RE: Child Evangelism Fellowship v. Montgomery County
The majority reports that the District properly conceded that the flyers
contained no evangelical or overtly religious language. Why is this
relevant? If the court's theory is an absence of coercion, than should not
even evangelical or overtly religious literature be permitted? {The Ninth
Circuit in the Scottsdale case similarly held that overtly religious flyers
could be excluded form a distribution program.)
Marc Stern
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Wednesday, June 30, 2004 6:29 PM
To: Law Religion issues for Law Academics
Subject: RE: Child Evangelism Fellowship v. Montgomery County
I'm puzzled by Judge Michael's coercion argument: The
Establishment Clause forbids a state from coercing 'anyone to
support or participate in religion or its exercise.' If the Montgomery
County Public Schools (the School System) give Child Evangelism
Fellowship of Maryland, Inc. (CEF) access to the School System's
take-home flyer forum, elementary students will be required to
distribute CEF's religious flyers to their parents. The students, in
other words, will be coerced to participate in a religious activity in
violation of the Establishment Clause.
The students wouldn't be asked to say anything religious, or
endorse religion -- they'd be asked to deliver a piece of paper,
something no different than a postman would do when told to deliver
religious materials. If the postman can be required to deliver
religious materials alongside everyone else without this being
unconstitutional coercion -- presumably because he's being required to
engage in a secular task, the delivery of mail, even though the mail
happens to be religious -- then why would the child be any different?
(See the majority, note 8.)
Nor does it matter, I think, that these are impressionable
elementary school students. Why would even a 9-year-old, when told to
bring a flyer to his parents, wrongly but reasonably feel this to be a
religious exercise?
Eugene
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RE: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County
Title: Message In earlier case, Peck v Upshur County, dealing with distribution of literature to students from tables-a policy far preferable to the one upheld yesterday by the Fourth Circuitthe Fourth Circuit held that a public forum was created by the school when it allowed distribution of community literature even though it reserved the right to exclude material inconsistent with the schools educational policy. Yesterdays decision rests on the same idea-one I think at odds with the notion of a public forum. In Peck, the Court held equal access rights did not apply to elementary school students-a holding sub silentio overruled in the Montgomery County case. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Thursday, July 01, 2004 10:35 AM To: Law Religion issues for Law Academics Subject: Child Evangelism Fellowship v. Montgomery County -- the View fromMontgomery County 1. For example, it's entirely possible for the school to have content-neutral standards of review for the announcements. Of course it is. But no school in the Nation does.Indeed, no school is even viewpoint-neutral. It is virtually unthinkable that a school would permit distribution in student backpacks of many, many forms of content/viewpoint -- for instance, all those that are entitled to second-class mailing privileges(Hannegan v. Esquire) or all those that are entitledaccess to a public forum. 2. Instead of concluding there is no viewpoint discrimination, the more logical answer is that both excluded speakers should have a claim under the Free Speech Clause. My claim was not that there is no viewpoint discrimination: My argumentis that there is tons of viewpoint discrimination in such programs, constantly, and that there's nothing constitutionally problematic about it. You are correct,however, that the upshot of the CTA4 decision is that both -- that is to say, all -- excluded speakers now have a claim under the Free Exercise Clause: The Bush and Kerry (and Nader, and Young Socialist Workers, and . . . )campaigns, the NRA, NARAL, the Bad News Club, etc., etc. -- loads of _expression_that is entirely inappropriate for a public school to be facilitatingto their charges. And thus we see the end of the program. 3.Surely if a school had a release time program [teachers in classrooms] could make an annoucement about that. An announcement that the bus is there to drive kids to the religious school -- maybe. An announcement such as that on the flyers in this case, i.e., an advertisement for religious programs? I think not. Teachers often -- and quite appropriately -- encourage their students to do this, that and the other thing after school or over the summer. But they may not advise their students to adopt certain religious precepts, or to check out certain religious clubs. The obvious elephant in the middle of the room in these cases, onethat the courts (and litigants) tend for some reason to ignore, is the simple fact that schoolsdo censor the speech with which they are associated -- especially when the association is (or is likely to be perceived as) especially strong, as when schools send information home with students. The censorship is not in order to disfavorreligious (or any other) viewpoints, but instead simply to avoid facilitating messages that are likely to be controversial or to be seen as inappropriate by parents. So Kerry for President, the Klan, Planned Parenthood's exhortation to use birth control, some other group's exhortation to abstinence -- all will be screened out by virtuallyevery public school system in the country. Not because the school disapproves -- andno one should assume otherwise -- but because the school does not want to be associated, however loosely, with encouraging its students to adopt or to reject any divisive or controversial viewpoint. That is the baseline against which an exclusion ofthe Good News flyer has to be measured -- not some hypotheticalbaseline under which schools do not, or are not permitted to, do such screening (however much some might wish that that were, in fact, the rule). And against that baseline, exclusion of theGood News flyer should be unproblematic -- while inclusiongives religious speech a preferred status enjoyed by no (or almost no) other political or controversial speech. - Original Message - From: Derek Gaubatz To: Law Religion issues for Law Academics Sent: Thursday, July 01, 2004 10:47 AM Subject: RE: Child Evangelism Fellowship v. Montgomery County -- the ViewfromMontgomery County At least3 assumptions in Marty's postbelow seem problematic to me: First, the assumption that one must conclude that theschool officially endorses the content of the annoucement because it looked it over first before allowing it to be distributed. Why is this so? For example, it's entirely
RE: B'nai Brith Canada wins in landmark supreme court caseonreligious freedoms
THE OPINION IS AT WWW.LEXUM.UMONTREAL.CA/CSC-SCC/EN/REC/HTML/2004SCC047.WPD.HTM Marc STERN -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Nathan Oman Sent: Thursday, July 01, 2004 2:52 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics Subject: Re: B'nai Brith Canada wins in landmark supreme court caseonreligious freedoms Doug, Was the condiminium corporation at issue here a public housing facility, or does the Charter of Rights apply to private actors as well? Nate Oman -- Original Message -- From: Douglas Laycock [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics [EMAIL PROTECTED] Date: Thu, 01 Jul 2004 14:45:26 -0500 This is not my prose, but someone else's press release -- B'nai Brith Canada's I think. I doubt we could get the same result in many U.S. jurisdictions. B'nai Brith Canada wins in landmark supreme court case on religious freedoms FOR IMMEDIATE RELEASE June 30, 2004. MONTREAL - In a landmark ruling, the Supreme Court of Canada has upheld the rights of all Canadians to follow their religious practices without interference by the courts. In what is widely seen as an illustration of this point, the Supreme Court of Canada has ruled that Jewish condominium owners in a Montreal building have the right to set up their own personal Succahs, temporary religious huts that are constructed in celebration of the Jewish holiday of Succot. B'nai Brith Canada's League for Human Rights had intervened in the matter following the initial refusal of the condominium corporation to allow observant Jewish residents to construct individual huts on their own balconies. Allan Adel, National Chair of B'nai Brith's League for Human Rights, reacting to the news, stated: We are satisfied with the decision of the Supreme Court, which has applied a broad interpretation to the Charter guarantee of freedom of religion and believe it to be in the best interests of all Canadians. The Succah ruling is an important, groundbreaking case that champions the cause of religious freedom in Canada and will have important ramifications well beyond the immediate facts of the case. Montreal lawyer Steven Slimovitch along with B'nai Brith's Senior Legal Counsel David Matas, represented the League before the Court. Slimovitch, acknowledging that he was pleased with the verdict stated: This decision sets an important precedent for the exercise of sincerely held religious beliefs. The High Court has upheld B'nai Brith's argument that State should not be the final arbiter of religious dogma. Rather, this must be a private matter set by each individual. Established in 1875, B'nai Brith is the Canadian Jewish community's leading human rights agency. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- Nathan Oman http://www.tutissima.com http://www.timesandseasons.org -- ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Fw: *Sightings* 6/24/04 -- Confidences
The opinion says not a word about standards for pastoral counseling. That was the writer of the Sightings piece editorial interpolation. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, June 24, 2004 3:53 PM To: Law Religion issues for Law Academics Subject: Re: Fw: *Sightings* 6/24/04 -- Confidences I don't think Rev. Westbrook can have it both ways. Secular counseling by psychologists, psychiatrists, social workers, and the like is heavily regulated. Pastoral counseling is not, and in my view cannot be. But as long as that distinction holds, there have to be clear lines and clear disclosure. A counselee is entitled to know whether she is consulting a secular counselor, who will use secular methods and be subject to secular regulation, or a religious counselor, who may use quite similar methods or who may use dramatically different methods. When this guy got himself licensed as a secular counsel, he submitted to secular regulation. If he had remained a purely pastoral counselor, and she had consulted him on those terms, I think the standards of other pastoral counselors, and their association that is no doubt dominated by folks from much more mainline denominations than Westbrook's, should have been utterly irrelevant. At 02:47 PM 6/24/2004 -0500, you wrote: This is part of Martin E. Marty's list. While I don't find the pastoral counseling standards argument legally persuasive, I think the general holding does appear to accord with Smith. - Original Message - From: Sightings To: [EMAIL PROTECTED] Sent: Thursday, June 24, 2004 8:13 AM Subject: *Sightings* 6/24/04 -- Confidences Sightings 6/24/04 Confidences -- Duane R. Bidwell A minister who is licensed by the state of Texas as a mental-health professional cannot claim First Amendment protections for a breach of confidentiality, a Texas appeals court has ruled. The case alleges that Fort Worth minister C. L. Buddy Westbrook, a licensed professional counselor and pastor of Crossland Community Bible Church, broke confidence when he wrote a letter to his congregation directing church members to avoid contact with a woman until the time of repentance and restoration. The action was necessary, he wrote, because she was engaging in a biblically inappropriate relationship and seeking a divorce. Under the congregation's bylaws, church members can be disciplined for behaviors the congregation considers inappropriate. But the woman, who had resigned from the church prior to Westbrook's letter, says the information he shared was obtained during a counseling relationship and is therefore privileged. A pastor's right to discipline church members -- even by revealing confidential information -- seems a cornerstone of Westbrook's defense. Earlier, a state district judge threw out the case because it applied a secular standard to a church conflict. This implies that the pastor's actions are protected by the First Amendment as freedom of religion. But last month the 2nd Court of Appeals in Fort Worth ruled that the lawsuit could move ahead because the pastor is a licensed professional counselor and therefore accountable to professional standards for confidentiality established by the Texas Professional Counselor Act. The plaintiff, appeals court Judge Anne Gardner wrote, has a viable claim involving the pastor's alleged breach of duty in his secular counseling role that does not implicate the propriety of the church's disciplinary action. The decision seems consistent with the U.S. Supreme Court's 1990 ruling in Employment Division vs. Smith that generally applicable laws, such as those governing professional counselors, may be applied even if they restrict religious freedom. When Westbrook revealed private information obtained through a counseling relationship, he violated Texas standards for licensed counselors -- standards he agreed to follow when he sought and received state licensure. But licensed or not, he also flouted well-established ethical guidelines for the practice of pastoral counseling and standards for professional conduct established by many denominations and honored by most ministers. The Code of Ethics of the American Association of Pastoral Counselors (AAPC) specifically states: We do not disclose client confidences to anyone, except: as mandated by law; to prevent a clear and immediate danger to someone; in the course of civil, criminal or disciplinary action arising from the counseling where the pastoral counselor is a defendant; for purposes of supervision or consultation; or by previously obtained written permission. Westbrook is not a certified pastoral counselor, an AAPC member, or a staff member at an accredited pastoral counseling center. But even if he cannot be held to the professional standards of the pastoral counseling community, the policies of most Christian denominations would call his behavior into question
RE: Justice Thomas in Newdow
What do you mean by non-religious people?. Atheists (and anyone else) can certainly claim protection under the Clause from coerced participation in religious exercises. Whether they can insist on protection for strongly held secular philosophical beliefs depends on whether on e believes that the First Amendment must be read as if constricted by strong g notions of equal treatment, or whether it is a special settlement for religious believers. Given the strong egalitarian bent in our society, the latter is understandably a difficult proposition to accept, but it may be what the Founders intended-and it seems to be what the Court thought in Yoder, pace Welsh-Seeger. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, June 22, 2004 2:10 PM To: [EMAIL PROTECTED] Subject: Re: Justice Thomas in Newdow In a message dated 6/22/04 1:21:37 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: To bet everything on the FE clause is a risky proposition, perhaps even extreme. And please correct me if I am wrong because I tell my students this--that nonreligious people cannot claim any Free Exercise rights or protection. Frances R. A. Paterson, J.D., Ed.D. Associate Professor Department of Educational Leadership Valdosta State University Valdosta, GA 31698 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Justice Thomas in Newdow
Isn't it the case that whether Thomas is correct or not depends in part on whether only the text of the constitution (or the text and original intent) is a relevant datum or whether accumulated cases law also counts as constitutional law. On the text only vision of constitutional law, Thomas has at least something to say, even if I think, with Doug, that he is wrong; on the latter view, his opinion in the pledge case is simply an anomaly. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, June 17, 2004 4:21 PM To: Law Religion issues for Law Academics Subject: Re: Justice Thomas in Newdow The LA Times story is available on Westlaw for those who would like to read it without giving their phone number and income to the LA Times. Expletives deleted. Obviously the way you would explain what is wrong with Thomas's opinion on this list is different from how you would capsulize it in a sentence or two (selected by the reporter) for an explanation to the public. But I do think that Thomas's opinion is both extreme and wrong. He did not say merely that the clause does not apply against the states. He also said that the clause creates no individual rights. The only apparent application of this second pronouncement is that it creates no individual rights against the federal government either. So every Establishment Clause case the Court has ever decided would be obliterated at a stroke. He seems to assume that the free exercise clause would prevent coerced attendance at religious services -- unless, we have to assume, the service is rather short and is incorporated into some other official event that people attend for secular reasons. I do not doubt that one meaning of the Clause in 1791 was that the federal government could not interfere with establishments in the states. But I am equally sure that one meaning of the Clause in 1791 was that the federal government could take no steps toward a federal establishment of religion -- not in the states, and not in the federal district either. Either a federal establishment or a federal interference with a state establishment would be a law respecting an establishment. The debate in the First Congress did not focus on the federalism implications. It focused on the meaning of establishment, and on how far the federal government should be restricted. The argument for prohibiting only preferential aid to favored denominations was rejected; the most broadly worded draft proposed was adopted. This of course goes to the debate over nonpreferentialism; but even before that, it goes to whether this Clause was only about federalism, or also about the proper relationship between religion and government. The debate was plainly about the latter; I think the federalism-only interpretation is demonstrably wrong. I'm not sure the federalism principle that can be derived from the verb respecting and the existence of state establishments is much different from the federalism principle that is implicit in the constitutional structure about other individual rights good only against the federal government. Certainly the federal government in 1791 had no general power to protect individual liberties against state restrictions on free speech (blasphemy, defamation, perhaps others) or free exercise (voting confined to Christians, or to Protestants; the Lousiana law on Catholic funerals that got to the Supreme Court in 1845 and produced a repeat of Barron v. Baltimore); or any other individual right. Any attempt to incorporate implicit and explicit rules that the federal government could not interfere with state restrictions on liberty would indeed lead to nonsense. What is incorporated is the protection for individual liberty in each constitutional right. The states cannot do to citizens what the feds could not do to citizens. The restrictions on government sponsorship of religion play an essential role in protecting the religious liberty of individuals; I am entirely comfortable concluding that those restrictions are a privilege or immunity of citizens of the United States, just like the restrictions on government interference with free speech or free exercise. I understand the argument that the Establishment Clause doesn't speak to what government can do to individuals in the same way as the other provisions of the Bill of Rights, but I think that badly underestimates the role of the Establishment Clause in protecting individual liberty. At 02:25 PM 6/17/2004 -0500, you wrote: Dear all, I apologize in advance, if I missed the list's discussion of Justice Thomas's views regarding the incorporation of the Establishment Clause. For what it's worth, I've been surprised by the vigor with which several prominent scholars have disapproved these views. Jack Balkin remarked
RE: The President and the Pope
Title: Message I agree with Eugenes implicit suggestion that there is a fair amount of hypocrisy at work here. Nevertheless, is it not possible to distinguish what Bush did, which was to interfere with the inner workings of a church(by suggesting that the Vatican ought to get its bishops in line),rather than publicly calling on church leaders to join in some public campaign? Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 15, 2004 12:21 PM To: Law Religion issues for Law Academics Subject: RE: The President and the Pope Sorry to sound like a broken record, but I wonder how this would have played out in other contexts. For instance, the abolitionist movement, the civil rights movement, and various anti-war and other movements have involved political-religious alliances on controversial public policy questions. (The abolitionist movement was of course indeed dangerous to the republic in the short term, though good in the long term.) I assume that many good, smart politicians would have seen the potential to build and strengthen such alliances, and I'd guess that they indeed did so. If in 1963, a government official called on Christian ministers to oppose racism and segretation and support civil rights, and asked them to assert that good Christians should oppose racism and segregation and support civil rights, would this really have been unconstitutional? If the official sought to strengthen the existing political-religious alliance between civil rights forces in politics and in churches, by bringing in some other religious groups, would that have been impermissible? It seems to me the answer must clearly be no: Religious groups and leaders are important sources of moral authority. To change people's actions and votes, one needs to appeal to their moral sense. If one wants the civil rights movement, the anti-abortion movement, the gay rights movement, or whatever other movement to succeed, one needs to build alliances with people who can speak the moral language of deeply religious people, and who can speak with moral authority to those people. Incidentally, here are a fewconcrete examples of other appeals to religious groups to join a political and moral fight: Natl Journal, Dec. 2, 1993: Speaking to black church leaders involved in a growing movement to address the disproportionate impacts of pollution on low-income minority communities, Vice President Gore today called on church leaders to join with the administration in healing our land. Following passionate appeals by leaders to Gore to take steps to confront the issue, Gore joined in condemning the injustice of dumping on those who are powerless. . . . . Washington Times, Sept. 30, 1999: President Clinton offered yesterday to forgive all the debt of poor countries that work to end hunger and poverty in the next millennium, and challenged Congress to approve $1 billion to finance the debt relief. . . . At a prayer breakfast this week, Mr. Clinton called on religious leaders to put the heat on Congress to approve the funding. . . . Atlanta Journal and Constitution, June 27, 1996: The Clinton administration, under fire from the nation's largest black church, pledged more than $ 40 million Wednesday to bolster community efforts to prevent church fires concentrated in the South. . . . Clinton called on the religious leaders to speak out against crimes of intolerance and to rededicate themselves to ethnic diversity and religious freedom. . . . Eugene Richard Schragger writes: It seems quite dangerous to a republic for its leaders to encourage and promote the formation of political-religious alliances on controversial public policy questions. To assert, even obliquely, that to be a good Catholic, one should vote Republican (for example), seems to invite the kind of religiously-identified factionalism that can lead to sectarian strife. If one takes seriously the Courts identification of government neutrality (or non-endorsement) as an essential attribute of non-Establishment, then a Presidential appeal to any one religious group or his efforts to create a political alliance with any one religious group seems problematic. It seems to me that the President has a constitutional obligation not to make statements or engage in conduct that encourages such alliances. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: The Merits in Newdow
Why? It is Virginia that has set up an establishment clause defense to the federal act. The Act itself purports to protect Free Exercise rights and Thomas does not contend these are not incorporated .And Thomas ash also joined opinions suggesting that what is permitted accommodation is not necessarily forbidden by the Establishment Clause. The prisoner plaintiff( respondent)is not contending that Virginias limited accommodation policy establishes religion by preferring main line faiths. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Monday, June 14, 2004 1:36 PM To: Law Religion issues for Law Academics; David Cruz; [EMAIL PROTECTED] Subject: Re: The Merits in Newdow Justice Thomas, by the way, would also hold that the Fourteenth Amendment does not incorporate the Establishment Clause: Quite simply, the Establishment Clause is best understood as a federalism provisionit protects state establishments from federal interference but does not protect any individual right. This suggests that Justice Thomas might be very sympathetic to the State of Virginia's federalism-based Establishment Clause argument in the(likely-to-be) upcoming case challenging the constitutionality of RLUIPA, Bass v.Madison. - Original Message - From: Marty Lederman To: David Cruz ; [EMAIL PROTECTED] ; Law Religion issues for Law Academics Sent: Monday, June 14, 2004 11:56 AM Subject: The Merits in Newdow The collection of concurrences on the merits are quite interesting. The Chief's opinion adopts the SG's argument -- darn-near-preposterous, IMHO (and that of Justice Thomas!)-- that the Pledge is OK in schools because under God is not endorsement of any religion, but instead a simple recognition of the fact [that]'[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God.' Justice O'Connor joins the Chief's opinion, but writes separatelyto suggest that the Pledge in schools is ok only because of a confluence of four factors that will virtually never again appear in combination in any other case. This result derives directly from pages 24-29 of the amicus brief that Doug Laycock wrote: http://goldsteinhowe.com/blog/files/newdow.laycock.pdf. Justice Thomas concludes -- correctly, in my view, see http://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf-- that if Lee v. Weisman was correctly decided, then public schools may not lead students in daily recitation of the words under God. Thomas, however, would overrule Lee. - Original Message - From: Marty Lederman [EMAIL PROTECTED] To: David Cruz [EMAIL PROTECTED]; [EMAIL PROTECTED] Sent: Monday, June 14, 2004 11:42 AM Subject: Links to Newdow Opinions It appears that those links did not work. All of the opinions can be found here: http://supct.law.cornell.edu:8080/supct/html/02-1624.ZS.html ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Religion Clauses question
The Ninth Circuit yesterday held unconstitutional a cross displayed in a federal park.)(Buono v. Norton,03-55032) The cross was originally erected privately as a memorial to World War I vets. A federal statute enacted when the case was pending prohibits the use of federal funds to remove the cross (It also allows for a land swap to allow the cross to remain standing) Leaving aside the land swap question, is the ban on the use of federal funds to comply with a feral court order requiring its removal, constitutional. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of marc stern Sent: Monday, June 07, 2004 11:06 AM To: [EMAIL PROTECTED]; 'Law Religion issues for Law Academics' Subject: RE: Religion Clauses question Members of this list might be interested in J. Pelikan, Interpreting the Bible and the Constitution (Yale 2004).I found it fascinating. Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Gay Activists Threaten Church Tax-Exempt Status
There is actually an IRS training manual which suggests that even when a pastor speaks from the pulpit, if the endorsement is labeled personal, it will not automatically cost the church its exemption. In any event I am hard pressed to see why members of the clergy are differently situated that the President of People For or the ACLU or the Federalist Society who face identical restrictions. Even before Smith the Court had held that the Free Speech rights of churches were not greater than those of secular groups. Minnesota State Fair case). Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Friday, June 04, 2004 10:22 AM To: Law Religion issues for Law Academics Subject: Re: Gay Activists Threaten Church Tax-Exempt Status I was making only Marty's point (ii). As to his point (i), If the church wants to buy media time for political ads, it can do that through the 501(c)(4) affiliate as well as anyone else. But if the pastor, or the rabbi, or the archbishop, wants to urge his faithful to support the candidate that is more willing to feed the hungry, it is not remotely the same to have that message come from Joe Doaks at the 501(c)(4) affiliate. And if the religious leader wants to speak on this issue from the pulpit, or in a pastoral letter, it doesn't help to put him on the payroll of the 501(c)(4) affiliate for 10% of his time. I think that lawyers for churches -- at least those who pay attention to the periodic warnings from the IRS on this issue -- believe that if the religious leader of the church speaks, his speech will be attributed to the church itself and not to any affiliate. The bottom line is that the rule censors pastors in the pulpit, and that is a constitutional problem. At 02:12 PM 6/3/2004 -0400, you wrote: I'm a bit unclear on one part of Doug's post. Are you saying, Doug, (i) that the church is differently situated because, unlike secular nonprofits, it can't (or realistically won't be able to) set up an affiliate through which to engage in political speech (if so, why is that true?), or, alternatively, (ii) that for some reason the partisan political speech of the spiritual leader is qualitatively very different -- in a way that should matter for statutory or constitutional analysis? -- from the partisan political speech of her nonreligious counterpart? - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Thursday, June 03, 2004 12:10 PM Subject: RE: Gay Activists Threaten Church Tax-Exempt Status I agree that the absolute limit on candidate advocacy is a problem. Of course it is a problem for all other non-profits as well, and the usual solution is to set up a political affiliate. The one other way in which churches are differently situated is the speech of the clergy. When the church addresses a moral issue, including the positions of competing candidates on that moral issue, it is very different for the spiritual leader to make the statement versus the head of the 501(c)(4) affiliate making the statement. I agree with Marty's analysis of current law, but the restriction on the speech of the clergy is a constitutional problem. At 10:52 AM 6/3/2004 -0400, you wrote: content-class: urn:content-classes:message Content-Type: multipart/alternative; boundary=_=_NextPart_001_01C4497A.74159228 urn:schemas-microsoft-com:vml xmlns:o = urn:schemas-microsoft-com:office:office xmlns:w = urn:schemas-microsoft-com:office:word xmlns:st1 = urn:schemas-microsoft-com:office:smarttags The susbtantial limit on lobbying does provide ample breathing room for most religious institutions, including any bona fide house of worship I could imagine. And there's probably no limit on religious groups' advocacy re moral issues, where the advocacy isn't also lobbying. But there's no such latitude re advocacy for candidates, and we are, after all, in an election year. So I expect that the candidate part of the limit will be asserted frequently in the months to come, and it could well represent a meaningful threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]]On Behalf Of marc stern Sent: Thursday, June 03, 2004 9:44 AM To: 'Law Religion issues for Law Academics' Subject: RE: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organization s budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense
RE: Religion Clauses question
Members of this list might be interested in J. Pelikan, Interpreting the Bible and the Constitution (Yale 2004).I found it fascinating. Marc Stern ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Gay Activists Threaten Church Tax-Exempt Status
Title: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organizations budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Thursday, June 03, 2004 8:16 AM To: Religion Law Mailing List Subject: Gay Activists Threaten Church Tax-Exempt Status Importance: Low Just got this from a friend. It is published by Focus on the Family, a conservative Christian outfit in Colorado Springs. Frank --- June 1, 2004 Church's Tax-Exempt Status Threatened by Steve Jordahl, correspondent Pro-homosexual group lodges complaint with the state against a Montana church that aired the Battle for Marriage satellite broadcast. A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status. Canyon Ferry Road Baptist Church in Helena showed congregants The Battle for Marriage a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices. The complaint alleges that what the church did may have implications for an organization's tax status. The commission has said it will investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the argument is without merit. The letter that was sent out by these far-left activists is outrageous, McCaleb said. I think it's defamatory, and it's certainly an intolerant effort to suppress free speech. Canyon Pastor B.G. Stumberg said his church is not intimidated. The commission is unable to affect a church's tax-exempt status on its own, but a decision against the church is the first step in stripping a congregation of its tax benefits. I don't think it's scaring us at all, he said. It's sort of galvanized us, in one sense, (and) I think everybody's sort of saying, 'OK, let's go.' The letter was also sent to several hundred other Montana churches, an obvious attempt to make them think twice about addressing the issue of gay marriage. McCaleb said churches should press ahead, anyway. You certainly don't convert your church into a political committee, he explained, when you speak out in favor of marriage. The ADF, McCaleb added, would be happy to consult with any church that has questions. Copyright 2004 Focus on the Family All rights reserved. International copyright secured. (800) A-FAMILY (232-6459) Privacy Policy/Terms of Use http://www.family.org/welcome/aboutfof/a0013445.cfm | Reprint Requests http://www.family.org/reprints/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Gay Activists Threaten Church Tax-Exempt Status
Title: Gay Activists Threaten Church Tax-Exempt Status The IRS has spoken reasonably authoritatively about this in its training manuals. By and large, unless the advocacy is express (vote against candidate Q because of their stand on.) pronouncements on policy in the air are not construed as endorsements. Otherwise all not for profits would have to shut down every election season. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello Sent: Thursday, June 03, 2004 9:53 AM To: Law Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status The susbtantial limit on lobbying does provide ample breathing room for most religious institutions, including any bona fide house of worship I could imagine. And there's probably no limit onreligious groups' advocacy re moral issues, where the advocacy isn't also lobbying. But there's no such latitudere advocacy for candidates, and we are, after all, in an election year. So I expect that the candidate part of the limit will be asserted frequently in the months to come, and it could well represent a meaningful threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern Sent: Thursday, June 03, 2004 9:44 AM To: 'Law Religion issues for Law Academics' Subject: RE: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organizations budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Thursday, June 03, 2004 8:16 AM To: Religion Law Mailing List Subject: Gay Activists Threaten Church Tax-Exempt Status Importance: Low Just got this from a friend. It is published by Focus on the Family, a conservative Christian outfit in Colorado Springs. Frank --- June 1, 2004 Church's Tax-Exempt Status Threatened by Steve Jordahl, correspondent Pro-homosexual group lodges complaint with the state against a Montana church that aired the Battle for Marriage satellite broadcast. A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status. Canyon Ferry Road Baptist Church in Helena showed congregants The Battle for Marriage a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices. The complaint alleges that what the church did may have implications for an organization's tax status. The commission has said it will investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the argument is without merit. The letter that was sent out by these far-left activists is outrageous, McCaleb said. I think it's defamatory, and it's certainly an intolerant effort to suppress free speech. Canyon Pastor B.G. Stumberg said his church is not intimidated. The commission is unable to affect a church's tax-exempt status on its own, but a decision against the church is the first step in stripping a congregation of its tax benefits. I don't think it's scaring us at all, he said. It's sort of galvanized us, in one sense, (and) I think everybody's sort of saying, 'OK, let's go.' The letter was also sent to several hundred other Montana churches, an obvious attempt to make them think twice about addressing the issue of gay marriage. McCaleb said churches should press ahead, anyway. You certainly don't convert your church into a political committee, he explained, when you speak out in favor of marriage. The ADF, McCaleb added, would be happy to consult with any church that has questions. Copyright 2004 Focus on the Family All rights reserved. International copyright secured. (800) A-FAMILY (232-6459) Privacy Policy/Terms of Use http://www.family.org/welcome/aboutfof/a0013445.cfm | Reprint Requests http://www.family.org/reprints/ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password
RE: Gay Activists Threaten Church Tax-Exempt Status
Title: Gay Activists Threaten Church Tax-Exempt Status My favorite example is this.Several years ago, Cardinal Law urged that it was a sin to vote for a candidate who supported abortion. Great uproar from the usual suspects. No critical comment at all when the then Bishop of San Diego said during the same election cycle it was a sin to vote for a viable neo-Nazi candidate, The IRS did nothing about either case. My guess si they would do nothing about it in your hypothetical either. Marc From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello Sent: Thursday, June 03, 2004 10:31 AM To: Law Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status How about: This moral principle [pick from among the usual suspects] is so important to this religious congregation that, if a congregantsupports any candidate for any office who actively subverts the principle --or who even fails to support the principle actively enough --that congregant shall be excluded from the congregation. What result for the congregation when its exemption is challenged? Easy case, one way or the other? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern Sent: Thursday, June 03, 2004 11:20 AM To: 'Law Religion issues for Law Academics' Subject: RE: Gay Activists Threaten Church Tax-Exempt Status The IRS has spoken reasonably authoritatively about this in its training manuals. By and large, unless the advocacy is express (vote against candidate Q because of their stand on.) pronouncements on policy in the air are not construed as endorsements. Otherwise all not for profits would have to shut down every election season. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Anthony Picarello Sent: Thursday, June 03, 2004 9:53 AM To: Law Religion issues for Law Academics Subject: RE: Gay Activists Threaten Church Tax-Exempt Status The susbtantial limit on lobbying does provide ample breathing room for most religious institutions, including any bona fide house of worship I could imagine. And there's probably no limit onreligious groups' advocacy re moral issues, where the advocacy isn't also lobbying. But there's no such latitudere advocacy for candidates, and we are, after all, in an election year. So I expect that the candidate part of the limit will be asserted frequently in the months to come, and it could well represent a meaningful threat. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of marc stern Sent: Thursday, June 03, 2004 9:44 AM To: 'Law Religion issues for Law Academics' Subject: RE: Gay Activists Threaten Church Tax-Exempt Status There really is nothing to the threat. Churches are free to take stands on political issues provided they do not spend a substantial amount on these activities. The late Dean Kelly obtained an internal IRS memo which indicted that insubstantial was between 5-20% of an organizations budget. The document was informal and would not bind the IRS, but it describes a fairly safe harbor. Non-church groups can opt for a different and more predictable set of rules, but at the behest of churches which then insisted that the government could not stop them from advocating for legislation at the expense of exemption, churches were not offered the option. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Thursday, June 03, 2004 8:16 AM To: Religion Law Mailing List Subject: Gay Activists Threaten Church Tax-Exempt Status Importance: Low Just got this from a friend. It is published by Focus on the Family, a conservative Christian outfit in Colorado Springs. Frank --- June 1, 2004 Church's Tax-Exempt Status Threatened by Steve Jordahl, correspondent Pro-homosexual group lodges complaint with the state against a Montana church that aired the Battle for Marriage satellite broadcast. A Montana church, one of hundreds across the country to broadcast a pro-marriage TV special on May 23, has been threatened by a gay-activists group with removal of its tax-exempt status. Canyon Ferry Road Baptist Church in Helena showed congregants The Battle for Marriage a video simulcast featuring Focus on the Family Chairman Dr. James Dobson and other pro-family leaders and circulated a petition at the event calling for a state constitutional amendment supporting traditional marriage. Those actions rankled the gay-activist group Montanans for Family and Fairness, which lodged a complaint with the state's Commission of Political Practices. The complaint alleges that what the church did may have implications for an organization's tax status. The commission has said it will investigate, but Alliance Defense Fund (ADF) attorney Gary McCaleb said the argument is without merit. The letter
RE: Parks will not block baptism
No doubt persuaded by the discussion on this list Marc -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, June 03, 2004 10:34 AM To: [EMAIL PROTECTED] Subject: Parks will not block baptism From:Volokh, Eugene To: [EMAIL PROTECTED] http://mail2.law.ucla.edu/exchweb/img/prev-paperclip.gif Subject: FW: park will allow baptism Cc: Parks will not block baptism Church will be allowed to baptize member at Falmouth Waterfront Park on SundayBy MICHAEL ZITZ http://www.fredericksburg.com/Feedback/emailreporter?User=mzitzheadline=Pa rks%20will%20not%20block%20baptism Date published: 6/3/2004 River use still discouraged Fredericksburg-Stafford Park Authority officials say they won't interfere with the baptism of a mentally retarded man at Falmouth Waterfront Park planned for Sunday afternoon. A bit of a national media flap arose after a dozen members of Cornerstone Baptist Church near Berea were baptized May 23 in the Rappahannock River as 50 congregation members looked on. Park officials admonished Cornerstone's pastor, the Rev. Todd Pyle that day and told him river baptisms violated the Park Authority's unwritten policy. . . . Park Manager Brian Robinson said yesterday that the situation has been twisted almost beyond recognition. There is no park policy against religious activities, he said--merely a requirement that large groups of any kind get permits to use the park in advance. Robinson has said churches and other groups typically rent space in shelters in the parks the authority oversees. The controversy grew after he said use of common areas of the park for religious events isn't allowed so that others are forced to endure someone else's religion. The Rev. John H. Reid, pastor of the New Generation Evangelical Episcopal Church, said yesterday that he has baptized 40 people at the Waterfront Park over the past six years and has no plans to ask for a permit. Reid said that in addition to the man who will be baptized Sunday, there will probably be only 10 to 20 church members observing the sacrament. . . . We've never had a big crowd [at a baptism], Reid said. And that's why they've never had any problem, Robinson said. We wouldn't have an issue with that and wouldn't have a conversation with them. Robinson said that if Cornerstone Baptist Church were to bring another large group in for baptisms--and it requested a permit--there would be no problem. But, he also said that because of the danger in the river, the Park Authority would not formally sanction the baptisms and would want to have personnel on hand in case something went wrong. We don't own the river and we can't prohibit it, Robinson said. . . . http://www.fredericksburg.com/News/FLS/2004/062004/06032004/1385680 http://www.fredericksburg.com/News/FLS/2004/062004/06032004/1385680 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
