Re: Justice Stevens
One possibility is that in Cutter and Gonzales, the equality protecting function of religious exemptions was much more apparent. Ohio openly said that it accommodated good religions in its prisons, but not the bad religions in which the plaintiffs participated; the state was pretty explicitly arguing for its right to designate good and bad religions. In Gonzales, the government never had a plausible explanation for why it exempted peyote but not hoasca. This sort of discrimination was not developed in the record in Boerne, which was up basically on the pleadings, and the city did not openly avow it the way Ohio did. Another possibility is that he was just confused in Boerne, and, less likely, that he eventually realized that. He said that an art museum owned by an atheist would not be protected by RFRA. But of course, an art museum owned by a Catholic almost certainly would not be protected by RFRA either. The relevant analogy to the church would be an atheist meeting house, which should be protected by RFRA, although many judges are reluctant to see it that way. Quoting Kevin Pybas [EMAIL PROTECTED]: Can someone shed light on why Justice Stevens in Boerne viewed RFRA as a violation of the Establishment Clause but raised no EC problem with RLUIPA in Cutter or RFRA in Gonzales? In Boerne he wrote that RFRA provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Shouldn't this understanding have led him to also object in Cutter and Gonzales? The answer's probably staring me in the face but I don't see it. Thanks. Kevin Pybas Missouri State University 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: Justice Stevens
Justice Stevens during oral argument was pretty clear that RLUIPA in the prison context just assured equal treatment of all faiths,not just those Ohio chose to accommodate though its chaplaincy program..Since Stevens views accommodation largely through the prism of discrimination,it is no surprise he thought prison RLUIPA constitutional. Marc From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Monday, June 23, 2008 1:06 PM To: religionlaw@lists.ucla.edu Subject: Re: Justice Stevens One possibility is that in Cutter and Gonzales, the equality protecting function of religious exemptions was much more apparent. Ohio openly said that it accommodated good religions in its prisons, but not the bad religions in which the plaintiffs participated; the state was pretty explicitly arguing for its right to designate good and bad religions. In Gonzales, the government never had a plausible explanation for why it exempted peyote but not hoasca. This sort of discrimination was not developed in the record in Boerne, which was up basically on the pleadings, and the city did not openly avow it the way Ohio did. Another possibility is that he was just confused in Boerne, and, less likely, that he eventually realized that. He said that an art museum owned by an atheist would not be protected by RFRA. But of course, an art museum owned by a Catholic almost certainly would not be protected by RFRA either. The relevant analogy to the church would be an atheist meeting house, which should be protected by RFRA, although many judges are reluctant to see it that way. Quoting Kevin Pybas [EMAIL PROTECTED]: Can someone shed light on why Justice Stevens in Boerne viewed RFRA as a violation of the Establishment Clause but raised no EC problem with RLUIPA in Cutter or RFRA in Gonzales? In Boerne he wrote that RFRA provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Shouldn't this understanding have led him to also object in Cutter and Gonzales? The answer's probably staring me in the face but I don't see it. Thanks. Kevin Pybas Missouri State University 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: Justice Stevens
I strongly object to Doug's implication that somehow the City of Boerne was hiding discriminatory motives that would have been revealed had the suit gone forward. The Mayor of Boerne, after all, was a minister and many in the town were Catholic. As an aside, the Church itself was divided over who to pray for during oral argument. The attempt to paint every loss by a religious entity in the land use process as some sort of covert persecution or discrimination is what has made RLUIPA such an intolerable entrant for most neighborhoods next to religious entities invoking RLUIPA. Of course RFRA applied to an art museum owned by a Catholic. Isn't that precisely the RLUIPA situation, which is undoubtedly a segment of RFRA? Stevens was correct about that. If that is not so, there are a number of developers invoking RLUIPA who need to be notified. His vote in Cutter and Gonzales are explained in two different ways. The Court considered the Cutter decision to be a no headlines decision, because the situation of prisoners is so radically different from any other possible claim. That is why the Court pointedly justifies the prison provisions of RLUIPA on the ground that prisons have a unique capacity to block worship altogether. The Court goes on, however, to repeatedly say that deference needs to be given to prison authorities on matters of safety and leaves open the possibility that RLUIPA could unconstitutional in an as-applied manner. With respect to Gonzales, the government did not do a great job of defending the integrity of its drug laws and why two different drugs under the same schedule need individualized assessment. Those arguing hoasca and peyote are engaging in legal abstractions, not chemical realities. No two drugs work identically, even if in the same schedule, and no two drugs are necessarily safe for the same class of users. Given the tone of Gonzales, though, DOJ should seriously consider backing legislation that exempts the federal drug laws from the reach of RFRA. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 6/23/2008 1:06:40 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: One possibility is that in Cutter and Gonzales, the equality protecting function of religious exemptions was much more apparent. Ohio openly said that it accommodated good religions in its prisons, but not the bad religions in which the plaintiffs participated; the state was pretty explicitly arguing for its right to designate good and bad religions. In Gonzales, the government never had a plausible explanation for why it exempted peyote but not hoasca. This sort of discrimination was not developed in the record in Boerne, which was up basically on the pleadings, and the city did not openly avow it the way Ohio did. Another possibility is that he was just confused in Boerne, and, less likely, that he eventually realized that. He said that an art museum owned by an atheist would not be protected by RFRA. But of course, an art museum owned by a Catholic almost certainly would not be protected by RFRA either. The relevant analogy to the church would be an atheist meeting house, which should be protected by RFRA, although many judges are reluctant to see it that way. Quoting Kevin Pybas [EMAIL PROTECTED]: Can someone shed light on why Justice Stevens in Boerne viewed RFRA as a violation of the Establishment Clause but raised no EC problem with RLUIPA in Cutter or RFRA in Gonzales? In Boerne he wrote that RFRA provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Shouldn't this understanding have led him to also object in Cutter and Gonzales? The answer's probably staring me in the face but I don't see it. Thanks. Kevin Pybas Missouri State University **Gas prices getting you down? Search AOL Autos for fuel-efficient used cars. (http://autos.aol.com/used?ncid=aolaut000507) ___ 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: Justice Stevens
I did not mean to suggest anti-Catholic motive in Boerne. I did mean to suggest that further factual development might have enlightened the Court with respect to its casual assumptions about land use regulation. The ordinance at issue in Boerne was a single-owner ordinance that applied only to the church. Other property owners had been excluded from the historic district on the express ground that they might object and cause trouble. To be protected by RFRA, a Catholic owner of an art museum would have to show that the museum is an exercise of religion. That's imaginable, but as I think about the actual art museums I know anything about, none of them would qualify, no matter who owned them. Quoting [EMAIL PROTECTED]: I strongly object to Doug's implication that somehow the City of Boerne was hiding discriminatory motives that would have been revealed had the suit gone forward. The Mayor of Boerne, after all, was a minister and many in the town were Catholic. As an aside, the Church itself was divided over who to pray for during oral argument. The attempt to paint every loss by a religious entity in the land use process as some sort of covert persecution or discrimination is what has made RLUIPA such an intolerable entrant for most neighborhoods next to religious entities invoking RLUIPA. Of course RFRA applied to an art museum owned by a Catholic. Isn't that precisely the RLUIPA situation, which is undoubtedly a segment of RFRA? Stevens was correct about that. If that is not so, there are a number of developers invoking RLUIPA who need to be notified. His vote in Cutter and Gonzales are explained in two different ways. The Court considered the Cutter decision to be a no headlines decision, because the situation of prisoners is so radically different from any other possible claim. That is why the Court pointedly justifies the prison provisions of RLUIPA on the ground that prisons have a unique capacity to block worship altogether. The Court goes on, however, to repeatedly say that deference needs to be given to prison authorities on matters of safety and leaves open the possibility that RLUIPA could unconstitutional in an as-applied manner. With respect to Gonzales, the government did not do a great job of defending the integrity of its drug laws and why two different drugs under the same schedule need individualized assessment. Those arguing hoasca and peyote are engaging in legal abstractions, not chemical realities. No two drugs work identically, even if in the same schedule, and no two drugs are necessarily safe for the same class of users. Given the tone of Gonzales, though, DOJ should seriously consider backing legislation that exempts the federal drug laws from the reach of RFRA. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 6/23/2008 1:06:40 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: One possibility is that in Cutter and Gonzales, the equality protecting function of religious exemptions was much more apparent. Ohio openly said that it accommodated good religions in its prisons, but not the bad religions in which the plaintiffs participated; the state was pretty explicitly arguing for its right to designate good and bad religions. In Gonzales, the government never had a plausible explanation for why it exempted peyote but not hoasca. This sort of discrimination was not developed in the record in Boerne, which was up basically on the pleadings, and the city did not openly avow it the way Ohio did. Another possibility is that he was just confused in Boerne, and, less likely, that he eventually realized that. He said that an art museum owned by an atheist would not be protected by RFRA. But of course, an art museum owned by a Catholic almost certainly would not be protected by RFRA either. The relevant analogy to the church would be an atheist meeting house, which should be protected by RFRA, although many judges are reluctant to see it that way. Quoting Kevin Pybas [EMAIL PROTECTED]: Can someone shed light on why Justice Stevens in Boerne viewed RFRA as a violation of the Establishment Clause but raised no EC problem with RLUIPA in Cutter or RFRA in Gonzales? In Boerne he wrote that RFRA provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Shouldn't this understanding have led him to also object in Cutter and Gonzales? The answer's probably staring me in the face but I don't see it. Thanks. Kevin Pybas Missouri State University **Gas prices getting you down? Search AOL Autos for fuel-efficient used cars. (http://autos.aol.com/used?ncid=aolaut000507[1])
Re: Justice Stevens
In a message dated 6/23/2008 1:58:36 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: To be protected by RFRA, a Catholic owner of an art museum would have to show that the museum is an exercise of religion. That's imaginable, but as I think about the actual art museums I know anything about, none of them would qualify, no matter who owned them. I think RLUIPA has made this a much fuzzier line. Now that the definition of exercise of religion has been explicitly expanded to include anything at all, whether central or not, the arguments for the application of RLUIPA are quite expansive. For example, multi-family dwelling units justified as religiously based because of a belief in large families or dormitories justified because those living in them will be attending a religious elementary school or high school. It would not be hard to argue that the display of art is an extension of the person's religious beliefs; it would be a free speech plus free exercise argument, just like the arguments that churches are places of expression, so there is a hybrid right for a church building in an area otherwise not zoned. Marci **Gas prices getting you down? Search AOL Autos for fuel-efficient used cars. (http://autos.aol.com/used?ncid=aolaut000507) ___ 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.
