RE: Shielding child whose mother is A from father's Blifestyle/ideology/religion?
Marty puts the matter in the right analytical framework. Arrangements regarding important child rearing issues are made, where the family is intact, by the parents (typically) and the parents are free, within fairly broad limits to be as unreasonable as they wish to be. They are constrained by few to no legal rules or standards in deciding how to present (or not to present) difference to their children. When the family unit is no longer intact, because of divorce (more precisely, because of the entry of a decree of divorce), the state acts in loco parentis. And here is where the problem lies. The typical answer is the impossibly vague best interests of the child standard. But conceptually, the problem is virtually incapable of defensible solution. Parents are entitled to be unreasonable precisely because of considerations of autonomy and privacy, neither of which makes much sense when applied to the state acting in loco parentis: hence something unmanageable, like best interests of the child. I think that many family court judges are trying -- to one degree or another -- to act like reasonable parents. Of course they fail miserably at that endeavor time and time again because, at least in part, it is not clear that anybody knows what a reasonable parent is. But the stubborn fact remains that few are likely to defend the notion that the state, acting in loco parentis, can be unreasonable. I recall a report that I ran across a couple of years ago that contrasted child raising practices of upper income professionals and low to middle income working class members. The differences were like night and day. This is not the place to debate the relative merits of the different approaches that the report highlighted, but it is the place to note that deciding which approach is best, or most reasonable ultimately turns on a series of value judgments which are, I think, highly contestable. I am sure that there is a place in all of this for careful consideration of constitutional norms, but I must confess that I am not sure whether nice judgments about those norms tell us much about reasonable parenting, and I think that, in the final analysis, we are stuck with debates about reasonable parenting, debates which may be both futile and unedifying. I disagree with Marty, I think, on the salience of the EC in thinking through or trying to construct a defensible notion of the reasonable parent -- the state acting in loco parentis. There are situations where the state gets to advance religion, or particular religions, is ways that, on the surface would appear to violate the EC: the military, the prison system, and other institutions where the state functions like a parent given the control that the state has over military personnel, prisoners, and other institutionalized persons. These are cases where it could be said that the state is acting in loco parentis. Two final points: Children who were raised by unreasonable parents may have a dickens of a time adjusting to reasonable parents. (The reverse is also something to worry about, even if no solutions easily come to mind.) One could say a lot about the institution of divorce, but it suffices to note that divorce is, probably, unsettling, if not traumatic, for both parents and children, in ways that we perhaps can never fully come to know. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, January 24, 2008 5:06 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Shielding child whose mother is A from father's Blifestyle/ideology/religion? I don't think Eugene's test case helps us see the problem clearly in these religion disputes. In deciding the best interests of the child, it is virtually inevitable that a court will eventually be required to evaluate the philosophy to which the child will be exposed -- a philosophy that can be conveyed through words or deeds. I forget how Eugene's article came out on this, but I tend not to think there's much of a free speech problem here: It's not a penalty against the disfavored parent so much as it is the state acting in a sort of parens patriae context, making the child a ward of the state in a sense for purposes of the custody decision. The state is permitted to itself teach the child to prefer certain viewpoints -- such as that racism is bad -- and is therefore permitted to favor certain viewpoints to which the child will be exposed, as a virtual necessity of deciding what is best for the child. It would be almost perverse not to consider what the child will be taught, and exposed to, in making such a determination. (Think of our own children: yes, of course we care for their material well-being; but most of us are fortunate enough to be able to spend much more time worrying about the values and beliefs, and modes of thinking, that our children will
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
I don't know where you get your information. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, November 07, 2007 6:29 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Help me out here: The major purveyors of informal violence -- murders, robberies, assaults, and the like -- are *not* street thugs? Who are they then? The Phelps crowd? Politically motivated right-wing activists? (I should say that as to one important class of informal violence, which is rape, bedroom thugs -- date-rapists -- are a more major purveyor than street thugs; but street thugs are a major category even there, and *the* major category as to the other kinds of violence.) Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 2:13 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? No, the major purveyors are not street thugs. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, November 07, 2007 4:59 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? The major purveyors of informal violence are street thugs. Politically motivated violence, whether motivated by left ideologies (anarchism, labor extremism, the Weather Underground, the Black Panthers, the Black Muslims) or right ideologies (racism, anti-gay ideology when hostility to homosexuals was a matter of ideology rather than as a matter of social routine, as it has often been in the past), is fortunately pretty rare. Whether one categories violence that's partly influenced by general praise of violence and of violent lifestyles -- for instance, the violence that is glamorized by some rap music -- as left, right, or something else is an exercise left to the reader. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 12:32 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Formal violence = violence perpetrated by the state, typically through the forms and the processes of the criminal law, but not exclusively so, of course. (The easiest example being violence perpetrated through the use of military force.) Informal violence = lynching, cross-burnings, assassinations, vigilante justice, gay-bashing, and the like. The state may support or condone such violence, but informal violence is not conduced by the formal instrumentalities of the state, enforcement of criminal sanctions, police enforcement, military force, or otherwise. The political right is far more guilty of informal violence than the political left is. Just think about who the major purveyors of informal violence have been throughout our history. One could start with the Ku Klux Klan, clearly a right-wing outfit. Think about those who indulged in mob violence against African-Americans and gays. The rhetoric of those mob attacks is hardly the language of the political left. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Tuesday, November 06, 2007 8:31 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Violence is visited far more by those on the political right on those on the political left than is the reverse case. What do mean by violence, formal and informal. In contemporary America, direct political violence is, thankfully, relatively rare unless you define violence in a way that departs from its customary usage. Perhaps the idea is that political rhetoric leads to criminal activity by others, but the notion that this happens to any substantial degree (as well as the assertion that violence, however we may define it, is a disproportionately a malady of the political right) do not strike me as self evident. I suppose that you can always argue for the special protection of those we regard as discrete, insular and socially disadvantaged, but isn't it hard to do that without some notion of what type of criticism (or verbal attacks) are permissible. If gays are in, how about fundamentalist Christians and Muslims who also feel put upon by the larger society. How about Jews? Need we have special concern about rhetoric denouncing the Jewish lobby? After a few easy cases (and maybe
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
I accept your helpful point. I did not mean to suggest that informal violence is random. The Ku Klux Klan perpetrated informal, albeit organized, violence. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Jean Dudley Sent: Wednesday, November 07, 2007 7:15 PM To: Law Religion issues for Law Academics Subject: Re: Is First Amendment viewpoint-discriminatory against antigayspeech? On Nov 7, 2007, at Wednesday,November 7, 2007,3:28 PM, Volokh, Eugene wrote: Help me out here: The major purveyors of informal violence -- murders, robberies, assaults, and the like -- are *not* street thugs? Who are they then? The Phelps crowd? Politically motivated right- wing activists? (I should say that as to one important class of informal violence, which is rape, bedroom thugs -- date-rapists -- are a more major purveyor than street thugs; but street thugs are a major category even there, and *the* major category as to the other kinds of violence.) Eugene Let's turn it over on its head: Are the Ku Klux Klan street thugs? Were the men who murdered Matthew Shepard street thugs? I think not. I also think there is a difference between the two groups: One has a long-standing history, a complex organization, the other was simply (!) a matter of mob mentality on a smaller scale. Oddly enough, neither group would be called street thugs by other members of their community. They's just a bunch of good ol' boys. I think what's missing here is a distinction that informal violence by itself connotes random violence; It must be qualified with the word organized, and compared to Official (or formal) violence, defined as organized and sanctioned by law and or government. In closing, the concept of street thug is misleading. Only a miniscule amount of violence is perpetrated by the truly antisocial, psychopathic, or homeless. Jean Dudley. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
Your response clarifies the differences in our positions, for which I am grateful. Just one brief comment: I would import the asymmetry that I earlier described into First Amendment jurisprudence, in much the same way that I totally reject Powell's mischievous deconstruction of race in his opinion in Bakke. (I have an article coming out soon that makes, at some length, the argument against Powell.) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 08, 2007 2:13 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Perhaps, the use of the term informal violence here is a bit broad to be meaningful. We could distinguish between violence that is politically motivated and violence that, while not itself aimed at any political end, is asserted to be a response to political points of view which supposedly arouse sentiments against some group. There is, of course, haze around the boundaries of that, but I think it's a serviceable enough distinction to mean something to most people. As for politically motivated violence, it's far from obvious that this is uniquely - or even mostly - associated with political viewpoints that are commonly categorized as being on the right. In my lifetime (and I am not young), I could make a credible argument that most politically motivated violence in this country (and there has not been much) took place in the late 60's and early 70s and was almost entirely from the left. As to informal violence, Scott has a point. While I think that the categories of left and right mean something (if not always as much as we commonly assume they do), they don't seem very helpful here. I am not sure what it means to say, in 2007, that the KKK was a right wing organization other than that we have chosen to assign racism to the right. Many of the notorious southern segregationists - think Bilbo and Long - were, in many respects, men of the left. And they were racists. I assume that Professor Newsom might say that this reflects the lack of consensus about race on the left, but would argue that the attitudes that he wants to characterize as contributing to or constituting informal violence are most often associated with the right. But even if you think that's true (and can avoid the anachronism of assuming that the right in 1921 is like the right of 2007), I don't see where the left-right distinction helps in forming a set of principles to govern situations like these. It seems to me that political rhetoric on both the left and the right might have the potential to stimulate - or to be seized upon as a justification for - violence. But just as I would be reluctant to blame radical firebrands for property crimes or civil unrest, I don't know that that the Roman Catholic Church or evangelical Christians are responsible for the attack on Matthew Shepard. If there is an asymmetry that justifies an asymmetrical rule must have something to do with the nature of the victim than the source of the attack. The argument has to be that certain groups are more likely to be bullied so we ought to be more sensitive to speech directed at them. One problem with that is that the choice of vulnerable groups is necessarily ideological. Professor Newsom is not bothered by the potential social and political isolation of religious traditionalists because he thinks there is no moral equivalence between saying don't visit violence on me and saying, as he suggests traditionalists do, don't keep me from visiting violence on others in order to follow my religious beliefs. But that requires assuming that these traditional religious beliefs visit violence on others. Certainly there are people who will have no problem making that assumption, but is it one that ought to be imported into First Amendment analysis? Another problem is that it is a static analysis. It assumes that asymmetrical rules don't produce asymmetrical behavior. This seems implausible as Scalia suggests. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 2:32 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Formal violence = violence perpetrated by the state, typically through the forms and the processes of the criminal law, but not exclusively so, of course. (The easiest example being violence perpetrated through the use of military force.) Informal violence = lynching, cross-burnings, assassinations, vigilante justice, gay-bashing, and the like. The state may support or condone such violence, but informal violence
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
-Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, November 05, 2007 3:03 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Let me make two related points. 1.People who dislike Phelps' group may do so for a variety of reasons, some reasons being principled, some being tactical or strategic only. 2.There is a powerful psychological link between gays and the Phelps group's conduct at the funeral of fallen warriors, and it is this: an anti-gay backlash could result because if it weren't for gays, or the gay agenda, whatever that is, Phelps' group would not be causing such pain and harm. In other words, gay people may well be the target. Gay people might be viewed as the cause of the outrageous behavior at funerals. Have any of the families who have been affronted said anything positive about gays? And if so, how often has this happened? The connection between the two points is clear: a tactical objection to the Phelps group might merely be that its behavior is not the best way -- in the view of the tactical objector -- to stir up an anti-gay backlash. I make a similar point in a forthcoming article: liberal evangelical Protestants (and this includes secular rationalist Protestants) might have a complex, but essentially tactical objection to proselytizing techniques employed by pietistic evangelical Protestants: namely that while it is good that such proselytizing might bring non-Protestants into the pan-Protestant nomos, such proselytizing thereafter becomes counterproductive from the point of view of liberal evangelical Protestants because they believe -- rationalists that they are, or tend to be -- that conversion of the mind is the only way that they will build up their numbers, and the appeals of pietistic evangelical Protestants, with their emphasis on the heart and the soul, hinder conversion of the mind. I can't really respond to Eugene's proposed perspective because I do not think that we agree as to what is at stake. There is an ideological asymmetry in the fact and experience of violence, both formal and informal, in the United States. Violence is visited far more by those on the political right on those on the political left than is the reverse case. (This is so, in my opinion, because the political right is largely united in its views on race whereas the political left is more often than not divided. The political right has greater cohesion, therefore, which enables it better to practice violence against those that it dislikes. There are, of course, other factors that contribute to the asymmetry, not least of which might be that Americans lean towards the political right, and not the left.) Stimulating violence against African-Americans or against gays, longtime victims of such violence, calling directly or indirectly, overtly or covertly, for the use or application of violence, given the reality of the patterns of violence in America, is not something that ought to be protected under the banner of free speech. I can't read the First Amendment as privileging bullying or worse. The speech-conduct distinction can be easily manipulated to encourage bullying and the like. By the same token it can be manipulated to discourage such behavior. I prefer the second course, not the first. I am not saying that Eugene means to encourage bullying, but the practical consequences of his approach might lead to that unfortunate result. The relevance of Romer and Lawrence is, in my view, this: the cases attempt, among other things, to hold the line against fomenting violence -- both formal and informal -- against gay people. I share the views of many who have spoken on the Westboro matter arguing that we ought to be able to protect mourning and grief from the likes of the Phelps group. Indeed, I have said so myself in so many words. But, above and beyond that, I think that the real target of the Phelps group is gay people, and that real desire is to foment an anti-gay backlash. It is the second point that I had failed to make in earlier posts and I wish to correct that mistake now. The real issue is violence -- formal or informal -- against gays and whether the First Amendment gets in the way of trying to contain such violence. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 6:47 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? OK, let me present it from a different perspective: Many traditionalist Christians have argued that civil rights victories for the gay rights movement mean losses for traditionalist Christians -- in particular, loss of free speech and the right to spread
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
I can't see how one can equate gays and traditionalist religionists. There is an asymmetry here too, by the way. It is one thing to say: don't visit violence on me and quite another to say don't keep me from visiting violence on others in order to follow my religious beliefs. There is no moral equality between the two. The best example of the kind of false analogy that I have in mind is Powell's opinion in Bakke where he argues, amazingly enough, that all people, including whites are minorities, completely ignoring, of course, the salient fact that whites of various ethnic background came together to oppress African-Americans and other non-whites. Scalia, as usual, is wrong, wrong, wrong. He ignores the reality of the asymmetry of violence in America, something he is routinely wont to do. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Tuesday, November 06, 2007 8:31 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Violence is visited far more by those on the political right on those on the political left than is the reverse case. What do mean by violence, formal and informal. In contemporary America, direct political violence is, thankfully, relatively rare unless you define violence in a way that departs from its customary usage. Perhaps the idea is that political rhetoric leads to criminal activity by others, but the notion that this happens to any substantial degree (as well as the assertion that violence, however we may define it, is a disproportionately a malady of the political right) do not strike me as self evident. I suppose that you can always argue for the special protection of those we regard as discrete, insular and socially disadvantaged, but isn't it hard to do that without some notion of what type of criticism (or verbal attacks) are permissible. If gays are in, how about fundamentalist Christians and Muslims who also feel put upon by the larger society. How about Jews? Need we have special concern about rhetoric denouncing the Jewish lobby? After a few easy cases (and maybe not even that many), I think it's hard to make distinctions like this without advancing a judgment that is either entirely subjective or based upon ideological presuppositions. But even if that's not the case, what about the impact of an asymmetric rule that reflects this supposed ideological asymmetry? Don't we expect rules to affect the behavior that they govern? To paraphrase Scalia in R.A.V., if we allow one side to fight freestyle while the other must follow the Marquis of Queensbury rules, isn't it almost certain that, human nature being what it is, those who can fight freestyle will? Rick Esenberg Marquette University Law School From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Volokh, Eugene [EMAIL PROTECTED] Sent: Monday, November 05, 2007 9:43 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Well, let me probe again the question I raised in the post below (which Michael quotes). I take it that to the extent that speech can be punished because it indirectly promotes violence -- which is to say, to the extent that Brandenburg v. Ohio is overruled, at least when speech comes from the political right (and Phelps' anti-American, antipatriotic speech is treated as being of the political right) -- we should worry much more about facially polite speech by mainstream religious groups and mainstream religious leaders than about facially extremely rude speech by the extremely marginal. No-one much listens to Phelps, and the very extremism of both his manner and his message undermines him, and makes it highly unlikely that his speech will actually foment violence. On the other hand, condemnation of homosexuality, even in facially peaceful tones and with peaceful messages -- for instance, by the Catholic Church, by orthodox Muslim or Jewish denominations, or by many traditionalist Protestants -- probably does indirectly promote violence against gays. The speakers may not intend that, but surely the effects of their speech are much more harmful to gays than the effects of Phelps' speech. Under Michael's rationale, then, it seems to me that a ban on mainstream religious teachings that promote hostility towards homosexuality (even if they don't on their face or in their intentions call for violence against homosexuals) would be perfectly constitutional: Recognition of gay rights would lead, and should lead, to suppression of traditionalist religious groups' right to promote their religious beliefs. Or am I mistaken? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, November 05, 2007 3:03 PM To: Law Religion issues for Law Academics
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
1. I disagree with your framing because the question as you frame it is relatively unimportant. 2. We also need to recognize the logical implications of your argument: unwarranted support for bullies and worse. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, November 07, 2007 5:02 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Well, Michael can disagree with my framing of the question; but the question still remains: If he's right that the Phelpsians' speech can be suppressed in the name of protecting gays, then wouldn't speech by traditionalist Catholics, Protestants, Muslims, and Jews who condemn homosexuality -- speech that is not nearly as nasty on its face, but that is doubtless more dangerous in its effect -- be equally prohibitable? I'd still like to hear where Michael stands on that issue. As best I can read the logic of his analysis, then indeed such speech, including those religious groups' basic teaching (including literally quoting and endorsing the relevant passages from the Bible) could be outlawed. He and some others might think that's good. But I just think it's important to recognize that that's the logical implication of his argument. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 12:22 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? First, he who frames the question controls the discourse. I wish to emphasize both the reality and the asymmetry of violence, both formal and informal, visited upon discrete insular minorities. You wish to emphasize speech, without regard, or at least much regard to the consequences of that speech. We are going to have a difficult time bridging this gap. Second, I would not say that the speech at issue here indirectly promotes violence against ostracized groups. I believe it is a clever strategy intentionally designed to promote violence. I don't know what facially polite means. The question is the promotion of violence, promoted politely or otherwise. 3. History and experience teach us to worry much more about the right than the left when it comes to violence directed against insular and discrete minorities, like gays and African Americans. 4. The question, of course, is who is entitled to the greater protection, in the event of a conflict: victims of violence or mainstream (or not so mainstream) religious groups. See point 1 above. We have different priorities and interests. I strongly prefer mine. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, November 05, 2007 10:43 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Well, let me probe again the question I raised in the post below (which Michael quotes). I take it that to the extent that speech can be punished because it indirectly promotes violence -- which is to say, to the extent that Brandenburg v. Ohio is overruled, at least when speech comes from the political right (and Phelps' anti-American, antipatriotic speech is treated as being of the political right) -- we should worry much more about facially polite speech by mainstream religious groups and mainstream religious leaders than about facially extremely rude speech by the extremely marginal. No-one much listens to Phelps, and the very extremism of both his manner and his message undermines him, and makes it highly unlikely that his speech will actually foment violence. On the other hand, condemnation of homosexuality, even in facially peaceful tones and with peaceful messages -- for instance, by the Catholic Church, by orthodox Muslim or Jewish denominations, or by many traditionalist Protestants -- probably does indirectly promote violence against gays. The speakers may not intend that, but surely the effects of their speech are much more harmful to gays than the effects of Phelps' speech. Under Michael's rationale, then, it seems to me that a ban on mainstream religious teachings that promote hostility towards homosexuality (even if they don't on their face or in their intentions call for violence against homosexuals) would be perfectly constitutional: Recognition of gay rights would lead, and should lead, to suppression of traditionalist religious groups' right to promote their religious beliefs. Or am I mistaken? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, November 05, 2007 3:03 PM
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
No, the major purveyors are not street thugs. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, November 07, 2007 4:59 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? The major purveyors of informal violence are street thugs. Politically motivated violence, whether motivated by left ideologies (anarchism, labor extremism, the Weather Underground, the Black Panthers, the Black Muslims) or right ideologies (racism, anti-gay ideology when hostility to homosexuals was a matter of ideology rather than as a matter of social routine, as it has often been in the past), is fortunately pretty rare. Whether one categories violence that's partly influenced by general praise of violence and of violent lifestyles -- for instance, the violence that is glamorized by some rap music -- as left, right, or something else is an exercise left to the reader. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 07, 2007 12:32 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Formal violence = violence perpetrated by the state, typically through the forms and the processes of the criminal law, but not exclusively so, of course. (The easiest example being violence perpetrated through the use of military force.) Informal violence = lynching, cross-burnings, assassinations, vigilante justice, gay-bashing, and the like. The state may support or condone such violence, but informal violence is not conduced by the formal instrumentalities of the state, enforcement of criminal sanctions, police enforcement, military force, or otherwise. The political right is far more guilty of informal violence than the political left is. Just think about who the major purveyors of informal violence have been throughout our history. One could start with the Ku Klux Klan, clearly a right-wing outfit. Think about those who indulged in mob violence against African-Americans and gays. The rhetoric of those mob attacks is hardly the language of the political left. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Tuesday, November 06, 2007 8:31 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Violence is visited far more by those on the political right on those on the political left than is the reverse case. What do mean by violence, formal and informal. In contemporary America, direct political violence is, thankfully, relatively rare unless you define violence in a way that departs from its customary usage. Perhaps the idea is that political rhetoric leads to criminal activity by others, but the notion that this happens to any substantial degree (as well as the assertion that violence, however we may define it, is a disproportionately a malady of the political right) do not strike me as self evident. I suppose that you can always argue for the special protection of those we regard as discrete, insular and socially disadvantaged, but isn't it hard to do that without some notion of what type of criticism (or verbal attacks) are permissible. If gays are in, how about fundamentalist Christians and Muslims who also feel put upon by the larger society. How about Jews? Need we have special concern about rhetoric denouncing the Jewish lobby? After a few easy cases (and maybe not even that many), I think it's hard to make distinctions like this without advancing a judgment that is either entirely subjective or based upon ideological presuppositions. But even if that's not the case, what about the impact of an asymmetric rule that reflects this supposed ideological asymmetry? Don't we expect rules to affect the behavior that they govern? To paraphrase Scalia in R.A.V., if we allow one side to fight freestyle while the other must follow the Marquis of Queensbury rules, isn't it almost certain that, human nature being what it is, those who can fight freestyle will? Rick Esenberg Marquette University Law School From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Volokh, Eugene [EMAIL PROTECTED] Sent: Monday, November 05, 2007 9:43 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? Well, let me probe again the question I raised in the post below (which Michael quotes). I take it that to the extent that speech can be punished because it indirectly promotes violence -- which is to say, to the extent that Brandenburg v
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
You make some rather sweeping claims regarding the use of the terms left and right. I would appreciate any authority to which you could refer me that might support those claims. I don't think that any of the claims that you make are defensible, but I am open to persuasion by respectable authority on one or more of them. Speaking of authority, you might want to take a look at Michael Dawson, Black Visions which shows, in my opinion, that the terms do have substance and coherence. Certainly in the crucible of race the terms do, as Dawson argues. If you recall, I indicated that the major difference between the left and the American political and ideological right was that the latter largely had a consensus view of race whereas the American left did not. I made the point deliberately and with a fair amount of thought beforehand. If you like, I can explain my views of the Civil War off list. I do not see the conundrum that you do. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scott Idleman Sent: Wednesday, November 07, 2007 5:05 PM To: Law Religion issues for Law Academics Subject: Re: Is First Amendment viewpoint-discriminatory against antigayspeech? It seems that the use of the words left and right, in some of the recent posts, is both very controlling of the discourse and, quite possibly, tautological. Indeed, I get the sense that these terms are being used as labels to define, after-the-fact, those whose sociopolitical philosophies yield certain outcomes, rather than those who adhere to certain philosophical views. In other words, the right categorizes after-the-fact those persons or perspectives that generate a lot of violence as defined by Professor Newsom, while the left categorizes after-the-fact those persons or perspectives that generate relatively little violence as defined by Professor Newsom. In this sense, the distinction may be ideologically useful, but it is analytically (or pragmatically) unhelpful. The distinction, or its use, is also very ahistorical. It is employed entirely in retrospect, with arguably little regard for the circumstances and perspectives of the time. The framers, at the time, were in many respects progressives, even radicals, but they are presently viewed by some as privileged racists -- I think they would be considered perpetrators of violence under Professor Newsom's model -- who are not deserving of admiration, much less having public schools named after them. And what of the Union under President Lincoln? It waged the bloodiest war, and singularly most destructive domestic campaign, in the name of progressive ends. Was it an act of the right -- as it sought the conservatist end of maintaining the geopolitical boundaries and constitutional structure of the nation -- or was it an act of the left -- as it sought to end slavery and create a better nation? I also get the sense that the term violence is being used to describe, selectively, policies or conduct that disproportionately or intentionally visit burdens upon marginal groups. But again that's an invitation to tautology, or at least after-the-fact labeling. Isn't taxation, backed up by the coercive force of the state (including the use of the criminal law), a form of violence or an act that carries with it the threat of violence? If so, why aren't liberal policies of redistribution-via-taxation policies of violence? Why aren't compulsory schooling, vaccination requirements, and mandatory sensistivity training--and the list goes on--similarly forms of violence? If they are not considered such, I think it is only because of a selective use of the term violence. I don't get the sense that Professor Volokh and others are trying to control the discourse as much as they are trying to apply reason to difficult questions that arise in society and, eventually, in the legal system. I do think, however, that the redefinition and use of loaded terms like violence is a manipulation of discourse for ideological ends, especially when others who do not accept or understand such definitions are categorically labeled as wrong. Scott Idleman Marquette University Law School - Original Message - From: Newsom Michael [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wednesday, November 07, 2007 2:22 PM Subject: RE: Is First Amendment viewpoint-discriminatory against antigayspeech? First, he who frames the question controls the discourse. I wish to emphasize both the reality and the asymmetry of violence, both formal and informal, visited upon discrete insular minorities. You wish to emphasize speech, without regard, or at least much regard to the consequences of that speech. We are going to have a difficult time bridging this gap. Second, I would not say that the speech at issue here indirectly promotes violence against ostracized groups. I believe
RE: Is First Amendment viewpoint-discriminatory against antigayspeech?
take it that Michael disagrees: His view is that Romer and Lawrence should indeed lead the Court to uphold restrictions on antigay speech, which I take it would include antigay religious teachings. Moreover, I take it that the assertedly compelling government interest in protecting gays is *much* more jeopardized by mainstream antigay teachings (even when they are comparatively politely framed), from groups such as traditionalist Protestants, Catholics, Muslims, and orthodox Jews, than by Phelps' gang of kooks (which if anything would lead to some extra sympathy for gay rights, by tying extremist antigay bigotry to extreme anti-Americanism). So under his rationale, the Court should uphold general bans on anti-gay-rights teachings, including religious teachings. If that's right, then weren't the traditionalist Christian views who complained about the gay rights movement, and in particular about the indirect consequences of its validation in cases such as Romer and Lawrence, quite prescient? If Michael's views are to prevail, then it really is a question of choosing whose rights we protect -- the sexual autonomy and equality of gays and lesbians, or the free speech and the religious speech rights of traditionalist Christians. When the first group wins, the second loses (again, if Michael's views are to be accepted). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 12:41 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech No, not remarkable. Viewpoint neutrality is a chimera and an illusion, in my opinion. I do agree that the Court is not likely to agree, but that does not mean that the Court is right, but merely that the Court has spoken -- wrongheadedly. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:56 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech Wow, that really is a remarkable First Amendment position: The government is constitutionally permitted to ban antigay speech (all antigay speech? some antigay speech? only antigay speech at funerals?), but I take it constitutionally forbidden from banning progay speech, anticapitalist speech, anti-Christian speech, and so on. Might as well chuck all the Court's pretensions to viewpoint neutrality out the window if that sort of exception is accepted (though fortunately I can't count a single vote for it on today's Court). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:29 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced
RE: Speech and conduct
No, we don't all agree on a rigid speech-conduct distinction. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:43 AM To: Law Religion issues for Law Academics Subject: Speech and conduct Setting aside all the other factors for now, I hope we could agree that viewing this sort of picketing as conduct is the wrong way for courts to go. The picketing is offensive precisely because of the message it communicates. The noncommunicative components (the presence of people, the fact that they occupy space on the sidewalk, the fact that they carry signs on sticks) are irrelevant here (unless the picketing somehow blocked the driveway into the cemetery or some such, which I don't believe it did). Treating this speech as conduct works as poorly, I think, as Justice Blackmun's view in Cohen v. California that Cohen's absurd and immature antic ... was mainly conduct and little speech. Whatever the bottom line, it seems to me that courts should confront the true nature of what's going on here, and what's going on here is speech that's offensive precisely because it's speech. Eugene Alan Brownstein writes: I think Eugene is right. This is, at its core, a content-based restriction on speech. The context, in my judgment, is primarily relevant to three questions: whether the penalty on speech can be justified because of the consequences of the speech, whether the context is such that we want to view this expression as something other than speech (some kind of conduct) or whether we view this as some kind of speech that is not protected by the first amendment. It is never been clear to me which of these reasons explains why certain kinds of expressive activities can be punished as harassment - but clearly it is permissible to punish harassment in certain circumstances. The tort of IIED raises a similar mystery. I'm not suggesting that there isn't an answer that justifies at least some applications of the cause of action. But I don't think courts have told us what that answer is yet. I would prefer that the situation in this case (and others like it) be resolved by statutory limits on disruptive speech on public property adjacent to places like cemeteries, funeral homes, hospitals etc.. The benefit of a statute is that it can designate the contexts which we consider totally inappropriate for extremely hurtful speech at specific times and places. IIED leaves that question up to the discretion of juries. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IIED and vagueness
Could you please provide a full and complete factual description of the Code Pink conduct? I need to understand how it is analogous, in concrete, factual terms, with the behavior of the Phelps group. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Friday, November 02, 2007 9:20 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness As others have suggested, I think it goes like this. It seems quite possible to suppose that military families will be offended by demonstrators, either, as with Code Pink, outside a military hospital (or, say at a military funeral), who suggest that their loved ones were wounded or killed in vain. Heck, we don't even have to speculate because news reports about those demonstrations reflected that families and servicemen were mightily offended. If you want to say that there ought to be some rule that requires some level of nastiness that may not have been present at the Code Pink demonstrations, it's not hard to imagine (there are ample real world examples) that the demonstrators referred to soldiers as baby killers or to those who sent them overseas as war criminal. Incidentally, I would be interested in references to studies showing that violence and insult are not evenly distributed across the political spectrum. Rick Esenberg Marquette University School of Law From: [EMAIL PROTECTED] [EMAIL PROTECTED] On Behalf Of Newsom Michael [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others
RE: Is First Amendment viewpoint-discriminatory against antigay speech
David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IIED and vagueness
1. The Phelps group is doing more than just arguing a point of view regarding sin and homosexuality. 2. There is a difference between saying God bless American soldiers and Bush killed this soldier. The second clearly is meant to insult. The relevant question is whether, in the context of a funeral, the mourners have to put up with stuff that might offend them, insult them, or harass them at a time of great grief and sorrow. 3. The relevant question ought to be not whether we believe Phelps' logic, but whether the Constitution forbids protecting people at a time of great sorrow and grief from obscene, targeted insult-as-violence. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 12:35 AM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness It seems to me that this would make matter of public concern even mushier and viewpoint-based than it already is (or perhaps it would just illustrate the mushiness and potential for viewpoint discrimination). As best I can tell, the protesters are arguing that the nation has sinned by allowing homosexuality, or allowing gays in the military, or what have you, and the death of soldiers is God's righteous judgment on the country. That's their viewpoint, vile and illogical as it is. I take it we'd agree that a demonstration outside a military funeral saying God bless American soldiers is on a matter of a public concern. So, I assume, is a demonstration saying President Bush killed this soldier. So, I assume, is a demonstration saying Soldiers are murderers, and deserve to die (again, reprehensible as such a demonstration would be). The relationship between this matter and the funeral of the soldier, who after all had been exercising government power on behalf of our nation, seems hardly attenuated. Phelps et al.'s view may be irrational, but the connection between it and the funeral of the soldier is more attenuated or irrelevant only because we don't believe his logic. The 3 am calls strike me as a rather weak analogy. The problem there isn't that the relationship between the speech and me is attenuated, or that the message is irrelevant. If you called me at 3 am each morning to tell me that my publicly expressed views in some First Amendment debate are unsound -- assume I'm even a limited public figure as to that debate -- that would also be punishable, even though the speech is closely related to me and my public commentary. It might be punishable under a Rowan-like rationale, especially once I tell you stop bothering me, since restricting the speech to me doesn't at all interfere with your conveying the message to others. It might be punishable under some rule that bars repeated unsolicited phone calls during certain hours. But the rationale here would be genuinely unrelated to any message that I might be conveying, to its supposed irrelevance to my participation in a matter of public concern, or the tendency of the message (even coupled with the time, place, and manner in which it's delivered) to offend me because of what it says. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Thursday, November 01, 2007 2:58 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness I understand that there is a clear sense in which the protestors comments involve speech on a matter of public concern. But the relationship between that matter of public concern and the family whose son has died and is being buried is pretty attenuated. If the protestors just said John Doe should rot in Hell, that would not be a matter of public concern. Does adding Because we think the U.S. is immoral, John Doe should rot in Hell change the statement enough to make a difference. (By analogy, if I call Eugene up at 3:00 am each morning to tell him to vote for Hillary Clinton, should it be harder for courts to hold me liable for harassment because my statements are a matter of public concern -- indeed they are pure political speech.) I guess what I am asking is whether the impropriety and irrelevance of the circumstance should influence our conclusion as to whether what is being said is a matter of public concern. If these protestors show up at the funeral of any citizen with similar signs and argue that it is good whenever any American dies because our country does not hate gay people enough, should that alter the analysis? Isn't there a sense that these people are just using the emotional pain they cause and the anger generated by their outrageous activities to gain attention for their message? Should speakers be allowed to use the distress caused to patients at hospitals or mourners at funerals as a way of amplifying their largely unrelated speech on matters of public
RE: Phelps, IIED, offensiveness, and precedent
The Phelps case is easy because of the unique facts. I don't think that the Code Pink protests come close to matching the Phelps' protests. Several writers in this thread have made the point that there is something special about funerals, and ceremony, and ritual, and grief, and that the law ought to be able to accommodate that special quality of funerals. It is not enough to suppose that first amendment principles (if that means free speech only) trump everything else because then we have privileged every imaginable and horrible type of bullying, harassment or worse. Of course, it is easy enough to say that at some point speech becomes action and therefore subject to regulation and prohibition of a sort not typically associated with speech. But a more straightforward approach would recognize that some speech needs to be regulated, even prohibited. The only question that remains is where might one draw lines, a concern that is important, but hardly controlling. It is enough to focus on the social, cultural, and psychological reality of funerals. That really cannot be all that difficult to do, can it? Has not the law acquitted itself well if it does that? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Friday, November 02, 2007 1:00 PM To: Law Religion issues for Law Academics Subject: Phelps, IIED, offensiveness, and precedent I've been following this issue with great interest as a conservative evangelical who considers the Phelps gang (I refuse to call them a church) truly evil and indefensible and who (and I realize this is probably not Christ-like love) likes to contemplate Mr. Phelps ultimate appearance before the highest Judge of all. A couple of different questions came to mind as I've been reading the discussion, though. First, a number of people have characterized the protests as offensive, and it's true, they are. However, it seems to me that the fact that they are offensive is not the real issue. I've seen protestors outside Promise Keepers events that I have attended which I found offensive. I've also seen protestors that oppose abortion (which I do, too) that have protested in ways which I thought were offensive. I'm not familiar with the Code Pink protests, but the description of them here sounds like something I would find offensive. There is a difference, though, between that which offends and that which causes pain. If Phelps' band of idiots wants to demonstrate in front of a recruiting center, that's one thing. But when they picket a funeral and intrude on the family's time to bid farewell to their loved ones, that is designed to cause harm and inflict pain on the grieving. That's where the idea of a claim based on IIED has a lot of appeal to me. Isn't it possible to make the legal distinction between offensive and painful, or does that merely invite somebody to make the argument (a baseless one, to my mind) that simply being offended is painful? The other question that comes to mind regards the potential precedent being set here. In my 17 years working at a major university, I saw the assertion made on many occasions that anybody who says that sexual intimacy between two member of the same sex is wrong is both offensive and guilty of hate speech. If this verdict stands (and I do hope there is a way for it to not only stand but be etched in stone), how can it be done without opening a Pandora's box for a lawsuit against any minister who preaches a sermon in which he states that sex outside of a heterosexual marriage is sin, on the grounds that it was deemed offensive and unprotected hate speech? And if so, wouldn't that set a dangerous precedent (i.e., if what Phelps said was offensive and therefore actionable, why shouldn't what Pastor X says be actionable if somebody finds it offensive)? For example, if a practicing homosexual could file a hate speech suit against a minister who preaches that homosexual behavior is sin, what is to stop the practicing adulterer from filing suit using the same rationale against a minister who preaches against adultery? Brad Pardee ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Is First Amendment viewpoint-discriminatory against antigay speech
No, not remarkable. Viewpoint neutrality is a chimera and an illusion, in my opinion. I do agree that the Court is not likely to agree, but that does not mean that the Court is right, but merely that the Court has spoken -- wrongheadedly. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 02, 2007 2:56 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech Wow, that really is a remarkable First Amendment position: The government is constitutionally permitted to ban antigay speech (all antigay speech? some antigay speech? only antigay speech at funerals?), but I take it constitutionally forbidden from banning progay speech, anticapitalist speech, anti-Christian speech, and so on. Might as well chuck all the Court's pretensions to viewpoint neutrality out the window if that sort of exception is accepted (though fortunately I can't count a single vote for it on today's Court). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, November 02, 2007 11:29 AM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech David has it right: a compelling governmental interest in protecting a discrete and insular minority -- one that is routinely victimized. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz Sent: Thursday, November 01, 2007 8:12 PM To: Law Religion issues for Law Academics Subject: RE: Is First Amendment viewpoint-discriminatory against antigay speech I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling governmental interest present. But it wasn't at all clear to me, so perhaps Michael might clarify. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 4:43 PM To: Law Religion issues for Law Academics Subject: Is First Amendment viewpoint-discriminatory against antigay speech I'm puzzled -- do Romer and Lawrence really justify not just protection of gays against governmental discrimination, but a different First Amendment rule for antigay speech than for pro-gay-rights speech or a wide range of other speech? Eugene Michael Newsom writes: That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
RE: IIED and vagueness
Could you be a bit more specific about the factual context of the Code Pink demonstrations? How is it analogous to Westboro's conduct? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Esenberg, Richard Sent: Thursday, November 01, 2007 12:48 PM To: Law Religion issues for Law Academics Subject: RE: IIED and vagueness Well, it certainly seems outrageous to me but I suspect that other reasonable people might regard the Code Pink demonstrations outside the Walter Reed Army Medical Center as, if not equally outrageous, at least comparable in their tendency to upset those who are presumably in a place in which there is some expectation of privacy and repose. (Don't we regard hospitals, like funerals, as places in which a certain decorum can be expected?) A standard that would potentially restrict such protests seems problematic and, again, it seems even more troubling to make it, as seems to have been done here, a jury question. Rick Esenberg Visiting Assistant Professor of Law Marquette University Law School Sensenbrenner Hall 1103 W. Wisconsin Avenue Milwaukee, Wisconsin 53201 (o) 414-288-6908 (m)414-213-3957 [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, November 01, 2007 11:17 AM To: Law Religion issues for Law Academics Subject: Re: IIED and vagueness What makes it outrageous is not the content per se, but the content in the context. And doesn't the old workhorse, our erstwhile objective standard of outrageous to a reasonable person, save it from unconstitutional vagueness? Steve On 11/1/07, Volokh, Eugene [EMAIL PROTECTED] wrote: Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: IIED and vagueness
Some of what I am about to say I have said before. But here goes anyway. What would be the risk of viewpoint discrimination, in a practical, real-world, sense? I am not aware of any other groups who attempt to inflict severe emotional distress on the occasion of the funeral of a soldier killed in combat. Studies of the pattern of violence and insult tend to show that it is not evenly distributed across viewpoints -- or ideologies. Put in simple English, I seriously doubt that insult-as-weapon is, in any sense of the word, neutral and any rule that treated it that way would be quite at variance with the real world and would, as a consequence, unnecessarily privilege and protect a narrow band of people, on the political right, who seem to favor insult-as-weapon on the occasion of the funeral of a soldier killed in combat. (A fact pattern, by the way, that can be easily managed and controlled such that the slippery slope argument has little merit.) Is there no room left for common decency, or is everything, in the name of a formalist view of the Free Speech Clause, up for grabs for fear of viewpoint discrimination? Nor am I sure that the proper object of the law is bright-line rules. Such a view tends to suggest, as Richard Pildes has helpfully pointed out in an article that he wrote on modern formalism, that law-makers, particularly judicial law-makers (i.e. appellate court judges), are somehow worth more than law-appliers (i.e. trial court judges and perhaps intermediate appellate court judges as well), a proposition that is far from self-evident or easily defended. That said, I have no idea of what the Court would do with this case, but my guess is that the Court would overturn the jury verdict 5-4, although Kennedy, on the strength of Romer and Lawrence, might vote with the moderates and the case would come out the other way, 5-4 to uphold the jury verdict (although the punitive damages might be reduced, the Court likely to send a signal, I think, in the Valdez case that it is prepared to rein in punitive damages). -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, November 01, 2007 11:24 AM To: Law Religion issues for Law Academics Subject: IIED and vagueness Isn't a restriction on speech that is outrageous, and inflicts severe emotional distress, where the speaker knows there's a high probability that severe emotional distress will be inflicted unconstitutionally vague, suffering from all three of the Grayned problems (risk of viewpoint discrimination in enforcement, difficulty of telling when one is complying with the law, and resulting deterrent effect)? 'Outrageousness' in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. (I also think it's unconstitutionally even setting aside the vagueness, but as in many instances the vagueness is such an important problem that it makes it hard to do the rest of the constitutional analysis, since it's so hard to tell just what speech the law will restrict, even if limited to cases where plaintiffs are private figures.) Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, November 01, 2007 5:13 AM To: Law Religion issues for Law Academics Subject: Re: Anti-gay church verdict And, of course, unlike in Hustler, the persons at whom the speech was directed here were not public figures. On this point, I highly recommend Robert Post's article on Hustler, The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, Hustler Magazine v. Falwell, 103 Harvard Law Review 603 (1990). -- Original message -- From: Douglas Laycock [EMAIL PROTECTED] Tough call. Hustler v. Falwell says that intentional infliction of emotional distress, when based on political speech, requires actual malice. But there the IIED claim was based on the content of the speech. Here, assuming the plaintiff's lawyer made a sensible jury argument, the IIED claim is based on time, place, and manner. They could have said these things, but they could not disrupt a funeral while they said them. A court could plausibly distinguish those cases if it chose. Quoting Joel [EMAIL PROTECTED]: From:Father wins millions from war funeral pickets http://www.msnbc.msn.com/id/21566280/[1] The church members testified they are following their religious beliefs by spreading the message that soldiers are dying because America is too tolerant of homosexuality. Attorneys for the church maintained in closing arguments Tuesday that the burial was a public event and that even
RE: Michigan RFRA?
Thanks for the scorecard. It is helpful! -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, October 04, 2007 2:33 PM To: Law Religion issues for Law Academics Subject: RE: Michigan RFRA? Reid v. Kenowa Hills Public Schools, 261 Mich.App. 17, 680 N.W.2d 62 (2004), seems to adopt the Sherbert/Yoder strict scrutiny model as a matter of Michigan constitutional law. On the other hand, it relies on an earlier state supreme court decision that rested on a hybrid rights Free Exercise Clause theory, and doesn't expressly discuss the Sherbert vs. Smith issue, so perhaps it might not be the strongest precedent on this score. Here's the scorecard, as I see it: RFRA statutes (12): AZ, CT, FL, ID, IL, MO, NM, OK, PA, RI, SC, TX. RFRA constitutional amendment (1): AL. Sherbert/Yoder under state constitution (12): AK, IN, ME, MA, MI, MN, MT, NC, OH, VT, WA, WI. Smith under state constitution (4): MD, NJ, OR, TN. Ambiguous, leaning in favor of Smith (1): KS. Uncertainty expressly noted (4): CA, HI, NY, UT. Nothing said (16): AR, CO, DE, GA, IA, KY, LA, MS, NE, NV, NH, ND, SD, VA, WV, WY. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, October 04, 2007 7:17 AM To: religionlaw@lists.ucla.edu Subject: Re: Michigan RFRA? There are 13 state rfras; Michigan is not one of them. Marci Marci A. Hamilton Visiting Professor of Public Affairs Kathleen and Martin Crane Senior Research Fellow Program in Law and Public Affairs Woodrow Wilson School Princeton University -Original Message- From: Ed Brayton [EMAIL PROTECTED] To: Religionlaw Listserv religionlaw@lists.ucla.edu Sent: Thu, 4 Oct 2007 1:38 am Subject: Michigan RFRA? Does anyone on the list know if Michigan has passed their own version of RFRA? If so, can you tell me where to find it in the Michigan code? Thanks. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Email and AIM finally together. You've gotta check out free AOL Mail http://o.aolcdn.com/cdn.webmail.aol.com/mailtour/aol/en-us/index.htm?nc id=AOLAOF0002000970 ! ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Suing God (honest, it's a lawsuit that has really been filed)
You remember correctly. He has been in office, I believe, for a very long time. His constituents keep sending him back. Maybe we ought to worry a bit more about what THEY think. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, September 18, 2007 11:14 AM To: religionlaw@lists.ucla.edu Subject: Re: Suing God (honest, it's a lawsuit that has really been filed) I don't know Chambers reasons for the lawsuit. But just to temper the reaction that he must be mad, Chambers, if I remember correctly, is a wily politician with a good reputation for fighting for his community. Bobby -Original Message- From: Douglas Laycock [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tue, 18 Sep 2007 10:55 am Subject: RE: Suing God (honest, it's a lawsuit that has really been filed) Chambers obviously doesn't expect to win this lawsuit. And I assume he is not one of those borderline mentally ill chronic litigants. So what can he hope to accomplish? Is he just making a theological/political point? That if God gets credit for good things that happen, He is also responsible for bad things that happen? Not exactly a new argument, and likely overwhelmed by reaction to the absurdity of the lawsuit. Quoting Ed Brayton [EMAIL PROTECTED]: Yep, one and the same. Ed Brayton -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] ] On Behalf Of Volokh, Eugene Sent: Monday, September 17, 2007 10:35 PM To: Law Religion issues for Law Academics Subject: RE: Suing God (honest, it's a lawsuit that has really been filed) Isn't Sen. Ernie Chambers the Chambers from Marsh v. Chambers? First he tries to get prayers out of the state legislature, then he up and sues God. Well then. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] ] On Behalf Of Will Linden Sent: Monday, September 17, 2007 7:24 PM To: Law Religion issues for Law Academics Subject: Re: Suing God (honest, it's a lawsuit that has really been filed) I assume this would be thrown out for the same reasons as the suit filed against Satan and his staff (CORPUS JURIS HUMOROUS). There is no clear ground of jurisdiction, since no allegation of residence in Douglas Country has been made, and there are no directions for service of notice of proceedings. In addition, should this give rise to a class action, there is no assurance that the petitioner would fairly represent the interests of the class. At 09:02 PM 9/17/07 -0500, you wrote: I'm embarrassed to admit that this guy is a long-term state senator here in Nebraska. This does, however, seem to be the biggest possible interaction between religion and law. From http://news.yahoo.com/s/ap/20070917/ap_on_fe_st/odd_suing_god_2http http://webmail.aol.com/horde/services/go.php?url=http%3A%2F%2Fnews.yaho o.com%2Fs%2Fap%2F20070917%2Fap_on_fe_st%2Fodd_suing_god_2%3Ehttp : //news.yahoo.com/s/ap/20070917/ap_on_fe_st/odd_suing_god_2 LINCOLN, Neb. - Fed up with the threats, tired of natural disasters, the state's longest-serving state senator is using his legal muscle against who he says is the culprit - God. State Sen. Ernie Chambers of Omaha sued the Almighty in Douglas County District Court last week. Chambers says in his lawsuit that God has made terroristic threats against the senator and his constituents, inspired fear and caused widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants. Chambers also says God has caused fearsome floods ... horrendous hurricanes, terrifying tornadoes. He's seeking a permanent injunction against God. ___ 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 http://webmail.aol.com/horde/services/go.php?url=http%3A%2F%2Flists.ucl a.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw 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 http://webmail.aol.com/horde/services/go.php?url=http%3A%2F%2Flists.ucl a.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw 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
RE: Recent Threads
I think that the Baylor Study rests on a different set of survey questions. My sense, although it is only intuitive, is that the Baylor Study methodology is entirely sound, and probably better than the methodology of most of the other surveys of the religious views of the American people. More to the point, I had forgotten to mention the fuller discussion of what it means to be unaffiliated in the context of the study, a discussion that supports my interpretation of the 10.8% figure. Of the 10.8%, 37.1% don't believe in God or some higher power but 62.9% believe in God or some higher power. Furthermore, given the careful treatment of the theology of God, the Baylor Study would lead one to conclude that some higher power might resemble strongly one of the four conceptions of God that the Study analyzed. Another way to look at this is to consider the possibility that rationalistic or liberal religion can take on a secular focus in which there is little to no room for God. Remember that the Deists taught that God was essentially a beneficent watchmaker who, after creating the universe, removed Himself to the far side of the clouds to tend to his knitting, leaving the world to run in accordance with the laws that He had instituted and put in place. It does not take much to move from this view of God to a view of God as merely a higher power. If that is the case, and I believe that it is, then only 4% of Americans could be said not to believe in God/higher power-perhaps-of the-Deist-sort. Again, given the sound methodology of the Study, I just don't see a surge. Doug, take a look at the Study. You can find it on-line, I think, I just don't happen to have the web address. But go to the Baylor Institute for Studies of Religion website. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Sunday, September 09, 2007 6:58 PM To: religionlaw@lists.ucla.edu Subject: RE: Recent Threads Michael Hout and Claude Fischer at Berkely report a number of studies with similar results, showing that people reporting no religious preference doubled from 7% to 14% in the 90s. Why More Americans Have No Religious Preference: Politics and Generations, 67 Am. Soc. Rev. 165 (2002). Tweaking the data, they find that some of the difference is a difference between the young adult generation and the recently deceased generation, and that part of the difference is people with weak religious affiliations now reporting none. This second group is entirely confined to political liberals and moderates; these appear to be people who do not want to report themselves as religious because to them, conservative Christians have given all religion a bad name. The Baylor study may have picked up a small reversal of trend, or it may have asked a slightly different question. Quoting Newsom Michael [EMAIL PROTECTED]: I wonder if there is a surge of people reporting no religion. The Baylor study -- an extraordinary piece of social science work -- that came out a year ago shows that 89.2% of Americans have a religious affiliation, and of the remaining 10.8%, the study characterizes them as persons without a religious preference, denomination, or place of worship. One cannot fairly say that the unaffiliated necessarily have no religion, for it is possible to be an unaffiliated Christian, and even if one could say that the unaffiliated have no religion, how is 10.8% a surge? It would seem to me that to be a surge one would have to have good data that showed, for example, that 25 years ago, the unaffiliated constituted something under 5 or 6% of the American people. I don't know for sure, but I suspect that the unaffiliated have been around for a long time in the United States, and in numbers not that far removed from 10.8%. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, September 06, 2007 11:05 AM To: religionlaw@lists.ucla.edu Subject: Recent Threads Some Christians proselytize; some don't. Same with atheists. There is clearly a hostile secular reaction to evangelical activism and political influence; it is visible in our politics and in some of the resistance to free exercise claims, and it shows up statistically in a surge of people reporting no religion in surveys about religious belief. It's not a reaction to the Christian Reconstructionists, who are numerically trivial. But many of the folks having the reaction can't tell the difference between the conservative values voters and the Christian Reconstructionists. The mission is a central religious experience in Mormonism. What Fred Gedicks described is the social understanding of the faith. The reality of any religion lies not in formal doctrine but in the social understanding, practices, and lived experience of its faithful. That smart people on this list can doubt whether
RE: But that's what it MEANS
I note with some interest that in a recent piece on the visit of Pope Benedict XVI to Mariazell in Austria, includes a statement to the effect that progressive Catholics might not like the Holy Father's proselytizing for the traditions of the faith. I seriously doubt that the word as used can be fairly said to be pejorative. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Monday, September 10, 2007 5:13 PM To: Law Religion issues for Law Academics Subject: Re: But that's what it MEANS I agree with Mr. Linden to a certain extent -- that if an identifiable group considers a term offensive, others should in general respect their desire that it not be used. But the word proselityzation does not identify a group in the same way that Chrisitan, or Muslim, or Jew, or Hindu, or Black does. To say someone shared the spirit with me is cryptic jargon known only to those ina particular community that talks that way. Steve On 9/8/07, Will Linden [EMAIL PROTECTED] wrote: Mr. Jamar claims the position that if a description conforms to what he considers the accurate denotational meaning of words, we should ignore connotations. I can not buy this. Some people respond to complaints about labelling cults by proclaiming what they say is an accurate and objective meaning of the word, and refuse to acknowledge the complete disconnect between their accurate scientific usage and the real world's use of the word as a bogeyman label. I doubt that Jamar would accept the accuracy criterion in regard to the fat Jewess reference I cited. As for something being an accurate description of their behavior. precisely what I have been saying is that it is NOT applied to people who engage in identical BEHAVIOR for causes which do not fall in the religion box. From recent posts, I am sure that I would be indignantly corrected if I said that Hitchens, Dawkins and Sam Harris are proselytizing for atheism; and similarly if I applied to people who engage in face to face confrontations, even abuse ones, to demand that I change my political and social views, my taste in music, or my choice of leisure activities. What about people who insist that Jew is ipso facto offensive, and insist on Jewish person instead? Perhaps Mr. Levinson would enlighten us on this, and how it seems to have contributed to the brouhouha over Google search rankings and jewwatch.com ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: But that's what it MEANS
The point is that the article was referring to a dispute, if that be the word, between Catholics. That is rather different than a dispute between Catholics and non-Catholics, for example. (I do not buy into the notion that the Culture Wars are quite what Hunter and others claim that they are, but that is another discussion, one which I take up in an article that will be out in a few months.) I am a liberal, with only a few reservations, in politics, that is. I enjoy and feel a close bond with several of my fellow Catholics who may fairly be described as deeply conservative in their political views. We recognize the powerful common bond that is our Catholic faith, and we act upon it. (It turns out that in theological terms I am really an orthodox, if not conservative, Catholic. So, with all due respect, I think that your suggestion overlooks the nature of the dynamic that holds Catholics of different persuasions together as Catholics. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Richard Dougherty Sent: Monday, September 10, 2007 6:24 PM To: Law Religion issues for Law Academics Subject: Re: But that's what it MEANS Really? I thought that was exactly how it was meant. As Will suggests, if he were a progressive (not stipulating now what that means) he would probably be described as sharing the good news. Richard J. Dougherty -Original Message- From: Newsom Michael [EMAIL PROTECTED] Sent 9/10/2007 4:50:42 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: But that's what it MEANS I note with some interest that in a recent piece on the visit of Pope Benedict XVI to Mariazell in Austria, includes a statement to the effect that progressive Catholics might not like the Holy Father's proselytizing for the traditions of the faith. I seriously doubt that the word as used can be fairly said to be pejorative. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Recent Threads
I wonder if there is a surge of people reporting no religion. The Baylor study -- an extraordinary piece of social science work -- that came out a year ago shows that 89.2% of Americans have a religious affiliation, and of the remaining 10.8%, the study characterizes them as persons without a religious preference, denomination, or place of worship. One cannot fairly say that the unaffiliated necessarily have no religion, for it is possible to be an unaffiliated Christian, and even if one could say that the unaffiliated have no religion, how is 10.8% a surge? It would seem to me that to be a surge one would have to have good data that showed, for example, that 25 years ago, the unaffiliated constituted something under 5 or 6% of the American people. I don't know for sure, but I suspect that the unaffiliated have been around for a long time in the United States, and in numbers not that far removed from 10.8%. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Thursday, September 06, 2007 11:05 AM To: religionlaw@lists.ucla.edu Subject: Recent Threads Some Christians proselytize; some don't. Same with atheists. There is clearly a hostile secular reaction to evangelical activism and political influence; it is visible in our politics and in some of the resistance to free exercise claims, and it shows up statistically in a surge of people reporting no religion in surveys about religious belief. It's not a reaction to the Christian Reconstructionists, who are numerically trivial. But many of the folks having the reaction can't tell the difference between the conservative values voters and the Christian Reconstructionists. The mission is a central religious experience in Mormonism. What Fred Gedicks described is the social understanding of the faith. The reality of any religion lies not in formal doctrine but in the social understanding, practices, and lived experience of its faithful. That smart people on this list can doubt whether the Mormon mission is religious dramatically illustrates what is wrong with the compelled/motivated distinction. I agree -- and have testified -- that the religious motivation must be substantial or primary and not just lurking in the background somewhere. That means the resulting line is one of degree and not a bright line. But to say the Mormon mission is not distinguishable from any other reason for taking a year off is like saying that because 1 isn't much different from 2, and 2 isn't much different from 3, and so on -- that 1 is indistinguishable from 100 or a hundred trillion or any other number. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Recent Threads
I have an article coming out soon that has the word proselytizing in its title. Like Steve, I thought that I was being accurate. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, September 06, 2007 12:16 PM To: Law Religion issues for Law Academics Subject: Re: Recent Threads Curious. I've had many a christian tell me it is their obligation to proselytize -- using that very word. I don't see anything pejorative in it at all. It is quite accurate. On 9/6/07, Will Linden [EMAIL PROTECTED] wrote: On Thu, 6 Sep 2007, Douglas Laycock wrote: Some Christians proselytize; some don't. Same with atheists. Proseleytize is one of those funny words, like cult and superstition, which can only be applied to Somebody Else BY DEFINITION. We share, you preach, They proseleytize. Consequently, I have dropped it from my vocabulary. Will Linden [EMAIL PROTECTED] http://www.ecben.net/ Magic Code: MAS/GD S++ W++ N+ PWM++ Ds/r+ A- a++ C+ G- QO++ 666 Y ___ 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. -- Prof. Steven Jamar Howard University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: EC Compelling Interest
Isn't the whole point of the EC that the government cannot be permitted to be a willing speaker when it comes to God-talk? And isn't this the reason why a per se analysis is more consistent with that purpose than any compelling interest test might be? The EC contains its own compelling interest, doesn't it? And isn't that compelling interest essentially freedom FROM religion? (Why, for the sake of discussion, should X's freedom OF religion trump Y's freedom FROM religion? And isn't it true, therefore, that large claims of freedom OF religion, of Free Exercise, should be viewed with a great deal of suspicion especially given the categorical nature of the EC, of freedom FROM religion, whereas there is no comparable categorical freedom OF religion? Of course my Protestant Empire thesis provides a useful way of assessing both freedom FROM and freedom OF religion claims. I have another Protestant Empire piece coming out shortly which looks at this problem in part through the lens or prism of proselytizing in the public schools and elsewhere.) Isn't it also true, therefore, that to characterize the objection to the display as a heckler's veto begs the question to be decided? If the government cannot be a willing speaker then the censor is not the heckler but is the EC itself. It is interesting to recall that the pre-Incorporation common school religion cases divided on this point. The state courts that upheld prayer and Bible reading in public schools almost always characterized the objectors as hecklers. The minority of state courts that struck down or limited these practices never used such terminology in describing those who objected to these religious exercises. Was the pre-Incorporation state court minority right when it struck down or limited Bible reading and prayer in the public schools? Were Engel and Schempp correctly decided? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Monday, July 23, 2007 5:14 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest Of course, one of the problems with a compelling interest test is no one really knows what interests are extraordinarily important and which are less so. And different folks may have different scales of importance. In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it extraordinarily important? I don't know. I would at least like to see the Ct apply the compelling interest test and explain why this speech/non-censorship interest is not important. Alternatively, the compelling interest in such cases might be the govt's strong interest in diversity and equal regard for religious citizens in a pluralistic public square. If all sorts of secular holidays are celebrated in the public square (gay pride, cinco de mayo, Columbus Day, pork producers day, etc), many people of faith might well feel disrespected and deeply injured by being the only subgroups in the community whose holidays are not celebrated. And what about the compelling interest of school officials to decide which curriculum best meets the needs of students in the public schools trumping EC attacks on ID, music curriculum, and the Pledge of Allegiance? Just some thoughts. I don't think these cases are as easy as Eugene seems to think they are, because what may not seem important to some may seem very important to others. And the fact that the Ct doesn't even play the game suggests that maybe the reason is that there is no game to be played because the EC applies as a categorical rule without a balancing test. Rick Duncan Volokh, Eugene [EMAIL PROTECTED] wrote: Rick: You might well be right, but it's hard to tell without some cases that test our sense of this, by coming out differently under strict scrutiny than under per se invalidation. It's hard to see a compelling interest behind government holiday displays -- one can surely argue that endorsement shouldn't be seen as implicating the Establishment Clause, but it's harder to say that it does implicate it but that it's just extraordinarily important to allow it. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 4:45 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest When the Ct strikes down a law under the EC, it usually declares the law unconstitutional w/out any type of scrutiny. Why doesn't the Ct at least go through
RE: Lofton / Falwell Not Preacher He SHOULD Have Been
I wish that it were clear that there is a sharp line dividing the two. There is, after all, a powerful dynamic relation between law and morality, as there is between law and psychology, law and theology, and any number of other relevant and germane factors and considerations. Falwell obviously sought to link law and morality. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, May 17, 2007 1:40 PM To: Law Religion issues for Law Academics Subject: RE: Lofton / Falwell Not Preacher He SHOULD Have Been A discussion of Falwell's role in the development of Religion Clauses law is surely entirely on-topic. A discussion of whether Falwell acted in sad or sinful ways under one's own theological view (however sincere or well-reasoned) of what behavior is sad or sinful strikes me as no more on-topic than a discussion of whether, say, Justices Brennan or Blackmun acted in sad or sinful ways. Eugene [EMAIL PROTECTED] 05/17/07 9:01 AM In a message dated 5/16/2007 9:59:21 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: Please remember that this is a list devoted to the law of government and religion -- not on whether some people (recently dead or otherwise) acted in sad or sinful ways, except insofar as that pretty closely connects to the law of government and religion. I am incredulous that an open discussion of one of the most important operatives in religion and constitutionalism in the last three decades should be inappropriate on this List. Of course, this is Eugene's List and therefore I will respect his wishes. But I could not disagree more with his sense of relevance or appropriateness in this matter. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor: _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) ** See what's free at http://www.aol.com. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Landmark First Amendment Religion Litigation?
The question is whether there is some sort of firewall around the deed/contract cases. I am just not sure that there is, thus giving the courts some room to impose secular norms in other situations, should they choose to do so. That's all that I mean to say. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 5:56 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Hmm -- interesting, but any chance you could point to some specific cases that impose not secular norms related to contract and deed interpretation, but also secular norms that would justify courts deciding whether a church decision was the product of fraud or collusion? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, January 26, 2007 2:54 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? You may be right on the point. I may be confusing the anti-communism of lower courts that got reversed on appeal. But, that said, the post-Wolf era can only be reasonably explained in terms of the imposition of secular norms -- at least some of the time. And it follows, I think, that it is altogether possible that secular norms might be imposed in the Virginia case. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, January 26, 2007 5:45 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Kedroff and Kreshik were also decided in favor of the Soviet-controlled Russian Orthodox Church, despite the NY legislature's efforts to the contrary. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 5:32 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Well, I firmly endorse a secular norm of disliking Communism. Nonetheless, unless I'm mistaken the Milivojevich Court held *in favor* of the Yugoslav (and I take it Communist-influenced) hierarchy. The hierarchy tried to remove the American bishop; the Illinois Supreme Court invalidated the removal as 'arbitrary' because the proceedings resulting in those actions were not conducted according to the Illinois Supreme Court's interpretation of the Church's constitution and penal code, and that the Diocesan reorganization was invalid because it was beyond the scope of the Mother Church's authority to effectuate such changes without Diocesan approval. The Supreme Court reversed the Illinois decision, and the Communist-influenced hierarchy won. That seems to suggest that the Court was following a norm of deference to the hierarchical authorities, whether the heads were under the influence of Communists or not. Am I missing something here? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, January 26, 2007 2:25 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? That is all well and good, but I have the sense that the Court nonetheless applied secular norms in some post-Wolf cases, indeed perhaps going so far as to constitutionalize a Congregationalist polity even in hierarchical churches (be they Episcopalian or Presbyterian in their polity). If this isn't the application of secular norms, then what is it? As to the post-Wolf cases, it is difficult to argue that they can be easily reconciled, there being a real difference on the precise question of secular norms. I think that the law is anything but clear, post-Wolf. One more point, the property dispute cases involving Eastern Orthodox Churches certainly reflect secular norms -- a dislike of communism, for openers. Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 4:40 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? [W]hether or not there is room for marginal civil court review under the narrow rubrics of fraud or collusion when church tribunals act in bad faith for secular purposes, no arbitrariness exception in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline
RE: Landmark First Amendment Religion Litigation?
I don't disagree with the major thrust of what you say, except that I wonder whether judges will avoid intruding in other categories of cases. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Friday, January 26, 2007 6:50 PM To: religionlaw@lists.ucla.edu Subject: Re: Landmark First Amendment Religion Litigation? There are no post-Wolf cases in the Supreme Court. They have repeatedly denied cert, letting lower courts apply and abuse Wolf however they want. Some state courts have indeed imposed congregational polities on hierarchical churches, at least with respect to property ownership. The Russian Orthodox case in Massachusetts may be the most absurd of these. But there is very little of this judicial intrusion, even in the lower courts, in minister cases, and virtually none outside the context of sexual harassment. Quoting [EMAIL PROTECTED]: In a message dated 1/26/2007 5:26:13 PM Eastern Standard Time, [EMAIL PROTECTED] writes: That is all well and good, but I have the sense that the Court nonetheless applied secular norms in some post-Wolf cases, indeed perhaps going so far as to constitutionalize a Congregationalist polity even in hierarchical churches (be they Episcopalian or Presbyterian in their polity). If this isn't the application of secular norms, then what is it? As to the post-Wolf cases, it is difficult to argue that they can be easily reconciled, there being a real difference on the precise question of secular norms. I think that the law is anything but clear, post-Wolf. One more point, the property dispute cases involving Eastern Orthodox Churches certainly reflect secular norms -- a dislike of communism, for openers. Even Justice Scalia expressly carved out the Ministerial Exception in Employment Div. v. Smith (neutral laws of general applicability analysis)...it is a little dfifficult to respond to your sense that the Court applied secular norms without you referring to specific cases from which you derive that sense Donald C. Clark, Jr. 2333 Waukegan Road Suite 160 Bannockburn, Illinois 60015 847-236-0900 847-236-0909 (fax) This message is a PRIVATE communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. ** ** IRS Circular 230 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Landmark First Amendment Religion Litigation?
I will defer to those who know this area of the law better than I do, but, isn't it the case that secular courts will impose secular notions of procedural due process on adjudications by religious bodies? If that is so, then this case may be but so important, if it turns out that the Episcopal Bishop transgressed those secular due process norms. And if that be the case, then isn't the appropriate judicial remedy a judgment directing the Episcopal Bishop to give Moyer a fair trial? One more thought that may be even more important: if the Episcopal Church's own rules contain due process protections and the Episcopal Bishop has failed to follow them, then isn't it appropriate for a secular court at least to order the religious organization to follow its own rules, quite apart from any notions of constitutional (i.e. secular) due process? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Friday, January 26, 2007 8:52 AM To: religionlaw@lists.ucla.edu Subject: Landmark First Amendment Religion Litigation? This may be of interest to some list members who are researching, writing or teaching in this area: From this morning's Philadelphia Inquirer, at http://www.philly.com/mld/philly/news/16548224.htm Judge lets ousted priest sue in test of First Amendment The Episcopal bishop had denied the Montco cleric a church trial. Clearing the way for a landmark test of the First Amendment, a Montgomery County Court judge has allowed an Episcopal priest to sue his bishop for removing him from priesthood. In a decision released yesterday, Judge Thomas Branca rejected Bishop Charles E. Bennison Jr.'s argument that the Rev. David Moyer had no right to settle their differences with a civil trial. Bennison's lawyers had argued in four appearances before Branca that the First Amendment barred civil courts from deciding cases involving religious personnel disputes. But Moyer's lawyers replied that the priest had no other remedy because Bennison denied him due process by removing him without a church trial, as church law requires. They also say Bennison fraudulently concealed relevant documents from the diocesan standing committee, the diocese's administrative body, which endorsed Moyer's removal. John Lewis, Moyer's lawyer, said yesterday that he believed Moyer v. Bennison would be the first time that a case will go to trial which involves ecclesiastical discipline of a priest in a hierarchical church. [remainder of article at cited URL] For those not following the story, this most recent news is the latest in a long line of posturing, maneuvering, voting, disputes, etc., between two groups in the church who take diametrically opposed views on at least several hot-button issues. I post this with a question mark in the topic because I'll let others confirm or reject the proposition that this is the first time that a case will go to trial which involves ecclesiastical discipline of a priest in a hierarchical church. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule mauledagain.blogspot.com President, TaxJEM Inc (computer assisted tax law instruction) (www2.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Maule Family Archivist Genealogist (www.maulefamily.com) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Landmark First Amendment Religion Litigation?
I will be the first to admit that I may have misread Jones v. Wolf, but neutral principles of law is a rather capacious concept, and don't forget Gonzalez v. Roman Catholic Archbishop of Manila and the insistence there of the right of the Court to provide a remedy where there was fraud, collusion, or arbitrariness in the proceedings before the religious tribunal. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, January 26, 2007 2:31 PM To: religionlaw@lists.ucla.edu Subject: Re: Landmark First Amendment Religion Litigation? In a message dated 1/26/2007 1:11:21 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I will defer to those who know this area of the law better than I do, but, isn't it the case that secular courts will impose secular notions of procedural due process on adjudications by religious bodies? No, indeed quite to the contrary and appropriately so If that is so, then this case may be but so important, if it turns out that the Episcopal Bishop transgressed those secular due process norms. And if that be the case, then isn't the appropriate judicial remedy a judgment directing the Episcopal Bishop to give Moyer a fair trial? One more thought that may be even more important: if the Episcopal Church's own rules contain due process protections and the Episcopal Bishop has failed to follow them, then isn't it appropriate for a secular court at least to order the religious organization to follow its own rules, quite apart from any notions of constitutional (i.e. secular) due process? No, the state has no constitutionally permissible role in ensuring that ecclesiastical process either meets secular notions of due process or in enforcing what it interprets to be the process selected at any given point in time by an ecclesiastical body While I have not read any opinion that may have accompanied this judge's order, the press report, if accurate, suggests that this judge has strayed beyond both federal and state constitutional boundaries...I have obtained the exact opposite outcome in a case raising similar issues from another judge in Montgomery County Donald C. Clark, Jr. 2333 Waukegan Road Suite 160 Bannockburn, Illinois 60015 847-236-0900 847-236-0909 (fax) This message is a PRIVATE communication. This message and all attachments are a private communication sent by a law firm and may be confidential or protected by privilege. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of the information contained in or attached to this message is strictly prohibited. Please notify the sender of the delivery error by replying to this message, and then delete it from your system. Thank you. IRS Circular 230 Disclosure: To comply with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained herein (including any attachments), unless specifically stated otherwise, is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter herein. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Landmark First Amendment Religion Litigation?
Some of the other cases come out the other way, if I remember them correctly. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 5:32 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Well, I firmly endorse a secular norm of disliking Communism. Nonetheless, unless I'm mistaken the Milivojevich Court held *in favor* of the Yugoslav (and I take it Communist-influenced) hierarchy. The hierarchy tried to remove the American bishop; the Illinois Supreme Court invalidated the removal as 'arbitrary' because the proceedings resulting in those actions were not conducted according to the Illinois Supreme Court's interpretation of the Church's constitution and penal code, and that the Diocesan reorganization was invalid because it was beyond the scope of the Mother Church's authority to effectuate such changes without Diocesan approval. The Supreme Court reversed the Illinois decision, and the Communist-influenced hierarchy won. That seems to suggest that the Court was following a norm of deference to the hierarchical authorities, whether the heads were under the influence of Communists or not. Am I missing something here? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, January 26, 2007 2:25 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? That is all well and good, but I have the sense that the Court nonetheless applied secular norms in some post-Wolf cases, indeed perhaps going so far as to constitutionalize a Congregationalist polity even in hierarchical churches (be they Episcopalian or Presbyterian in their polity). If this isn't the application of secular norms, then what is it? As to the post-Wolf cases, it is difficult to argue that they can be easily reconciled, there being a real difference on the precise question of secular norms. I think that the law is anything but clear, post-Wolf. One more point, the property dispute cases involving Eastern Orthodox Churches certainly reflect secular norms -- a dislike of communism, for openers. Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 4:40 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? [W]hether or not there is room for marginal civil court review under the narrow rubrics of fraud or collusion when church tribunals act in bad faith for secular purposes, no arbitrariness exception in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense arbitrary must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their jurisdiction. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, January 26, 2007 1:24 PM To: religionlaw@lists.ucla.edu Subject: Re: Landmark First Amendment Religion Litigation? In a message dated 1/26/2007 4:20:12 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I will be the first to admit that I may have misread Jones v. Wolf, but neutral principles of law is a rather capacious concept, and don't forget Gonzalez v. Roman Catholic Archbishop of Manila and the insistence there of the right of the Court to provide a remedy where there was fraud, collusion, or arbitrariness in the proceedings
RE: Landmark First Amendment Religion Litigation?
You may be right on the point. I may be confusing the anti-communism of lower courts that got reversed on appeal. But, that said, the post-Wolf era can only be reasonably explained in terms of the imposition of secular norms -- at least some of the time. And it follows, I think, that it is altogether possible that secular norms might be imposed in the Virginia case. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Rassbach Sent: Friday, January 26, 2007 5:45 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Kedroff and Kreshik were also decided in favor of the Soviet-controlled Russian Orthodox Church, despite the NY legislature's efforts to the contrary. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 5:32 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? Well, I firmly endorse a secular norm of disliking Communism. Nonetheless, unless I'm mistaken the Milivojevich Court held *in favor* of the Yugoslav (and I take it Communist-influenced) hierarchy. The hierarchy tried to remove the American bishop; the Illinois Supreme Court invalidated the removal as 'arbitrary' because the proceedings resulting in those actions were not conducted according to the Illinois Supreme Court's interpretation of the Church's constitution and penal code, and that the Diocesan reorganization was invalid because it was beyond the scope of the Mother Church's authority to effectuate such changes without Diocesan approval. The Supreme Court reversed the Illinois decision, and the Communist-influenced hierarchy won. That seems to suggest that the Court was following a norm of deference to the hierarchical authorities, whether the heads were under the influence of Communists or not. Am I missing something here? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, January 26, 2007 2:25 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? That is all well and good, but I have the sense that the Court nonetheless applied secular norms in some post-Wolf cases, indeed perhaps going so far as to constitutionalize a Congregationalist polity even in hierarchical churches (be they Episcopalian or Presbyterian in their polity). If this isn't the application of secular norms, then what is it? As to the post-Wolf cases, it is difficult to argue that they can be easily reconciled, there being a real difference on the precise question of secular norms. I think that the law is anything but clear, post-Wolf. One more point, the property dispute cases involving Eastern Orthodox Churches certainly reflect secular norms -- a dislike of communism, for openers. Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, January 26, 2007 4:40 PM To: Law Religion issues for Law Academics Subject: RE: Landmark First Amendment Religion Litigation? [W]hether or not there is room for marginal civil court review under the narrow rubrics of fraud or collusion when church tribunals act in bad faith for secular purposes, no arbitrariness exception in the sense of an inquiry whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations is consistent with the constitutional mandate that civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense arbitrary must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them. Watson itself requires our conclusion in its rejection of the analogous argument that ecclesiastical decisions of the highest church judicatories need only be accepted if the subject matter of the dispute is within their jurisdiction. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976). From: [EMAIL
RE: Frances Patterson
Colleagues, please excuse me, but I need to get in touch with Frances Patterson. If she is following this list, I hope that she will contact me ASAP. I am working on an article, and an earlier post from her on this list raised some matters that are particularly relevant to that enterprise. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: From the list custodian re: theological discussions
I agree. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brian Landsberg Sent: Saturday, September 02, 2006 4:22 PM To: religionlaw@lists.ucla.edu Subject: From the list custodian re: theological discussions Hallelujah! [EMAIL PROTECTED] 9/2/2006 1:02:49 PM I thought I'd briefly note that as a general matter, purely theological discussions -- such as what the Bible allows or forbids -- are not on-topic for the list; the list is about the secular law related to religious practice, practitioners, and institutions (what I somewhat clunkily call The Law of Government and Religion), and not about religious law. One-shot queries for help with questions of religious law (such as the one that started the thread) are generally fine, since there are likely quite a few people on the list who would have answers to such questions, and such queries are therefore an easy way of advancing people's research. But extended discussions about religious law are generally off-topic. This having been said, I haven't spoken up about the polygamy thread, because many list members seem to have been interested in it, and because the list has been relatively quiet on other matters, so it hasn't been detracting from on-topic discussions. (I've also been swamped with other things, so I didn't really focus on the thread until recently.) I did, however, want to note that this thread shouldn't be seen as precedent for other on-list theological discussions; and to suggest that now that the thread has been active for some days and several dozen posts, it might be worthwhile to wind it down. Thanks, The list custodian ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Rep. Harris (R-Fla.) on Church and State
Arent theological claims a bit beyond the scope of the discussion on this listserv? I have no problem with theological claims, and would have no problem discussing this claim. But not here. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 28, 2006 2:12 PM To: [EMAIL PROTECTED]; Law Religion issues for Law Academics; UCLA Law Class Subject: RE: Rep. Harris (R-Fla.) on Church and State God is absolutely in control. By me kings reign and rulers decree justice By me princes rule, and nobles all the judges of the earth. Proverbs 8:15-16 (NKJV) Debra Cook -- Original message -- From: Gordon James Klingenschmitt [EMAIL PROTECTED] AlthoughI'm not a lawyer, I am working on my PhD in Theology, and of course my Navy Chaplain issues put me attheintersection of church and state...so perhaps I'm qualified tocomment on Senator-candidate Katherine Harris' comments about separation and legislating God's will. 1) I said essentially the same thing as Ms. Harrisin my 1999interview with US News and World Report (paraphrased from my memory): Many Americans want to electpoliticians wholegislate tolerance of sin,just so they won't have to forsake their favorite sins. But God will nevermake sin legal. Won't itbe tragic one day, whenAmerican citizens standbefore God to be judged, and say 'but I thought that was legal...' and discover (too late) that God disagrees. Government's highest duty then, is to pass laws God agrees with, lest itdo its citizens an eternal disservice. 2) Many anti-Christians quote separation of church and state as if that somehow means Christians aren't allowed to vote. But we who shareChristian values have just as much right to vote, lobby, advocate, publish, and legislate our values as any other citizens.Liberals often use thephrase separation as a means to intimidate and silence Christian voters from fully participating. But we will not be silenced, nor shouldwe be intimidated. 3) The First Amendment doesn't prohibit the legislation of Christian laws, any more than it prohibits the legislation of Muslim values or Atheist values or Sandy Levinson's values. Theoretically we could organize and legislatethe Ten Commandments directly into the U.S. Constitution, if we had 2/3rdof Senators and 3/4 of the States to vote them in. Perhapsthat would angeranti-Christian voters, but then we're angered by their pro-abortion/pro-homosexual laws too. 4) PresidentBush shouldn't disown her comments, rather it's possible heagrees with her theology. Here's a clip from 1999 interview of Meet The Press: MR. RUSSERT: Reverend Land, The Washington Post reported this: 'I believe God wants me to be president,' the Rev. Richard Land, head of the public policy arm of the Southern Baptist Convention, quoted George Bush as saying. When did George Bush tell you that? DR. RICHARD LAND: Well, he told me that--he told a group of us that the day he was inaugurated for his second term as governor of the state in 1999. 5) I disagree theologically, however,with both of them, if they believe as Katherine Harris says,'God is the one who chooses our rulers.' There's ample evidenceto the contrary, that the Devil himself often chooses our rulers, and evil morals are legislated by those who campaign (and win) on platforms announcing their intention to legislatethe devil's will. Somewrongly assume all American laws are the same as God's laws. But God himselfdisagrees with many American laws on the books, for example, the new Navy policy that prohibits chaplains from praying in Jesus nameoutside the chapel. Our duty is always to fight the devil, and his laws. 6) When American law conflicts with God's law, Christians have a duty to disobey human law, and obey God's law.Our duty towardcivil disobediencehas been recognized by great Americans throughout history, for example Martin Luther King, Patrick Henry, the Founding Fathers (Declaration of Independence) etc. 7) The very notion of our 3-branch system of Government (President, Congress, Courts) came from the Bible, and is patterned after God's personality, from Isaiah 33:22: For the LORD is our judge,the LORD is our lawgiver,the LORD is our king;it is he who will save us. We must therefore votewhat God has told our conscience to legislate,what we know is right, and we must never legislate evil. If our government ceases to reflect God's personality, woe to us all, for the devil's tyranny will become a heavy yoke upon our necks, and true Christian Liberty will be lost forever. Gordon James Klingenschmitt www.persuade.tv Sanford Levinson [EMAIL PROTECTED] wrote: Date: Sat, 26 Aug 2006 16:28:48 -0500 From: Sanford Levinson [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE:
RE: Fox News Forgets Fact in Christian Graduation Speech Story
Not everybody is happy. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Sunday, August 06, 2006 12:47 PM To: Law Religion issues for Law Academics Subject: Re: Fox News Forgets Fact in Christian Graduation Speech Story [EMAIL PROTECTED] wrote: I much appreciate the kind words (particularly coming from the author of the conlaw book I still use and have been using since law school). There was actually anotherinteresting fact about the Erica Corder case in Monument, CO that wasn't in the Fox News story.Erica Corder'sfather is on the board of directors of James Dobson's Focus on the Family which is based near there (the father's connection to FoFis reported in the Colorado Springs Gazette). If anyone's interested, I took my argument to the Colorado Springs Gazette online forum in more extended written form at: http://forums.gazette.com/gazette/viewtopic.php?t=345start=30 What I'm having difficulty figuring out, however, is exactly where to draw the line in graduation speech preapproval cases. Does anyone have any good citations (or opinions) on when preapproval of a message becomes endorsement? Also, how do high schools fashion preapproval policies so they are not arbitrary or discriminatory? I would argue that if the graduation speaker is chosen according to some objective criteria, as when the valedictorian automatically is invited to speak, then the school should not exercise any control over the content of their speech at all. Then the speech is purely their own, there is no message of endorsement, and the student can say whatever they want. Free speech preserved, establishment clause problem eliminated, everyone hapy. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Teenagers The Spirit of Liberty
With all due respect, the prayer was hardly private. -Original Message- From: Kurt Lash [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 23, 2006 10:14 PM To: Law Religion issues for Law Academics Subject: Re: Teenagers The Spirit of Liberty I think that the denigration of Rick and his original post has gone a bit overboard. As I understand the facts (and I could be wrong), the students voted on a graduation speaker and that speaker planned on including a prayer as part of her speech. In an injunction based on a suit filed only days before, the judge prohibited the student from praying. Apparently prayers were a traditional part of the ceremony, but it's not clear how they took place. But taking the facts as known, I am not at all convinced that the Court's establishment clause jurisprudence forbids all prayers by invited private speakers (including students) at school events. Could she have been held in contempt if she declared God have mercy on the souls of those killed in Iraq? It seems to me that when the government opens a space for private speech, forbiding private speakers from engaging in religion talk raises serious First Amendment issues. It begs the question to assert tyranny of the majority. As I tell my students, the only thing worse than a tyranical majority is a tyrannical minority--or a single tyrant. The issue is whether a supermajority of the people, at a moment in time, enshrined a principle in our constitution which justifies the injunction in this case. Unless I am wrong about the facts, I am not at all convinced that it does. The students' action/protest not only accepted (for the moment) the court's ruling (no lynch mob here), I thougt its symbolism was quite potent: The courts cannot silence our private religious speech. They may have acted from a religious/majoritarian impulse, but the constitutional principle involved protects both the majority and minority from unwarranted government censorship--whether by courts or by school boards, and whether the speech is secular or religious. Kurt Lash Loyola Law School (L.A.) PS: There is, of course, a serious issue regarding the degree to which members of an an audience may prevent a speaker from speaking, or a ceremony from taking place, through their disruptive protests--whether religious or secular based. This issue, however, has nothing to do with the establishment issues raised by those responding to Rick's post. Content-type: multipart/alternative; boundary=Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-transfer-encoding: 8BIT --Boundary_(ID_ZW+hF43hOXfSlPtjprWkmg) Content-type: text/plain; charset=iso-8859-1 Content-transfer-encoding: 8BIT I see from earlier news stories that the student first asked the principal to not schedule prayers at the graduation, and the principal refused. The prayers objected to originally were clearly out of line under current case law. School authorities shouldn't be in the business of telling kids when to pray -- and is that not exactly what scheduling prayers is? Rick, is there any reason this group shouldn't be compared to the lynch mob that goes after a suspected horse thief? The fellow may be guilty, and a court can determine that later -- but lynching is illegal, and shouldn't we trust to the courts to arrive at a near-just conclusion? I graduated from a high school where I was one of 2 students -- about 1% of the graduating class -- not of the predominant religion. I understand exactly what the plaintiff in the case complained about. It's scary that a ruling from a federal court is not enough to preserve religious rights against a mob. I'm deeply troubled by that. Ed Darrell Dallas Rick Duncan [EMAIL PROTECTED] wrote: Here is the way I look at it. One poor kid tried to censor his classmates with the help of a powerful legal ally, the ACLU. His classmates did not like being silenced by the poor kid. So they made a stand--not to ostracize the poor kid, but to stand up for their liberty of religious expression at their own commencement. They did not violate the spirit of the EC. The spirit of the EC deals with government coercion and religion. The true spirit of the Religion Clause is on the side of the students who would not be cowed and silenced by the ACLU and the unelected judiciary. I am proud of these kids. I hope their spirit spreads to many other schools and impacts many other commencements. There is no need to ask school officials to sponsor prayer. All students need to do is pray: without asking for endorsement or permission from government authorities. Cheers, Rick Duncan [EMAIL PROTECTED] wrote: Some info from the involved ACLU affiliate is at this link: http://www.aclu-ky.org/news.html#Grad%20Prayer That info includes the following paragraph: School-sponsored prayer constitutes a symbolic and tangible ‘preference… given by
RE: How one school district found religion
Cross-religious dialogue, without some understanding of its context or setting, can hardly be the measure or substance of toleration. Actions also help shape and define toleration. They are at least as important as words are. Of course, in some settings, words take on action-like qualities. (Context is relevant in determining whether such dialogue is nothing more than an effort to advance an imperialist Protestant agenda. There is precious little evidence that teaching about religion can be separated from teaching religion. Curriculum design, teacher training and competence, institutional and community pressures, including Protestant or other majoritarian religious -- imperialism, can all work to change a course about religion into a course that teaches religion. That is precisely why such courses in elementary and secondary public schools are an extremely bad idea. (There are other objections largely having to do with coverage what religions are or are not included in the courses and what aspects of religious belief, practice, theology, text, ritual and ceremony are or are not to be included in the courses.) Conversations about religious diversity and tolerance need to take place more rather than less often. But such conversations do not require discussions of religious belief, practice, theology, text, ritual and ceremony. That said, even these discussions can be subverted, depending, of course, on the pressures brought to bear on the shape and character of those discussions. The Religion Clauses contain a theory of toleration. It is just not clear what the boundaries of it might be. There is no doubt that the Clauses require intra-Protestant toleration. The struggle, since the Founding, has been over whether the Clauses require toleration of non Protestants, Christians or not. In light of the text of the Clauses and the struggles of religious outsiders to be included within their protection, one could fairly read the Clauses as favoring, if not mandating tolerance of [some] non Protestants over intolerance. Teaching toleration of those religions falling within the protection of the Clauses, therefore, is hardly unconstitutional. (Some might say that all religions are protected. I wonder. But that is another conversation altogether.) I dont think that the existence of tolerated intolerant religions presents a constitutional problem. Interestingly the belief-action distinction actually serves some useful purpose here. Adherents of tolerated intolerant religions can believe anything that they want to. But their actions are subject to constitutional norms regarding tolerance, and, hence, are subject to regulation. From: Vance R. Koven [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 24, 2006 8:36 AM To: Law Religion issues for Law Academics Subject: Re: How one school district found religion A very interesting article that raises (one might say begs) the question of the extent to which it is constitutionally permissible for the state to encourage adherents of intolerant religions to be tolerant. The last paragraph of the article summarizes the school system's position nicely: Limiting deeply held beliefs to the private sphere breeds suspicion and tension. True religious liberty prevails not only when people feel comfortable expressing their beliefs, but also when they learn to discuss religious differences with civility and respect. Some on this list might complain that the whole concept of encouraging cross-religious dialogue under state sponsorship smacks of imperial Protestant theology. To the extent the exercise is about more than etiquette there might be something to this, though it might not be a persuasive objection. What should an adherent of Wahabism think about such a program, if the adherent buys into the theology represented in the school textbooks quoted here the other day? There certainly is an important state interest in promoting personal security. Is adopting a platform of enforced religious tolerance the least restrictive means of achieving that objective? From the article, it seems clear that participants in the program grew to see the similarities between religious belief systems. What if this outlook results in higher levels of intermarriage between religious adherents (prohibited in some religions) and a consequent decrease in adherents of some religions or a decrease in religious institutional participation? Bottom line, can the state adopt a policy that religious adherents have to get with the program of religious liberty, or are we now required on the one hand to literalize the First Amendment to prevent the adoption of any policy on the interaction between belief and action in secular society (to the extent anyone acknowledges the existence of such a thing), or on the other to deconstruct the First Amendment as an obsolete imposition of one religious point of view? Or are we allowed, with or without acknowledging that
RE: Bullying of Christian Students in Public Schools
How is toleration advanced if a group of intolerant students is allowed to bully and harass gay and lesbian students? This question is especially acute in light of the sorry history of harassment and worse of gay and lesbian people. And it would be disingenuous in the extreme to argue that all that the Slavic Christians were doing was expressing their faith. In this context their words took on an action-like quality and that warrants their regulation or outright suppression in the public schools. I do not condone threats leveled against these Slavic Christians. Those are clearly wrong. There are better ways to confront intolerant bullies. From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Wednesday, May 24, 2006 1:49 PM To: Law Religion issues for Law Academics Subject: Bullying of Christian Students in Public Schools Did someone mention bullying of students in the government schools. Here is a case of real bullyingtaking place inthe Tolerant State (from a press release of the Pacific Justice Institute): 05.23.2006 Students Plead With School Boards for Safe Schools and Free Speech Sacramento, CAStudents and their parents packed out a school board meeting at the Roseville Joint Unified School District in response to the suspensions received for peacefully expressing their religious beliefs. Numerous students of Slavic descent passed out Christian literature and wore t-shirts that read, Homosexuality is sin. Jesus can set you free. (For further details, see PJI press release May 2, 2006.) In addition to asking for their rights to speech and the free exercise of religion, these students and their parents asked the board to fulfill its obligations to protect students from threats, violence and other forms of harassment. Viktor Lavor, a junior, told the board that Slavic Christian students, while leafleting, were threatened by hostile peers that they would get beat up after school. Another pupil described how they went into the cafeteria wearing their shirts. While sitting in the cafeteria at breakfast, we had things like bottles, pieces of food and other objects thrown at us, said Lyana Tagintsev. I felt unprotected, she said. Taginstev told the board that the school is suppose to protect us like any other students, but I didnt see them try to do anything. Later that day, Lavor and Taginstev, along with 10 other students were summoned to the office by school officials. We were given two options: either to take off the shirts and go back to class or keep the shirts on and face two days suspension. After praying, our group chose to keep the shirts on and stand up for what we knew was the truth. If we would take off our shirts we would be cowards, Lavor said. Nadia Militan, who did not wear the shirt that day saw the other students in the school office who were suspended. Originally from the Ukraine, she told the board that this kind of speech suppression makes me wonder if American schools follow the US Constitution. Later I asked one of my friends if they had any more shirts. They did and I put it on in front of the office administration. They suspended me as well, Militan told an attentive board. In nearby San Juan Unified School District, parents and students intend to address that school board about similar hostility and suppression of speech targeting Slavic Christians. Students leafleted and wore the same t-shirts as their friends in Roseville. My review of the evidence so far indicates that the threats and actual violence against the students at San Juan is as bad if not worse than what is happening at Roseville, said Kevin Snider who is the PJI attorney representing the students from both districts. These students are pleading with the school boards to respect the rights of speech and to provide safe schools, stated Brad Dacus, PJI president. We are hopeful that the elected officials for these two districts will send a clear message on the rights of students to peacefully express themselves without fear of violence. The Pacific Justice Institute is a non-profit 501(c)(3) legal defense organization specializing in the defense of religious freedom, parental rights, and other civil liberties. P.O. Box 276600 Sacramento, CA 95827-6600 Phone: (916) 857-6900 Fax (916) 857-6902 Internet: www.pacificjustice.org Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst.-- Id. Yahoo! Messenger with Voice. PC-to-Phone calls for ridiculously low rates. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
RE: More on chaplains
It seems that the question on the table is the rights of military chaplains, especially evangelical Protestant ones who seem to be at the forefront of the agitation here. But their rights have to be understood in context. The military chaplaincies were not established in order to further or advance the rights of chaplains. Rather, they were created in order to respond to the legitimate needs of military personnel to have access to clergy. I suppose, since we are talking about the military, in some sense, that it is worth pointing out that there is a hierarchy of rights here. First and foremost are the rights of the military institutions in the discharge of their important and awesome responsibilities. Second, are the rights of the military (and some civilian) personnel, in response to which, chaplains are appointed. The rights of military chaplains are clearly subordinate to the first two. I have little doubt but that this rank ordering passes constitutional muster. The government does not have to provide chaplains, in the first place, and, when it does, it can set the terms and conditions for their engagement. The proposed legislation reorders the hierarchy. Not only does it threaten and undermine military cohesion and esprit de corps, but, given the unique circumstances involved, it may be unconstitutional in that it appears to endorse religion. It goes far beyond accommodating religion, (the appointment of chaplains to preside at religious ceremonies and rituals at which attendance is not required, and which respond directly to the spiritual and religious needs of military personnel) which might be constitutionally permissible, but here, given the realities of the situation, it endorses not only religion(s) as against non-religion(s), (given the practical effect of the bill to allow chaplains to deliver clearly sectarian prayers at public occasions, rather different than voluntary religious services) but it endorses, in practical and foreseeable effect, a particular religion or set of religions. Now, considering the Israel amendment, it essentially eschews toleration of the intolerant. But in this particular circumstance, that is probably constitutionally required in order to avoid the clearly unconstitutional endorsement of a particular religion that this bill will necessarily foster or encourage. The question of tolerating the intolerant is excruciatingly difficult. But in this particular context, the endorsement test (not to mention Lemon, or the earlier strict separationist test), makes it clear that the military cannot tolerate intolerant chaplains bent on displaying their intolerance in public settings in the military. (It will not do to argue that these chaplains are merely expressing their faith. As noted above, in the context of the military, the rights of the chaplains are subordinate to the rights of the military-as-institution, and of military personnel. A faith which says, in essence, that its substantive theological content is more important than the context or setting in which the content receives _expression_ is, in a very real sense, fervent and intolerant. Time keeps me from more fully explicating the point. But perhaps it is enough to understand that some religions believe that if their followers preach (and public prayer can be and often is a form of preaching), others will be converted because of the preaching, and that, therefore, the right to preach trumps everything else. I am not going to argue whether there is Biblical or other warrant for such a view of preaching. But I will note that there are some who believe very much in the power and force of preaching, but also believe that circumstances, setting, and context matter. I would say that those who hold this view are, for present purposes, tolerant.) Under the coercion test, as Scalia and others understand it, the proposed bill probably passes muster. Military chaplains bent on displaying their partisan, sectarian religious beliefs probably could not be said to coerce in some direct, physical, or threatening way. On the other hand, I think that psychological coercion results from such exercises and, given that more generous and realistic view of coercion, I would say that the proposed bill flunks the coercion test as well. (Santa Fe ISD comes to mind.) From: Sanford Levinson [mailto:[EMAIL PROTECTED] Sent: Friday, May 12, 2006 9:59 AM To: Law Religion issues for Law Academics Subject: RE: More on chaplains House Injects Prayer Into Defense Bill By Alan Cooperman and Ann Scott Tyson Washington Post Staff Writers Friday, May 12, 2006; A05 The House passed a $513 billion defense authorization bill yesterday that includes language intended to allow chaplains to pray in the name of Jesus at public military ceremonies, undercutting new Air Force and Navy guidelines on religion Before the bill reached the House floor, Republicans on the House Armed Services Committee added the
RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status
All well and good, but it just seems to me that somewhere there is a disconnect between the forms (501(c)(3) and 501(c)(4)) and the underlying reality. That is all that I meant to say. The taxed dollars and the nontaxed dollars may be working toward the same substantive end or objective. -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Tuesday, April 18, 2006 11:02 AM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status Corporations and other nonprofits do it all the time. The contributions to the 501(c)(4) are not tax deductible. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 17, 2006 5:50 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status So I take it that it is proper for the minister to exhort his congregation, in a sermon, to write checks for a 501(c)(4). I wonder. -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Monday, April 17, 2006 6:47 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status If they write a check out of the 501(c)(3), they're guilty. They could have raised money for a 501(c)(4) to write that check. If the spiritual leader just talks, they're constitutionally protected in my view. If they start spending money to duplicate his political sermons, they're over the line. Follow the money is a pretty good rule here, both for religious liberty and for tax policy. The tax policy is that untaxed money should not be used for political purposes. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 17, 2006 5:41 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status I am not so sure that the line that Doug draws between political ads and sermons is clear. What about a sermon that exhorts the congregation to participate in a particular get-out-the-vote drive? ---Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Monday, April 17, 2006 4:39 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status The reason these restrictions have been upheld as to 501(c)(3) organizations is that they can conduct their political activities through a 501(c)(4) or through a PAC. to the extent that that is true of churches (or any other not-for-profit), they should all be subject to the same rules. So when a church spends identifiable money on political ads, or leaflets, or get-out-the-drives, it could raise that money after tax through its PAC or 501(c)(4) affiliate, and it should be required to do so. Some things can not be done through the PAC or 501(c)(4) affiliate. the religious speech of the spiritual leader is not delegable; the same words from the staff member who leads the PAC or the 501(c)(4) affiliate is not the same statement, because it lacks the moral authority of the spiritual leader. And the cost of the minister's salary does not depend on what he says in a sermon; with or without touching on political matters, he would be giving a sermon anyway. The marginal cost of his mentioning politics is zero. So I would not let the IRS yank the tax exemption because of the political implications or the political literal meaning of moral or religious comments of a spiritual leader. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, April 17, 2006 12:16 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Rick Garnett on Campaigning from the Pulpit -- and Tax Status Rick Garnett has an interesting Op-Ed in USA Today about politics in sermons: http://www.usatoday.com/news/opinion/editorials/2006-04-16-forum-religio n_x.htm Rick makes an excellent point, I think, about how debate on public issues -- and even partisan politics -- should not necessarily be checked at the church door. Indeed, at a conference here at Georgetown last week, there was some interesting discussion about how mainstream churches have been conspicuously absent from the public discussion regarding torture -- and about how the public perception and political salience of that issue might change dramatically if it were to become
RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status
So I take it that it is proper for the minister to exhort his congregation, in a sermon, to write checks for a 501(c)(4). I wonder. -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Monday, April 17, 2006 6:47 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status If they write a check out of the 501(c)(3), they're guilty. They could have raised money for a 501(c)(4) to write that check. If the spiritual leader just talks, they're constitutionally protected in my view. If they start spending money to duplicate his political sermons, they're over the line. Follow the money is a pretty good rule here, both for religious liberty and for tax policy. The tax policy is that untaxed money should not be used for political purposes. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 17, 2006 5:41 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status I am not so sure that the line that Doug draws between political ads and sermons is clear. What about a sermon that exhorts the congregation to participate in a particular get-out-the-vote drive? ---Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Monday, April 17, 2006 4:39 PM To: Law Religion issues for Law Academics Subject: RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status The reason these restrictions have been upheld as to 501(c)(3) organizations is that they can conduct their political activities through a 501(c)(4) or through a PAC. to the extent that that is true of churches (or any other not-for-profit), they should all be subject to the same rules. So when a church spends identifiable money on political ads, or leaflets, or get-out-the-drives, it could raise that money after tax through its PAC or 501(c)(4) affiliate, and it should be required to do so. Some things can not be done through the PAC or 501(c)(4) affiliate. the religious speech of the spiritual leader is not delegable; the same words from the staff member who leads the PAC or the 501(c)(4) affiliate is not the same statement, because it lacks the moral authority of the spiritual leader. And the cost of the minister's salary does not depend on what he says in a sermon; with or without touching on political matters, he would be giving a sermon anyway. The marginal cost of his mentioning politics is zero. So I would not let the IRS yank the tax exemption because of the political implications or the political literal meaning of moral or religious comments of a spiritual leader. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, April 17, 2006 12:16 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: Rick Garnett on Campaigning from the Pulpit -- and Tax Status Rick Garnett has an interesting Op-Ed in USA Today about politics in sermons: http://www.usatoday.com/news/opinion/editorials/2006-04-16-forum-religio n_x.htm Rick makes an excellent point, I think, about how debate on public issues -- and even partisan politics -- should not necessarily be checked at the church door. Indeed, at a conference here at Georgetown last week, there was some interesting discussion about how mainstream churches have been conspicuously absent from the public discussion regarding torture -- and about how the public perception and political salience of that issue might change dramatically if it were to become a major concern of important religious denominations. (That's a topic that's thread-worthy in and of itself: Isn't it really remarkable, and disheartening, that U.S. churches have been so quiet on the issue of torture?) Of course, issues such as torture, or abortion, or capital punishment, or poverty, can be discussed in churches, and in sermons, *without* any partisan political expression -- but sometimes it is and will be appropriate for preachers, and congregants, to name names (even when such n! ames ar e those of persons running for office), and even to urge political change. So I agree with Rick that there is nothing (necessarily) inappropriate about the insertion of political speech from the pulpit. But Rick then takes a major leap to the additional conclusion that churches should retain their 501(c)(3) status even if they engage in political activity -- a status that all other nonprofits would lose if they engaged in exactly the same expression. I know this argument is often made, but I must confess that I just
RE: Excessive entanglement
I think that any analysis of the structure of the First Amendment has to begin with a decision as to what religion is. If it is only a variety of speech then one might reach one set of conclusions. If religion is something more than speech, then it becomes difficult to argue that the various First Amendment Clauses all blend together somehow. The problem is that the speech only understanding of religion privileges some religions, and disfavors liturgical religions. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, April 10, 2006 1:23 PM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement Well, this is what seems to me to be the puzzle. The text surely does mention religion explicitly, so it's possible that religious institutions should be treated differently. But it also mentions speech explicitly, and protects freedom of speech as well as free exercise of religion, so it's possible that in those zones where the concern is protection of religion, speech, and press from the government, the three should be treated the same. If we are concerned that excessive entanglement between government and religion will lead the government to unduly control, surveill, inspect, and intrude on religious institutions, why shouldn't we be equally concerned that excessive entanglement between government and leading privately run speaking (here opinion-molding and idea-transmitting) institutions will lead the government to unduly control, surveill, inspect, and intrude on those privately run speaking institutions? One possible answer is that the Religion Clause, with its establishment and free exercise component, reads differently from the Speech/Press Clause. But why is it proper to put excessive entanglement *as a threat to the independence and integrity of religious institutions* in the category of those things that lead to constitutional concern only as to religion, rather than in the category of those things that lead to constitutional concern as to religion, speech, and press? I can certainly see why excessive entanglement *as a concern about preference for religion* would be put in the religion-is-special box. But given that both the Religion Clause and the Speech/Press Clause are concerned about protecting institutions from undue government intrusion, why isn't excessive entanglement *as a concern about undue control of/surveillance of/inspection of/intrusion on institutions* an equal concern as to religious institutions and privately run speech/press institutions? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 10, 2006 9:50 AM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement I think that when it comes to religious organizations, the Religion Clauses create a zone of autonomy that may have quite different contours than is the case with newspapers and universities. Certainly, as to universities, how do we explain *public* universities? Obviously there we permit, if not insist upon, rather pervasive monitoring, don't we? And even with regard to private universities, governments regulate any number of activities and functions that they do not regulate when it comes to religious organizations. Employment comes to mind, just for openers. Newspapers are perhaps more interesting. But, here again, doesn't the government intrude into such areas as employment in ways that the government does not in connection with religious organizations? Surely there are other examples, none of which seem particularly controversial, troublesome, or problematic. (By the way, recall the excessive entanglement that existed with regard to *broadcast* media by virtue of licensing requirements regarding the use of assigned frequencies in the electro-magnetic spectrum.) The autonomy of universities and newspapers seems to generate less practical and less constitutional concern than does the autonomy of religious institutions. And, I think, the constitutional text suggests -- if not commands -- that this be so. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, April 08, 2006 3:42 PM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement Yes, but why was the monitoring (a large part of the asserted entanglement) an impermissible entanglement? I take it that this is because it would risk putting the religious schools too much under the supervision and potential control of the government. The monitoring would involve [a] comprehensive, discriminating, and continuing state surveillance, and would require state inspection and evaluation of the religious content of a religious organization, which is pregnant with dangers of excessive government direction of church schools
RE: Excessive entanglement
But why are we concerned about government entanglement with religious institutions? Aren't the reasons advanced in Lemon largely limited to religious institutions? Or, at least, doesn't the Court appear to be concerned with what it identifies as a unique set of problems limited to religious institutions? Recall, as I indicated earlier, there are three separate grounds for concern about excessive government entanglement with religious institutions in the Court's opinion. I think that you have to analyze those grounds and determine whether, as I think is the case, that those grounds are all rooted in a set of concerns that are limited to religious institutions. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, April 10, 2006 4:28 PM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement I'm still not sure how this helps advance the excessive entanglement point. Even if religious institutions are constitutionally different from other institutions, and must labor under some extra burdens and get some extra benefits, it hardly follows, I take it, that they are different in all respects. And if the concern with some forms of excessive entanglement is that the government would improperly control/surveill/influence religious institutions, why shouldn't we be as worried under the Speech/Press part of the First Amendment about improper control of newspapers and private universities as we are under the Religion part about improper control of churches? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 10, 2006 1:15 PM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement I think that any analysis of the structure of the First Amendment has to begin with a decision as to what religion is. If it is only a variety of speech then one might reach one set of conclusions. If religion is something more than speech, then it becomes difficult to argue that the various First Amendment Clauses all blend together somehow. The problem is that the speech only understanding of religion privileges some religions, and disfavors liturgical religions. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, April 10, 2006 1:23 PM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement Well, this is what seems to me to be the puzzle. The text surely does mention religion explicitly, so it's possible that religious institutions should be treated differently. But it also mentions speech explicitly, and protects freedom of speech as well as free exercise of religion, so it's possible that in those zones where the concern is protection of religion, speech, and press from the government, the three should be treated the same. If we are concerned that excessive entanglement between government and religion will lead the government to unduly control, surveill, inspect, and intrude on religious institutions, why shouldn't we be equally concerned that excessive entanglement between government and leading privately run speaking (here opinion-molding and idea-transmitting) institutions will lead the government to unduly control, surveill, inspect, and intrude on those privately run speaking institutions? One possible answer is that the Religion Clause, with its establishment and free exercise component, reads differently from the Speech/Press Clause. But why is it proper to put excessive entanglement *as a threat to the independence and integrity of religious institutions* in the category of those things that lead to constitutional concern only as to religion, rather than in the category of those things that lead to constitutional concern as to religion, speech, and press? I can certainly see why excessive entanglement *as a concern about preference for religion* would be put in the religion-is-special box. But given that both the Religion Clause and the Speech/Press Clause are concerned about protecting institutions from undue government intrusion, why isn't excessive entanglement *as a concern about undue control of/surveillance of/inspection of/intrusion on institutions* an equal concern as to religious institutions and privately run speech/press institutions? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, April 10, 2006 9:50 AM To: Law Religion issues for Law Academics Subject: RE: Excessive entanglement I think that when it comes to religious organizations, the Religion Clauses create a zone of autonomy that may have quite different contours than is the case with newspapers and universities. Certainly, as to universities, how do we explain *public* universities
RE: San Francicso Board of Supervisors Catholic CharitiesResolution
The courts -- and the legislature -- get to decide what is traditionally within the religious sphere, or who gets to decide what is or is not within that sphere. The Religion Clauses are not self-executing. The belief-action distinction is not particularly helpful here precisely because of the overlap, the expanding spheres of both church and state. That is what seems to matter here. I am not as sanguine about accommodation as others might be. My largest concern about accommodation is that it all too often functions as a cover for majoritarian suasion, if not outright coercion. Those concerned about the rights of religious minorities, therefore, tend not to embrace the view that accommodation is normatively or prescriptively the proper default position. I also think that there is a tendency to confuse hostility to religion with hostility to the overreaching of majoritarian religion. They are not the same thing. -Original Message- From: Gregory Wallace [mailto:[EMAIL PROTECTED] Sent: Thursday, April 06, 2006 7:06 PM To: Law Religion issues for Law Academics Subject: Re: San Francicso Board of Supervisors Catholic CharitiesResolution I¹m not sure the answer is as simple as saying that they¹re denouncing a practice, not religious truth, or that the resolution is not aimed at the liturgy, sacraments, or other matters ³traditionally within the religious sphere² (who gets to decide what¹s included here?). Such responses hearken back to the old belief-action distinction that provides little real protection for religious freedom. To tell religious persons that they can believe whatever they want, but any attempt to act on those beliefs is subject to government regulation, prohibition, or condemnation makes religious freedom a fairly empty guarantee. In many instances, you can¹t neatly separate religious practice from religious truth, because the practice reflects the religious believer¹s effort to follow religious truth. The reason that Catholic charities do not place children with homosexual couples is because they believe that it would be in violation of Church teaching to do so. To denounce the practice as ³wrong² or ³unacceptable² can suggest the same about the truth or doctrine behind the practice. Of course, government policy and religious doctrine are not always going to be in agreement. One need look no farther than the issue of abortion to see that legal doctrine and Catholic teaching are incompatible. But, to my knowledge, the neither the Supreme Court nor any other government institution has ever explicitly condemned Catholic teaching on abortion as false and untrue, and urged Catholics everywhere in America to refuse to follow it.² It¹s one thing for government to say we¹re going to apply different rules in the secular sphere; it¹s quite another for government to say a particular religion¹s teaching or views are unacceptable and should not be followed. While one can infer government disapproval from the adoption of different rules, that inference is not a necessary one. Michael is correct that the problem here is due, at least in part, to ³overlap²religious believers carrying out religious obligations within the secular sphere. But in such circumstances, the Religion Clause cases seem to counsel that religious freedom is best served by accommodation, not hostility. (Here, an accommodation of the sort suggested in the thread on the Catholic charities in Boston may be appropriate.) The Supreme Court on several occasions has described the Establishment Clause as forbidding not only state action that advances or endorses religion, but also such action that evinces hostility toward religion. While no cases have tested the latter, it seems to me that both endorsement and condemnation pose significant threats to religious freedom. One last thought: Do you suppose that this resolution has made Cardinal Levada feel like an ³outsider² in his political community? Greg Wallace Campbell University School of Law From: Newsom Michael [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Date: Thu, 6 Apr 2006 13:23:52 -0400 To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Conversation: San Francicso Board of Supervisors Catholic CharitiesResolution Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution These questions are posed to no one in particular, so everybody is free to respond -- or not. Does it matter that Catholic Charities is what Noonan and Gaffney might call a double duty organization or institution? That is, the spheres or both church and state have grown so that they frequently overlap. The resolution does not attack or criticize Church teaching regarding the liturgy or the sacraments. One could say that matters that traditionally have been within the religious sphere are not the subject of the resolution. (It is precisely when the state does
RE: San Francicso Board of Supervisors Catholic CharitiesResolution
How is the position at issue anything other than discrimination? From: Marc Stern [mailto:[EMAIL PROTECTED] Sent: Friday, April 07, 2006 8:47 AM To: Law Religion issues for Law Academics Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution Marci makes the mistake of conflating the public square with government. Of course, given the debate over homosexuality the church (and other religious groups holding the same position( will have to defend their position in the public square. The question is whether government ought to enter the debate explicitly .While l I am not sure that the Supervisors offended the constitution, it certainly seems to me a breach of church-state etiquette for the Supervisors to have said what they did. But even if they had been quiet there would be plenty of debate in San Francisco and elsewhere about the morality of a position that discriminates against homosexuals, Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Thursday, April 06, 2006 11:00 PM To: religionlaw@lists.ucla.edu Subject: Re: San Francicso Board of Supervisors Catholic CharitiesResolution The only way to defend this analysis is to wish away most of the free exercise jurisprudence, includingthe Smith decision. The Religion Clause cases have, in fact, been based on the belief/conduct distinction. (As have the free speech cases.) As I argue in God vs. the Gavel, conduct is rightly regulated by government because of its capacity to harm others. The robust protection of the right to believe whatever one wants, coupled with the non-persecution principle (Lukumi) makes for a remarkable free exercise jurisprudence. Why shouldn't religious entities have to defend their actions in the public square? Certainly not because everything they do is in the public interest. Marci In a message dated 4/6/2006 7:07:55 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I¹m not sure the answer is as simple as saying that they¹re denouncing a practice, not religious truth, or that the resolution is not aimed at the liturgy, sacraments, or other matters ³traditionally within the religious sphere² (who gets to decide what¹s included here?). Such responses hearken back to the old belief-action distinction that provides little real protection for religious freedom. To tell religious persons that they can believe whatever they want, but any attempt to act on those beliefs is subject to government regulation, prohibition, or condemnation makes religious freedom a fairly empty guarantee. In many instances, you can¹t neatly separate religious practice from religious truth, because the practice reflects the religious believer¹s effort to follow religious truth. The reason that Catholic charities do not place children with homosexual couples is because they believe that it would be in violation of Church teaching to do so. To denounce the practice as ³wrong² or ³unacceptable² can suggest the same about the truth or doctrine behind the practice. Of course, government policy and religious doctrine are not always going to be in agreement. One need look no farther than the issue of abortion to see that legal doctrine and Catholic teaching are incompatible. But, to my knowledge, the neither the Supreme Court nor any other government institution has ever explicitly condemned Catholic teaching on abortion as false and untrue, and urged Catholics everywhere in America to refuse to follow it.² It¹s one thing for government to say we¹re going to apply different rules in the secular sphere; it¹s quite another for government to say a particular religion¹s teaching or views are unacceptable and should not be followed. While one can infer government disapproval from the adoption of different rules, that inference is not a necessary one. Michael is correct that the problem here is due, at least in part, to ³overlap²religious believers carrying out religious obligations within the secular sphere. But in such circumstances, the Religion Clause cases seem to counsel that religious freedom is best served by accommodation, not hostility. (Here, an accommodation of the sort suggested in the thread on the Catholic charities in Boston may be appropriate.) The Supreme Court on several occasions has described the Establishment Clause as forbidding not only state action that advances or endorses religion, but also such action that evinces hostility toward religion. While no cases have tested the latter, it seems to me that both endorsement and condemnation pose significant threats to religious freedom. One last thought: Do you suppose that this resolution has made Cardinal Levada feel like an ³outsider² in his political community? Greg Wallace Campbell University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To
RE: San Francicso Board of Supervisors Catholic CharitiesResolution
These questions are posed to no one in particular, so everybody is free to respond -- or not. Does it matter that Catholic Charities is what Noonan and Gaffney might call a double duty organization or institution? That is, the spheres or both church and state have grown so that they frequently overlap. The resolution does not attack or criticize Church teaching regarding the liturgy or the sacraments. One could say that matters that traditionally have been within the religious sphere are not the subject of the resolution. (It is precisely when the state does concern itself with these matters that we have Establishment, as, for example, with the efforts of the Tudor and Stuart states to outlaw the doctrine of Transubstantiation.) The resolution attacks the area of overlap, the rendering of certain social services. It is hard to make out a clear EC violation in such a case, or at least I think so. On the other hand, the resolution -- unwisely in my view -- appears to attack the Church's ecclesiology, the very idea of being in communion with the See of Rome. We know that English Protestants, beginning with the Tudor Sate, sought to attack the authority of the See of Rome, as a matter of state policy. Again, that is the stuff of establishment, it seems to me. So perhaps one might ask whether the overlap stuff in the resolution, which probably does not raise EC concerns, trumps the ecclesiology stuff, or whether the ecclesiology stuff in the resolution trumps the overlap stuff. Perhaps it matters that there is strong whiff of traditional Protestant Empire anti-Catholicism in this resolution. Is that fact, standing by itself, an adequate basis for concluding that the resolution presents serious EC problems? (This is another way of saying that the impermissible elements of the resolution trump the permissible elements.) Not entirely in jest, one can ask whether the Lynch/Allegheny -- or the McCreary/Van Orden -- approach to context ought to control the analysis here. Thus, does the overlap stuff function essentially like the plastic reindeer, the Santa Claus figure and striped candy canes? Does the overlap stuff function essentially like the other monuments in Austin (but not like the documents in Kentucky that finally showed up)? (This is another way of saying that the permissible elements of the displays trump the elements that would be impermissible if displayed alone or in different contexts.) -Original Message- From: Alan Brownstein [mailto:[EMAIL PROTECTED] Sent: Thursday, April 06, 2006 12:59 PM To: Law Religion issues for Law Academics Subject: RE: San Francicso Board of Supervisors Catholic CharitiesResolution I think Greg's point has more force to it than some other list-members suggest. But there are two counter-arguments that might mitigate it. 1. I wonder if there is there a secular purpose analogy that can be drawn here? Just as government can not pass laws enforcing religiously based moral principles or promote messages for exclusively religious reasons, but can do either,in many circumstances, when there is a secular reason for doing so -- perhaps a similar argument applies to criticisms of religious beliefs. If the government's criticism reflects a religious purpose (denying the truth of a religious belief on theological grounds), it violates the Establishment Clause. But if the argument is that the religious belief should be criticized for secular reasons, it doesn't. I'm not committed to this idea. I just thought of it. 2. A common argument raised against claims that government expression of religious messages or promotion of religious displays endorses religious beliefs is that the government is merely acknowledging what many of its constituents believe to be important and true. It isn't endorsing or affirming the truth of anything. Again, can a similar argument be raised here -- that the Board is simply acknowledging that many people in SF hold certain beliefs. I have never been impressed by this argument when it is used to refute claims of endorsement -- but if it works in one situation, it arguably applies in the other as well. (Of course, the Board could have expressed itself using different language if it was only acknowledging what many SF residents believe.) Constitutional arguments aside, I see little of value in resolutions like this. Does anyone think resolutions like this serve any useful purpose? Would it serve any useful purpose if a city in which a majority of the residents were religious conservatives adopted a resolution condemning gay organizations in the city for saying or doing things that they construed to be anti-religious. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gregory Wallace Sent: Thursday, April 06, 2006 7:59 AM To: Law Religion issues for Law Academics Subject: Re: San Francicso Board of Supervisors Catholic
RE: Excessive entanglement
Isn't Lemon v. Kurtzman a good place to begin a meaningful inquiry into the contours of excessive entanglement? Burger identifies several considerations that informed the judgment of the Court on this point: the substantial religious character of the[] church-related schools'; the need to monitor the financial and programmatic limitations and conditions of the Pennsylvania and Rhode Island statutory schemes; and the divisive political potential of these state programs. I am not sure that excessive entanglement with private universities or newspapers bears any resemblance to excessive entanglement with religious organizations, particularly parochial schools. So the question is not whether one is worse than the other, unless one wants to consider whether apples are worse than oranges. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, April 03, 2006 7:39 PM To: Law Religion issues for Law Academics Subject: Excessive entanglement Can anyone pass along a good argument for why excessive entanglement is worse when the government entangles itself with religious institutions (e.g., churches) than with secular expressive institutions (e.g., private universities, newspapers, and so on)? I realize that the First Amendment has an Establishment of Religion Clause, and not an Establishment of Universities/Newspapers Clause, but that doesn't itself tell us that much about excessive entanglement. If the concern, for instance, is that entanglement might unduly inhibit religious institutions (cf. Agostini), it's not clear why we shouldn't also be concerned about entanglement unduly inhibiting universities or newspapers. If the concern is that entanglement might let the government improperly influences the views of what should be rival centers of power, it again isn't clear why the same shouldn't apply at least as to universities and newspapers. The same is true if the concern is that we should be worried about pervasive government supervision of institutions whose actions might be chilled by such supervision. I suppose this might be a good way to identify what excessive entanglement means -- presumably it means the sort of entanglement that we mind precisely because of the institution's *religious* qualities, rather than the qualities it shares with nonreligious institutions (such as being constitutionally valuable and thus the sort of thing we don't want to inhibit, or as being rival power centers and thus the sort of thing we don't want the government to unduly control). In any case, I'd love to hear people's thoughts on this. Many thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Sabbatarians and deadlines
Isn't Gonzales v. O Centro rather more helpful than either Sherbert or Yoder? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 27, 2006 1:09 PM To: Law Religion issues for Law Academics Subject: RE: Sabbatarians and deadlines (1) I appreciate the arguments for this sort of weighing, but I wonder whether the weighing is consistent with the statutory language. RFRAs generally provide that Government shall not substantially burden a person's exercise of religion, . . . except . . . Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest. Sounds like three separate prongs (substantial burden, least restrictive means, and compelling governmental interest), no? (2) Even if we are to engage in weighing, would people care to speak to how courts should evaluate the weight of the burden, the weight of the interest, and whether denying the exemption is the least restrictive means of serving the interest? In particular, how are courts to evaluate the [w]here would this end? concern, given that this concern is present in most religious exemption cases -- including Sherbert and Yoder, the two paradigm cases whose test RFRA was intended to restore -- and that RFRA therefore seems to be an attempt to require courts to grant exemptions (at least sometimes) despite this slippery slope risk? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Monday, March 27, 2006 9:55 AM To: Law Religion issues for Law Academics Subject: Re: Sabbatarians and deadlines the burden and compellingness are not absolutes. it is a weighing test with less burden needing to be shown if the state interest is slight and more compellingness needing to be shown if the burden is heavy. so I reject the linear sort of analysis Eugene's question posits. I think it reflects a serious misapprehension of the way this sort of test works in these sorts of cases. Strict scrutiny is just a poor label for what is really going on. Steve On Mar 27, 2006, at 12:06 PM, Volokh, Eugene wrote: I sympathize with Steve's general argument, but I wonder how it fits within the RFRA framework. Is it that having five days instead of six -- or two days instead of three -- isn't a substantial burden? That it is a burden, but denying the exemption passes strict scrutiny? That despite the RFRA language, some test other than strict scrutiny applies? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Monday, March 27, 2006 8:01 AM To: Law Religion issues for Law Academics Subject: Re: Sabbatarians and deadlines Where would this end? Sabbatarians who observe a day of no work, including studies, would need an extra 16 days to prepare for classes? Or an extra reading period to prepare for exams? And it would need to be worked out so that they get the same number of days between each exams? How is the law review competition not, for constitutional purposes, conducted by the school, btw? We try to accommodate those students by not having assignments due on Saturdays. And we make special arrangements for moot court competitions to hold arguments on Fri and Sunday for those participants. And so on. But I see no obligation to accommodate to the extent your inquiry suggests. Steve On Mar 24, 2006, at 7:57 PM, Volokh, Eugene wrote: Thinking about some of our UCLA Law School assignments, especially ones that have relatively short deadlines, led me to ask this: Do public universities in states with accommodation regimes (under RFRA or under Sherbert/Yoder-based state Free Exercise Clause rules) have an obligation to extend some deadlines for Sabbatarians? The law review competition, for instance, starts Thursday afternoon and ends Wednesday afternoon; it's generally believed that many students really do need all six days to do a good job. Say the competition was conducted by school (which it isn't, but say it was). Sabbatarians would have only five days on which they could do the competition, but others have six; would the school have an obligation to give Sabbatarians an extra day? What if this were a 72-hour take home exam, given Friday morning and due Monday morning? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or
RE: Catholic Charities Issue
Ed, we are largely together here. We need to understand, however, what within the confines of those organizations means. But that, in turn, invites an inquiry more generally into the reach or ambit of religious associational autonomy and privacy. The difficulty largely concerns activities conducted by religious organizations that, to use Noonan and Gaffneys felicitous term, do double duty, that is, serve both religious and secular purposes. The Court has indicated some unwillingness, at least in Title VII cases, to probe too deeply into the boundary, if any, that might exist between the religious and the secular. See Amos. But it would be difficult to argue that the courts should never consider the boundary question, regardless of circumstances. It would be fair to consider, given the history of oppression, whether a claim that an activity is religious might merely in reality be a sham, a cover for continued oppression. Oppression should never qualify as religious. We wont get neat and tidy results, using such and approach, but we stand a good chance of getting fair and defensible results if we do. From: Ed Brayton [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 22, 2006 6:41 PM To: Law Religion issues for Law Academics Subject: Re: Catholic Charities Issue Newsom Michael wrote: I am not sure that we have a mirror here. Gay people are trying to get out from under an oppressive regime the likes of which conservative believers have not had to endure nor are likely to. While I agree with this, I don't think it really cuts against Doug's argument. And I say this as a very vocal proponent of gay rights. I absolutely agree that gay people have lived under an oppressive system for far too long and I strongly support gay marriage, gay adoptions and a myriad of other correctives. But I don't think that gay liberation requires forcing churches and religious organizations to change either their personal beliefs or their actions *within the confines of those organizations*. In fact, I think it is dangerous for gay rights proponents to push for policies that would place such a requirement because it undermines our own arguments in favor of self-determination and freedom of association. It's not just a bad idea as a practical matter, it's unprincipled as well. We certainly want to prevent such people from imposing their beliefs on the private behavior of gays (and the rest of us, in a wide range of other ways as well); but we undermine our principled position if we then seek to have government impose restrictions on their private behavior (as opposed to the laws they advocate). Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Oppression should never qualify as 'religious'
The sentence has to be read in context. The issue is the reach or ambit of claims of religious associational autonomy and privacy. To the extent that the law recognizes or grants or accommodates the claim, the law is declaring the claim to be religious. I suppose one could say that we accommodate some religious claims and not others. But it is not unheard of, in legal analysis and discourse, to say that if we grant a claim then the claim is X and if we do not grant or enforce a claim then the claim is not X. My use of quotation marks clearly indicates that I was using the term in precisely that sense. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 23, 2006 2:26 PM To: Law Religion issues for Law Academics Subject: Oppression should never qualify as 'religious' I'm puzzled here; I can certainly understand a rule under which the government may have a compelling interest in stopping oppressive conduct, though then the question is what constitutes oppression. But at the threshold, where we're deciding whether conduct is religious or not, how can it make sense to treat conduct that (say) an actor believes to be mandated by his religious belief system as not religious simply because we think this conduct is oppressive? Eugene Michael Newsom writes: Ed, we are largely together here. We need to understand, however, what within the confines of those organizations means. But that, in turn, invites an inquiry more generally into the reach or ambit of religious associational autonomy and privacy. The difficulty largely concerns activities conducted by religious organizations that, to use Noonan and Gaffney's felicitous term, do double duty, that is, serve both religious and secular purposes. The Court has indicated some unwillingness, at least in Title VII cases, to probe too deeply into the boundary, if any, that might exist between the religious and the secular. See Amos. But it would be difficult to argue that the courts should never consider the boundary question, regardless of circumstances. It would be fair to consider, given the history of oppression, whether a claim that an activity is religious might merely in reality be a sham, a cover for continued oppression. Oppression should never qualify as religious. We won't get neat and tidy results, using such and approach, but we stand a good chance of getting fair and defensible results if we do. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Issue
I don't understand your point about free passes. -Original Message- From: Nathan Oman [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 22, 2006 6:28 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue I am not sure that we have a mirror here. Gay people are trying to get out from under an oppressive regime the likes of which conservative believers have not had to endure - nor are likely to. This just seems to muddy the issue to me. Doug's claim is not that gays and conservative Christians have suffered comperable levels of oppression, but that both should be accord a space in which to work out their visions of the good free of collective coercion. Furthermore, I think that it is a mistake for gays -- or any other oppressed minority -- to use the fact of their oppression to suggest that they get some sort of free pass on the basic commitments of philosophical liberalism, given that they are much more likely to persuade those who disagree with them by appeals to liberalism than by attacks upon it. NBO -- ** Nathan Oman It is a misleading cult that teaches that the remedy of our ills is to have the law give over, once and for all, the strivings of the centuries for a rational coherence, and sink back in utter weariness to a justice that is the flickering reflection of the impulse of the moment. -- Benjamin Cardozo -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Issue
Virtually all of the religious claims that you refer to involve efforts to exclude, marginalize or, perhaps, even worse. Of course those who are excluded or marginalized, or worse, would resist, as well they should. From: Marc Stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 21, 2006 8:48 AM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue You could add the op[position to enhance d protection for religions workers in the workplace because such legislation might empower claims impinging on gay rights, gay groups that sued Yeshiva University over it refusal to allow gay couples access to a married only dorm in its medical school, the opposition to an exemption for Catholic Charities in Boston, the suit over doctors refusing to assist lesbian couple have a child by artificial insemination and on and on.What ever the merits of particular suits, there has been as pattern of opposition to religious claims in the gay rights context. . Marc Stern f From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, March 20, 2006 8:25 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue From: [EMAIL PROTECTED] on behalf of Newsom Michael Sent: Mon 3/20/2006 3:36 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Could you give some examples of gay rights proponents who ignore religious liberty interests? Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did itby insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claimspresentcompelling interests or their own view that all civil rights claims present compelling interests. All civil rights claims would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing any lawful off-the-job activity. So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand. At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption. I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest. Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of themwere at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious Groups and Gays and Lesbians
couples access to a married only dorm in its medical school, the opposition to an exemption for Catholic Charities in Boston, the suit over doctors refusing to assist lesbian couple have a child by artificial insemination and on and on.What ever the merits of particular suits, there has been as pattern of opposition to religious claims in the gay rights context. . Marc Stern f From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, March 20, 2006 8:25 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue From: [EMAIL PROTECTED] on behalf of Newsom Michael Sent: Mon 3/20/2006 3:36 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Could you give some examples of gay rights proponents who ignore religious liberty interests? Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did itby insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claimspresentcompelling interests or their own view that all civil rights claims present compelling interests. All civil rights claims would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing any lawful off-the-job activity. So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand. At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption. I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest. Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of themwere at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Issue
Take a look at David M. Smolin, Regulating Religious and Cultural Conflict in a Postmodern America: A Response to Professor Perry, 76 Iowa L. Rev. 1067 (1991). Smolin, a member of the Religious Right, essentially says, among other things, that he wants to imprison gays because of their sexual conduct. I am not aware of any movement on the part of gays and lesbians to imprison Professor Smolin. From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 21, 2006 1:31 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue I do not mean to include any right to harass and intimidate. I do mean to include the right to live their own lives in their faith, and to run their own institutions, which necessarily includes the right to exclude from those institutions persons who do not accept their faith or the obligations that faith imposes. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, March 21, 2006 12:23 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue If by religious liberty interests you mean the right to exclude, and perhaps even to harass and intimidate, then I suppose that you have responded fairly to my query. If one were to define religious liberty interests differently, then your example does not respond to my query. From: Douglas Laycock [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, March 20, 2006 8:25 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue From: [EMAIL PROTECTED] on behalf of Newsom Michael Sent: Mon 3/20/2006 3:36 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Could you give some examples of gay rights proponents who ignore religious liberty interests? Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did itby insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claimspresentcompelling interests or their own view that all civil rights claims present compelling interests. All civil rights claims would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing any lawful off-the-job activity. So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand. At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption. I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest. Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of themwere at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Issue
I would. I agree with you that when it comes to selection of clergy, special considerations come into play that are not present in the other cases. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 21, 2006 1:54 PM To: 'Law Religion issues for Law Academics ' Subject: RE: Catholic Charities Issue I assume then that Michael would have no problem with the law requiring the Catholic Church to ordain women. Mark Scarberry Pepperdine -Original Message- From: [EMAIL PROTECTED] To: Law Religion issues for Law Academics Sent: 3/21/2006 10:31 AM Subject: RE: Catholic Charities Issue Virtually all of the religious claims that you refer to involve efforts to exclude, marginalize or, perhaps, even worse. Of course those who are excluded or marginalized, or worse, would resist, as well they should. _ From: Marc Stern [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 21, 2006 8:48 AM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue You could add the op[position to enhance d protection for religions workers in the workplace because such legislation might empower claims impinging on gay rights, gay groups that sued Yeshiva University over it refusal to allow gay couples access to a married only dorm in its medical school, the opposition to an exemption for Catholic Charities in Boston, the suit over doctors refusing to assist lesbian couple have a child by artificial insemination and on and onWhat ever the merits of particular suits, there has been as pattern of opposition to religious claims in the gay rights context. . Marc Stern f _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, March 20, 2006 8:25 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue _ From: [EMAIL PROTECTED] on behalf of Newsom Michael Sent: Mon 3/20/2006 3:36 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Could you give some examples of gay rights proponents who ignore religious liberty interests? Doug Laycock's Answer: The gay rights groups organized and led the charge that killed the Religious Liberty Protection Act. They did it by insisting on a categorical exception for all civil rights cases, refusing to rely on the case law that most civil rights claims present compelling interests or their own view that all civil rights claims present compelling interests. All civil rights claims would include challenges to the male-only priesthood. It would include claims of religious discrimination in awarding membership or leadership positions in churches and other religions organizations. In Colorado and several other states, civil rights laws prohibit employers from penalizing any lawful off-the-job activity. So civil rights claims include any immoral, disreputable, but not illegal act you can think of: using pornography, appearing in pornography, moonlighting at a strip club, gambling heavily in lawful casinos, and similar things that religious organizations might tell their employees not to do. The gay rights groups and the coalition of civil rights organizations they put together refused to listen to any such argument. They wanted a global and absolute civil rights exception; take it or leave it. They produced party-line gridlock over that demand. At the state and local level, gay rights groups insist on no religious exemption to gay rights laws or, if they can't prevail on that, the narrowest possible definition of religious organizations entitled to exemption. I assume it was these recurring political conflicts, in which gay rights groups simply refuse to recognize any competing interest on the other side of the table, that Alan Brownstein was referring to, and not the occasional acts of disruptive protest. Of course many of the conservative religious groups are equally intractable with respect to gay rights organizations. In the particular case of RLPA, most of them were at all time willing to concede the compelling-interest exception, fully understanding that courts were likely to find a compelling interest in most civil rights claims. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) ATT5573046.txt ___ 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
RE: Religious Groups and Gays and Lesbians
Not when read together. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 21, 2006 2:02 PM To: Law Religion issues for Law Academics Subject: RE: Religious Groups and Gays and Lesbians But of course religious liberty includes, at least sometimes, the right to exclude. We agree that it does so as to clergy hiring, for instance. There is likewise a presumptive right, under the Sherbert/Yoder regime or under a RFRA regime, of religious people and institutions to not deal with others when they think this dealing violates their religious principles -- when, for instance, renting to an unmarried straight couple or a gay couple is seen by the claimant's religion as aiding and abetting a sin. The question is when this right is trumped by a compelling government interest in barring such exclusion; the answer is sometimes (again, consider clergy hiring), and we disagree about what those times are. But few of us really think (I think) that religious liberty *never* includes the right to exclude. As to harass, of course, the question is what we mean by harassment. I take it that we'd agree that a religious school has the right to teach that homosexuality is sinful, even if the pervasive repetition of that message makes homosexual students creates a hostile educational environment and thus constitutes hostile environment harassment. I take it that we'd also agree that other forms of harassment are unprotected, for instance if someone wants to harass using residential picketing in violation of a constitutional residential picketing ordinance, or using continued unwanted mailings in violation of the law upheld in Rowan, or using telephone calls in violation of a constitutionally valid telephone harassment law. My broader point is that general terms like exclude, harass, and worse are probably cast at too high a level of generality here. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, March 21, 2006 10:34 AM To: Law Religion issues for Law Academics Subject: RE: Religious Groups and Gays and Lesbians Doug, with respect, you misstate the case, unless you mean by religious liberty the right to exclude, harass and worse. From: Douglas Laycock [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, March 21, 2006 9:35 AM To: Law Religion issues for Law Academics Subject: RE: Religious Groups and Gays and Lesbians As an empirical matter, it would be odd if gay rights groups, or any other groups, supported religious exemptions from their favorite legislation. But it would not be contrary to their constituents' interests. As Michael McConnell has pointed out, a regime of regulation plus religious exemptions makes it possible to compromise otherwise noncompromisable interests. A strong gay rights law with a strong religious exemption would be easier to enact than a weak gay rights law without a religious exemption. In a proposed regulation has no religious exemptions, religious conscientious objectors have no choice but to declare total war. If a proposed regulation has reliable religious exemptions, the stakes are much less. Of course we see some of the conservative religious groups declaring total war either way, partly for the reasons Marty suggests, and partly because the pattern of gay-rights hostility to religious liberty has destroyed all confidence that exemptions offered will be sensibly interpreted or permanent. We are in a quite unnecessary impasse, and both sides are very much to blame. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of Marty Lederman Sent: Tue 3/21/2006 8:24 AM To: Law Religion issues for Law Academics Subject: Religious Groups and Gays and Lesbians A very small qualification to this discussion: The examples Doug and Marc cite are, if I'm not mistaken, all cases involving opposition to religious exemptions. Gay- and lesbian-rights groups will generally oppose any exemptions from the laws that protect them, regardless of whether the exemption has anything to do with religion. That should not be at all surprising, or alarming. It's true of virtually any group or organization that has secured certain legal protections, particularly equality protections, or across-the-board restrictions. Thus, for example, I can assure you that the State Department and DEA were vociferously opposed to the requested RFRA exemption for hoasca tea in the recent case -- because they're opposed to any exceptions to performance of treaty obligations or to the Controlled Substances Act. (I was at the table for the discussions within the government, but I don't think I'm revealing any non-obvious secrets by stating this.) This doesn't make them hostile to religion. (Although one might say it makes them
RE: Catholic Charities Issue
No, it really isnt nonsense. Anti-gay violence exists on a far larger scale than you are prepared to admit. Sorry. From: Brad M Pardee [mailto:[EMAIL PROTECTED] Sent: Monday, March 13, 2006 11:55 AM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Nonsense. The number of people who believe they have the responsibility to bash in gay heads is a minute percentage of those whose faith teaches that sexual intimacy is reserved for heterosexual monogamous marriage, just as those who blow up abortion clinics are a minute percentage of those faith teaches that legalized abortion is wrong. Assault is never a matter of religious liberty and I can't begin to fathom why you would see the two as intertwined in any way whatsoever. That fact that a handful of fools who should be locked up think so doesn't mean that the vast majority of those who fight for religious liberty are on their side. I've seen enough of your postings to know that you know better than that. Brad Michael wrote on 03/13/2006 10:22:58 AM: The fact that there are laws in place is, often times, scant comfort. The religious liberty issue may, in the final analysis for some people, merely mean the liberty to bash in gay heads, all in name of God. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws
Actually, it might follow that religions are entitled to benefits without certain strings attached. To suggest that religions are not is to beg the question. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 14, 2006 1:42 AM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws Religions may have special and unique features for legal purposes. But it doesn't follow that one of those features is an entitlement to get a government benefit while at the same time escaping the generally applicable conditions attached to that benefit. Maybe there is a good reason for such an entitlement; it just needs somewhat more proof than simply a denial that discrimination in clergy employment constitutes discrimination, or an assertion that religions, religious organizations, and religious believers have special and unique features. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Thursday, March 09, 2006 4:32 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups that haveconscientiousobjections to antidiscrimination laws I am still unpersuaded. I don't see the relevance of your examples. You see no difference between the relation between clergy and religious organizations and other employment relations? We are talking about religions here. The Religion Clauses have to mean at least that we recognize -- for better or for worse -- the special and unique features of religions, religious organizations, and religious believers. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 09, 2006 7:07 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws The desire to prevent discrimination based on irrelevant attributes is surely one theory behind employment discrimination laws. But the legislature (and the courts interpreting the legislature's work) may also -- and often does -- prohibit discrimination when it is relevant. Manhart is an example; I suspect that any actuary will tell you that gender is quite relevant to determining mortality risk, yet the Court held that this is prohibited by Title VII. A person's disability may be relevant to a job, and yet the employer may still be required to ignore it, or even to spend money to accommodate it. The list could go on. The question is whether the legislature may decide not to subsidize entities that discriminate based on sex, even when such discrimination is quite relevant to the entity's operation. We don't care whether your discrimination is relevant or not to the job qualifications, the legislature may say; we just don't want money raised from taxpayers of both sexes to be spent on a program that discriminates against one sex (to paraphrase President Kennedy as to Title VI). Why isn't the legislature entitled to take this view? Eugene Rick Duncan writes: The basic idea behind employment discrimination laws is that the protected characteristic (e.g. gender) is not a relevant qualification for employment. Thus, there is no lawyer gender, or contruction worker gender, or policeman gender. Gender is not related to one's ability to do a job. That works fine for secular employment. But in the matter of the religious priesthood or clergy, the state is constitutionally without competence to judge what qualifies one to be a priest or clergyman. Under the EC, it is an excessive entanglement for the state to say, in effect, that women and men are equally qualified to be God's priests or shepherds on earth. Under the Free Exercise Clause, a law, even a so-called generally applicable one, announcing that women and men are equally well-qualified for any job, including the job of priest or clergyman, s! trikes at the core of religious liberty and is unconstitutional (if we must employ Smith's dogma, call this the core example of a hybrid claim in which free ex, free speech and freedom of expressive and intimate association are linked to form a strong hybrid right of 3 strands). How does the state know what are God's requirements to serve in the inherently religious position of clergyman? It doesn't. When it extends unemployment discrimination laws into the priesthood (either by regulation or punitive tax policy), it acts ultra vires and unconstitutionally. And even if such laws are not technically denominational preferences under Larson (because they don't facially classify on the basis of religion), their primary effect is to advance the religions which receive favorable tax treatment (i.e. those that permit women clergy
RE: Catholic Charities Issue
-Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, March 20, 2006 1:20 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Hmm; is there any data that would support this assertion? (I take it that the assertion is limited to political violence.) I realize that we're straying a bit from the law of government and religion, but since this factual claim was made in the context of a discussion of a Religion Clauses issue, it seems to me worthwhile to inquire into how accurate this claim is. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, March 20, 2006 10:16 AM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Actually Glendon's point is debatable. In the United States, the predominant pattern of violence is of violence visited by traditionalists on progressives, not the other way around. From: Rick Duncan [mailto:[EMAIL PROTECTED] Sent: Thursday, March 16, 2006 12:16 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Jeff Jacoby has an excellent column in today's Boston Globe here. And here is a money quote: Note well: Catholic Charities made no effort to block same-sex couples from adopting. It asked no one to endorse its belief that homosexual adoption is wrong. It wanted only to go on finding loving parents for troubled children, without having to place any of those children in homes it deemed unsuitable. Gay or lesbian couples seeking to adopt would have remained free to do so through any other agency. In at least one Massachusetts diocese, in fact, the standing Catholic Charities policy had been to refer same-sex couples to other adoption agencies. The church's request for a conscience clause should have been unobjectionable, at least to anyone whose pri! ority is rescuing kids from foster care. Those who spurned that request out of hand must believe that adoption is designed primarily for the benefit of adults, not children. The end of Catholic Charities' involvement in adoption may suit the Human Rights Campaign. But it can only hurt the interests of the damaged and vulnerable children for whom Catholic Charities has long been a source of hope. Is this a sign of things to come? In the name of nondiscrimination, will more states force religious organizations to swallow their principles or go out of business? Same-sex adoption is becoming increasingly common, but it is still highly controversial. Millions of Americans would readily agree that gay and lesbian couples can make loving parents, yet insist nevertheless that kids are better off with loving parents of both sexes. That is neither a radical view nor an intolerant one, but if the kneecapping of Catholic Charities is any indication, it may soon be forbidden. ''As much as one may wish to live and let live, Harvard Law professor Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in Massachusetts, ''the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles. The ax fell on Catholic Charities just two years after those words were written. Where will it! have fallen two years hence? Mary Ann's point is well-taken. If A, then B. I wish I had thought of that! Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze. ___ 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
RE: Catholic Charities Issue
The fact that there are laws in place is, often times, scant comfort. The religious liberty issue may, in the final analysis for some people, merely mean the liberty to bash in gay heads, all in name of God. -Original Message- From: Brad Pardee [mailto:[EMAIL PROTECTED] Sent: Monday, March 13, 2006 5:44 AM To: Law Religion issues for Law Academics Subject: Re: Catholic Charities Issue Michael Newsom wrote, Being 'marginalized' and called a 'homophobe' is not quite the same thing as having your brains beat in because you are gay. To suppose that the two are morally equivalent is to make, with respect, a categorical error. It's true that these two are not morally equivalent. However, if a person is assaulted on the basis of their sexual orientation (or on the basis of anything else, for that matter), there are laws in place to punish those guilty of the attack (such as the murderers of Matthew Shepard, who are both serving life sentences without possibility of parole). In contrast, the marginilization being described is being done BY the law, not in violation of the law. That is where the issue of religious liberty comes in. Brad ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Not Bending the Knee to Baal
The right thing to do? I am not so sure. You did say that some children will suffer. Is that a good thing? Oops. This discussion probably belongs off-list. From: Rick Duncan [mailto:[EMAIL PROTECTED]] Sent: Friday, March 10, 2006 11:15 PM To: Law Religion issues for Law Academics Subject: Catholic Charities Not Bending the Knee to Baal From the Boston Globe: The Boston Archdiocese's Catholic Charities said Friday it would stop providing adoption services because state law requires them to consider gays and lesbians as parents. The social services arm of the Roman Catholic archdiocese has provided adoption services for about a century. But it says state law allowing gays to adopt runs counter to church teachers on homosexuality. The world was very different when Charities began this ministry at the threshold of the twentieth-century, the Rev. J. Bryan Hehir and trustees chairman Jeffrey Kaneb said in a joint statement. The world changed often and we adapted the ministry to meet changing times and ! needs. At all times we sought to place the welfare of children at the heart of our work. But now, we have encountered a dilemma we cannot resolve, they said. The state's four Catholic bishops said earlier this month that the law threatens the church's religious freedom by forcing it to do something it considers immoral This was the right move for the Archdiocese to make. Really, it was the only move they could make. It's sad that many children will suffer, but the Archdiocese has to obey its conscience. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone. C.S.Lewis, Grand Miracle I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered. --The Prisoner Yahoo! Mail Bring photos to life! New PhotoMail makes sharing a breeze. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Catholic Charities Issue
But the Religious Right Catholic, Protestant and otherwise insists that gay people CAN be reasonably asked to live celibate lives, if they cannot live heterosexual lives. I merely wish to point out that some deny the equivalence that you posit. I am not saying that I agree or disagree with that denial. One wonders hopes, perhaps, prays, perhaps that science can break the tie on the question of what is reasonable. While some may hate to admit it, it would appear that science has influenced religious thought from time to time. (I have especially in mind scientific examination of the lives, values, prospects, hopes and the like of children raised by openly gay parents, either single gay parents, or gay parents in monogamous relationships that are marriage like. There is some science on the point, but I suspect that the two sides on the question would debate just what that science establishes or suggests.) From: Alan Brownstein [mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein Sent: Saturday, March 11, 2006 11:46 PM To: Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue Not only isn't it impossible to have both gay rights and religious liberty, the core of both sets of claims have common foundations. It makes no more sense for a gay activist to insist that a religious person should ignore the duties he or she owes to G-d (a duty that,I believe, arises out of love and principle) -- because the religious person can not reasonably be asked to do that --than it does for a religious person to insist that a gay person should deny the love he (or she) shares with another person whohe wants tospend his life with -- because the gay person can not reasonably be asked to do that. Alan Brownstein From: [EMAIL PROTECTED] on behalf of Douglas Laycock Sent: Sat 3/11/2006 7:42 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Subject: RE: Catholic Charities Issue It is not at all impossible to have both gay rights and religious liberty. It is just that the gay rights activists mostly refuse to recognize religious liberty (at least if any gay rights issue is in anyway implicated), and the more conservative religious liberty activists mostly refuse to recognize gay rights. Both sides want the symbolic victory of having the state declare the other side wrong, and both sides want to be assured they will never have to litigate a case at the boundary between the two freedoms. Alan Brownstein sketched a perfectly sensible way to resolve the Massachusetts dispute in a way that protects both sides -- gay parents would be free to adopt through other state-funded agencies, and Catholic Charities would be free not to place children with gay parents. More generally, strong gay rights legislation with strong religious liberty exceptions would protect both sides. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 512-471-6988 (fax) From: [EMAIL PROTECTED] on behalf of Rick Duncan Sent: Sat 3/11/2006 8:22 PM To: Law Religion issues for Law Academics Subject: Re: Catholic Charities Issue I think Marci and Doug are spot on. The state, as in Rust, says this is our program, take it or leave it. CC says, okay, we'll leave it. CC loses a part of its ministry, the state loses one of its best adoption-service providers, and the kids stay in state custody longer (and, for some, perhaps permanently, since CC was extra good at placing hard-to-place children). This is why some of us fight so hard against gay rights and gay marriage--gay rights/marriage are incompatible (at least in certain situations)with religious liberty. As in Massachusetts, the state has to choose between religious liberty and gay rights. Some states choose gay rights. I choose religious liberty. I was born and raised in Massachusetts, but I couldn't live there now (and I don't think I even care to visit--not even if I had Monster seats at fenway). Cheers, Rick Duncan [EMAIL PROTECTED] wrote: What this disputere: Catholic Charities illustrates is the danger of any religious institution in relying upon government funding for its programs. Government funding always comes with strings. In general, Catholic Charities gets 86% of its funding from government sources, 14% from private, with the vast majority of that coming from charities like United Way. A tiny portion is paid by Catholics.I would assume that onits own dime, CC can facilitate adoptions, but feel free to correct that assumption. The question is whether it is going to accept the condition placed on it by the government's money.! nbsp;CC is not required to take the government's money, right?This is the Solomon Amendment -- private institution that has become dependent on government largesse
RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscriminationlaws
With respect, I am not sure that characterizing the relation as akin to that of employer and employee tells us how to decide the question. I cannot imagine that there is a strong governmental interest in the gender of clergypersons. Any expression or statement of such an interest clearly results in meddling by the state, not to mention taking sides in a contentious dispute that has deeply upset many Christians, at least. A secular category, like employment, cannot do justice to the employment (solely for the sake of discussion) of clergy. Consider, for example, the mess that the Court made of things in Jones v. Wolf. Thanks to neutral principles, hierarchical religious institutions, institutions that have been such for 2000 years are magically converted into congregationalist institutions for purposes of working out or resolving church property disputes. Jones tramples on both Religion Clauses largely because of the totally inapt notion that religious or church property disputes are essentially property disputes, not religious disputes. We should be loath to replicate the categorical error of Jones v. Wolf. One final point: it is by no means clear that the relation between a religious institution and its clergy is as simple as the typical employment relation would suggest. This is, of course, true because the relation is also a RELIGIOUS relation. That is, the sum and substance of the problem. -Original Message- From: Andrew Wyatt [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 08, 2006 6:26 PM To: 'Law Religion issues for Law Academics' Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws I'm not denying the special nature of the clergy-laity relationship, in fact or in law. I'm simply trying to answer your question: Why might a government properly deny benefits in some instances of religiously-motivated discrimination (e.g. withholding funding from churches that discriminate against women in the hiring of clergy) but not in others (e.g. denying unemployment benefits to a man who refuses to marry Jewish women)? Bearing in mind that IANAL, it seems that courts have recognized a strong government interest where workplace discrimination in concerned. However, those interests may not be as strong in other forums, even if state instruments--say, civil marriage--are involved. If an individual refuses to enter into a civil marriage for discriminatory reasons, there may be a societal harm from that decision. But there seems to be some recognition that the societal harm from an employer refusing to hire someone for discriminatory reasons is far greater, sufficient perhaps to warrant government action of some kind. There may be broad economic ripples emanating from the latter sort of discrimination, as Eugene noted. To my eye, the power that employers have over their employees seems qualitatively different than the co-equal character of the spousal relationship. Andrew Wyatt ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscriminationlaws
My point is that there are some relationships that have a kind of intimacy that the government ought to leave alone. I think that the Religion Clauses compel the government to leave the intimate relation between clergy and religious institutions alone. The broader, and obvious, point is that not all discrimination is bad. There are policy-based and legal reasons why some discrimination has to be permitted, isn't that true? Why is this odd? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 09, 2006 12:38 AM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws 1) My definition of discrimination here is simply the one the Court applied in Manhart and various other cases: The principle that discrimination means that an entity treats a person in a manner which but for that person's sex would be different. City of Los Angeles Dep't of Water Power v. Manhart, 435 U.S. 702, 711 (1978); International Union v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991); Newport News Shipbuilding Dry Dock Co. v. EEOC, 462 U.S. 669, 683 (1983); see also EEOC v. Borden's, Inc., 724 F.2d 1390, 1393 (9th Cir. 1984); Allison-LeBlanc v. Department of Pub. Safety Corrections, 671 So. 2d 448, 452 (La. Ct. App. 1995); DiBiase v. Smithkline Beacham Corp., 847 F. Supp. 341, 348 (E.D. Pa. 1994). The discrimination may be quite rational, and not at all based on hostility -- the discrimination in Manhart itself was based on the reality that women live longer than men, a reality that pension plan funding schemes, which are after all based on group-based statistics, can quite reasonably consider. But the Court concluded that this was prohibited discrimination. 2) The principle under which Congress would deny exemptions to groups that discriminate in this way is the one President Kennedy elaborated as support for Title VI (albeit applied to sex as well as race): public funds, to which all taxpayers of all races [and both sexes] contribute, not be spent in any fashion which . . . subsidizes . . . racial [and sex] discrimination. I should stress again that I don't think this principle ought to be used with regard to tax exemptions and clergy hiring -- but I don't think it's unreasonable or incomprehensible for others to disagree with me on this. The question is whether adopting this principle to deny tax exemptions to all groups that discriminate based on sex would violate the First Amendment; my tentative thinking is that it probably won't, and that the Church's (and other groups') right to discriminate based on sex free from government *prohibition* doesn't necessarily imply that the government must subsidize the exercise of this right. 3) Denying government benefits to people who refuse to marry people with green hair is an odd hypo; I find it hard to see any rational basis for singling out green hair this way. On the other hand, if the government denied the child care tax credit to parents who discriminated based on race or sex in hiring a child care provider, I would think that's constitutional. And, as we know, if the government denies groups a tax exemption because of their exercise of their constitutionally protected rights to lobby or electioneer, or otherwise refuses to subsidize a wide range of constitutional rights, that too is permissible. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, March 08, 2006 12:58 PM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst oantidiscriminationlaws I'm afraid that I don't understand your non-discrimination principle. You have not indicated whether you think that it is appropriate to deny a government benefit to individuals who refuse to marry people with green hair. If it is inappropriate to do so then I am lost. Marriage is an intimate relation, to be sure, but so to is the relation between clergy and laity in the context of a religious institution, and we have 16 words in the First Amendment that tell us that religion is something special. Generalized appeals to discrimination fail to get at the real issues involved. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 08, 2006 12:47 PM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst oantidiscr iminationlaws I'm afraid I still don't quite get it. The core of the argument, it seems to me, is that There has been an on-going debate among Christian groups regarding the matter of women clergy. For the state to choose one side in that debate is to make precisely what I said -- an unavoidable theological judgment
RE: State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws
I am still unpersuaded. I don't see the relevance of your examples. You see no difference between the relation between clergy and religious organizations and other employment relations? We are talking about religions here. The Religion Clauses have to mean at least that we recognize -- for better or for worse -- the special and unique features of religions, religious organizations, and religious believers. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Thursday, March 09, 2006 7:07 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws The desire to prevent discrimination based on irrelevant attributes is surely one theory behind employment discrimination laws. But the legislature (and the courts interpreting the legislature's work) may also -- and often does -- prohibit discrimination when it is relevant. Manhart is an example; I suspect that any actuary will tell you that gender is quite relevant to determining mortality risk, yet the Court held that this is prohibited by Title VII. A person's disability may be relevant to a job, and yet the employer may still be required to ignore it, or even to spend money to accommodate it. The list could go on. The question is whether the legislature may decide not to subsidize entities that discriminate based on sex, even when such discrimination is quite relevant to the entity's operation. We don't care whether your discrimination is relevant or not to the job qualifications, the legislature may say; we just don't want money raised from taxpayers of both sexes to be spent on a program that discriminates against one sex (to paraphrase President Kennedy as to Title VI). Why isn't the legislature entitled to take this view? Eugene Rick Duncan writes: The basic idea behind employment discrimination laws is that the protected characteristic (e.g. gender) is not a relevant qualification for employment. Thus, there is no lawyer gender, or contruction worker gender, or policeman gender. Gender is not related to one's ability to do a job. That works fine for secular employment. But in the matter of the religious priesthood or clergy, the state is constitutionally without competence to judge what qualifies one to be a priest or clergyman. Under the EC, it is an excessive entanglement for the state to say, in effect, that women and men are equally qualified to be God's priests or shepherds on earth. Under the Free Exercise Clause, a law, even a so-called generally applicable one, announcing that women and men are equally well-qualified for any job, including the job of priest or clergyman, s! trikes at the core of religious liberty and is unconstitutional (if we must employ Smith's dogma, call this the core example of a hybrid claim in which free ex, free speech and freedom of expressive and intimate association are linked to form a strong hybrid right of 3 strands). How does the state know what are God's requirements to serve in the inherently religious position of clergyman? It doesn't. When it extends unemployment discrimination laws into the priesthood (either by regulation or punitive tax policy), it acts ultra vires and unconstitutionally. And even if such laws are not technically denominational preferences under Larson (because they don't facially classify on the basis of religion), their primary effect is to advance the religions which receive favorable tax treatment (i.e. those that permit women clergy), and to inhibit the religions denied equal tax treatment (those that don't ordain women). Rick Duncan ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscriminationlaws
The question is really not about discrimination at all. It is about discrimination in the selection of clergy, and not about some vast range of government decisions. Context matters. I have not taken a position on the balance to be struck between discrimination and other kinds of decision-making by religious groups. The ministerial exception recognizes the special, if not unique, character of the selection of clergy. That, it seems to me, calls into serious question a decision by a government to deny a benefit to a religious group that only accepts male clergy. And, by the way, a closer examination of the context strongly suggests that a neutral application of a general statute on the question of the selection of Christian clergy, at least, is anything but neutral. There has been an on-going debate among Christian groups regarding the matter of women clergy. For the state to choose one side in that debate is to make precisely what I said -- an unavoidable theological judgment -- in a highly contentious matter. The government winds up taking sides in a matter of which that it is better advised to steer clear. There can be no broad, bright-line rule here. Nobody would argue for an anti-discrimination principle prohibits ALL forms and types of discrimination. People can discriminate in the selection of a spouse, for example. Or, would it be proper for the state to deny, say, social security or other benefits to those who discriminate against people with green hair in the selection of a spouse? I don't think so. The particular facts associated with the selection of clergy, it seems to me, control the particular and specific question. One final point: to deny a benefit is, UNDER THESE CIRCUMSTANCES, a rank interference with religion and thus a violation the nonestablishment principle. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 3:40 PM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws Now this I'm not sure I quite grasp. Why is the state's judgment that the Catholic Church discriminates based on sex in hiring clergy -- followed by the application of a (hypothetical) generally applicable rule that sex-discriminatory groups aren't entitled to tax exemption (a rule, incidentally, that I wouldn't endorse as a policy matter) -- an unavoidably theological judgment? The Church is neither secretive nor ambiguous in its men-only rule for the priesthood. It's true that the state's decision would contradict the Church's theological views, but that's true of a vast range of state decisions. And it's true that the Church has a constitutional right to discriminate in choice of clergy; yet the government is not obligated to subsidize the exercise of constitutional rights. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, March 03, 2006 12:09 PM To: Law Religion issues for Law Academics Subject: RE: State RFRAandnonreligiousgroupsthathaveconscientiousobjectionstoanti discriminationlaws In this particular, specific instance, I believe that the answer is yes. Otherwise, the state winds up making what are essentially and unavoidably theological judgments. That is not true in the other examples that you give. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 2:25 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA andnonreligiousgroupsthathaveconscientiousobjectionstoantidisc rimination laws I actually agree that religious groups should have a right to discriminate in choice of clergy, much as nonreligious groups should generally have a right to discriminate in choice of leaders, speakers, and members (see Boy Scouts v. Dale). (The precise contours of the two rights may be somewhat different, but the underlying reasons for them, and their existence, are in my view quite related.) Yet the question still remains whether the government has an obligation to help subsidize this discriminatory practice, by waiving nondiscrimination conditions attached to various benefits (e.g., tax exemptions) that the groups seek. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, March 03, 2006 11:21 AM To: Law Religion issues for Law Academics Subject: RE: State RFRA andnonreligiousgroupsthathaveconscientiousobjections toantidiscrimination laws My point is that the ministerial exception should be broadly construed and applied. In the specific context of clergy, the state should not quickly or easily claim that a religious organization is ineligible for a subsidy if it is guilty of what the state claims is discrimination
RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscriminationlaws
I'm afraid that I don't understand your non-discrimination principle. You have not indicated whether you think that it is appropriate to deny a government benefit to individuals who refuse to marry people with green hair. If it is inappropriate to do so then I am lost. Marriage is an intimate relation, to be sure, but so to is the relation between clergy and laity in the context of a religious institution, and we have 16 words in the First Amendment that tell us that religion is something special. Generalized appeals to discrimination fail to get at the real issues involved. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 08, 2006 12:47 PM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionstoantidiscr iminationlaws I'm afraid I still don't quite get it. The core of the argument, it seems to me, is that There has been an on-going debate among Christian groups regarding the matter of women clergy. For the state to choose one side in that debate is to make precisely what I said -- an unavoidable theological judgment -- in a highly contentious matter. The government winds up taking sides in a matter of which that it is better advised to steer clear. But the same is true of a vast range of religious decisions. There are or were on-going debates among groups about race discrimination in student policies (Bob Jones), about the advisability of participating in electoral politics (Branch Ministries, the D.C. Cir. [?] case), about sex and religious discrimination in choice of students (generally in the K-12 religious school choice context) and more. The state chooses sides in that debate, especially when it comes to participation in state-provided policies, all the time. Can it really be that each such decision involves a forbidden theological judgment? That argument, I think, was made in Bob Jones, and rejected; the Court pointed out that the fact that the government's policies match the views of some religions (e.g., no race discrimination) doesn't make them impermissible establishments of religion. I actually agree that clergy selection should be different, when government regulation is involved; I tentatively suspect otherwise as to funding, though I'd be happy to be persuaded that I'm mistaken on this. But I don't see how one can just say that it's different because the government policies involve an unavoidable theological judgment (which presumably would mean that they're per se unconstitutional, without even a strict scrutiny escape hatch) -- the policies seem to involve the same sort of judgments about, say, protecting people's economic opportunities (clergy is a paying job, after all) or preventing tax money raised from taxpayers of all races and sexes being used to subsidize race or sex discrimination. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, March 06, 2006 9:59 AM To: Law Religion issues for Law Academics Subject: RE: StateRFRAandnonreligiousgroupsthathaveconscientiousobjectionst oantidiscriminationlaws The question is really not about discrimination at all. It is about discrimination in the selection of clergy, and not about some vast range of government decisions. Context matters. I have not taken a position on the balance to be struck between discrimination and other kinds of decision-making by religious groups. The ministerial exception recognizes the special, if not unique, character of the selection of clergy. That, it seems to me, calls into serious question a decision by a government to deny a benefit to a religious group that only accepts male clergy. And, by the way, a closer examination of the context strongly suggests that a neutral application of a general statute on the question of the selection of Christian clergy, at least, is anything but neutral. There has been an on-going debate among Christian groups regarding the matter of women clergy. For the state to choose one side in that debate is to make precisely what I said -- an unavoidable theological judgment -- in a highly contentious matter. The government winds up taking sides in a matter of which that it is better advised to steer clear. There can be no broad, bright-line rule here. Nobody would argue for an anti-discrimination principle prohibits ALL forms and types of discrimination. People can discriminate in the selection of a spouse, for example. Or, would it be proper for the state to deny, say, social security or other benefits to those who discriminate against people with green hair in the selection of a spouse? I don't think so. The particular facts associated with the selection of clergy, it seems to me, control the particular and specific question. One final point: to deny a benefit
RE: State RFRA and nonreligiousgroupsthathaveconscientiousobjections to antidiscrimination laws
My point is that the ministerial exception should be broadly construed and applied. In the specific context of clergy, the state should not quickly or easily claim that a religious organization is ineligible for a subsidy if it is guilty of what the state claims is discrimination. The question is not really about discrimination, it is about discrimination in the context of selecting clergy. Because of this, then there are some serious First Amendment issues that have to be considered. Hence a liberal and broad application of the exception seems to make sense. If the question were about child marriage, or renting apartments the result might be different. Surely there is something rather unique and special about the relation between a religious community and its clergy, something not found in your examples. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 12:23 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligiousgroupsthathaveconscientiousobjections to antidiscrimination laws Well, I was using the secular law definition of discrimination, which (at least insofar as it's relevant here) is pretty much Stevens's test in Manhart: Does the institution treat[] a person in a manner which but for that person's sex would be different? If Jesus Christ deliberately chose only men as apostles, then that was discrimination -- obviously not illegal either then or now (now because they weren't paid, and thus weren't his employees), but that's a separate question than whether it's discrimination. By way of analogy, consider a landlord who refuses to rent to unmarried couples or same-sex couples, because he believes that renting to them would constitute aiding and abetting fornication or homosexual conduct. He may not see his conduct as discrimination, just as compliance with God's will. Yet discrimination it is. Nor am I quite sure why it would be unconstitutional for the state to indulge in or act upon such statements (i.e., that selecting priests based on sex is discrimination). If the claim is that it expresses disapproval of a faith to condemn as illegal conduct that mirrors what the faith's holy figures do, that can't be quite right. That Jesus was said to have driven the moneylenders from the Temple doesn't mean that such conduct would be constitutionally protected if conducted by a religious person (or a church official or even a self-described Messiah) today. Mohammed's marriage to a child bride may have been perfectly proper by the standards of the time and place in which he lived, but it doesn't mean that secular law can't ban it today; it can ban it, even if such conduct is being performed as a religious sacrament. If the claim is that denying subsidies to a religious group because it fails to satisfy a general condition attached to subsidy is unconstitutional or a RFRA violation, that's less implausible. Yet I wonder why we should take this view. The government subsidizes all sorts of things because of its own reasons. It subsidizes public schools, but not private religious schools, even though educating one's child in a pervasively religious atmosphere may be a sacrament to some people. It subsidizes child care, but not people who stay home to raise their children, even though that's a sacrament to some people, too. It subsidizes (through tax exemption) nonlobbying, nonelectioneering nonprofit speech but not lobbying or electioneering nonprofit speech. Why can't it equally choose to subsidize those nonprofits that don't discriminate, but not those that do discriminate (even though the latter may have a constitutional right to discriminate, just as parents have the right to send their kids to private schools, and just as groups have the right to lobby or electioneer)? Eugene Michael Newsom writes: 1) To say that a religious organization chooses its clergy discriminatorily requires some serious and sober consideration of the theology of that organization. The exemption ought to apply broadly if only to keep secular entities out of an area in which they have precious little expertise (quite apart from any consideration of any constitutional norms). To say that the refusal to ordain women is discrimination without consideration of the context begs the question. One could just as easily say that Jesus Christ discriminated against women by only choosing men as apostles. For the state to indulge in such statements -- and to act upon them -- is precisely what the Religion Clauses prohibit. To subsidize religious organizations that ordain women and to refuse to subsidize religious organizations that do not is to establish a preference for some religions over others. Doesn't that offend the non-establishment principle? If, of course, one chooses not to recognize that religion and religious institutions occupy a special place in the
RE: State RFRA andnonreligiousgroupsthathaveconscientiousobjectionstoantidiscrimination laws
In this particular, specific instance, I believe that the answer is yes. Otherwise, the state winds up making what are essentially and unavoidably theological judgments. That is not true in the other examples that you give. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 2:25 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA andnonreligiousgroupsthathaveconscientiousobjectionstoantidiscrimination laws I actually agree that religious groups should have a right to discriminate in choice of clergy, much as nonreligious groups should generally have a right to discriminate in choice of leaders, speakers, and members (see Boy Scouts v. Dale). (The precise contours of the two rights may be somewhat different, but the underlying reasons for them, and their existence, are in my view quite related.) Yet the question still remains whether the government has an obligation to help subsidize this discriminatory practice, by waiving nondiscrimination conditions attached to various benefits (e.g., tax exemptions) that the groups seek. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, March 03, 2006 11:21 AM To: Law Religion issues for Law Academics Subject: RE: State RFRA andnonreligiousgroupsthathaveconscientiousobjections toantidiscrimination laws My point is that the ministerial exception should be broadly construed and applied. In the specific context of clergy, the state should not quickly or easily claim that a religious organization is ineligible for a subsidy if it is guilty of what the state claims is discrimination. The question is not really about discrimination, it is about discrimination in the context of selecting clergy. Because of this, then there are some serious First Amendment issues that have to be considered. Hence a liberal and broad application of the exception seems to make sense. If the question were about child marriage, or renting apartments the result might be different. Surely there is something rather unique and special about the relation between a religious community and its clergy, something not found in your examples. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, March 03, 2006 12:23 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligiousgroupsthathaveconscientiousobjections to antidiscrimination laws Well, I was using the secular law definition of discrimination, which (at least insofar as it's relevant here) is pretty much Stevens's test in Manhart: Does the institution treat[] a person in a manner which but for that person's sex would be different? If Jesus Christ deliberately chose only men as apostles, then that was discrimination -- obviously not illegal either then or now (now because they weren't paid, and thus weren't his employees), but that's a separate question than whether it's discrimination. By way of analogy, consider a landlord who refuses to rent to unmarried couples or same-sex couples, because he believes that renting to them would constitute aiding and abetting fornication or homosexual conduct. He may not see his conduct as discrimination, just as compliance with God's will. Yet discrimination it is. Nor am I quite sure why it would be unconstitutional for the state to indulge in or act upon such statements (i.e., that selecting priests based on sex is discrimination). If the claim is that it expresses disapproval of a faith to condemn as illegal conduct that mirrors what the faith's holy figures do, that can't be quite right. That Jesus was said to have driven the moneylenders from the Temple doesn't mean that such conduct would be constitutionally protected if conducted by a religious person (or a church official or even a self-described Messiah) today. Mohammed's marriage to a child bride may have been perfectly proper by the standards of the time and place in which he lived, but it doesn't mean that secular law can't ban it today; it can ban it, even if such conduct is being performed as a religious sacrament. If the claim is that denying subsidies to a religious group because it fails to satisfy a general condition attached to subsidy is unconstitutional or a RFRA violation, that's less implausible. Yet I wonder why we should take this view. The government subsidizes all sorts of things because of its own reasons. It subsidizes public schools, but not private religious schools, even though educating one's child in a pervasively religious atmosphere may be a sacrament to some people. It subsidizes child care, but not people who stay home to raise their children, even though that's a sacrament to some people, too. It subsidizes (through tax exemption
RE: State RFRA and nonreligious groups thathaveconscientiousobjections to antidiscrimination laws
Scouts but the Traditionalist Christian Scouts, a group that sees itself as focused on shared Christian (Protestant and Catholic) traditionalist moral values? Assume the group's leaders don't much insist that Scout leaders or members have the same views on salvation through works, predestination, transsubstantiation, or other theological points; but they do bar homosexual behavior and other behavior that they see as sinful (but that doesn't implicate antidiscrimination laws). Would that be enough to raise a RFRA claim, or does the mixture of denominations block that. He 3) Finally, say that the Boy Scouts believe that they have a secular conscientious obligation -- not a religious one -- to limit membership and leadership positions to heterosexuals. The Scouts sincerely and deeply believe this, precisely because they think it's wrong to bring the prospect of erotic attraction into relations between adolescents in this context. And not only are they unfazed by the question What about a group that claimed that boys and girls should not participate together in the group's activities for fear of 'erotic' attractions between boys and girls? -- they are indeed such a group; they are, after all, the *Boy* Scouts, and (let's assume) part of their reasons for being the Boy Scouts rather than the Child Scouts is precisely to eliminate intragroup heterosexual erotic attractions. Like our view or not, they say, but it's our deeply felt conscientious view, and subject to protection under RFRA by way of Seeger/Welsh. (I don't see what VMI has to say about this, since that simply says that the government may not discriminate based on sex in government operations.) All this is directly related to an article I'm writing, so I'd love to hear more people's views on this subject! Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, February 28, 2006 1:03 PM To: Law Religion issues for Law Academics Subject: RE: State RFRA and nonreligious groups that haveconscientiousobjections to antidiscrimination laws I am troubled by your Boy Scouts hypo. First, how does this group have standing to raise a religious freedom claim? What is the Boy Scout's religion? Dale was about associational rights, not religion-based rights. Second, when you introduce possible erotic attractions, you load the dice. What about a group that claimed that boys and girls should not participate together in the group's activities for fear of erotic attractions between boys and girls? VMI ought to settle this, shouldn't it? Isn't the first hypo easy? Has the ministerial exception vanished into thin air? What about EEOC v. Catholic University? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, February 27, 2006 7:27 PM To: Law Religion issues for Law Academics Subject: State RFRA and nonreligious groups that have conscientiousobjections to antidiscrimination laws Say that a state has a RFRA that's written much like the federal RFRA. And say that a state or local government body decides to exclude all groups that discriminate based on race, sex, etc. in selecting officers, speakers, or members from various benefit programs (access to government property, access to fundraising drives, access to schools, etc.). 1. The Catholic Church is excluded from the benefit because it discriminates based on sex in selecting priests. It raises a RFRA objection to the exclusion, arguing that it has a sincere religious belief that only men may be priests. What should the result be? 2. The Boy Scouts are excluded from the benefit because it discriminates based on sexual orientation in selecting scoutmasters and members. It raises a RFRA objection to the exclusion, arguing that it has a deeply felt conscientious belief that it would be wrong for them to put homosexuals in role modeling positions, or that it would be wrong for them to put young boys in positions where there is especially likely to be erotic attraction between them (as there is if some of the members are known to be homosexual). This is a belief based on our religious traditions, the Scout leadership says; and in any event, even if that's not religious enough (since we belong to so many different religious traditions), it's based on deeply held conscientious beliefs, see Seeger and Welsh. What should the result be? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives
RE: Breaking news in federal RFRA case
I will just note that Congress has the discretion to decide how to handle the matter. You just dont agree with the approach that Congress took. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Friday, February 24, 2006 10:48 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Read the legislative history behind RFRA from beginning to end --the administration of illegal drugs to children by religious groupsis not there. It is awholesale reconstruction of history to believethat Congress considered the issue in any way, shape, or form. The vast majority, i.e., over 95%, of the legislative history involves castigating the Supreme Court for Smith. The practical consequences of RFRA were never approached, because Congress's purpose was to reverse a Supreme Court decision, without any meaningful consideration of what that would accomplish at a policy level. Now, there are post hoc justifications for RFRA proffered all around, but they do not displace what Congress actually considered and actually knew at the time it was enacted. As to policy choices,it is my view that RFRA isunsound constitutionally and policy-wise, but the latter does not underminethe former. And, yes, the placement of a drug on Schedule I does, indeed, end the discussion when the drugis being administered to minors. The fact the drugs were delivered in a religious context does not change the extraordinary interest of the children. Marci In a message dated 2/23/2006 2:36:19 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Breaking news in federal RFRA case
You assume that the placement of a drug on Schedule I ends the discussion. I hope that you do not think that it is jesting to suppose that that placement does not end the discussion. Congress surely must have some sense of the consequences of its decisions (1) to place the drug on Schedule I and (2) to enact RFRA. Thus the accommodation, by your view is blind. But not by mine, or by Congress, for aught that appears. Why is the enactment of RFRA any more formalistic than the enactment of the drug law that establishes Schedule I? Isnt the truth of the matter that you have one policy perspective, one that, apparently, is not shared by Congress? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, February 22, 2006 7:58 PM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I hope the paragraph belowwas in jest. Schedule Idrugs are drugs that are considered to have no beneficial use and to be dangerous. If children are drinking the DMTin the tea, they are the victims of child abuse. I cannot believe thatanyone on this listis willing to give a group a pass in abusing children just because it is religious.It is one thing for adults to choose to take such drugs, but quite another for that group to provide the drugs to children. With respect to RFRA, it's error lies in its blind accommodation. It is a blind handout to religion. As I argue in God vs the Gavel, I have no problem with legislative accommodation, and in fact in many circumstances support it.But to be legitimate,it must be passed pursuant to consideration of the public good (i.e., Congress fulfilled its constitutionally appointed duty to make policy choices) and not be merely, as RFRA was, a special interest gift. I may disagree with the public policy balance, which is a wholly different matter. Under RFRA, Congress shuffles those hard policy choices over to the courts. The defenses of RFRA as responsible congressional enactment are formalistic in the extreme. Marci In a message dated 2/22/2006 6:19:26 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I dont know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, cant it? You seem to want to hem in Congress policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad but constitutional laws, then the answer is to elect a different Congress. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Breaking news in federal RFRA case
I think that it is too early to tell one way or the other. Dont forget that he has a wily antagonist, if that is not too strong a word, in Justice Stevens. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, February 21, 2006 11:24 AM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case Can anything be read into the unanimous nature of the opinion and Roberts being its author...Is this some indication that Roberts is going to be a consensus builder on at least certain issues? Donald C. Clark, Jr. Counselor at Law Bannockburn Lake Office Plaza I 2333 Waukegan Road Suite 160 Bannockburn, Illinois 60015 (847) 236-0900 (telephone) (847) 236-0909 (facsimiles) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Breaking news in federal RFRA case
The Congress and the President that enacted RFRA thought, rightly or wrongly, that there was a palpable, and not lurking, constitutional error. On that point I agree with that Congress and that President. But even if there were an error on the constitutional point, it does not matter, unless your position is that Congress cannot, in the exercise of policy-based discretion, decide that the Courts have to do the job that Roberts wry comments referred to. In any event, the Court ruled 8-0 that Congress could. Your basic objection, which you have repeated many times, is, if I have it right, that a number of police power health, safety and regulatory concerns properly, if not necessasrily, trump the autonomy claims of religious individuals and persons. That may or may not be right, but surely doesnt Congress get to decide whether this is true or not either as a general proposition or in specific cases? After all Congress is the source of the relevant regulatory regimes in the first place. I dont know how important it is that minors drink the tea. Why is drinking it per se bad for minors, or for anybody else? It is only bad because Congress said it was, at least as a general proposition. However, Congress can properly decide to allow for a little play in the joints, cant it? You seem to want to hem in Congress policy discretion on matters of this sort, and there is no Constitutional basis for doing so. If Congress passes bad but constitutional laws, then the answer is to elect a different Congress. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, February 21, 2006 12:49 PM To: religionlaw@lists.ucla.edu Subject: Re: Breaking news in federal RFRA case I am not going to belabor the point, Marty, but I strongly disagree with your interpretation of the application of standards of review. The strict scrutiny standard puts the courts in the business of second-guessing legislative judgment, normally where there is a lurking constitutional violation. RFRA strict scrutiny is not triggered by any lurking constitutional error, but rather bare second-guessing. Trying to normalize what RFRA demands -- imposition of a constitutional standard of review through legislation(which is only reflected in RLUIPA) is a mistake in my view. In this case in particular, the inadequacies of the courts are shown. The Supreme Court was in no position to investigate whether this drug is different from peyote, or, more importantly from my point of view, whether the drug is routinely given to minors (as it is). Had this specific exemption request been part of a legislative inquiry, the regular use by minors could have been taken into account, and, I presume, the compelling interest for denying its use documented. There was no place for such an inquiry in the Court'sappellate review. In any event, the Court is absolutely right that the federal government asked for it, and here they have it. Marci In a message dated 2/21/2006 12:29:30 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: I know we've been over this ground many times, but perhaps it's still worth clarifying: It's not a delegation of a policy decision -- it's asking the courts to apply a legal standard. For instance, in this case, it was Congress that decided that the sky would not fall with the peyote exemption, and the federal government that failed to explain why the harms in this case would be any worse or different than in the peyote case. This was basic analogic reasoning, applying a statutory standard --everyday stuff for the judiciary. Nor was it beyond the Court's ken to conclude -- correctly -- that the exemption would not be required if the treaty-based consequences would be severe, but that thegovernment had not demonstrated that the consequences of breaching the treaty would in fact be as draconian as the State Department alleged. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Draft ID statutory language
Title: Message With respect, I have a great deal of difficulty in understanding this proposed language, and its purpose. I have a great deal of concern about its probable effects or consequences. Let me just pose three questions for now. First, what is actual creation? Without knowing what that means, it is impossible to assess the duty that the first paragraph would impose on public school teachers. With regard to the second paragraph, why single out evolution/ID? Isnt there far more to teaching ABOUT religion than that? The focus is worrisome. Also with respect to the second paragraph, how are you going to enforce the prohibition contained in the proviso? From: Gibbens, Daniel G. [mailto:[EMAIL PROTECTED] Sent: Thursday, January 26, 2006 12:48 AM To: Law Religion issues for Law Academics Subject: Draft ID statutory language Belowisdraft language fora billfor our state legislature in light of pro-ID bills filed. Although the deadline has passed for bill-filing this session,some thinksomething of this sort may havefuture use. So comments and criticismare requested. Obviously the draft is an effort under the rubric of pragmatism. It does not address critical issues such as thedefinition for public school purposes of science, or what's involved in teaching about religion. On the latter issue, it simply relies on Brennan's concurring opinion in Schempp. A. In courses presenting science-based information pertaining to the development processes of life forms, including evolution theory, or the development processes of physical matter, including big bang theory, public school teachersshall make clear that there is no scientific information available about the actual creation or origin of either; provided that related religion-based information, including intelligent design theory, shall not be presented in such courses. B. In non-science courses such as history, literature, and social studies, public school teachers may present information about religion, about differences between religious sects, and about religion-based views on the creation, origin or development processes of life forms or of physical matter, including intelligent design theory; provided that such teaching neither treats religion or religious views as truth or as ignorance, nor promotes nor discriminates against religion generally, any particular set of religious beliefs, or any negative views about religion. Dan Gibbens University of Oklahoma College of Law [EMAIL PROTECTED] -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Wednesday, January 18, 2006 7:57 PM To: Law Religion issues for Law Academics Subject: Re: School District drops Intelligent Design Class I don't think is so hard to enforce. Most people most of the time follow guidelines and this should be no different. We should not ban something just because sometimes people stray across a fuzzy boundary inadvertently or just because some people will intentionally try to abuse the guidelines and further their own agendas. This desire for purity in this area baffles me. It is not possible. We ought not fail to do or allow something just because it can sometimes be abused. And we ought not fail to teach something or allow something to be taught just because some people will be upset or draw the line differently. Steve On Jan 18, 2006, at 6:39 PM, Newsom Michael wrote: This is, of course, the central problem: how to enforce the distinction between teaching about religion and teaching religion. Enforcement, it strikes me, is insuperably difficult. How does one make sure that the teachers do not breach the line, and how does one make sure that the curriculum, or lesson plan does not breach the line? I am not sure, therefore, that one can reasonably assume that teaching about religion will not become, in far too many cases, teaching religion. Thus why should one favor teaching about religion in the public elementary and secondary schools at all? Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: teaching about religion in the public schools
The problem is just not the nature of the difficulties teaching about religion necessarily raises, but also the problem of enforcement. It does no good if the teachers will not abide by the resolution of the sticky problems made by the appropriate school or other officials including judges. From: Sisk, Gregory C. [mailto:[EMAIL PROTECTED] Sent: Thursday, January 26, 2006 3:30 PM To: 'Law Religion issues for Law Academics' Subject: RE: teaching about religion in the public schools (Note that I dont understand Alan here to be saying otherwise, I was just using his post as a springboard to anticipate the argument that some may make, and have made in the past, that these kinds of sticky problems prove the impossibility and impropriety of teaching about religion in public schools.) Greg Sisk ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: School District drops Intelligent Design Class
We agree on the question of goals and objectives, as set out in paragraphs 1 and 2. I still am not convinced, however, that most teachers will be monitored, even informally, to make sure that they act in accordance with our agreed upon goals and objectives. It may be, in the final analysis, necessary to grant that some aspects or subjects of learning, even the learning that we need for the kind of civic culture that we want, may have to take place outside of the common schools. I tend to favor national service of one kind or another as a way of addressing some of those aspects or subjects. At the same time, I recognize that this is an imperfect solution, and I may be more resigned than you to muddling through, being dependent upon imperfect and incomplete answers and strategies. (All of which makes my idealistic side very uncomfortable, to say the least.) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Thursday, January 19, 2006 4:48 PM To: religionlaw@lists.ucla.edu Subject: Re: School District drops Intelligent Design Class Michael raises important issues. But I think we eviscerate the idea of a civic culture in a diverse, deliberative democracy if we capitulate to those more interested in teaching conclusions than inquiry, or more perspicuously stated, more interest in teaching conclusions incompatible with the conclusions and forms of inquiry flowing from republican democracy. Except for some unpersuasive postmodern critiques I don't believe there existarguments demonstrating that connecting republican democracy and certain forms of education-and excluding others--are impossible or unattractive. And while no parent should be compelled to send her child to a publica (civic) school, I'm not terribly sensitive to the argument that the government should pay parents to send their children to private schools that are more concernedwith teaching conclusions than forms of inquiry. Democracy requires a particular form of civic culture, one that should be as open, diverse, and tolerant as is consistent with maintaining that culture in the first place. For me, that places a heavy burden to support public schools whether or not you send your child there. I have a child with special educational needs that the state, though required by law to provide, does not. Thus, I have spent tens of thousands of dollars to send her to private schools. That's my choice. I fully recognize my responsibility asa taxpayer to support the public schools, and to make theme as competitive and comprehensive as possible. In my view, I have a political obligation to so whether or not my child benefits from them. I think there exist informal means of monitoring someone teaching a course in philosophy or religion which discuss creationism, ID, the ontological proof of the existence of God, the argument of evil, and so forth. The goal, in my view, would be to teach these issues trying with all one's pedagogical skills to argue that each issue is true and each issue is false. Let the children then decide. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: School District drops Intelligent Design Class
Bobby, as they say in the hood, I feel ya. I couldnt agree more that parenting and teaching should be about teaching the child to develop thoughtful opinions independently. I think, however, that there are many parents and teachers who do not agree with us. Some of the rhetoric bandied about these days tends to support that conclusion. I suspect that we may disagree as to the numbers and as to the depth of the feelings of those who are opposed to what you and I believe in. And I think that that disagreement leads us to rather different conclusions about how to think about teaching about religion. This in turn leads to the most difficult question in the law: on what basis can we fashion rules when lacking a sufficient empirical basis for making informed rule choices? This question never goes away for not even the most extreme formalist can completely divorce himself or herself from the real world. (Indeed, I would never suppose that, deep down inside, they really want to. Well leave the motives of formalists for another discussion.) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 18, 2006 7:18 PM To: religionlaw@lists.ucla.edu Subject: Re: School District drops Intelligent Design Class The answer to Michael's pertinent question is critical. I suppose we know only what to rule out, for example, I believe this is the class that the Lord wanted me to teach. In my view, teaching in general should stimulate(provoke respectfully and sensitively), and basically being more concerned about assisting the student to derivehis or her own thoughtful opinions independently. Teaching, I suppose, is similar to parenting. One should want the student (child) to develop the critical and passionate capacity to think for themselves even if the substantive conclusions are not your own.Is there some litmusto make sure that we have such a teacher or are such a parent? No! At least not some general principle. But then again, as in many other important pursuits, we develop intuitive guidelines, which we shouldalways be ready to revise and refine. My point was imply this. That as both a teacher and a parent I want my students and my daughter to be exposed to religious, social, political, and scientific controversies by those whose primary stake in the controversy is not getting the student or child to think asthe adult does, but rather to think for themselves. It's inconceivable to me that in the public square of a deliberative democracy we should seek anything else. Do I want my daughter to adopt my fundamental values? Well, of course I do. But do I think my parental responsibility should take the form of trying to persuade her with whatever ratiocinative powers I possess that my substantive values are correct. Absolutely not, except for one fundamental value, namely, that pursuing justified convictions, where justified clearly refers to some inter-subjective practice that others should be able to confirm and respond to, is presumptively more important than a commitment to some set of substantive results. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: School District drops Intelligent Design Class
Your answer depends on a judgment about the likelihood of crossing the line from teaching about religion to teaching religion. Sometimes is too elusive and slippery a word, and it does not help us think through the problem. From: Steven Jamar Sent: Wednesday, January 18, 2006 8:57 PM To: Law Religion issues for Law Academics Subject: Re: School District drops Intelligent Design Class I don't think is so hard to enforce. Most people most of the time follow guidelines and this should be no different. We should not ban something just because sometimes people stray across a fuzzy boundary inadvertently or just because some people will intentionally try to abuse the guidelines and further their own agendas. This desire for purity in this area baffles me. It is not possible. We ought not fail to do or allow something just because it can sometimes be abused. And we ought not fail to teach something or allow something to be taught just because some people will be upset or draw the line differently. Steve On Jan 18, 2006, at 6:39 PM, Newsom Michael wrote: This is, of course, the central problem: how to enforce the distinction between teaching about religion and teaching religion. Enforcement, it strikes me, is insuperably difficult. How does one make sure that the teachers do not breach the line, and how does one make sure that the curriculum, or lesson plan does not breach the line? I am not sure, therefore, that one can reasonably assume that teaching about religion will not become, in far too many cases, teaching religion. Thus why should one favor teaching about religion in the public elementary and secondary schools at all? -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
For an interest to be compelling does a state have to be prepared to bankrupt itself? -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 8:44 PM To: Law Religion issues for Law Academics Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw If the interest is so compelling, why does the statute allow an employer to ignore it -- to avoid having to pay for prescription contraceptives -- simply by dropping all prescription drug coverage? (Catholic Charities could have done so, but it believed that it had a religious duty to provide quality health insurance to its employees; thus it was unwilling to drop prescription drug coverage from its health insurance plan. In fact it viewed that duty as a stronger duty than the duty not to pay for prescription contraceptives.) Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:34 AM To: Law Religion issues for Law Academics Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw I don't think that the constitution requires the state to bankrupt itself for fear of offending the Religion Clauses. There has to be some play in the joints, and some concern, however slight, for the poor taxpayers. Why isn't the interest compelling? There is a variety of public health, fiscal, financial, psychological and other reasons to support the claim that the state has a compelling interest in the matter. But, of course, these reasons are progressive or -- gasp! -- liberal. I am not arguing for or against an exemption. My point is simply that there is a good reason for the interference or intrusion that Mark finds troubling. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:16 PM To: Law Religion issues for Law Academics Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw If the state's interest is simply in satisfying the contraceptive needs of its residents, why isn't providing contraceptive insurance directly -- whether to all residents, employed or not, to all residents who aren't already covered, or to all residents who lose coverage as a result of an exemption -- a less restrictive means of serving that interest? Or is it the case that any time an alternative would require spending some more money, it doesn't count as a prospective less restrictive alternative? On the other hand, if the state's interest is in enforcing an employer's supposed obligation to its employees, the law here would be well-tailored to that interest; but why is that interest so compelling? I don't think this means that a religious exemption is mandated -- under Smith, it wouldn't be (unless a court finds impermissible religious discrimination, which presumably wouldn't be constitutional in any event absent some very strict scrutiny, stricter than the feeble Sherbert/Yoder-era scrutiny). But if strict scrutiny is really the right regime, I'm not sure that the interest in helping residents get contraception is sufficient to justify the law. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:07 AM To: Law Religion issues for Law Academics Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw I think that the state has a strong, and perhaps compelling, interest in the contraceptive needs of employers. Starting from that position, it is easy to justify the intervention, at least as an initial proposition. In other words, I find this problem to be extremely difficult, put perhaps not troubling, at least so far. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Sunday, January 15, 2006 8:48 PM To: 'Law Religion issues for Law Academics ' Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw In response to Marty: First, one might ask what interest of the state in providing for contraceptive needs of employees, or what part of the merits of providing the employer with an exemption, is implicated by the section of the Internal Revenue Code chosen by the organization under which it receives its tax exempt status. That was never clear to me. Second, suppose the inappropriate criterion were as follows: No social services group associated with the Roman Catholic Church shall qualify for the exemption. Wouldn't such a criterion show that the statutory scheme was designed to discriminate against a particular religious group because of its religion? And wouldn't such proof be fatal to the scheme? The targeting of Catholic Charities by way of the four criteria in the statute -- including the impermissible ones -- is nearly as clear
RE: School District drops Intelligent Design Class
How do we make sure that we have teachers who think teaching the controversies is more important than guaranteeing that the students adopt a particular substantive resolution? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 18, 2006 3:46 PM To: religionlaw@lists.ucla.edu Subject: Re: School District drops Intelligent Design Class Okay, there are problematic facts which makes this case of poor example of the point I'm advocating. However, I think it's a positive good to have the hot-buttons issues, creationism, ID, the problem of evil, and other arguments against the plausibility and even intelligibility of the existence of the Abrahamic God, and a host of other issues taught in a fair and balanced manner in high school. Because some people want to use these issues to indoctrinate (I believe this is the class that the Lord wanted me to teach.), is no reason not to expose adolescents to these controversies taught by teachers who think teaching thecontroversies is more important than guaranteeing that the students adopt a particular substantive resolution. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Evaluation of people's religious beliefs
Protestantism is clearly the point of departure. There can be no reasonable argument against that fact because virtually everybody who has taken a serious look at America's religious history reaches the same conclusion, and, of course, I think that they are right. The point is that Protestant norms help define the mainstream, a concept that is meaningless without context. My point is as much pragmatic as it is principled, and, on the normative question, I think that courts would make the distinction precisely because of the fact that Protestantism is the point of departure in establishing the norms that guide pragmatic judgments. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, January 14, 2006 4:58 PM To: Law Religion issues for Law Academics Subject: RE: Evaluation of people's religious beliefs I don't quite see how Protestantism as such has much to do with this. My guess is that, descriptively, the line is between mainstream beliefs and weird beliefs. Mainstream Protestant, Catholic, and in some measure Jewish assertions about supernatural events largely overlap, but when there are differences, I doubt that these differences would end up being descriptively relevant: A court would be as troubled, I think, by an employer's failing to hire someone because of that someone's quintessentially Catholic belief in intercession in temporal matters by saints or the Virgin Mary, as by an employer's failing to hire someone because of that someone's more broadly Christian belief in the virgin birth. Yet this leaves the normative question: *Should* courts act differently when (1) a government employer refuses to hire someone because the employer thinks that someone's mainstream religious belief bespeaks irrationality or craziness (i.e., I don't want to hire this person, because he [Catholic/Protestant/Orthodox/other Christian] believes in the Virgin Birth) than when (2) a government employer employer refuses to hire someone because the employer thinks that someone's weird religious belief bespeaks irrationality or craziness (i.e., I don't want to hire this person, because he believes that God told him about space aliens / werewolves / the end of the world coming in 3 years)? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Friday, January 13, 2006 1:43 PM To: Law Religion issues for Law Academics Subject: RE: Evaluation of people's religious beliefs Eugene, I think that the real-world answer is your #4. I think that the law contains some normative propositions about religious belief. You know that I start from the Protestant Empire premise. But you don't have to agree with me as to the continued existence of the Protestant Empire (I know that we will soon have a right-wing Catholic majority on the SCOTUS, but that is really another discussion) to agree that the *origins* of these propositions rest in evangelical Protestantism of the British sort. In your hypo, the beliefs are so far removed from the core normative propositions and any reasonable variations on their thematic content as to put them, literally, beyond the pale, in my opinion. (I don't know whether in your hypo this is a good or a bad result, although I lean to the former over the latter for entirely pragmatic reasons in part having to do with something resembling a concern for social order, or at least wear and tear of the social fabric. When it comes both to children and the workplace, don't we tend to have reasonable concerns and worries about whackiness?) (I might add by way of a belated response to Perry's interesting analysis of line-drawing, (I love the parsonage example) that the problem of neutrality/equality flounders on the shoals of these normative propositions that have the effect or redesigning the playing field in such a way that neutrality/equality often goes by the boards. For what it is worth, Catholics are not the only ones who essentially require that clergy live in church-provided housing. Many Episcopalian parishes come remarkably close to this bottom-line result. Other Protestant groups may do so as well. And, regarding the priest-penitent privilege, my recollection is that the early American courts may have had some difficulty in accepting or recognizing the privilege, or, if they accepted it, saw virtue and utility in it for Protestants as well. But on this I could be wrong.) -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, January 13, 2006 1:44 PM To: Law Religion issues for Law Academics Subject: Evaluation of people's religious beliefs Thinking some more about my First Amendment / child custody paper brought me to this question: Government officials in various situations have to evaluate people's overall
RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
-Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Sunday, January 15, 2006 8:48 PM To: 'Law Religion issues for Law Academics ' Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw In response to Marty: First, one might ask what interest of the state in providing for contraceptive needs of employees, or what part of the merits of providing the employer with an exemption, is implicated by the section of the Internal Revenue Code chosen by the organization under which it receives its tax exempt status. That was never clear to me. Second, suppose the inappropriate criterion were as follows: No social services group associated with the Roman Catholic Church shall qualify for the exemption. Wouldn't such a criterion show that the statutory scheme was designed to discriminate against a particular religious group because of its religion? And wouldn't such proof be fatal to the scheme? The targeting of Catholic Charities by way of the four criteria in the statute -- including the impermissible ones -- is nearly as clear as if the statute had included that hypothetical language. Floor statements of California legislators also make it clear that they did not like the Church's position on contraception and that the statutory scheme was designed specifically to force the Church to violate its precepts. After all, as the legislators stated, you could be a good Catholic without following the Church's teaching on contraception. That religious intervention by the state is deeply troubling to me, as I believe it should be to other members of the list. Mark Scarberry Pepperdine -Original Message- From: [EMAIL PROTECTED] on behalf of Marty Lederman To: Law Religion issues for Law Academics Sent: 1/15/2006 4:24 PM Subject: Re: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw Alan writes that having one or more inappropriate criterion taints the entire accommodation provision. Why? Let's say, as apparently was the case in the Catholic Charities case, that the requirement of specified tax status would, standing alone, be a perfectly permissible criterion, and the plaintiffs do not satisfy that criterion. That disqualifies them for the exemption right there. Why should the outcome change just because another of the criteria -- superfluous for an employer who doesn't qualify under the tax-status criterion -- would be unconstitutional standing alone? [snip] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw
I think that the state has a strong, and perhaps compelling, interest in the contraceptive needs of employers. Starting from that position, it is easy to justify the intervention, at least as an initial proposition. In other words, I find this problem to be extremely difficult, put perhaps not troubling, at least so far. -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Sunday, January 15, 2006 8:48 PM To: 'Law Religion issues for Law Academics ' Subject: RE: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw In response to Marty: First, one might ask what interest of the state in providing for contraceptive needs of employees, or what part of the merits of providing the employer with an exemption, is implicated by the section of the Internal Revenue Code chosen by the organization under which it receives its tax exempt status. That was never clear to me. Second, suppose the inappropriate criterion were as follows: No social services group associated with the Roman Catholic Church shall qualify for the exemption. Wouldn't such a criterion show that the statutory scheme was designed to discriminate against a particular religious group because of its religion? And wouldn't such proof be fatal to the scheme? The targeting of Catholic Charities by way of the four criteria in the statute -- including the impermissible ones -- is nearly as clear as if the statute had included that hypothetical language. Floor statements of California legislators also make it clear that they did not like the Church's position on contraception and that the statutory scheme was designed specifically to force the Church to violate its precepts. After all, as the legislators stated, you could be a good Catholic without following the Church's teaching on contraception. That religious intervention by the state is deeply troubling to me, as I believe it should be to other members of the list. Mark Scarberry Pepperdine -Original Message- From: [EMAIL PROTECTED] on behalf of Marty Lederman To: Law Religion issues for Law Academics Sent: 1/15/2006 4:24 PM Subject: Re: N.Y. Court Rejects Employers' Challenge to ContraceptionLaw Alan writes that having one or more inappropriate criterion taints the entire accommodation provision. Why? Let's say, as apparently was the case in the Catholic Charities case, that the requirement of specified tax status would, standing alone, be a perfectly permissible criterion, and the plaintiffs do not satisfy that criterion. That disqualifies them for the exemption right there. Why should the outcome change just because another of the criteria -- superfluous for an employer who doesn't qualify under the tax-status criterion -- would be unconstitutional standing alone? [snip] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Pilgrim Baptist Church
There is a way of testing what is happening here: why not have the state acquire the property and then rebuild the structure and maintain it as some sort of museum? (The state could, of course, seek contributions from private individuals and groups to help meet the costs of rebuilding.) The Turks have done something like that, I think, with Hagia Sophia. I have been in Hagia Sophia and my recollection is that the structure is now essentially a museum, neither a basilica nor a mosque. If the state of Illinois rejects this solution, then maybe there is a serious EC problem here. From: David E. Guinn [mailto:[EMAIL PROTECTED] Sent: Sunday, January 15, 2006 9:41 PM To: Law Religion issues for Law Academics Subject: Re: Pilgrim Baptist Church You wrote: Nevertheless, even if the sort of formal neutrality rule espoused in Thomas's Mitchell plurality becomes the governing doctrine, as I think it will, these cases are still difficult, because there's nothing neutral, or objective, about the decision to fund the rebuilding of the Pilgrim Baptist Church. Illinois presumably does not rebuild all buildings destroyed by fire, or all community services buildings, or all churches, for that matter. The decision to rebuild this particular structure is very subjective, and discretionary. I suppose it's possible that the decision to fund would be made completely without regard to the building's status as a church, but that seems unlikely, no?: Isn't it at least a strong possibility that the state would not pledge a million dollars if the building had never been a synagogue and church? And if its religious status is part of the reason for the pledge, isn't that a form of religious favoritism that is problematic under the EC, even if the Thomas view prevails? I agree that this may be classified as discretionary. However, I do not necessarily believe that it is driven strictly out of concern for the fact that it is a church or synagogue. Illinois -- and Chicago in particular -- is very attentive to its architectural heritage. In this case, the Church not only has cultural significance to the religious community, but it is also valued for its connection with Adler and Sullivan. Louis Sullivan is a particularly revered architect here in Chicago. I do believe that the state has funded renovation and reconstruction costs for building by Frank Lloyd Wright, Sullivan and other famous architects. I think the equal protection argument lies in the fact that this building is valued according to secular standards by people independent of the the church as a architectural gem worthy of protection. One may or may not add its historical relevance to Chicago to the judgement. David - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Sunday, January 15, 2006 8:09 PM Subject: Re: Pilgrim Baptist Church The case I've seen cited on this issue is Committee for Public Ed. Religious Liberty v. Nyquist, 413 U.S. 756, 777 (1973) which says: If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair. Full text at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=413invol=756#777 See also Tilton v. Richardson, 403 U.S. 672, 678 (1971) available at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=403invol=672#678 For a Bush Administration view, see the 2003 DOJ memo titled AUTHORITY OF THE DEPARTMENT OF THE INTERIOR TO PROVIDE HISTORIC PRESERVATION GRANTS TO HISTORIC RELIGIOUS PROPERTIES SUCH AS THE OLD NORTH CHURCH, at: http://www.usdoj.gov/olc/OldNorthChurch.htm Hope that helps Allen Asch In a message dated 1/15/2006 3:56:48 PM Pacific Standard Time, [EMAIL PROTECTED] writes: I trust that many members of the list may have heard about the tragic fire at the Pilgrim Baptist Church. The church, designed by the firm of Adler and Sullivan, started life as a major synacoge on the South side of Chicago that was eventually taken over by the Pigrim Baptist Congration. Interestingly, the new congregation did not strip the decorative features of the synagogue but instead simply added christian decorative features. The church became a leading institution within the Black community in Chicago and was the birth place of gospel music. It has also become a significant stop on the many archetectural tours that Chicago is famous for. The attached link describes the virtues of the building and the need to rebuild. http://www.chicagotribune.com/news/opinion/chi-0601150287jan15,1,4394171.story?coll=chi-opinionfront-hed You may have also heard about the controversy. As the news reports puts it: Gov. Rod
RE: Pilgrim Baptist Church
Doesn't Boerne answer the question posed in your second paragraph? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, January 16, 2006 11:59 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Marty makes an excellent point here. I think (though I'm not sure that Marty does) that it would be outrageous if, when a state *does* rebuild all buildings, or help rebuild them, or provides other services short of rebuilding (e.g., taxpayer-paid internal sprinkler installation, partly subsidized earthquake retrofitting, etc.), it nonetheless excluded churches, synagogues, homes that are used for regular synagogue meetings or Bible study, and the like. Yet surely there is a risk here that the state is indeed preferring religious buildings; even if there's no deliberate desire to help religion because religion is somehow good, many people who are trying to evaluate a building's historic status may well be understandably influenced by that building's being religious, since religious buildings are often seen as especially important to a community and to the community's history. Yet would this go the other way, too? Would landmarking ordinances that *burden* the property owner, by barring it from reconstructing the building, thus be per se unconstitutional under the Free Exercise Clause when applied to churches and the like, on the theory that there's no neutrality here? Eugene Marty Lederman writes: Nevertheless, even if the sort of formal neutrality rule espoused in Thomas's Mitchell plurality becomes the governing doctrine, as I think it will, these cases are still difficult, because there's nothing neutral, or objective, about the decision to fund the rebuilding of the Pilgrim Baptist Church. Illinois presumably does not rebuild all buildings destroyed by fire, or all community services buildings, or all churches, for that matter. The decision to rebuild this particular structure is very subjective, and discretionary. I suppose it's possible that the decision to fund would be made completely without regard to the building's status as a church, but that seems unlikely, no?: Isn't it at least a strong possibility that the state would not pledge a million dollars if the building had never been a synagogue and church? And if its religious status is part of the reason for the pledge, isn't that a form of religious favoritism that is problematic under the EC, even if the Thomas view prevails? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Pilgrim Baptist Church
You may be right, in a technical sense. The Court limited itself to the RFRA claim. But the case suggests to me that the Court would probably not be receptive to a claim on the (landmarks preservation) merits made by the Church. I am not remembering the aftermath of the case very well, but it seems to me that the Church basically lost, on the merits. Finally, if I am remembering the cases correctly, objections to landmarking by churches usually fail, even though landmarking imposes burdens on the churches. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:26 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I'm not sure I quite understand -- why would it answer that question? If I recall correctly, this issue wasn't passed on by the Court. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:18 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Doesn't Boerne answer the question posed in your second paragraph? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, January 16, 2006 11:59 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Marty makes an excellent point here. I think (though I'm not sure that Marty does) that it would be outrageous if, when a state *does* rebuild all buildings, or help rebuild them, or provides other services short of rebuilding (e.g., taxpayer-paid internal sprinkler installation, partly subsidized earthquake retrofitting, etc.), it nonetheless excluded churches, synagogues, homes that are used for regular synagogue meetings or Bible study, and the like. Yet surely there is a risk here that the state is indeed preferring religious buildings; even if there's no deliberate desire to help religion because religion is somehow good, many people who are trying to evaluate a building's historic status may well be understandably influenced by that building's being religious, since religious buildings are often seen as especially important to a community and to the community's history. Yet would this go the other way, too? Would landmarking ordinances that *burden* the property owner, by barring it from reconstructing the building, thus be per se unconstitutional under the Free Exercise Clause when applied to churches and the like, on the theory that there's no neutrality here? Eugene Marty Lederman writes: Nevertheless, even if the sort of formal neutrality rule espoused in Thomas's Mitchell plurality becomes the governing doctrine, as I think it will, these cases are still difficult, because there's nothing neutral, or objective, about the decision to fund the rebuilding of the Pilgrim Baptist Church. Illinois presumably does not rebuild all buildings destroyed by fire, or all community services buildings, or all churches, for that matter. The decision to rebuild this particular structure is very subjective, and discretionary. I suppose it's possible that the decision to fund would be made completely without regard to the building's status as a church, but that seems unlikely, no?: Isn't it at least a strong possibility that the state would not pledge a million dollars if the building had never been a synagogue and church? And if its religious status is part of the reason for the pledge, isn't that a form of religious favoritism that is problematic under the EC, even if the Thomas view prevails? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot
RE: Pilgrim Baptist Church
I don't think that your analogy holds up. It is one thing for the state to regulate, and quite another to spend money. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:48 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I don't think Boerne can be read as even implicitly passing on this question. But if courts do end up rejecting these objections to landmarking, then my point (a response to Marty's point about neutrality) is that the same should apply to objections to government repair assistance. The mere risk that landmarking decisions might end up burdening religious institutions because of their religiosity (since maybe the authorities would be less likely to see a building as a landmark if it weren't a church) doesn't justify treating all such decisions as presumptively religiously discriminatory. Likewise, the mere risk that landmark repair assistance decisions might end up benefiting religious institutions because of their religiosity (since maybe the authorities would be less likely to repair a building as a landmark if it weren't a church) doesn't justify treating all such decisions as presumptive religious favoritism. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:43 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church You may be right, in a technical sense. The Court limited itself to the RFRA claim. But the case suggests to me that the Court would probably not be receptive to a claim on the (landmarks preservation) merits made by the Church. I am not remembering the aftermath of the case very well, but it seems to me that the Church basically lost, on the merits. Finally, if I am remembering the cases correctly, objections to landmarking by churches usually fail, even though landmarking imposes burdens on the churches. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:26 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I'm not sure I quite understand -- why would it answer that question? If I recall correctly, this issue wasn't passed on by the Court. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:18 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Doesn't Boerne answer the question posed in your second paragraph? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, January 16, 2006 11:59 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Marty makes an excellent point here. I think (though I'm not sure that Marty does) that it would be outrageous if, when a state *does* rebuild all buildings, or help rebuild them, or provides other services short of rebuilding (e.g., taxpayer-paid internal sprinkler installation, partly subsidized earthquake retrofitting, etc.), it nonetheless excluded churches, synagogues, homes that are used for regular synagogue meetings or Bible study, and the like. Yet surely there is a risk here that the state is indeed preferring religious buildings; even if there's no deliberate desire to help religion because religion is somehow good, many people who are trying to evaluate a building's historic status may well be understandably influenced by that building's being religious, since religious buildings are often seen as especially important to a community and to the community's history. Yet would this go the other way, too? Would landmarking ordinances that *burden* the property owner, by barring it from reconstructing the building, thus be per se unconstitutional under the Free Exercise Clause when applied to churches and the like, on the theory that there's no neutrality here? Eugene Marty Lederman writes: Nevertheless, even if the sort of formal neutrality rule espoused in Thomas's Mitchell plurality becomes the governing doctrine, as I think it will, these cases are still difficult, because there's nothing neutral, or objective, about the decision to fund the rebuilding of the Pilgrim Baptist Church. Illinois presumably does not rebuild all buildings destroyed by fire, or all community services buildings, or all churches, for that matter. The decision to rebuild this particular structure is very subjective, and discretionary. I suppose it's possible that the decision to fund would be made completely without regard to the building's status as a church, but that seems unlikely, no?: Isn't it at least
RE: Pilgrim Baptist Church
The analogy is too sweeping. Even if one tried to limit it by reference to a non-discrimination principle, I am not sure that the principle is (1) correct or (2) workable. There is no textual warrant for reducing the Religion Clauses to a non-discrimination principle, and there is no principled basis, short of a careful and honest consideration of history, experience, and context, for determining what constitutes permissible or impermissible discrimination. Once again, we reach the core of that which divides the two of us. Perhaps it is enough to note that fact and move on. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 2:24 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Of course the two are in a sense different things. But they're also similar in that (1) they are both generally unconstitutional when done in a way that discriminates based on religion or religiosity, amd (2) by hypothesis, both are constitutional when done in an evenhanded way. Recall that Marty suggested that even if one adopts the Mitchell plurality's evenhanded aid is OK principle, the *risk* of discrimination may suffice to invalidate the aid program; that's what I was responding to. So the question is whether, despite these similarities, they should be treated differently in that the *risk* of discrimination would suffice to invalidate the discretionary aid program but *not* the discretionary regulatory program. It seems to me the answer is no. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:52 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I don't think that your analogy holds up. It is one thing for the state to regulate, and quite another to spend money. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:48 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I don't think Boerne can be read as even implicitly passing on this question. But if courts do end up rejecting these objections to landmarking, then my point (a response to Marty's point about neutrality) is that the same should apply to objections to government repair assistance. The mere risk that landmarking decisions might end up burdening religious institutions because of their religiosity (since maybe the authorities would be less likely to see a building as a landmark if it weren't a church) doesn't justify treating all such decisions as presumptively religiously discriminatory. Likewise, the mere risk that landmark repair assistance decisions might end up benefiting religious institutions because of their religiosity (since maybe the authorities would be less likely to repair a building as a landmark if it weren't a church) doesn't justify treating all such decisions as presumptive religious favoritism. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:43 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church You may be right, in a technical sense. The Court limited itself to the RFRA claim. But the case suggests to me that the Court would probably not be receptive to a claim on the (landmarks preservation) merits made by the Church. I am not remembering the aftermath of the case very well, but it seems to me that the Church basically lost, on the merits. Finally, if I am remembering the cases correctly, objections to landmarking by churches usually fail, even though landmarking imposes burdens on the churches. -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, January 17, 2006 1:26 PM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church I'm not sure I quite understand -- why would it answer that question? If I recall correctly, this issue wasn't passed on by the Court. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Tuesday, January 17, 2006 10:18 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Doesn't Boerne answer the question posed in your second paragraph? -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, January 16, 2006 11:59 AM To: Law Religion issues for Law Academics Subject: RE: Pilgrim Baptist Church Marty makes an excellent point here. I think (though I'm not sure that Marty does) that it would be outrageous if, when a state *does* rebuild all
RE: Evaluation of people's religious beliefs
Eugene, I think that the real-world answer is your #4. I think that the law contains some normative propositions about religious belief. You know that I start from the Protestant Empire premise. But you don't have to agree with me as to the continued existence of the Protestant Empire (I know that we will soon have a right-wing Catholic majority on the SCOTUS, but that is really another discussion) to agree that the *origins* of these propositions rest in evangelical Protestantism of the British sort. In your hypo, the beliefs are so far removed from the core normative propositions and any reasonable variations on their thematic content as to put them, literally, beyond the pale, in my opinion. (I don't know whether in your hypo this is a good or a bad result, although I lean to the former over the latter for entirely pragmatic reasons in part having to do with something resembling a concern for social order, or at least wear and tear of the social fabric. When it comes both to children and the workplace, don't we tend to have reasonable concerns and worries about whackiness?) (I might add by way of a belated response to Perry's interesting analysis of line-drawing, (I love the parsonage example) that the problem of neutrality/equality flounders on the shoals of these normative propositions that have the effect or redesigning the playing field in such a way that neutrality/equality often goes by the boards. For what it is worth, Catholics are not the only ones who essentially require that clergy live in church-provided housing. Many Episcopalian parishes come remarkably close to this bottom-line result. Other Protestant groups may do so as well. And, regarding the priest-penitent privilege, my recollection is that the early American courts may have had some difficulty in accepting or recognizing the privilege, or, if they accepted it, saw virtue and utility in it for Protestants as well. But on this I could be wrong.) -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, January 13, 2006 1:44 PM To: Law Religion issues for Law Academics Subject: Evaluation of people's religious beliefs Thinking some more about my First Amendment / child custody paper brought me to this question: Government officials in various situations have to evaluate people's overall rationality and sensibleness. The most common situation, I think, has to do with employment -- if we're considering hiring someone (whether a faculty member or a staff employee), and we learn that the person believes some really zany, improbable stuff (e.g., that aliens are talking to him, or that there are werewolves congregating outside his house, or even that his house is haunted by ghosts), we might not hire him. This is true even if werewolf studies are outside his job description -- we might just think that he's foolish or crazy, and likely to do some dumb things in other contexts. Another situation, I take it, has to do with child custody; when courts are deciding parental fitness they sometimes have to consider indicators of how sane or reasonable a parent is (though I realize that here this factor would and likely should be more controversial than in the employment context). Another might have to do with adoption. Yet I take it that government officials ought not deny a person employment or child custody because of that person's religious views, including religious assertions about physical events that nonbelievers might see as pretty implausible -- miracles, the existence of angels, even (to take a less mainstream belief) that the earth was created 6000 years ago. So here's the question: Say you're a government employer, or a family court judge, and you're considering the merits of a job applicant or a prospective custodial parent. You start talking to him and hear what strike you as some zany, irrational, factually unsound beliefs, e.g., aliens are talking to me, werewolves hang out in the woods outside my house, and the like. You're tempted to stay away from this person, and keep the child as far from this person as possible -- but then he says I know all this because God told it to me. That makes his beliefs pretty clearly religious. Must you then decline to take those beliefs into account? Here are a few possible answers: 1. Yes; government actors must ignore people's religious beliefs about facts, regardless of how strange, irrational, or possibly borderline insane they may seem to them (at least unless the beliefs are specifically tied to the person's job description, and aren't just evidence of overall sensibleness). 2. Same as 1, but as to all beliefs, religious or not. 3. No; government actors may view people's religious beliefs about facts as evidence of the person's overall lack of rationality or even mental problems, whether the beliefs are about werewolves or angels, aliens talking to him or the
RE: Law Religion Section Announcement, including request for citations to works you may have published in 2005
Mark, Happy New Year! I do have an article that came out in 2005: Michael deHaven Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Acts Exemption for the Religious Use of Wine, 70 Brooklyn L. Rev. 739 (2005). Thanks, Michael From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, December 30, 2005 12:49 PM To: 'Law Religion issues for Law Academics' Subject: Law Religion Section Announcement, including request for citations to works you may have published in 2005 Below you will find an announcement with regard to the Law Religion Section of the Association of American Law Schools. As many of you will know, the AALS annual meeting will be held Jan. 3-7 in D.C. The Law Religion Section is presenting two programs and cosponsoring a third, as described in the announcement. In addition, in late January or early February I will be mailing out the Section newsletter, which will include notices of relevant upcoming conferences and citations to books and articles on law and religion published during 2005. As the announcement indicates, I will do my best to include all relevant conferences and publications, but if you want to be sure that yours is included please e-mail me with the citation. If you are not a member of the Section but would like to receive the newsletter, please send me your e-mail address and I will send it to you electronically. (I suppose even Section members who prefer to receive the newsletter electronically can send me their e-mail addresses.) Whether or not you will be attending the AALS annual meeting, you may want to know that many of the annual meeting sessions (including, I hope, the Law and Religion Section sessions) will be recorded and then made available free as podcasts. See http://www2.cali.org/index.php?fuseaction=pages.news. I thought this would be of general interest to many members of both the religionlaw and conlawprof lists. My apologies to those who are members of both lists for the cross-posting. Mark S. Scarberry Pepperdine University School of Law Section on Law and Religion at the 2006 AALS Annual Meeting This year the Section on Law and Religion is presenting two programs and cosponsoring another: On Wednesday, January 4, from 9:00am to noon, the Section will cosponsor a program presented by the Section on Professional Responsibility, Professional Responsibility and the Religious Traditions, in Maryland Suite A B (Lobby Level of the Marriott Wardman Park). Greg Randy Lee (Widener) and Irma S. Russell (Memphis) will moderate. Speakers will be Anthony E. Cook (Georgetown), Moushumi Khan (Khan Law Offices, NYC), Samuel J. Levine (Pepperdine), Nancy B. Rapoport (Houston), Thomas L. Shaffer (Notre Dame), and Rodney K. Smith (Pres., Southern Virginia University). The commentators will be Robert F. Cochran, Jr. (Pepperdine), Bruce A. Green (Fordham), Susan R. Martyn (Toledo), and Russell G. Pearce (Fordham). The program will be published in the Journal of Law and Religion. On Friday, January 6, from 3:30 to 5:15pm, the Section will present The (Re)Turn to History in Religion Clause Law and Scholarship, in Delaware Suite A (Lobby Level of the Marriott Wardman Park). Lee J. Strang (Ave Maria) will moderate a panel comprising Noah R. Feldman (NYU), Steven K. Green (Willamette), Marci A. Hamilton (Cardozo), Douglas Laycock (Texas), and Steven Douglas Smith (San Diego). The program will be published in the Notre Dame Law Review. The Section's business meeting will be held at the end of this program. On Saturday, January 7, from 9:00 to 10:45am, the Section will present Religion, Division, and the Constitution, in the Wilson A room (Mezzanine Level of the Marriott Wardman Park). Richard W. Garnett (Notre Dame) will moderate a panel comprising David Campbell (Dept. of Poli. Sci., Notre Dame), Stephen M. Feldman (Wyoming), Frederick Mark Gedicks (BYU), and Lawrence B. Solum (Illinois). The program will be published in the William Mary Bill of Rights Journal. * * * The Section newsletter will be mailed to Section members in late January or early February 2006. It will include (1) citations to books and articles on law and religion published during 2005 (and to any that were published during 2004 but not included in last year's newsletter) and (2) notices of relevant conferences. I will do my best to include every appropriate publication and conference, but if you wish to be sure that yours is included, please e-mail me at [EMAIL PROTECTED]. Mark S. Scarberry Co-Chair Elect (and thus Co-Secretary) Pepperdine ___ 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
RE: Swedish Pastor Beats Hate Crime Rap
I agree that there is a standard. I just don't find it in the Declaration. I find the hypocrisy of Jefferson just too much to stomach. I can't take him seriously. And I don't. Sometimes the messenger is the message. I'll leave it at that. -Original Message- From: Francis Beckwith [mailto:[EMAIL PROTECTED] Sent: Friday, December 02, 2005 11:37 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: RE: Swedish Pastor Beats Hate Crime Rap Michael: The Declaration of Independence is merely a document that is intended to convey what its authors believed are truths eternal in their patrimony. You are correct that these truths were not applied justly. However, the failure of mortals to live up to these standards does not diminish the value or truth of these standards. Being short-changed at the grocery store does not diminsh the truth of mathematics. If anything, it demonstrates it. In the same way, the fact that we can make the judgment that the declaration's principles were not appropriately deployed to protect all human beings under its authority ironically relies on the veracity of those very principles. After all, to say that someone entitled to justice was denied it, assumes the truth of the justice one was denied. To say someone does not measure up, implies that there is a standard by which we can make the measure. Frank On Friday, December 02, 2005, at 10:23AM, Newsom Michael [EMAIL PROTECTED] wrote: Original Attached___ 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. -- Francis J. Beckwith, MJS, PhD Associate Professor of Church-State Studies Associate Director, J. M. Dawson Institute for Church-State Studies, Baylor University [EMAIL PROTECTED] http://francisbeckwith.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Swedish Pastor Beats Hate Crime Rap
I don't accept your premises. I said that sometimes the message and the messenger are essentially the same. My position, given that, is entirely logical. -Original Message- From: Ed Brayton [mailto:[EMAIL PROTECTED] Sent: Friday, December 02, 2005 1:00 PM To: Law Religion issues for Law Academics Subject: Re: Swedish Pastor Beats Hate Crime Rap Newsom Michael wrote: I agree that there is a standard. I just don't find it in the Declaration. I find the hypocrisy of Jefferson just too much to stomach. I can't take him seriously. And I don't. Sometimes the messenger is the message. I'll leave it at that. I find this highly illogical. Let's say you have Principle X. It is a principle advocated and accepted by two people, Person A and Person B. Person A advocates Principle X, but applies it in an inconsistent and even hypocritical manner. Person B advocates Principle X, but does so consistently, always putting it into practice whenever reason demands it. By your reasoning, it seems that you would say that if someone knows Person A, then Principle X is false, while if someone knows Person B, then Principle X is true. But that's not logically tenable. Principle X is either true or false, regardless of whether someone who advocates it follows it consistently or not, and certainly regardless of whether someone who's been dead for 180 years followed it consistently or not. More importantly, as Frank Beckwith pointed out, you cannot make the argument that failing to follow Principle X consistently is wrong without first accepting that Principle X is valid.You cannot logically demand that Principle X be followed consistently unless you, wittingly or unwittingly, endorse Principle X as true. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Christianity as taint
But you have made a distinction which, for you, has constitutional significance. But I am not sure that it is a valid distinction. But assuming, arguendo, that the distinction has some value, there is still the matter of its application. The answer as to the proper classification of a Christmas tree cannot turn on your say-so or mine. So it would seem that my questions remain. By the way, your examples demonstrate the inaptness of your distinction. There may be a need to make a distinction, but it has to rest on different grounds (and at this point Doug's view becomes very important and powerful). -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 30, 2005 2:14 PM To: Law Religion issues for Law Academics Subject: RE: Christianity as taint Well, I'm happy to hear how various Christians understand the meaning of Christmas trees. For purposes of the constitutional analysis, though, it seems to me not enough that some people view the tree as a religious symbol. Otherwise we'd be paralyzed: After all, I'm pretty sure that some people understand the removal of Christmas items (whether trees or creches) as symbolic of hostility to Christianity, whether or not that's the intention of those who would remove the items. Likewise, that some people see Graeco-Roman religious imagery as a live religious symbol, as opposed to a cultural allusion, surely shouldn't be enough to require that the government never use such imagery (e.g., in a goddess of Justice standing outside courthouses). We could add to the list indefinitely: Consider the Sangro de Cristo Mountains, Santa Fe, Corpus Christi (whether the city or the submarine, about which I'm told there was indeed controversy), Thanksgiving, and the like. That some people see these as live religious symbols ought not, it seems to me, render their use unconstitutional (or even improper). Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Wednesday, November 30, 2005 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Christianity as taint With respect, Eugene, doesn't it make sense to find out how various Christians understand the meaning of Christmas trees before leaping to a categorical acontextual conclusion as to its meaning for Christians? While I am not sure that I completely agree with Doug on the question of the display of Christmas trees, surely a possible basis for Doug's view is that Christmas trees are religious symbols. If, in fact, that is what they are, or at least some reasonable number of Christians so believe, then isn't Doug right, or at least very close to being right? (If I disagree with Doug, it is because I am still attracted, perhaps irrationally so, to the notion that the government can properly express support and appreciation for our various forms of diversity, including religious diversity. Although I would be the first to argue that the devil is in the details, and I might, for prudential reasons, want to be cautious in approving such expressions.) -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 29, 2005 1:47 PM To: Law Religion issues for Law Academics Subject: RE: Christianity as taint Doug's response assumes, it seems to me, that a Christmas tree is an issue of religion (as opposed to abortion, which is treated as not an issue of religion). Michael (see below) suggests that it is, because there's not much of a distinction between religious symbols and symbols associated with religious holidays; but I don't think that's right: Egg nog, Easter egg hunts, the Easter bunny, and for that matter the Winter holiday gift-giving tradition in the U.S. are all associated with religious holidays, but they do not themselves carry a religious message, or (to use the modern Establishment Clause test) a message that endorses a particular religious viewpoint. The Christmas tree, it seems to me, fits within the same category. Finally, Marty asked, near the start of the thread, Does any of us 'complain[] about publicly displayed Christmas trees'? It seems to me that some recent posts make clear that the answer is yes. The complaints are often quite thoughtfully expressed (as Doug's are), but they certainly are there. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others
RE: Swedish Pastor Beats Hate Crime Rap
And, I assume, others are free to reject your claims about the Declaration of Independence. (I reject them because the supposed rights laid out therein did not apply to my African and African-American ancestors. I look elsewhere for instruction on the matter of human rights.) Dont you think that your position might be construed as hegemonic? From: Ed Brayton [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 30, 2005 2:30 PM To: Law Religion issues for Law Academics Subject: Re: Swedish Pastor Beats Hate Crime Rap Newsom Michael wrote: Shouldnt we be careful in applying American notions of free speech to other cultures and traditions? Sweden may have had good and sufficient reasons for taking a different position on the question. I would be curious to know if the Swedish Court relied at all on American cases. Quite frankly? No, I don't think we should be careful about applying American notions of free speech to other cultures and traditions. I take seriously the supposition found in the Declaration of Independence that we are all endowed with unalienable rights that precede the institution of government, that governments are instituted in order to secure those rights, and that it is unjust for any government to violate them. I have no problem whatsoever applying that principle universally, whether it indicts my own government or another government. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Swedish Pastor Beats Hate Crime Rap
Maybe the answer lies in a different understanding of homosexuality, and perhaps a different set of experiences. I do recall, by the way, that the Nazis killed homosexuals (the pink triangle). -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 30, 2005 2:36 PM To: Law Religion issues for Law Academics Subject: RE: Swedish Pastor Beats Hate Crime Rap I've certainly heard the argument that Western democracies with histories of Nazism or Communism might be justified in suppressing Nazi or Communist speech even if the U.S. might not be; I think I understand the argument, though I find it unpersuasive. But I'm puzzled why some democracies' cultures and traditions (and in particular Sweden's) should justify suppression of criticism of homosexuality while other democracies' cultures and traditions (such as America's) does not. It seems to me that both the religious freedom arguments and the free speech arguments -- and the counterarguments -- would be quite similar in both. (I'm speaking of course of the substantive arguments, not just the precedential arguments, which would naturally differ.) Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Wednesday, November 30, 2005 11:30 AM To: Law Religion issues for Law Academics Subject: Re: Swedish Pastor Beats Hate Crime Rap Newsom Michael wrote: Shouldn't we be careful in applying American notions of free speech to other cultures and traditions? Sweden may have had good and sufficient reasons for taking a different position on the question. I would be curious to know if the Swedish Court relied at all on American cases. Quite frankly? No, I don't think we should be careful about applying American notions of free speech to other cultures and traditions. I take seriously the supposition found in the Declaration of Independence that we are all endowed with unalienable rights that precede the institution of government, that governments are instituted in order to secure those rights, and that it is unjust for any government to violate them. I have no problem whatsoever applying that principle universally, whether it indicts my own government or another government. Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Swedish Pastor Beats Hate Crime Rap
Free speech may be a human right, universal or not, but surely you dont contend that the right is utterly absolute without any limit whatsoever, do you? Is there an absolute right to cry fire in a crowded theater? I will leave it to others to defend bullies like the good reverend. From: Brad M Pardee [mailto:[EMAIL PROTECTED] Sent: Wednesday, November 30, 2005 2:45 PM To: Law Religion issues for Law Academics Subject: RE: Swedish Pastor Beats Hate Crime Rap I was under the impression that free speech was considered a universal human right, not merely an American notion, regardless of whether governments acknowledge it as such or not. And I cannot even begin to conceive of a good and sufficient reason for putting people in jail because they have expressed the teachings of their faith about what behaviors are right and what behaviors are wrong. Brad Michael Newsom wrote: Shouldnt we be careful in applying American notions of free speech to other cultures and traditions? Sweden may have had good and sufficient reasons for taking a different position on the question. I would be curious to know if the Swedish Court relied at all on American cases. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Swedish Pastor Beats Hate Crime Rap
Shouldnt we be careful in applying American notions of free speech to other cultures and traditions? Sweden may have had good and sufficient reasons for taking a different position on the question. I would be curious to know if the Swedish Court relied at all on American cases. From: Ed Brayton [mailto:[EMAIL PROTECTED] Sent: Tuesday, November 29, 2005 3:42 PM To: Law Religion issues for Law Academics Subject: Re: Swedish Pastor Beats Hate Crime Rap Rick Duncan wrote: This just in from ADF: In a unanimous 5-0 decision, Sweden's Supreme Court today acquitted a pastor of a hate crime for presenting the biblical view of homosexual behavior in a sermon. Well I certainly hope that we can all, regardless of our religious views or opinions about homosexuality, cheer that decision. You will find no stronger advocate of gay rights than yours truly, but give me freedom above all else, including the freedom to disagree with me. Indeed, one cannot coherently argue for gay rights without also supporting the right to speak out against homosexuality, whether that is in the US, in Sweden as in this particular case, or in Canada with the Stephen Boissoin case (another minister up on charges for writing an anti-gay letter to a newspaper). Ed Brayton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
