libertarian of me, but it's none of the state's 
business whether a couple has children or not, regardless of age. Rather it is 
my understanding that the care and treatment of children resulting from a given 
union (by whatever means) are appropriate state interests. 

(Not only was Abraham not a model parent, but also reads as an extortionist and 
pimp.) 


- Original Message -
From: Sanford V Levinson slevin...@law.utexas.edu 
To: Mark Scarberry mark.scarbe...@pepperdine.edu, Law  Religion issues 
for Law Academics religionlaw@lists.ucla.edu 
Sent: Wednesday, July 3, 2013 9:49:40 PM 
Subject: RE: Marriage -- the Alito dissent 




I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age? Why can’t the state come to the altogether rational conclusion that 
it is really unwise for, say, a 55-year-old couple to have children unless the 
couple has enough resources to cover the costs of taking care of children even 
after their retirement (not to mention covering the costs of likely medical 
care)? I agree that is probably not a compelling state interest, at least in a 
quasi-libertarian society, but I certainly think it is at least a rational, 
say, as the defenses being asserted for DOMA. Of course it may be that medical 
advances in the future will make Sarah and Abraham models to emulate, though I 
tend to be skeptical. In any event, Abraham was a dreadful father who proved 
willing to kill his child because of a totally arbitrary command to do so. (It 
is irrelevant that, at least according to the Bible, God sent the innocent lamb 
to be sacrificed instead There are Midrash, incidentally, that suggest that no 
lamb appeared, which explains why only Abraham climbed down the mountain and 
Isaac was not heard from again for three years, by which time Sarah was dead. 
One can only imagine the conversation that ensued when Abraham came back to the 
tent without Isaac and had to explain why he was alone. He’s lucky that she 
didn’t kill him then and there. But I digress….) 



sandy 





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark 
Sent: Wednesday, July 03, 2013 8:12 PM 
To: religionlaw@lists.ucla.edu 
Subject: Re: Marriage -- the Alito dissent 




The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points: 





With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.) 





With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate. Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit. 





Mark Scarberry 






Sent from my Verizon Wireless 4G LTE Smartphone 
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