RE: A Bible study group and a book club are not treated the same
Well, I'd think that while the Court didn't focus closely on the cases, it did think about the laws it was pointing to - and surely must have realized that those laws were riddled with exceptions. And what exactly is it in the Court's opinion that says that the compelling interest test applies to any law that has exceptions? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, June 23, 2009 7:40 AM To: religionlaw@lists.ucla.edu Subject: RE: A Bible study group and a book club are not treated the same No doubt Smith has language pointing in more than one direction. But I would not rely on this string cite to prove anything. This is a list of cases in which exemptions were sought, and the Court did not think about these examples any further than that. The best evidence of this is that the district court opinion in Lukumi is on this list, an opinion they later reversed 9-0. In the debate over whether to file a cert petition in Lukumi, there were folks who said the Court had already decided the case in this string cite. That was the one argument I never worried about. They didn't know anything about the lower court cases in this string cite, and they didn't decide anything about them. Quoting Volokh, Eugene vol...@law.ucla.edu: Hmm - does Smith really say that the compelling interest test applies to any law that has exceptions? After all, consider the majority's list of counterexamples: The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from [p889] compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437http://www.law.cornell.edu/supct-cgi/get-us-cite/401/437 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569http://www.law.cornell.edu/supct-cgi/get-us-cite/312/569 (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 290http://www.law.cornell.edu/supct-cgi/get-us-cite/471/290 (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158http://www.law.cornell.edu/supct-cgi/get-us-cite/321/158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942http://www.law.cornell.edu/supct-cgi/get-us-cite/336/942 (1949), environmental protection laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574http://www.law.cornell.edu/supct-cgi/get-us-cite/461/574, 603-604 (1983). The First Amendmenthttp://www.law.cornell.edu/supct-cgi/get-const?amendmenti'shttp://www.law.cornell.edu/supct-cgi/get-const?amendmenti%3e's protection of religious liberty does not require this. Every one of these is riddled with exceptions, no? Even peyote bans could be said to have exceptions (for instance, for law enforcement purposes, or perhaps for research), depending on how you decide what's the rule and what's an exception (itself not a determinate inquiry, it seems to me). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 22, 2009 8:25 PM To: religionlaw@lists.ucla.edu Subject: Re: A Bible study group and a book club are not treated the same How many examples there are depends on what the Supreme Court finally says that Smith means. If Marci gets her way, and Smith requires anti-religious motive that can be proved in court, then there are many examples. If the opinion means what it says, and the compelling interest test applies to any law that has exceptions, then there aren't so many examples. Legislative exceptions are very common, and when there are no exceptions, there is often a compelling state interest -- that's why they refused all exceptions. But even if no exceptions is the standard, there are still examples. The fire fighter case we have been discussing is one. Barr v. City of Sinton is another. RFRAs also simplify the litigation even in cases where there are exceptions that would support a free exercise claim. Quoting hamilto...@aol.com: I'm still waiting for concrete
RE: A Bible study group and a book club are not treated the same
More later when I have more time (promise or threat?), but I did not argue that any particular state RFRA required any particular level of scrutiny for any particular religious speech. My only point was that when a plaintiff challenges application of a speech-restrictive statute against him or her because someone else gets an exemption from the statute for religious speech, and if the discrimination is constitutionally impermissible, then the court has two remedial possibilities: (1) hold that the exemption is not really available to the other person (because such discrimination in favor of religious speech violates the Free Speech Clause) and thus hold that the statute validly restricts the plaintiff's speech because there is in fact no impermissible discrimination, or (2) hold that the state's granting of an exemption for the religious speech requires (under the Free Speech Clause) that a similar exemption be available for the plaintiff so as to provide equal treatment. One approach abrogates the state exemption; the other expands it. Neither seems to me obviously more in line with what the state legislature would want if it had considered the case, and thus it is hard to say one is more faithful to state law. And none of this depends on whether someone actually has challenged a supposedly neutral speech restriction under a state RFRA, does it? Isn't the mere availability of such a challenge under a state RFRA the predicate for the claim of protection for the nonreligious speech? Just to give this some concreteness, suppose a religious person (Rita) claims that her faith requires her to pray audibly with three coreligionists in a large open public place near her home all night. The only eligible place is the local park, but a local ordinance provides that no one shall be in the public parks between 1am and 5am. The park supervisor allows her to do so, relying on a state RFRA. Four members of a poetry society hear about this and ask for permission to recite poetry as a group all night in the park. The park supervisor refuses, and the poetry group sues. Must the state court enjoin the park supervisor from allowing Rita to pray all night in the park? If the court does not do so, must it enjoin the park supervisor to permit the four poetry society members to recite poetry all night in the park? Could the court determine that for Free Speech equality purposes the parties are not similarly situated, because the poetry society members have adequate alternative means of expresssion? Or would that be a sub-rosa application of the Free Exercise Clause contrary to the interpretation given it in Smith? Suppose there is no Rita. If the poetry society members ask for permission to recite poetry all night in the park, and the park supervisor admits he would give them permission per the state RFRA if their religion required them to recite poetry all night in the park, can they obtain relief because of the stated posture of the supervisor that would discriminate in favor of nonreligious speech? Or is my example flawed because the ordinance is not directed at speech but merely at presence in a park, such that allowing persons to be present in a park when they have religious reasons for being there but not allowing them to be present when they have nonreligious reasons for being there is not a matter of speech discrimination? But parks are public forums... Will most statutes challenged under RFRA be these kinds of statutes that are not on their face directed against speech? Sorry for having more questions than answers. Mark S. Scarberry Pepperdine University School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, June 22, 2009 6:23 AM To: religionlaw@lists.ucla.edu Subject: Re: A Bible study group and a book club are not treated the same Eugene has to be correct here. In fact, the Court does not apply strict scrutiny to every situation involving religious speech. It always depends on the context and the government purpose. The notion that political speech and religious speech are subject to strict scrutiny in every circumstance is another example of oversimplifying the doctrine. It is reminiscent of the claims that strict scrutiny always applied to religious conduct after Smith was decided. The strict scrutiny doctrine does not describe the cases accurately. Marci In a message dated 6/21/2009 10:57:17 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: Mark: Stop me if I'm wrong, but if RFRA requires that (1) restrictions on religiously motivated speech must be judged under strict scrutiny, and (2) any objection that secularly and religiously motivated speakers must be treated the same way must be resolved by extending the exception to both, then every speech restriction - including content-neutral ones, reasonable viewpoint-neutral ones in nonpublic fora,
RE: A Bible study group and a book club are not treated the same
Mark did not say that the remedy must always be to extend the exemption; only that the court has a choice. Justice Harlan's opinion in Welsh v. United States talks at length about this choice, and the factors that should inform the court's judgment. He disagreed with the Court's interpretation of the statutory draft exemption, but concurred in the judgment on the ground that the remedy for discrimination should be to extend the exemption to secular conscientious objectors as well. Quoting Volokh, Eugene vol...@law.ucla.edu: Mark: Stop me if I'm wrong, but if RFRA requires that (1) restrictions on religiously motivated speech must be judged under strict scrutiny, and (2) any objection that secularly and religiously motivated speakers must be treated the same way must be resolved by extending the exception to both, then every speech restriction - including content-neutral ones, reasonable viewpoint-neutral ones in nonpublic fora, Pickering-consistent ones imposed by the government as employer, and so on - would have to be judged under strict scrutiny, at least so long as a single religious objector is found to it. Speech restrictions would thus be divided into two classes: Those that are judged under lower standards of review (when that's acceptable under Free Speech Clause doctrine) because they haven't yet been challenged by a religious objector, and those that are now judged under strict scrutiny as to all speakers because they have at least once been challenged by a religious objector. Can that be right (even if the government can cure this by excluding the restriction on a case-by-case basis from the scope of the RFRA)? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Sunday, June 21, 2009 5:00 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 6/21/2009 11:17 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of
Re: A Bible study group and a book club are not treated the same
I know them, and I will pass on the suggestion. I'm not sure they will see much in it for them. Quoting artspit...@aol.com: On a more practical note, does anyone know who represented the parties in this Texas case, and whether one of them (or ideally, both together) might petition the court to replace these problematic seven words with an innocuous comparison that makes the same point, e.g., Just as a student who is absent from school to observe a religious holiday and a student who is absent from school to attend a baseball game are not treated the same, neither are a halfway house operated for religious purposes and one that is not. ? Art Spitzer ** A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072amp[1]; hmpgID=62amp;bcd=JunestepsfooterNO62) 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 Links: -- [1] http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072amp;amp___ 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: A Bible study group and a book club are not treated the same
The compelling interest test applies when there are secular exceptions, or exceptions for other religions, but no exception for the religion that is complaining that it has not been accommodated. Quoting Steven Jamar stevenja...@gmail.com: Smith says any generally applicable neutral law (one not targeting religion) need only pass rational basis, no matter what the effect on religion. Marci, do you really not see the potential for significant governmental impinging on religion from this? Or do you think all laws will have exceptions and accommodations written into them? If the latter is true, then it seems that there would be relatively few impacts under a non-RFRA Smith regime. But isn't that really what RFRA does? That is, it puts accommodating exceptions into laws when they substantially affect religious exercise without the need to write such exceptions into every law? I'm not quite sure what this phrase by Doug means -- If the opinion means what it says, and the compelling interest test applies to any law that has exceptions, then there aren't so many examples. Why does the compelling interest test apply when there are exceptions? Don't the exceptions do the accommodation without a high standard of review? Sorry. Maybe I'm just having trouble because it is late. Steve On Mon, Jun 22, 2009 at 11:24 PM, Douglas Laycock layco...@umich.eduwrote: How many examples there are depends on what the Supreme Court finally says that Smith means. If Marci gets her way, and Smith requires anti-religious motive that can be proved in court, then there are many examples. If the opinion means what it says, and the compelling interest test applies to any law that has exceptions, then there aren't so many examples. Legislative exceptions are very common, and when there are no exceptions, there is often a compelling state interest -- that's why they refused all exceptions. But even if no exceptions is the standard, there are still examples. The fire fighter case we have been discussing is one. Barr v. City of Sinton is another. RFRAs also simplify the litigation even in cases where there are exceptions that would support a free exercise claim. Quoting hamilto...@aol.com: I'm still waiting for concrete examples of very real threats to religious freedom without rfras. All examples welcome. Marci In a message dated 6/21/2009 6:32:23 P.M. Eastern Daylight Time, bp51...@windstream.net writes: It may also be said that most citizens in states with rfras have little idea that there are very real threats to their religious freedom that make rfras necessary. Brad **A Good Credit Score is 700 or Above. See yours in just 2 easy steps! ( http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072hmpgID=62bcd=[1] JunestepsfooterNO62) 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[2] 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 Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc. 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 Links: -- [1] http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072amp;hmpgID=62amp;bcd= [2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___ 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: A Bible study group and a book club are not treated the same
Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 11:18 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Or perhaps to strike down the refusal to extend the exemption to relevantly similar nonreligious speech (though I suppose Texas Monthly may be in some tension with that approach)? Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 9:14 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and
Re: A Bible study group and a book club are not treated the same
To interpret the RFRAs to apply to speech is to stretch this legislative movement very far from its origins. RFRA was a response to the Court's decision regarding religious conduct in Smith, not a speech case. Traditionally, religious speech cases have been decided under the Free Speech Clause, not free exercise. It is interesting to watch those arguing for the religious entities argue that religious speech can be worthy of greater protection than other speech because it is religious but at the same time it is no different than other speech when it comes to government funding (Rosenberger), even though the prohibition on government funding is directed at religious speech. The big political picture here is interesting, because if religious entities overreach sufficiently, there will be a backlash against rfras generally. And since they are not constitutionally required, legislative repeal is possible. Of course, we are not there yet. While there is a burgeoning and passionate movement against RLUIPA's impact on residential neighborhoods, most citizens in states with rfras have little idea they exist, let alone impose on the public good. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 6/21/2009 1:54:50 PM Eastern Daylight Time, aebrownst...@ucdavis.edu writes: Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein **A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072hmpgID=62bcd= JunestepsfooterNO62) ___ 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: A Bible study group and a book club are not treated the same
I agree with Doug on this, and I wasn't trying to suggest the contrary. But I take it that discussion of literature would be no less protected than social, political, or other ideological messages (even setting aside book club meetings that discuss political books, or discuss books from a political perspective). Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Saturday, June 20, 2009 7:40 PM To: religionlaw@lists.ucla.edu Subject: RE: A Bible study group and a book club are not treated the same To be precise: Heffron said religious speech gets *no* extra constitutional protection as compared to other organizations having social, political, or other ideological messages to proselytize, and to other social, political, or charitable organizations. 452 U.S. at 652-53. This is not terribly precise, but it pointedly excludes commercial speech. Religion gets no extra protection as compared to other high value speech. Quoting Volokh, Eugene vol...@law.ucla.edu: I agree with Alan on all these points, but I should also add that the one time in the Sherbert/Yorder era that the Court considered a free speech claim coupled with a free exercise claim, it seemed to conclude that the Free Exercise Clause should be interpreted as providing *no* extra protection for religious speech -- that was in Heffron v. ISKCON, 452 U.S. 640 (1981). -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Saturday, June 20, 2009 5:53 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non- expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law Religion issues for Law Academics Subject: A Bible study group and a book club are not treated the same I haven't read the whole opinion yet, but in my skim I was struck by this line: The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute. Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of
RE: A Bible study group and a book club are not treated the same
A hypothetical: Alan wants to picket an abortion provider's home. Betty wants to picket an anti-abortion leader's home. Alan's motivation is religious, Betty's is secular philosophical. The city has a content-neutral ban on residential picketing, and the state has a RFRA. Can it really be the case that Alan would have a right to picket for religious reasons, but Betty wouldn't have a right to picket for secular reasons? Or that both would have this right, because RFRA would require invalidation of the entire scheme, as the least restrictive means of serving both the interest in protecting religious objectors and the interest in preventing discrimination between religious and secular speakers? (I assume that it's far from clear that a residential picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny applied in Frisby v. Schultz.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Sunday, June 21, 2009 10:53 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 11:18 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Or perhaps to strike down the refusal to extend the exemption to relevantly similar nonreligious speech (though I suppose Texas Monthly may be in some tension with that approach)? Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 9:14 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it
RE: A Bible study group and a book club are not treated the same
Whoops, just noticed, after reading this, that one of the names was chosen unwisely: Alan and Betty are my standard names for such hypotheticals, and not intended to be a reference to any real Alans on this thread. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, June 21, 2009 11:34 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same A hypothetical: Alan wants to picket an abortion provider's home. Betty wants to picket an anti-abortion leader's home. Alan's motivation is religious, Betty's is secular philosophical. The city has a content-neutral ban on residential picketing, and the state has a RFRA. Can it really be the case that Alan would have a right to picket for religious reasons, but Betty wouldn't have a right to picket for secular reasons? Or that both would have this right, because RFRA would require invalidation of the entire scheme, as the least restrictive means of serving both the interest in protecting religious objectors and the interest in preventing discrimination between religious and secular speakers? (I assume that it's far from clear that a residential picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny applied in Frisby v. Schultz.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Sunday, June 21, 2009 10:53 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 11:18 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Or perhaps to strike down the refusal to extend the exemption to relevantly similar nonreligious speech (though I suppose Texas Monthly may be in some tension with that approach)? Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 9:14 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu
RE: A Bible study group and a book club are not treated the same
No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 6/21/2009 11:17 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original
Re: A Bible study group and a book club are not treated the same
On a more practical note, does anyone know who represented the parties in this Texas case, and whether one of them (or ideally, both together) might petition the court to replace these problematic seven words with an innocuous comparison that makes the same point, e.g., Just as a student who is absent from school to observe a religious holiday and a student who is absent from school to attend a baseball game are not treated the same, neither are a halfway house operated for religious purposes and one that is not. ? Art Spitzer ** A Good Credit Score is 700 or Above. See yours in just 2 easy steps! (http://pr.atwola.com/promoclk/100126575x1221323000x1201367220/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072amp; hmpgID=62amp;bcd=JunestepsfooterNO62) ___ 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: A Bible study group and a book club are not treated the same
What does this do, though, to the equality of speakers? Rosenberger, Lamb's Chapel, and other such cases (rightly in my view) took the view that speakers expressing religious viewpoints must be treated the same as speakers expressing secular viewpoints -- just as speakers expressing pacifist viewpoints must be treated the same as speakers expressing pro-war viewpoints, and just as in most situations (at least when the government is acting as sovereign rather than as proprietor) even different subject matters of speech must be treated equally. Can it really be that speakers expressing religiously *motivated* viewpoints may be treated differently from speakers expressing secularly *motivated* viewpoints, while speakers expressing religious viewpoints may not be treated differently from those expressing secular viewpoints? What if the policy in Rosenberger discriminated in favor of people motivated by secular beliefs, and against those motivated by religious beliefs -- surely that couldn't have been constitutional, right? Why would the opposite discrimination be constitutional? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Mark Graber Sent: Sunday, June 21, 2009 11:58 AM To: religionlaw@lists.ucla.edu Subject: RE: A Bible study group and a book club are not treated the same Can't answer the hypothetical, but we might note that the Draft cases during Vietnam suggest that elected officials might distinguish between the two. If persons with religious objections to war may be exempted from the draft, but not persons who feel war is a bad policy choice, then perhaps legislatures might grant persons motivated by religion statutory exemptions from picketing bans, but not those motivated by non-religious motives (and Seeger makes clear that religious motives must be broadly construed). Mark A. Graber Volokh, Eugene vol...@law.ucla.edu 06/21/09 2:44 PM A hypothetical: Alan wants to picket an abortion provider's home. Betty wants to picket an anti-abortion leader's home. Alan's motivation is religious, Betty's is secular philosophical. The city has a content-neutral ban on residential picketing, and the state has a RFRA. Can it really be the case that Alan would have a right to picket for religious reasons, but Betty wouldn't have a right to picket for secular reasons? Or that both would have this right, because RFRA would require invalidation of the entire scheme, as the least restrictive means of serving both the interest in protecting religious objectors and the interest in preventing discrimination between religious and secular speakers? (I assume that it's far from clear that a residential picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny applied in Frisby v. Schultz.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Sunday, June 21, 2009 10:53 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Good point, Mark. I think statutes like the one reviewed in Texas Monthly that facially discriminate in favor of religious speech are going to be struck down. A more generic religious liberty statute, like a state RFRA, is more complicated. Let's suppose a city is told that it can not enforce its zoning ordinance against a Bible study group because of a state RFRA. Then a book club challenges the application of the zoning ordinance to its activities on the grounds that Bible study groups had been held to be exempt from the zoning ordinance under RFRA. One could argue that a court could resolve this dispute by refusing to allow the city to enforce the zoning ordinance against the book club without giving the RFRA statute a narrow construction. But is that the best result? Now other cities in the state have to figure out how the state RFRA applies to their content neutral laws that regulate speech and the extent to which exempting religious speech from those laws under RFRA requires them to grant additional exemptions to other speakers. It might make more sense to construe the RFRA law not to require exemptions for religious speech. As an aside, I might add that when California was considering a state RFRA law, proponents of the law conceded that it would not apply to content neutral speech regulations in part because such applications would be unconstitutional.The contrary argument, that RFRA would require the state and cities to privilege religious speech, was a very hard sell politically. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu
RE: A Bible study group and a book club are not treated the same
Mark: Stop me if I'm wrong, but if RFRA requires that (1) restrictions on religiously motivated speech must be judged under strict scrutiny, and (2) any objection that secularly and religiously motivated speakers must be treated the same way must be resolved by extending the exception to both, then every speech restriction - including content-neutral ones, reasonable viewpoint-neutral ones in nonpublic fora, Pickering-consistent ones imposed by the government as employer, and so on - would have to be judged under strict scrutiny, at least so long as a single religious objector is found to it. Speech restrictions would thus be divided into two classes: Those that are judged under lower standards of review (when that's acceptable under Free Speech Clause doctrine) because they haven't yet been challenged by a religious objector, and those that are now judged under strict scrutiny as to all speakers because they have at least once been challenged by a religious objector. Can that be right (even if the government can cure this by excluding the restriction on a case-by-case basis from the scope of the RFRA)? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Sunday, June 21, 2009 5:00 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same No, that's not my position, though I would not reject it out of hand. The question is what is the appropriate remedy when the government creates an exception to a neutral law, where the exception appears to apply only to religious speech. One remedy would be to strike down the exception; another would be to strike down the limitation of the exception only to religious speech. If a party seeking to take advantage of the exception for purposes of nonreligious speech seeks to do so on the ground that the party is entitled to the same speech rights as religious speakers, I don't see why the obvious answer would be to strike down the entire exception, rather than to require that it be extended, which would give the plaintiff affirmative relief. If the remedy is to extend it, then the state (or local government) then would have the choice of repealing the exception or of allowing it to continue to operate in favor of both religious and nonreligious speech. It does seem to me that some kinds of religious exercise that could be characterized as speech ought to be entitled to special protection under the Free Exercise Clause, but that is ruled out by Smith (unless we are willing to give some content to the hybrid rights exception posited in Smith). Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sun 6/21/2009 11:17 AM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same Mark: So under Rosenberger, the Free Speech Clause bars the government from discriminating against religious speech - but the Free Speech Clause does not bar the government from discriminating in favor of religious speech? That strikes me as a somewhat counterintuitive position; I supposed it could be defended, but I just wanted to make sure this was indeed your position. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive
RE: A Bible study group and a book club are not treated the same
If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law Religion issues for Law Academics Subject: A Bible study group and a book club are not treated the same I haven't read the whole opinion yet, but in my skim I was struck by this line: The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute. Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of religion. Barr v. City of Sinton, Link to opinion below. The case involves a religious halfway house in a small town in South Texas. The city made no serious effort to prove a compelling interest in closing the halfway house; its main argument seemed to be that there was no burden because the halfway house could leave town, and that that Texas RFRA should not apply to zoning anyway. Most of the opposition to Texas RFRA was from neighborhood associations worried about land use. The lead sponsor in the House told me that if people got the idea that this meant that black churches could locate in white neighborhoods, the bill would be dead. The compromise was to provide that
RE: A Bible study group and a book club are not treated the same
I agree with Alan on all these points, but I should also add that the one time in the Sherbert/Yorder era that the Court considered a free speech claim coupled with a free exercise claim, it seemed to conclude that the Free Exercise Clause should be interpreted as providing *no* extra protection for religious speech -- that was in Heffron v. ISKCON, 452 U.S. 640 (1981). -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Saturday, June 20, 2009 5:53 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non- expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law Religion issues for Law Academics Subject: A Bible study group and a book club are not treated the same I haven't read the whole opinion yet, but in my skim I was struck by this line: The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute. Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of religion. Barr v. City of Sinton, Link to opinion below. The case involves a religious halfway house in a small town in South Texas. The city made no serious effort to prove a compelling interest in closing the halfway house; its main argument seemed to be that there was no burden because the halfway house could leave town, and that that Texas RFRA should not apply to zoning anyway. Most of the opposition to Texas RFRA was from neighborhood associations worried about land use. The lead sponsor in the House told me that if people got the idea that this meant that black churches could locate in white neighborhoods, the bill would be dead. The compromise was to provide that cities would have no less land use authority than they had had under federal law on March 17, 1990 (the day before Smith.) The land use folks claimed that Sherbert and Yoder had never applied to them; the bill's supporters claimed that Sherbert and Yoder had been a generally applicable test that applied to all regulation, including land use
RE: A Bible study group and a book club are not treated the same
To be precise: Heffron said religious speech gets *no* extra constitutional protection as compared to other organizations having social, political, or other ideological messages to proselytize, and to other social, political, or charitable organizations. 452 U.S. at 652-53. This is not terribly precise, but it pointedly excludes commercial speech. Religion gets no extra protection as compared to other high value speech. Quoting Volokh, Eugene vol...@law.ucla.edu: I agree with Alan on all these points, but I should also add that the one time in the Sherbert/Yorder era that the Court considered a free speech claim coupled with a free exercise claim, it seemed to conclude that the Free Exercise Clause should be interpreted as providing *no* extra protection for religious speech -- that was in Heffron v. ISKCON, 452 U.S. 640 (1981). -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Saturday, June 20, 2009 5:53 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non- expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law Religion issues for Law Academics Subject: A Bible study group and a book club are not treated the same I haven't read the whole opinion yet, but in my skim I was struck by this line: The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute. Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, June 19, 2009 7:58 AM To: religionlaw@lists.ucla.edu Subject: Texas RFRA The Supreme Court of Texas has unanimously given the Texas RFRA its intended meaning to provide real protection for exercises of religion. Barr v. City of Sinton, Link to opinion below. The case involves a religious halfway house in a small town in South Texas. The city made no serious effort to prove a compelling interest in closing the halfway house; its main argument seemed to be that there was no burden because the halfway house could leave town, and that that Texas RFRA should not apply to zoning anyway. Most of the opposition to Texas RFRA was from neighborhood associations worried about
RE: A Bible study group and a book club are not treated the same
I agree with Mark that Smith allows the political process to deal with religious exemptions -- as long as those exemptions do not violate any other constitutional guarantee. It may well be that the state has a choice as to how it can respond to a claim that it discriminates in favor of religious speech. Instead of standing by the discriminatory exemption -- which would require a court to invalidate it -- it could generalize the exemption to apply to all expressive meetings. But if the state refuses to extend the exemption, doesn't that require a Court to subject the exemption to strict scrutiny and, presumably, to strike it down? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Saturday, June 20, 2009 6:25 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If Smith is going to be used to justify a constitutional prohibition on religious exemptions, then it is even worse than I thought. But the point of Smith, as I understand it, is precisely to allow the political process to deal with requests for political exemptions. To the extent that land use laws applied in a supposedly neutral way would prevent religious groups from meeting, it seems that the granting of an exemption by the local government would be permitted by Smith. Whether the granting of such an exemption then would require that similar non-religious group meetings would need to be permitted is an interesting question that could affect the outcome of the political process with respect to allowing exemptions for religious meetings but should not invalidate such exemptions. At least that's my initial take. Mark Scarberry Pepperdine _ From: religionlaw-boun...@lists.ucla.edu on behalf of Brownstein, Alan Sent: Sat 6/20/2009 5:52 PM To: Law Religion issues for Law Academics Subject: RE: A Bible study group and a book club are not treated the same If we had a constitutional regime that confers special protections for non-expressive religious exercise against neutral laws of general applicability, the issue of how to treat expressive religious exercise would require some difficult line drawing and analysis. But since Smith controls the meaning of the free exercise clause, there is no special federal constitutional protection for religious exercise -- whether it is expressive or not. Under this regime a statute that confers special protection for expressive religious exercise is going to confront serious and unavoidable establishment clause and free speech clause issues, isn't it? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P [randy-bezan...@uiowa.edu] Sent: Friday, June 19, 2009 9:05 AM To: 'Law Religion issues for Law Academics' Subject: RE: A Bible study group and a book club are not treated the same Let's see ... speech is fully protected, but religious speech is even more fully protected, indeed advantaged.Can that be right? Yes, if the Free Exercise Clause confers special protections for religious speech exercise -- a not implausible theory. Yet I have always thought that the non-establishment clause could justify greater or additional limitations on religious speech. Could both be true? I don't see any reason why not since the two religious clauses are often, though not always, at war with one another because they serve two distinct purposes. Randy Bezanson -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, June 19, 2009 10:05 AM To: Law Religion issues for Law Academics Subject: A Bible study group and a book club are not treated the same I haven't read the whole opinion yet, but in my skim I was struck by this line: The trial court appears to have been troubled that an operation which can be and often is conducted for purely secular purposes could be entitled to increased protection from government regulation if conducted for religious reasons. But TRFRA guarantees such protection. Just as a Bible study group and a book club are not treated the same, neither are a halfway house operated for religious purposes and one that is not. Under Smith, the Free Exercise Clause does not require strict scrutiny for religious activity affected by neutral laws of general application,66 but TRFRA imposes the requirement by statute. Is it clear that it's constitutional, given the Free Speech Clause and the Establishment Clause, and the position of 6 of the votes in Texas Monthly v. Bullock, for the law to treat Bible study groups better than book clubs? Eugene From: religionlaw-boun...@lists.ucla.edu
