Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.commailto:hamilto...@aol.com hamilto...@aol.commailto:hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.commailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.commailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. Douglas Laycock Robert E. Scott
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or
RE: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
What I said is in the second letter (link below) and summarized in the e-mail to which you responded. We supported the bill as drafted, without substantial; I also suggested that the committee restore substantial if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don't know that, because they were not asked to sign the second letter. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat e2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Reli gious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com mailto:hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu mailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states —Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268 . It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. - Original Message - From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis.
RE: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without substantial; I also suggested that the committee restore substantial if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don't know that, because they were not asked to sign the second letter. I said it didn't matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund's recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com mailto:hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu mailto:dlayc...@virginia.edu ; religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat e2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks. A more informed version of what I said in the second letter to the TX legislature. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Monday, December 02, 2013 12:02 PM To: Law Religion issues for Law Academics Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. _ From: hamilto...@aol.com mailto:hamilto...@aol.com To: religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Saperstein, David dsaperst...@rac.org mailto:dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com mailto:hamilto...@aol.com hamilto...@aol.com mailto:hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com http://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu ; hamilton02 hamilto...@aol.com mailto:hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Saperstein, David dsaperst...@rac.org To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw religionlaw@lists.ucla.edu Sent: Mon, Dec 2, 2013 10:39 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, hamilto...@aol.com hamilto...@aol.com wrote: Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message-
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Again I have not seen any evidence that differences in phrasing--burden, substantial burden, restriction on religious liberty,--have caused any differences in result (or even reasoning). If you have examples, I'd love to know about them. If not, it suggests the differences in phrasing don't matter. That's my intuition from the cases I've read. But it may be wrong, and I'd like to know if it is. On Dec 2, 2013, at 12:44 PM, Marci Hamilton hamilto...@aol.com wrote: Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--burden, substantial burden, or restriction on religious liberty,--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if I am. But I have seen no evidence that these differences have practical payoff. On Dec 2, 2013, at 1:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
It has certainly made a difference in RLUIPA cases. I have to say I find it a little hard to believe these cases can be generalized across states given how few there are and how different each state operates procedurally, but I look forward to reading your article and will keep an open mind. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 1:18 PM, Christopher Lund ed9...@wayne.edu wrote: Again I have not seen any evidence that differences in phrasing--burden, substantial burden, restriction on religious liberty,--have caused any differences in result (or even reasoning). If you have examples, I'd love to know about them. If not, it suggests the differences in phrasing don't matter. That's my intuition from the cases I've read. But it may be wrong, and I'd like to know if it is. On Dec 2, 2013, at 12:44 PM, Marci Hamilton hamilto...@aol.com wrote: Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the next wave will be a push to interpret compelling to mean absolutely necessary. That is not intended to be snide. Just an observation. The Framers expected all those w power to push it as far as they could. They were right. I look forward to reading your article. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:01 PM, Christopher Lund l...@wayne.edu wrote: Connecticut and Alabama use burden instead of substantial burden. New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of restrictions on religious liberty. To me, that would seem like it jettisons the requirement of burden altogether, but others may disagree. Two of the substantial burden states—Arizona and Idaho—say explicitly in their statutes that the requirement is only meant to weed out trivial, technical, or de minimis burdens. I talk about the differences, and have a handy though dated chart, in this piece, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1666268. It's a mess, in other words. And I have to say, I don't know how much any of these differences matter. When I looked at state RFRA cases a few years back, I found these differences in wording didn't matter much. They are rarely even talked about. This may be an issue where academics care quite a bit, but judges do not. Judges are heavily influenced by the facts of these cases; the wording of the RFRAs, I think, is secondary. From: hamilto...@aol.com To: religionlaw@lists.ucla.edu Sent: Monday, December 2, 2013 10:43:51 AM Subject: Re: Letter of 16 law professors in support of removing substantialas modifier of burden in state RFRAs The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
What they had was the reality of politics and the forces arrayed against them. As one said to me, if it doesn't make a difference why try for a constitutional amendment to delete it and fix it permanently? In federal court, substantial burden has been a difficult hurdle for claimants. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:09 PM, Christopher Lund ed9...@wayne.edu wrote: Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--burden, substantial burden, or restriction on religious liberty,--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if I am. But I have seen no evidence that these differences have practical payoff. On Dec 2, 2013, at 1:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 12:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the substantiality of the burden would affect the inevitable balancing of burden against government interest; Chris Lund’s recent post better documents that explanation. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, December 02, 2013 10:18 AM To: dlayc...@virginia.edu; religionlaw@lists.ucla.edu Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted substantial as a modifier, does not mention the removal of substantial, but is in support of the bill. If there is anyone who signed it who opposes removal of substantial, please let me know. Otherwise, I will assume all signatories have endorsed the removal of substantial as a modifier for burden. No need to respond if you support the bill as worded. Thanks all Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Sun, Dec 1, 2013 11:37 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senat ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz phorw...@hotmail.com wrote: I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Fair enough. On Dec 2, 2013, at 2:10 PM, Marci Hamilton hamilto...@aol.com wrote: Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz phorw...@hotmail.com wrote: I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the-other-power-in-the-west-wing.html?_r=2pagewanted=all;. If Madison was right, then doesn't every group try to maximize its own power and agenda? And doesn't every politically savvy group use lobbyists and other means, such as inside power players, to that end? Does anything turn on describing religious groups as having lobbyists and an agenda, and implying that other groups are wholly selfless and decent? Or is that just semantic advocacy? On Dec 2, 2013, at 12:45 PM, Marci Hamilton hamilto...@aol.com wrote: The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion substantial is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the listserv to have the impression that the state RFRA battles are being fought solely by law professors and religious lobbyists. The civil rights groups that initially backed RFRA have caught up to the agendas behind the veil Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change 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: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
The presence or absence of the word substantial was briefly addressed in a follow-up letter here: http://www.law.virginia.edu/pdf/faculty/laycock/texasreligfreedamdt2013senate2corrected.pdf I defended the word's omission. I also suggested that the Committee add it if they thought it mattered. My apologies for the delay. There was an initial miscommunication with our tech people, and by the time they got this posted, I was caught up in Town of Greece and completely forgot to go back to this. On Sun, 1 Dec 2013 11:00:33 -0500 (EST) hamilto...@aol.com wrote: Thanks Marty! Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Dec 1, 2013 9:44 am Subject: Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
