RE: Religious exemptions in ND

[Christopher Lund]

Sorry, I sent this yesterday, but it bounced accidentally—so pardon the 
lateness:



“My point is simply this: when an individual (or group; e.g., a religiously 
affiliated organization) engages in public activity, his/her interests must 
be weighed against the interests of the persons they harm. Isn't that fair? 
Isn't that the aim of Smith?”



That Is fair.  But that’s not the aim of Smith.  There’s no weighing with 
Smith.  There is weighing with RFRA and state RFRAs.  And in those cases, I 
think the weighing has been consistent with courts taking seriously the 
interests on both sides of the ledger.



I think government-sponsored religious symbols and prayers are out.  I would 
have dissented in Van Orden and in Marsh.  On those issues, I am squarely 
with you.  I think it’s all the same principle.  The government leaves 
religion alone, so private individuals and groups can practice or not 
practice how they want.



I also agree on the horse.



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Thursday, June 21, 2012 12:16 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND



Chris, you state: "RFRA and state RFRAs protect the freedom of individuals 
and voluntary groups." That's the theory and that's the problem from a 
secularists view. They protect one set of individuals -- perhaps insulate 
might be a better term -- from the harm they cause others. Taken to an 
extreme, perhaps, RFRAs read like a license to discriminate in ways society 
on occasion deems inappropriate via law, regulation or ordinance. My point 
is simply this: when an individual (or group; e.g., a religiously affiliated 
organization) engages in public activity, his/her interests must be weighed 
against the interests of the persons they harm. Isn't that fair? Isn't that 
the aim of Smith?



Are government sponsored religious symbols and prayers out (as you suggest)? 
What about the Fraternal Order of Eagles Ten Commandments monument in 
Austin, Texas (which I consider to be a Supreme Scandal)? Or the 11th 
Circuit decision holding that sectarian prayers at council meetings are 
permissible. If Scalia and Thomas clones are appointed to the Bench, we 
could see, well, let me just say a new era in Establishment Clause 
jurisprudence.



My questions were largely rhetorical. I think we've beaten a dead horse in 
the defeated ND Religious Liberty Restoration Amendment proposal.



Bob Ritter




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RE: Religious exemptions in ND

[Volokh, Eugene]

Well, I suppose sometimes it might be so.  But I think that on balance 
ordinary legislation is easier to pass than a constitutional amendment.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, June 18, 2012 3:52 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
> 
> 
> Would you agree that for political reasons it is sometimes easier to get a
> ballot initiative (even a constitutional one) passed than to get legislation 
> with
> the same provisions passed?  I think it is likely that the relative ease of 
> passing
> legislation vs. passing a ballot measure will differ significantly from state 
> to
> state, in particular between states that allow constitutional amendment by
> ballot initiative and those that do not, and between states that tend to be
> dominated by one party or the other and those that are not. And it is probably
> a lot easier to get 4% of the voters in North Dakota to sign on to a ballot
> initiative than it is to get 4% of the voters in California.  In short, I 
> don't think it
> makes sense to generalize here, and I understand your proposition below to be
> a generalization.
> 
> Also, for what it's worth, I imagine it might take a "good deal of money" to 
> get
> a particular law through a state legislature; the money flow is just less
> obvious.
> 
> 
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> [vol...@law.ucla.edu]
> Sent: Monday, June 18, 2012 4:47 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
> 
> But I suspect the Texas Statutes includes many more than 400 statutes!
> Moreover, my sense is that many states that provide for initiative
> constitutional amendments also provide for initiative statutes, which are
> easier to put on the ballot than the amendments; that's certainly true in
> California.  And if a legislature thinks a court decision interpreting a RFRA
> statute is wrong, it can correct it by just enacting a statute.  If it thinks 
> a court
> decision interpreting a state constitutional amendment is wrong, it needs to
> put a proposed amendment on the ballot, which (I believe) generally requires
> a greater majority of the vote in the legislature coupled with (in all states 
> but
> Delaware) a vote of the people.  And while constitutional amendments can be
> put on the ballot by initiative in many states (about half, if I recall 
> correctly),
> that usually takes a good deal of money, something that often might not be
> available.
> 
> So it seems to me that it is indeed generally a good deal easier to 
> change
> a court decision handed down under a state statute than one handed down
> under a state constitutional amendment.
> 
> Eugene
> 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Monday, June 18, 2012 1:24 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Religious exemptions in ND
> >
> >
> >
> > Should we really assume that it is harder to get something through a
> > legislature than to get a ballot measure passed? I can't speak to how
> > easy it is to get a ballot measure together in North Dakota, but in
> > several states and on some issues it is arguably easier to change the
> > constitution than to get a bill through the legislature. The Texas
> > Constitution has over 400 amendments, I believe.
> >
> >
> > 
> > From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu]
> > Sent: Friday, June 15, 2012 11:03 AM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: Religious exemptions in ND
> >
> > That is true.
> >
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> > Sent: Friday, June 15, 2012 10:49 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Religious exemptions in ND
> >
> > Chris Lund writes:
> >
> > It's also important to keep in mind that the protection of state RFRAs
> > can always be legislatively narrowed-and that has happened.  Concerned
> > with a pending suit by a Muslim to c

RE: Religious exemptions in ND

[b...@jmcenter.org]

Chris, you state: "RFRA and state RFRAs protect the freedom of individuals and
voluntary groups." That's the theory and that's the problem from a secularists
view. They protect one set of individuals -- perhaps insulate might be a better
term -- from the harm they cause others. Taken to an extreme, perhaps, RFRAs
read like a license to discriminate in ways society on occasion deems
inappropriate via law, regulation or ordinance. My point is simply this: when an
individual (or group; e.g., a religiously affiliated organization) engages in
public activity, his/her interests must be weighed against the interests of the
persons they harm. Isn't that fair? Isn't that the aim of Smith?

Are government sponsored religious symbols and prayers out (as you suggest)?
What about the Fraternal Order of Eagles Ten Commandments monument in Austin,
Texas (which I consider to be a Supreme Scandal)? Or the 11th Circuit decision
holding that sectarian prayers at council meetings are permissible. If Scalia
and Thomas clones are appointed to the Bench, we could see, well, let me just
say a new era in Establishment Clause jurisprudence.

My questions were largely rhetorical. I think we've beaten a dead horse in the
defeated ND Religious Liberty Restoration Amendment proposal.

Bob Ritter


On June 19, 2012 at 10:07 AM Christopher Lund  wrote:


> I think we agree.  Let me say that I strongly support RFRA and state RFRAs,
> and I don’t think they change the issues you talk about in the first paragraph
> at all.  Government-sponsored religious prayers, symbols, and teachings are
> still out.  RFRA and the state RFRAs explicitly state that they don’t change
> the Establishment Clause (and they couldn’t even if they tried—it would just
> make them unconstitutional).  RFRA and state RFRAs protect the freedom of
> individuals and voluntary groups, not the state.
> 
> 
> 
>  In the second paragraph, you point out how the Establishment Clause protects
> people from the psychological harms in Schempp and Trunk (the pending case),
> but not in Elane Photography.  I think the explanation lies in state action.
>  The state rejecting your religious beliefs or your sexual orientation is a
> deep harm, and totally unnecessary to governance.  Even without coercion, that
> should be actionable (I think).  But individual people rejecting your
> religious beliefs or your sexual orientation is different.  It’s still an
> insult and it’s still painful, but they are people with rights too.
> 
> 
> 
>  As for your final paragraph, I cheerfully submit that it’s all a mess, at
> least somewhat, and that the Court would probably agree.  But has it ever been
> different?  =)
> 
> 
> 
>  Best,
> 
>  Chris
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
>  Sent: Monday, June 18, 2012 7:36 PM
>  To: Law & Religion issues for Law Academics
>  Subject: RE: Religious exemptions in ND
> 
> 
> 
>  Chris,
> 
>  From the Religion Clause blog and the organizations that I belong to, it
> seems that most of the "action" is in government sponsored prayers (schools
> and city councils), crosses and other religious icons on public property and
> schools trying to teach the bible or crationism/ID/anti-evolution, with the
> kinds of concerns that I mentioned rare. So my fear of RFRA's, especially the
> simple burden ones, may border paranoia. On the other hand, the religious war
> between the Christian right and secularists -- while not raging -- is a bit
> warm.  Which brings me to your comments in the last paragraph.
> 
>  Your comparison of the harm of "pure insults" (not protected) with the harm
> of (non-economic loss) discrimination on the basis of religion has a lot of
> truth to it -- both psychological harms. But the reality is (at least from my
> Atheistic perspective) that "religious interests" harms are also psychological
> (i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad
> cross case whose petition for cert is pending, or the student who wants to
> pass out candy canes with a Christian message, if it's not money, its hurt
> feelings by one side or the other. However, under current law, free speech
> insults are not actionable but unwelcome contact with a government sponsored
> prayer or religious symbol is.
> 
>  The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and
> Free Exercise Clause jurisprudence -- to the extent that those who are
> asserting the FEC rights are engaging in public services (i.e., as
> distinguished from acts in their home or in houses of worship) -- is getting
> messier. What's happened to the bright lines of ba

RE: Religious exemptions in ND

[Christopher Lund]

I think we agree.  Let me say that I strongly support RFRA and state RFRAs, 
and I don’t think they change the issues you talk about in the first 
paragraph at all.  Government-sponsored religious prayers, symbols, and 
teachings are still out.  RFRA and the state RFRAs explicitly state that 
they don’t change the Establishment Clause (and they couldn’t even if they 
tried—it would just make them unconstitutional).  RFRA and state RFRAs 
protect the freedom of individuals and voluntary groups, not the state.



In the second paragraph, you point out how the Establishment Clause protects 
people from the psychological harms in Schempp and Trunk (the pending case), 
but not in Elane Photography.  I think the explanation lies in state action. 
The state rejecting your religious beliefs or your sexual orientation is a 
deep harm, and totally unnecessary to governance.  Even without coercion, 
that should be actionable (I think).  But individual people rejecting your 
religious beliefs or your sexual orientation is different.  It’s still an 
insult and it’s still painful, but they are people with rights too.



As for your final paragraph, I cheerfully submit that it’s all a mess, at 
least somewhat, and that the Court would probably agree.  But has it ever 
been different?  =)



Best,

Chris



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Monday, June 18, 2012 7:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND



Chris,



>From the Religion Clause blog and the organizations that I belong to, it 
seems that most of the "action" is in government sponsored prayers (schools 
and city councils), crosses and other religious icons on public property and 
schools trying to teach the bible or crationism/ID/anti-evolution, with the 
kinds of concerns that I mentioned rare. So my fear of RFRA's, especially 
the simple burden ones, may border paranoia. On the other hand, the 
religious war between the Christian right and secularists -- while not 
raging -- is a bit warm.  Which brings me to your comments in the last 
paragraph.



Your comparison of the harm of "pure insults" (not protected) with the harm 
of (non-economic loss) discrimination on the basis of religion has a lot of 
truth to it -- both psychological harms. But the reality is (at least from 
my Atheistic perspective) that "religious interests" harms are also 
psychological (i.e., mental). Whether it's the 1963 Schempp prayer case or 
the Mount Soledad cross case whose petition for cert is pending, or the 
student who wants to pass out candy canes with a Christian message, if it's 
not money, its hurt feelings by one side or the other. However, under 
current law, free speech insults are not actionable but unwelcome contact 
with a government sponsored prayer or religious symbol is.



The bottom line, in 2012 the Establishment Clause jurisprudence is a mess 
and Free Exercise Clause jurisprudence -- to the extent that those who are 
asserting the FEC rights are engaging in public services (i.e., as 
distinguished from acts in their home or in houses of worship) -- is getting 
messier. What's happened to the bright lines of bar exams questions? I have 
a good idea of what the religion clauses should mean, but I'm fuzzy what 
they mean to nine Justices.



Best wishes, Bob


On June 17, 2012 at 4:15 PM Christopher Lund  wrote:

Bob,



I think you’re right that these are the kinds of hot-button controversies 
where state RFRAs could realistically come into play.  It’s not spousal 
abuse or men marrying 12 year old children, as some of the commercials 
talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/).



Another point worth stressing here, I think, is that the situations you 
mention make up a large part of the discussion but a small fraction of the 
actual cases.  Elane Photography is the only case like this I remember where 
the state RFRA claim was the ground of decision.  I wish these cases weren’t 
driving the discussion, but that’s probably inevitable.  Maybe we should 
just aim for state RFRAs with broad “civil rights laws” exceptions.  (Texas’s 
RFRA has such an exception.)



To get to your post, I’ve seen claims like #1-#3, though not #4.  It seems 
to me like there could be a “burden” on religious liberty in those cases. 
Whether there’s a compelling interest will depend on the things that Eugene 
noted earlier.  It would also depend on the facts of the cases.  If the 
pharmacist refuses to dispense plan B but can turn over the job to a 
pharmacist who will, then a religious exemption seems sensible to me.  If 
not, not.



There are very real harms that are present in these cases, though they often 
aren’t economic harms.  In Elane Photography, if I remember right, the 
lesbian couple sent the inquiry a year in advance of their wedding, and got 
a neg

RE: Religious exemptions in ND

[b...@jmcenter.org]

Chris,

>From the Religion Clause blog and the organizations that I belong to, it seems
that most of the "action" is in government sponsored prayers (schools and city
councils), crosses and other religious icons on public property and schools
trying to teach the bible or crationism/ID/anti-evolution, with the kinds of
concerns that I mentioned rare. So my fear of RFRA's, especially the simple
burden ones, may border paranoia. On the other hand, the religious war between
the Christian right and secularists -- while not raging -- is a bit warm.  Which
brings me to your comments in the last paragraph.

Your comparison of the harm of "pure insults" (not protected) with the harm of
(non-economic loss) discrimination on the basis of religion has a lot of truth
to it -- both psychological harms. But the reality is (at least from my
Atheistic perspective) that "religious interests" harms are also psychological
(i.e., mental). Whether it's the 1963 Schempp prayer case or the Mount Soledad
cross case whose petition for cert is pending, or the student who wants to pass
out candy canes with a Christian message, if it's not money, its hurt feelings
by one side or the other. However, under current law, free speech insults are
not actionable but unwelcome contact with a government sponsored prayer or
religious symbol is.

The bottom line, in 2012 the Establishment Clause jurisprudence is a mess and
Free Exercise Clause jurisprudence -- to the extent that those who are asserting
the FEC rights are engaging in public services (i.e., as distinguished from acts
in their home or in houses of worship) -- is getting messier. What's happened to
the bright lines of bar exams questions? I have a good idea of what the religion
clauses should mean, but I'm fuzzy what they mean to nine Justices.

Best wishes, Bob


On June 17, 2012 at 4:15 PM Christopher Lund  wrote:

> 
>  Bob,
> 
> 
> 
>  I think you’re right that these are the kinds of hot-button controversies
> where state RFRAs could realistically come into play.  It’s not spousal abuse
> or men marrying 12 year old children, as some of the commercials talked about
> (http://www.youtube.com/watch?v=14ngnqGR6e8/
> <http://www.youtube.com/watch?v=14ngnqGR6e8/> ).
> 
> 
> 
>  Another point worth stressing here, I think, is that the situations you
> mention make up a large part of the discussion but a small fraction of the
> actual cases.  Elane Photography is the only case like this I remember where
> the state RFRA claim was the ground of decision.  I wish these cases weren’t
> driving the discussion, but that’s probably inevitable.  Maybe we should just
> aim for state RFRAs with broad “civil rights laws” exceptions.  (Texas’s RFRA
> has such an exception.)
> 
> 
> 
>  To get to your post, I’ve seen claims like #1-#3, though not #4.  It seems to
> me like there could be a “burden” on religious liberty in those cases.
>  Whether there’s a compelling interest will depend on the things that Eugene
> noted earlier.  It would also depend on the facts of the cases.  If the
> pharmacist refuses to dispense plan B but can turn over the job to a
> pharmacist who will, then a religious exemption seems sensible to me.  If not,
> not.
> 
> 
> 
>  There are very real harms that are present in these cases, though they often
> aren’t economic harms.  In Elane Photography, if I remember right, the lesbian
> couple sent the inquiry a year in advance of their wedding, and got a negative
> response from the religious photographer that same night.  There’s no actual
> deprivation there—there’s no reliance, plenty of time to find a new
> photographer, and the religious photographer apparently wasn’t cheaper or
> better.   But there’s tremendous expressive harm.  It’s a terrible insult to
> be told that your relationship, your marriage, your love is illegitimate.
>  Especially by someone who might be linked to the political groups that have
> denied your marriage legal recognition and worked for your marginalization.
>  That’s a big part of what makes this insult really hurt.  But the American
> tradition protects pure insults—the religious photographer who says, “I’ll do
> your wedding because the law compels me to, but I find your relationship
> morally wrong for the following reasons . . .” can’t be fined or prosecuted, I
> assume.  So the rationale for exemption, I think, depends heavily on the idea
> that in such cases of mostly expressive harm, the government shouldn’t be
> overriding the religious interest.
> 
> 
> 
>  Best,
> 
>  Chris
> 
> 
> 
>  From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
>  Sent: Friday, June 15, 2012 3:19 PM
>  To: Law & Religion issues for Law Ac

RE: Religious exemptions in ND

[Eric Rassbach]

Would you agree that for political reasons it is sometimes easier to get a 
ballot initiative (even a constitutional one) passed than to get legislation 
with the same provisions passed?  I think it is likely that the relative ease 
of passing legislation vs. passing a ballot measure will differ significantly 
from state to state, in particular between states that allow constitutional 
amendment by ballot initiative and those that do not, and between states that 
tend to be dominated by one party or the other and those that are not. And it 
is probably a lot easier to get 4% of the voters in North Dakota to sign on to 
a ballot initiative than it is to get 4% of the voters in California.  In 
short, I don't think it makes sense to generalize here, and I understand your 
proposition below to be a generalization.

Also, for what it's worth, I imagine it might take a "good deal of money" to 
get a particular law through a state legislature; the money flow is just less 
obvious. 



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, June 18, 2012 4:47 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

But I suspect the Texas Statutes includes many more than 400 statutes!  
Moreover, my sense is that many states that provide for initiative 
constitutional amendments also provide for initiative statutes, which are 
easier to put on the ballot than the amendments; that's certainly true in 
California.  And if a legislature thinks a court decision interpreting a RFRA 
statute is wrong, it can correct it by just enacting a statute.  If it thinks a 
court decision interpreting a state constitutional amendment is wrong, it needs 
to put a proposed amendment on the ballot, which (I believe) generally requires 
a greater majority of the vote in the legislature coupled with (in all states 
but Delaware) a vote of the people.  And while constitutional amendments can be 
put on the ballot by initiative in many states (about half, if I recall 
correctly), that usually takes a good deal of money, something that often might 
not be available.

So it seems to me that it is indeed generally a good deal easier to 
change a court decision handed down under a state statute than one handed down 
under a state constitutional amendment.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, June 18, 2012 1:24 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
>
>
>
> Should we really assume that it is harder to get something through a
> legislature than to get a ballot measure passed? I can't speak to how easy it 
> is
> to get a ballot measure together in North Dakota, but in several states and on
> some issues it is arguably easier to change the constitution than to get a 
> bill
> through the legislature. The Texas Constitution has over 400 amendments, I
> believe.
>
>
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu]
> Sent: Friday, June 15, 2012 11:03 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Religious exemptions in ND
>
> That is true.
>
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Friday, June 15, 2012 10:49 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
>
> Chris Lund writes:
>
> It's also important to keep in mind that the protection of state RFRAs can
> always be legislatively narrowed-and that has happened.  Concerned with a
> pending suit by a Muslim to claim a drivers' license without having to take 
> off
> her headscarf, Florida statutorily (and retroactively) removed such claims
> from the protection of Florida's RFRA.  Judging by Florida's reaction to it, 
> that
> apparently is the most threatening state RFRA claim that has ever been
> brought.  I leave it to the listserv to evaluate how bad it really is, but it 
> is
> certainly less scary than what Measure 3 opponents feared.
>
>
>   I think the opportunity for legislative narrowing is a critical 
> argument
> in favor of state RFRAs - but wouldn't that have at least been somewhat
> harder with Measure 3, which would have been a state constitutional
> amendment and not a state statute?
> ___
> To post, send message to Religionlaw@lists.ucla.edu To su

RE: Religious exemptions in ND

[Volokh, Eugene]

But I suspect the Texas Statutes includes many more than 400 statutes!  
Moreover, my sense is that many states that provide for initiative 
constitutional amendments also provide for initiative statutes, which are 
easier to put on the ballot than the amendments; that's certainly true in 
California.  And if a legislature thinks a court decision interpreting a RFRA 
statute is wrong, it can correct it by just enacting a statute.  If it thinks a 
court decision interpreting a state constitutional amendment is wrong, it needs 
to put a proposed amendment on the ballot, which (I believe) generally requires 
a greater majority of the vote in the legislature coupled with (in all states 
but Delaware) a vote of the people.  And while constitutional amendments can be 
put on the ballot by initiative in many states (about half, if I recall 
correctly), that usually takes a good deal of money, something that often might 
not be available.

So it seems to me that it is indeed generally a good deal easier to 
change a court decision handed down under a state statute than one handed down 
under a state constitutional amendment.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> Sent: Monday, June 18, 2012 1:24 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
> 
> 
> 
> Should we really assume that it is harder to get something through a
> legislature than to get a ballot measure passed? I can't speak to how easy it 
> is
> to get a ballot measure together in North Dakota, but in several states and on
> some issues it is arguably easier to change the constitution than to get a 
> bill
> through the legislature. The Texas Constitution has over 400 amendments, I
> believe.
> 
> 
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Christopher Lund [l...@wayne.edu]
> Sent: Friday, June 15, 2012 11:03 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Religious exemptions in ND
> 
> That is true.
> 
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Friday, June 15, 2012 10:49 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
> 
> Chris Lund writes:
> 
> It's also important to keep in mind that the protection of state RFRAs can
> always be legislatively narrowed-and that has happened.  Concerned with a
> pending suit by a Muslim to claim a drivers' license without having to take 
> off
> her headscarf, Florida statutorily (and retroactively) removed such claims
> from the protection of Florida's RFRA.  Judging by Florida's reaction to it, 
> that
> apparently is the most threatening state RFRA claim that has ever been
> brought.  I leave it to the listserv to evaluate how bad it really is, but it 
> is
> certainly less scary than what Measure 3 opponents feared.
> 
> 
>   I think the opportunity for legislative narrowing is a critical 
> argument
> in favor of state RFRAs - but wouldn't that have at least been somewhat
> harder with Measure 3, which would have been a state constitutional
> amendment and not a state statute?
> ___
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RE: Religious exemptions in ND

[Eric Rassbach]

Should we really assume that it is harder to get something through a 
legislature than to get a ballot measure passed? I can't speak to how easy it 
is to get a ballot measure together in North Dakota, but in several states and 
on some issues it is arguably easier to change the constitution than to get a 
bill through the legislature. The Texas Constitution has over 400 amendments, I 
believe.



From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Christopher Lund [l...@wayne.edu]
Sent: Friday, June 15, 2012 11:03 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Religious exemptions in ND

That is true.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 10:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Chris Lund writes:

It’s also important to keep in mind that the protection of state RFRAs can 
always be legislatively narrowed—and that has happened.  Concerned with a 
pending suit by a Muslim to claim a drivers’ license without having to take off 
her headscarf, Florida statutorily (and retroactively) removed such claims from 
the protection of Florida’s RFRA.  Judging by Florida’s reaction to it, that 
apparently is the most threatening state RFRA claim that has ever been brought. 
 I leave it to the listserv to evaluate how bad it really is, but it is 
certainly less scary than what Measure 3 opponents feared.


  I think the opportunity for legislative narrowing is a critical 
argument in favor of state RFRAs – but wouldn’t that have at least been 
somewhat harder with Measure 3, which would have been a state constitutional 
amendment and not a state statute?
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RE: Religious exemptions in ND

[Christopher Lund]

Bob,



I think you’re right that these are the kinds of hot-button controversies 
where state RFRAs could realistically come into play.  It’s not spousal 
abuse or men marrying 12 year old children, as some of the commercials 
talked about (http://www.youtube.com/watch?v=14ngnqGR6e8/).



Another point worth stressing here, I think, is that the situations you 
mention make up a large part of the discussion but a small fraction of the 
actual cases.  Elane Photography is the only case like this I remember where 
the state RFRA claim was the ground of decision.  I wish these cases weren’t 
driving the discussion, but that’s probably inevitable.  Maybe we should 
just aim for state RFRAs with broad “civil rights laws” exceptions.  (Texas’s 
RFRA has such an exception.)



To get to your post, I’ve seen claims like #1-#3, though not #4.  It seems 
to me like there could be a “burden” on religious liberty in those cases. 
Whether there’s a compelling interest will depend on the things that Eugene 
noted earlier.  It would also depend on the facts of the cases.  If the 
pharmacist refuses to dispense plan B but can turn over the job to a 
pharmacist who will, then a religious exemption seems sensible to me.  If 
not, not.



There are very real harms that are present in these cases, though they often 
aren’t economic harms.  In Elane Photography, if I remember right, the 
lesbian couple sent the inquiry a year in advance of their wedding, and got 
a negative response from the religious photographer that same night.  There’s 
no actual deprivation there—there’s no reliance, plenty of time to find a 
new photographer, and the religious photographer apparently wasn’t cheaper 
or better.   But there’s tremendous expressive harm.  It’s a terrible insult 
to be told that your relationship, your marriage, your love is illegitimate. 
Especially by someone who might be linked to the political groups that have 
denied your marriage legal recognition and worked for your marginalization. 
That’s a big part of what makes this insult really hurt.  But the American 
tradition protects pure insults—the religious photographer who says, “I’ll 
do your wedding because the law compels me to, but I find your relationship 
morally wrong for the following reasons . . .” can’t be fined or prosecuted, 
I assume.  So the rationale for exemption, I think, depends heavily on the 
idea that in such cases of mostly expressive harm, the government shouldn’t 
be overriding the religious interest.



Best,

Chris



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org
Sent: Friday, June 15, 2012 3:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND



Chris,



While you would be willing to grant a child safety exception to appease 
Marci, I presume that in your view (and correct me if I'm wrong) that 
"burden" type RFRAs (like the North Dakota proposal) would permit the 
following examples of discrimination?

1.  A pharmacist refusing to dispense Plan B.
2.  A Muslim taxi cab driver refusing to transport a person with a bottle 
of 
wine in a grocery bag.
3.  A professional photographer refusing to photograph an LGBT civil 
ceremony.
4.  A landlord refusing to rent to an atheist.

If yes, are these acts of discrimination less a "compelling governmental 
interest" than anti-discrimination provisions of the Civil Rights Act?



Bob Ritter


On June 15, 2012 at 10:31 AM Christopher Lund  wrote:

Obviously the sexual abuse of children is tragic and criminal.  But I still 
am not getting how state RFRAs have protected it or encouraged it.



State RFRA cases are more boring than those opposed to Measure 3 might 
think.  Plaintiffs generally lose their claims; they sometimes win, but they 
have not won anything remotely like what NARAL was fearing.  (In that South 
Dakota piece—which is a bit dated now—I slog through the cases and provide 
citations, to the extent people are interested.)



I counted somewhere around 25 Florida state RFRA cases, for example.  Of 
those 25, plaintiffs won 1 on state RFRA grounds.  That case involved a 
church that wanted to feed the homeless in a public park, despite a city 
rule saying that parks could not be used for social-service purposes.  The 
church didn’t win the right to use the park of its choosing, but the trial 
judge enjoined the city to let them use some park at some time.  The case is 
Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001).



Of course, plaintiffs sometimes ask for things they can’t possibly get under 
state RFRAs—the right to use marijuana while driving, for example, keeps 
coming up.  But that’s a frivolous claim by a desperate criminal defendant, 
and it simply loses.  State RFRAs have been asserted as defenses in some of 
the sex abuse cases.  But usually such claims don’t even get separate 
analysis, and they cert

RE: Religious exemptions in ND

[b...@jmcenter.org]

Chris,

While you would be willing to grant a child safety exception to appease Marci, I
presume that in your view (and correct me if I'm wrong) that "burden" type RFRAs
(like the North Dakota proposal) would permit the following examples of
discrimination?
1. A pharmacist refusing to dispense Plan B.
2. A Muslim taxi cab driver refusing to transport a person with a bottle of wine
in a grocery bag.
3. A professional photographer refusing to photograph an LGBT civil ceremony.
4. A landlord refusing to rent to an atheist.
If yes, are these acts of discrimination less a "compelling governmental
interest" than anti-discrimination provisions of the Civil Rights Act?

Bob Ritter


On June 15, 2012 at 10:31 AM Christopher Lund  wrote:


> 
>  Obviously the sexual abuse of children is tragic and criminal.  But I still
> am not getting how state RFRAs have protected it or encouraged it.
> 
> 
> 
>  State RFRA cases are more boring than those opposed to Measure 3 might think.
>  Plaintiffs generally lose their claims; they sometimes win, but they have not
> won anything remotely like what NARAL was fearing.  (In that South Dakota
> piece—which is a bit dated now—I slog through the cases and provide citations,
> to the extent people are interested.)
> 
> 
> 
>  I counted somewhere around 25 Florida state RFRA cases, for example.  Of
> those 25, plaintiffs won 1 on state RFRA grounds.  That case involved a church
> that wanted to feed the homeless in a public park, despite a city rule saying
> that parks could not be used for social-service purposes.  The church didn’t
> win the right to use the park of its choosing, but the trial judge enjoined
> the city to let them use some park at some time.  The case is Abbott v. City
> of Fort Lauderdale, 783 So.2d 1213 (Fla. App.—4 Dist. 2001).
> 
> 
> 
>  Of course, plaintiffs sometimes ask for things they can’t possibly get under
> state RFRAs—the right to use marijuana while driving, for example, keeps
> coming up.  But that’s a frivolous claim by a desperate criminal defendant,
> and it simply loses.  State RFRAs have been asserted as defenses in some of
> the sex abuse cases.  But usually such claims don’t even get separate
> analysis, and they certainly don’t win.
> 
> 
> 
>  If people like Marci will be more comfortable with a state RFRA with a child
> safety exception, I’d gladly do it.  Not because I think it’s necessary, but
> because I think it isn’t: A state RFRA with a child safety exception will be
> treated exactly like a state RFRA without one.  Children will be protected in
> any event.
> 
> 
> 
>  It’s also important to keep in mind that the protection of state RFRAs can
> always be legislatively narrowed—and that has happened.  Concerned with a
> pending suit by a Muslim to claim a drivers’ license without having to take
> off her headscarf, Florida statutorily (and retroactively) removed such claims
> from the protection of Florida’s RFRA.  Judging by Florida’s reaction to it,
> that apparently is the most threatening state RFRA claim that has ever been
> brought.  I leave it to the listserv to evaluate how bad it really is, but it
> is certainly less scary than what Measure 3 opponents feared.
> 
> 
> 
>  Best, Chris
> 
> 
>___
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Re: Religious exemptions in ND

[Lisa A. Runquist]

I think that public schools should be held to, if anything, a HIGHER 
standard than the church.  After all, children are REQUIRED to attend 
public school; attending church is optional.  But I also  think that I 
should be rich and famous.  Still waiting for it to happen.


Lisa

On 6/15/2012 10:29 AM, Marci Hamilton wrote:
Public schools should also be held to the same standard as any private 
institution and it should be child-protective


Marci

On Jun 15, 2012, at 11:04 AM, "Douglas Laycock" <mailto:dlayc...@virginia.edu>> wrote:


It is not just other constitutional interests that limit liability 
for harm to children. It is also other public policies.


For example, in Missouri, where Gibson v. Brewer limits the church's 
liability to cases where they knew about abuse and failed to act, 
public schools have no state-law liability at all in sex abuse cases. 
See Mo. Stat. §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 
1994); Doe v. Special School District, 637 F. Supp. 1138 (E.D. Mo. 
1986). And they would have no federal liability unless an official 
with authority to act had "actual knowledge" and made "an official 
decision" not to do anything. Gebser v. Lago Vista Independent School 
District, 524 U.S. 274, 290 (1998).


The should-have-known liability now imposed on churches in many 
states, and the should-have-known-there-was-an-elevated-risk 
liability that is often alleged and sometimes imposed, goes far 
beyond the liability rules applicable to most public schools.


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> 
[mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Graber, Mark

*Sent:* Friday, June 15, 2012 9:46 AM
*To:* Law & Religion issues for Law Academics
*Subject:* RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights 
increase to some degree the possibility that child abuse will occur, 
not be detected and not be adequately punished.  Consider in this 
respect the Fourth and Fifth Amendments, at least as presently 
interpreted (and I suspect most of us would not agree with an 
interpretive rule that said government does not violate the Fourth 
and Fifth Amendment whenever doing so might increase to any degree 
the possibility that a crime will not be committed, not be detected, 
and not be punished.  So we might assume that a) protections for 
religious freedom will have some negative consequences, including 
some severe negative consequences but b) that this is true for pretty 
much all constitutional rights.


So the issue is how much do we risk because we value religious 
freedom (remembering that a strategy of risk nothing will have other 
severe bad consequences.


In this vein, may I suggest that the present alternatives are not 
helpful.  SMITH seems to suggest a rational basis test that would 
allow government to severely burden religious practice whenever doing 
so has any appreciable tendency to prevent, detect, or punish crime.  
Many RFRAs suggest a compelling interest test that probably puts too 
high a burden on government to do a variety of acts (not just in the 
area of criminal justice---so even if you think, as I do, that 
preventing child abuse is obviously a compelling government interest, 
you might still think the compelling interest standard too strong in 
other cases).


Strikes me that one thing we might discuss is what that in-between 
standard looks like.


Mark A. Graber

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--
Lisa A. Runquist
Runquist&  Associates
Attorneys at Law
17554 Community Street
Northridge, CA 91325
(818)609-7761
(818)609-7794 (fax)
l...@runquist.com
http://www.runquist.com




IRS Circular 230 Notice

To ensure complian

Re: Religious exemptions in ND

[Marci Hamilton]

That is an inaccurate analysis of my last post -- The attempts to treat these 
issues as de minimis are wrong.  Read my cert petition and the Redwing case out 
of Tennessee

I don't in any way back off of my statement that rfras open the door to more 
child sex abuse and less deterrence.   They don't stand alone but they do.   
Child safety should be excluded from all such laws.

Safe to say they are unlikely to be passed anyway at this point because gay 
rights and women's rights groups have come to understand they are adverse to 
their interests as well.  The danger of the RFRA as I have stated before is its 
blanket blind approach.   It hides the actual agendas of those who seek them.  
Far better for the vulnerable that exemptions be publicly debated.   

Marci

On Jun 15, 2012, at 1:57 PM, lawyer2...@aol.com wrote:

> Agreed.
>  
> But in order for there to be a "cost of immunity from tort law" there first 
> has to be "immunity from tort law" and, particular to this discussion, 
> immunity from tort law in child sex abuse cases.
>  
> This discussion started with the assertion that RFRA's "open the door" to 
> child sex abuse, "lessen deterrence" of it, and that RFRA arguments to this 
> end were being made by "churches" and "their lawyers" "all the time"
>  
> When that was questioned, the limitless  assertions devolved to RFRA's 
> "adding a layer of argument" during the course of litigation
>  
> --Don Clark
>   Nationwide Special Counsel
>   United Church of Christ
>  
>  
>  
> In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, 
> vol...@law.ucla.edu writes:
> No, actually I think the quote was an unnecessarily pugnacious 
> attempt to capture an important point.  Some religious groups have apparently 
> failed to reasonably investigate and monitor people whom they put in 
> positions of influence over children, and some of those people have used that 
> influence to molest children.  It's at least plausible that holding religious 
> groups liable for negligent hiring, retention, and supervision would provide 
> an extra incentive for such monitoring and investigation in the future.  
> Conversely, it's at least plausible that immunizing those groups from such 
> employer liability would make it easy for them to endanger children -- not 
> through deliberate attempts to harm children, of course, but through failure 
> to protect the children.
> 
>  
> 
> As I've mentioned, I'm skeptical that RFRAs will provide such 
> immunity.  But some states have indeed interpreted the First Amendment as 
> providing such immunity – and even if that is nonetheless the correct result, 
> for non-entanglement reasons or other reasons – it does seem to facilitate 
> religious groups’ failure to take proper care to protect children.  As I 
> said, I think both sides of the discussion have at times put things more 
> pugnaciously than is helpful.  But the basic point of the cost of immunity 
> from tort law is one that should be taken seriously.
> 
>  
> 
> Eugene
> 
>  
> 
> > -----Original Message-
> 
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> 
> > boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
> 
> > Sent: Friday, June 15, 2012 3:42 AM
> 
> > To: Law & Religion issues for Law Academics
> 
> > Subject: Re: Religious exemptions in ND
> 
> >
> 
> > "Giving religious groups more power to endanger children"
> 
> >
> 
> > Wow
> 
> >
> 
> > To be charitable, I will chalk that one up to the lateness of the hour in 
> > which it
> 
> > was written.
> 
> >
> 
> > -Don Clark
> 
> >   Nationwide Special Counsel
> 
> >   United Church of Christ
> 
> > Sent from my Verizon Wireless BlackBerry
> 
> >
> 
> > -Original Message-
> 
> > From: Marci Hamilton 
> 
> > Sender: religionlaw-boun...@lists.ucla.edu
> 
> > Date: Fri, 15 Jun 2012 03:08:48
> 
> > To: Law & Religion issues for Law Academics
> 
> > Reply-To: Law & Religion issues for Law Academics
> 
> > 
> 
> > Cc: Law & Religion issues for Law Academics
> 
> > Subject: Re: Religious exemptions in ND
> 
> >
> 
> > ___
> 
> > 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
> 
> >
>

Re: Religious exemptions in ND

[Lawyer2974]

Agreed
 
--Don Clark
 
 
In a message dated 6/15/2012 1:03:29 P.M. Central Daylight Time,  
vol...@law.ucla.edu writes:

In  any case, it seems to me that these concrete discussions of what the 
law does  and does not authorize, and which law does so, are more helpful than 
snippy  one-liners from either side. 
Eugene
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Re: Religious exemptions in ND

[Steven Jamar]

I think Mr. Clark's statement and apparent inability to see the potential for 
mischief of RFRA is troubling and supportive of Prof. Hamilton's point.  As a 
former litigator, I get the sense that some on this list are too dismissive of 
the impact of making claims that ultimately may fail, but which increase delays 
and costs in litigation -- sometimes substantially -- a problem particularly 
where child abuse is possible.

We are deep in an accommodationist model now where the religious liberty of 
adherents is generally being given greater attention and solicitude than the 
equality interests and other interests (including health and safety) of other 
affected people.

As Prof. Volokh and others have said, we are not dealing with just abstract 
issues nor are we dealing with just one constitutional value.

Ignoring the existence of abusive sects and their attempts to use free exercise 
and RFRA as a shield does not advance the discussion.  These cases exist.  The 
existence of RFRA and free exercise does embolden some.  Few.  But some.

My judgment is different from Prof. Hamilton's but I don't dispute her data and 
respect her making the contrary judgment on the same facts.

Steve

>  
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
> > Sent: Friday, June 15, 2012 3:42 AM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Religious exemptions in ND
> >
> > "Giving religious groups more power to endanger children"
> >
> > Wow
> >
> > To be charitable, I will chalk that one up to the lateness of the hour in 
> > which it
> > was written.
> >
> > -Don Clark
> >   Nationwide Special Counsel
> >   United Church of Christ
> > Sent from my Verizon Wireless BlackBerry
> >
> >

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice 
http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"Sometimes you have to play a long time to be able to play like yourself."
Miles Davis

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RE: Religious exemptions in ND

[Volokh, Eugene]

But as I understand it, some states – though a minority – do 
indeed protect churches from negligent supervision/retention/hiring liability; 
and since generally speaking respondeat superior is usually unavailable in such 
cases, the effect is indeed an immunity of churches from liability for this 
particular sort of abuse.  (I agree that this is hard to lay at the door of 
RFRAs, since the immunity has generally been recognized under the 
non-entanglement doctrine.)

In any case, it seems to me that these concrete discussions of 
what the law does and does not authorize, and which law does so, are more 
helpful than snippy one-liners from either side.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com
Sent: Friday, June 15, 2012 10:57 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Religious exemptions in ND

Agreed.

But in order for there to be a "cost of immunity from tort law" there first has 
to be "immunity from tort law" and, particular to this discussion, immunity 
from tort law in child sex abuse cases.

This discussion started with the assertion that RFRA's "open the door" to child 
sex abuse, "lessen deterrence" of it, and that RFRA arguments to this end were 
being made by "churches" and "their lawyers" "all the time"

When that was questioned, the limitless assertions devolved to RFRA's "adding a 
layer of argument" during the course of litigation

--Don Clark
  Nationwide Special Counsel
  United Church of Christ



In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time, 
vol...@law.ucla.edu<mailto:vol...@law.ucla.edu> writes:

No, actually I think the quote was an unnecessarily pugnacious 
attempt to capture an important point.  Some religious groups have apparently 
failed to reasonably investigate and monitor people whom they put in positions 
of influence over children, and some of those people have used that influence 
to molest children.  It's at least plausible that holding religious groups 
liable for negligent hiring, retention, and supervision would provide an extra 
incentive for such monitoring and investigation in the future.  Conversely, 
it's at least plausible that immunizing those groups from such employer 
liability would make it easy for them to endanger children -- not through 
deliberate attempts to harm children, of course, but through failure to protect 
the children.



As I've mentioned, I'm skeptical that RFRAs will provide such 
immunity.  But some states have indeed interpreted the First Amendment as 
providing such immunity – and even if that is nonetheless the correct result, 
for non-entanglement reasons or other reasons – it does seem to facilitate 
religious groups’ failure to take proper care to protect children.  As I said, 
I think both sides of the discussion have at times put things more pugnaciously 
than is helpful.  But the basic point of the cost of immunity from tort law is 
one that should be taken seriously.



Eugene



> -Original Message-

> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-

> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of 
> lawyer2...@aol.com<mailto:lawyer2...@aol.com>

> Sent: Friday, June 15, 2012 3:42 AM

> To: Law & Religion issues for Law Academics

> Subject: Re: Religious exemptions in ND

>

> "Giving religious groups more power to endanger children"

>

> Wow

>

> To be charitable, I will chalk that one up to the lateness of the hour in 
> which it

> was written.

>

> -Don Clark

>   Nationwide Special Counsel

>   United Church of Christ

> Sent from my Verizon Wireless BlackBerry

>

> -Original Message-

> From: Marci Hamilton mailto:hamilto...@aol.com>>

> Sender: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>

> Date: Fri, 15 Jun 2012 03:08:48

> To: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Reply-To: Law & Religion issues for Law Academics

> mailto:religionlaw@lists.ucla.edu>>

> Cc: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Subject: Re: Religious exemptions in ND

>

> ___

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Re: Religious exemptions in ND

[Lawyer2974]

Agreed.
 
But in order for there to be a "cost of immunity from tort law"  there 
first has to be "immunity from tort law" and, particular to this  discussion, 
immunity from tort law in child sex abuse cases.
 
This discussion started with the assertion that RFRA's "open the  door" to 
child sex abuse, "lessen deterrence" of it, and that RFRA arguments to  this 
end were being made by "churches" and "their lawyers" "all the  time"
 
When that was questioned, the limitless  assertions devolved to RFRA's 
"adding a layer of argument" during the  course of litigation
 
--Don Clark
  Nationwide Special Counsel
  United Church of Christ
 
 
 
 
In a message dated 6/15/2012 12:40:08 P.M. Central Daylight Time,  
vol...@law.ucla.edu writes:

 
No, actually I think the quote was an unnecessarily pugnacious attempt to  
capture an important point.  Some religious groups have apparently failed  
to reasonably investigate and monitor people whom they put in positions of  
influence over children, and some of those people have used that influence to 
 molest children.  It's at least plausible that holding religious groups  
liable for negligent hiring, retention, and supervision would provide an 
extra  incentive for such monitoring and investigation in the future.   
Conversely, it's at least plausible that immunizing those groups from such  
employer 
liability would make it easy for them to endanger children -- not  through 
deliberate attempts to harm children, of course, but through failure  to 
protect the children. 
As I've mentioned, I'm skeptical that RFRAs will provide such  immunity.  
But some states have indeed interpreted the First Amendment as  providing 
such immunity – and even if that is nonetheless the correct result,  for 
non-entanglement reasons or other reasons – it does seem to facilitate  
religious 
groups’ failure to take proper care to protect children.  As I  said, I 
think both sides of the discussion have at times put things more  pugnaciously 
than is helpful.  But the basic point of the cost of  immunity from tort law 
is one that should be taken seriously. 
Eugene 
> -Original Message- 
> From: religionlaw-boun...@lists.ucla.edu  [mailto:religionlaw- 
> boun...@lists.ucla.edu] On Behalf Of  lawyer2...@aol.com 
> Sent: Friday, June 15, 2012 3:42 AM 
> To: Law & Religion issues for Law Academics 
> Subject: Re: Religious exemptions in ND 
>  
> "Giving religious groups more power to endanger  children" 
>  
> Wow 
>  
> To be charitable, I will chalk that one up to the  lateness of the hour 
in which it 
> was written. 
>  
> -Don Clark 
>   Nationwide Special Counsel 
>   United Church of Christ 
> Sent from my Verizon Wireless BlackBerry 
>  
> -Original Message- 
> From: Marci Hamilton <_hamilton02@aol.com_ (mailto:hamilto...@aol.com) > 
> Sender: _religionlaw-boun...@lists.ucla.edu_ 
(mailto:religionlaw-boun...@lists.ucla.edu)  
> Date: Fri, 15 Jun 2012 03:08:48 
> To: Law & Religion issues for Law  Academics<_religion...@lists.ucla.edu_ 
(mailto:religionlaw@lists.ucla.edu) > 
> Reply-To: Law & Religion issues for Law  Academics 
> <_religion...@lists.ucla.edu_ (mailto:religionlaw@lists.ucla.edu) > 
> Cc: Law & Religion issues for Law  Academics<_religion...@lists.ucla.edu_ 
(mailto:religionlaw@lists.ucla.edu) > 
> Subject: Re: Religious exemptions in ND 
>  
> ___ 
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RE: Religious exemptions in ND

[Volokh, Eugene]

No, actually I think the quote was an unnecessarily pugnacious 
attempt to capture an important point.  Some religious groups have apparently 
failed to reasonably investigate and monitor people whom they put in positions 
of influence over children, and some of those people have used that influence 
to molest children.  It's at least plausible that holding religious groups 
liable for negligent hiring, retention, and supervision would provide an extra 
incentive for such monitoring and investigation in the future.  Conversely, 
it's at least plausible that immunizing those groups from such employer 
liability would make it easy for them to endanger children -- not through 
deliberate attempts to harm children, of course, but through failure to protect 
the children.



As I've mentioned, I'm skeptical that RFRAs will provide such 
immunity.  But some states have indeed interpreted the First Amendment as 
providing such immunity - and even if that is nonetheless the correct result, 
for non-entanglement reasons or other reasons - it does seem to facilitate 
religious groups' failure to take proper care to protect children.  As I said, 
I think both sides of the discussion have at times put things more pugnaciously 
than is helpful.  But the basic point of the cost of immunity from tort law is 
one that should be taken seriously.



Eugene



> -Original Message-

> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

> boun...@lists.ucla.edu] On Behalf Of lawyer2...@aol.com

> Sent: Friday, June 15, 2012 3:42 AM

> To: Law & Religion issues for Law Academics

> Subject: Re: Religious exemptions in ND

>

> "Giving religious groups more power to endanger children"

>

> Wow

>

> To be charitable, I will chalk that one up to the lateness of the hour in 
> which it

> was written.

>

> -Don Clark

>   Nationwide Special Counsel

>   United Church of Christ

> Sent from my Verizon Wireless BlackBerry

>

> -Original Message-

> From: Marci Hamilton mailto:hamilto...@aol.com>>

> Sender: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>

> Date: Fri, 15 Jun 2012 03:08:48

> To: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Reply-To: Law & Religion issues for Law Academics

> mailto:religionlaw@lists.ucla.edu>>

> Cc: Law & Religion issues for Law 
> Academicsmailto:religionlaw@lists.ucla.edu>>

> Subject: Re: Religious exemptions in ND

>

> ___

> To post, send message to 
> Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe,

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RE: Religious exemptions in ND

[Graber, Mark]

Ouch.  This was obviously just meant for EV.  On Friday afternoons, one should 
hesitate before hitting the send button.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Thanks.  Seems like we are arguing BIG principles that, actually everyone 
agrees with, when the work that needs to be done is in the details.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
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RE: Religious exemptions in ND

[Graber, Mark]

Thanks.  Seems like we are arguing BIG principles that, actually everyone 
agrees with, when the work that needs to be done is in the details.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
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RE: Religious exemptions in ND

[Volokh, Eugene]

Excellent points, both in the first paragraph and in the third.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Friday, June 15, 2012 6:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber
___
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Re: Religious exemptions in ND

[Marci Hamilton]

Public schools should also be held to the same standard as any private 
institution and it should be child-protective

Marci

On Jun 15, 2012, at 11:04 AM, "Douglas Laycock"  wrote:

> It is not just other constitutional interests that limit liability for harm 
> to children. It is also other public policies.
>  
> For example, in Missouri, where Gibson v. Brewer limits the church’s 
> liability to cases where they knew about abuse and failed to act, public 
> schools have no state-law liability at all in sex abuse cases. See Mo. Stat. 
> §537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special 
> School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no 
> federal liability unless an official with authority to act had “actual 
> knowledge” and made “an official decision” not to do anything. Gebser v. Lago 
> Vista Independent School District, 524 U.S. 274, 290 (1998).
>  
> The should-have-known liability now imposed on churches in many states, and 
> the should-have-known-there-was-an-elevated-risk liability that is often 
> alleged and sometimes imposed, goes far beyond the liability rules applicable 
> to most public schools.
>  
> 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 Graber, Mark
> Sent: Friday, June 15, 2012 9:46 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Religious exemptions in ND
>  
> May I suggest this is too strong.  A great many constitutional rights 
> increase to some degree the possibility that child abuse will occur, not be 
> detected and not be adequately punished.  Consider in this respect the Fourth 
> and Fifth Amendments, at least as presently interpreted (and I suspect most 
> of us would not agree with an interpretive rule that said government does not 
> violate the Fourth and Fifth Amendment whenever doing so might increase to 
> any degree the possibility that a crime will not be committed, not be 
> detected, and not be punished.  So we might assume that a) protections for 
> religious freedom will have some negative consequences, including some severe 
> negative consequences but b) that this is true for pretty much all 
> constitutional rights.
>  
> So the issue is how much do we risk because we value religious freedom 
> (remembering that a strategy of risk nothing will have other severe bad 
> consequences.
>  
> In this vein, may I suggest that the present alternatives are not helpful.  
> SMITH seems to suggest a rational basis test that would allow government to 
> severely burden religious practice whenever doing so has any appreciable 
> tendency to prevent, detect, or punish crime.  Many RFRAs suggest a 
> compelling interest test that probably puts too high a burden on government 
> to do a variety of acts (not just in the area of criminal justice—so even if 
> you think, as I do, that preventing child abuse is obviously a compelling 
> government interest, you might still think the compelling interest standard 
> too strong in other cases).
>  
> Strikes me that one thing we might discuss is what that in-between standard 
> looks like.
>  
> Mark A. Graber
> ___
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> To subscribe, unsubscribe, change options, or get password, see 
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> forward the messages to others.
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RE: Religious exemptions in ND

[Volokh, Eugene]

Marc:  It seems to me that state RFRAs are aimed at protecting 
religious observers and religious institutions more than at least many other 
social interests.  Conversely, as I understand the church liability cases, 
plaintiffs usually aim to simply apply normal negligent 
hiring/supervision/retention law to churches, just as it would apply to (say) 
secular private schools, secular youth organizations, secular day care centers, 
and so on.  To be sure, as Doug pointed out, state and local governments often 
are treated better than all these private institutions, under 
sovereign-immunity-ish principles.  But whether that better treatment or not is 
right, it is justified by the sense that taxpayer money needs to be specially 
protected.  Why should religious institutions be given more protection against 
liability than other private organizations?

Eugene

Marc Stern writes:

Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage.
Marc

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RE: Religious exemptions in ND

[Douglas Laycock]

It is not just other constitutional interests that limit liability for harm
to children. It is also other public policies. 

 

For example, in Missouri, where Gibson v. Brewer limits the church’s
liability to cases where they knew about abuse and failed to act, public
schools have no state-law liability at all in sex abuse cases. See Mo. Stat.
§537.600; Letlow v. Evans, 857 F. Supp. 676 (W.D. Mo. 1994); Doe v. Special
School District, 637 F. Supp. 1138 (E.D. Mo. 1986). And they would have no
federal liability unless an official with authority to act had “actual
knowledge” and made “an official decision” not to do anything. Gebser v.
Lago Vista Independent School District, 524 U.S. 274, 290 (1998).

 

The should-have-known liability now imposed on churches in many states, and
the should-have-known-there-was-an-elevated-risk liability that is often
alleged and sometimes imposed, goes far beyond the liability rules
applicable to most public schools. 

 

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 Graber, Mark
Sent: Friday, June 15, 2012 9:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

 

May I suggest this is too strong.  A great many constitutional rights
increase to some degree the possibility that child abuse will occur, not be
detected and not be adequately punished.  Consider in this respect the
Fourth and Fifth Amendments, at least as presently interpreted (and I
suspect most of us would not agree with an interpretive rule that said
government does not violate the Fourth and Fifth Amendment whenever doing so
might increase to any degree the possibility that a crime will not be
committed, not be detected, and not be punished.  So we might assume that a)
protections for religious freedom will have some negative consequences,
including some severe negative consequences but b) that this is true for
pretty much all constitutional rights.

 

So the issue is how much do we risk because we value religious freedom
(remembering that a strategy of risk nothing will have other severe bad
consequences.

 

In this vein, may I suggest that the present alternatives are not helpful.
SMITH seems to suggest a rational basis test that would allow government to
severely burden religious practice whenever doing so has any appreciable
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a
compelling interest test that probably puts too high a burden on government
to do a variety of acts (not just in the area of criminal justice—so even if
you think, as I do, that preventing child abuse is obviously a compelling
government interest, you might still think the compelling interest standard
too strong in other cases).

 

Strikes me that one thing we might discuss is what that in-between standard
looks like.

 

Mark A. Graber

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RE: Religious exemptions in ND

[Christopher Lund]

That is true.

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 15, 2012 10:49 AM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

 

Chris Lund writes:

 

It's also important to keep in mind that the protection of state RFRAs can
always be legislatively narrowed-and that has happened.  Concerned with a
pending suit by a Muslim to claim a drivers' license without having to
take off her headscarf, Florida statutorily (and retroactively) removed
such claims from the protection of Florida's RFRA.  Judging by Florida's
reaction to it, that apparently is the most threatening state RFRA claim
that has ever been brought.  I leave it to the listserv to evaluate how
bad it really is, but it is certainly less scary than what Measure 3
opponents feared.

 

 

  I think the opportunity for legislative narrowing is a
critical argument in favor of state RFRAs - but wouldn't that have at
least been somewhat harder with Measure 3, which would have been a state
constitutional amendment and not a state statute?

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RE: Religious exemptions in ND

[Volokh, Eugene]

Chris Lund writes:

It's also important to keep in mind that the protection of state RFRAs can 
always be legislatively narrowed-and that has happened.  Concerned with a 
pending suit by a Muslim to claim a drivers' license without having to take off 
her headscarf, Florida statutorily (and retroactively) removed such claims from 
the protection of Florida's RFRA.  Judging by Florida's reaction to it, that 
apparently is the most threatening state RFRA claim that has ever been brought. 
 I leave it to the listserv to evaluate how bad it really is, but it is 
certainly less scary than what Measure 3 opponents feared.


  I think the opportunity for legislative narrowing is a critical 
argument in favor of state RFRAs - but wouldn't that have at least been 
somewhat harder with Measure 3, which would have been a state constitutional 
amendment and not a state statute?
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RE: Religious exemptions in ND

[Christopher Lund]

Obviously the sexual abuse of children is tragic and criminal.  But I
still am not getting how state RFRAs have protected it or encouraged it.  

 

State RFRA cases are more boring than those opposed to Measure 3 might
think.  Plaintiffs generally lose their claims; they sometimes win, but
they have not won anything remotely like what NARAL was fearing.  (In that
South Dakota piece-which is a bit dated now-I slog through the cases and
provide citations, to the extent people are interested.)

 

I counted somewhere around 25 Florida state RFRA cases, for example.  Of
those 25, plaintiffs won 1 on state RFRA grounds.  That case involved a
church that wanted to feed the homeless in a public park, despite a city
rule saying that parks could not be used for social-service purposes.  The
church didn't win the right to use the park of its choosing, but the trial
judge enjoined the city to let them use some park at some time.  The case
is Abbott v. City of Fort Lauderdale, 783 So.2d 1213 (Fla. App.-4 Dist.
2001).  

 

Of course, plaintiffs sometimes ask for things they can't possibly get
under state RFRAs-the right to use marijuana while driving, for example,
keeps coming up.  But that's a frivolous claim by a desperate criminal
defendant, and it simply loses.  State RFRAs have been asserted as
defenses in some of the sex abuse cases.  But usually such claims don't
even get separate analysis, and they certainly don't win.

 

If people like Marci will be more comfortable with a state RFRA with a
child safety exception, I'd gladly do it.  Not because I think it's
necessary, but because I think it isn't: A state RFRA with a child safety
exception will be treated exactly like a state RFRA without one.  Children
will be protected in any event.  

 

It's also important to keep in mind that the protection of state RFRAs can
always be legislatively narrowed-and that has happened.  Concerned with a
pending suit by a Muslim to claim a drivers' license without having to
take off her headscarf, Florida statutorily (and retroactively) removed
such claims from the protection of Florida's RFRA.  Judging by Florida's
reaction to it, that apparently is the most threatening state RFRA claim
that has ever been brought.  I leave it to the listserv to evaluate how
bad it really is, but it is certainly less scary than what Measure 3
opponents feared.

 

Best, Chris

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Friday, June 15, 2012 9:26 AM
To: religionlaw@lists.ucla.edu; lawyer2...@aol.com
Subject: Re: Religious exemptions in ND

 

Religious institutions are creating the conditions for abuse in MANY
circumstances.  That is the reality, 

and the notion they should be less culpable than the perpetrators in the
endangerment of children does them

and children no favors.  Religious institutions should not have one iota
more latitude to endanger children than

anyone else.  And any RFRA or First Amendment decision that decreases
deterrents to abuse or lets off

those responsible for endangering children is a mistake in my view. 

 

Not one other person on this listserv has endorsed exempting child safety
from a RFRA.  Rather, I've heard 

that the rfras don't affect these cases.  As someone involved in dozens,
and at times hundreds of these cases at once, I can tell you the rfras and
First Amendment do affect these cases.  For the record, I oppose any
religious liberty decision or rfra that affects the safety of children.  

 

For those who missed it, the Jehovahs Witnesses lost a child sex abuse
case in California this week, and the jury served

up 21 million in punitive damages.  The evidence included a letter
ordering keeping the abuse secret.  Just one

case out of thousands.

 

Best to all--  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

 <mailto:hamilto...@aol.com> hamilto...@aol.com

 

-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ;
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND

Allowing religious liberty defenses(which have so far been mostly
unsuccessful) no more endangers children than does placing the burden of
proof on the plaintiff in civil cases and the state(beyond a reasonable
doubt) in criminal cases,rules against hearsay or requiring actual
confrontation with accusers and so on. What is so troubling about Marci's
message is not so much the bottom line result as the suggestion that
interests of religious institutions-who after all are not themselves
molesting children whatever their culpability for not acting more
vigorously to protect children-are somehow systematically less worthy of
protection than other social interests

RE: Religious exemptions in ND

[Graber, Mark]

May I suggest this is too strong.  A great many constitutional rights increase 
to some degree the possibility that child abuse will occur, not be detected and 
not be adequately punished.  Consider in this respect the Fourth and Fifth 
Amendments, at least as presently interpreted (and I suspect most of us would 
not agree with an interpretive rule that said government does not violate the 
Fourth and Fifth Amendment whenever doing so might increase to any degree the 
possibility that a crime will not be committed, not be detected, and not be 
punished.  So we might assume that a) protections for religious freedom will 
have some negative consequences, including some severe negative consequences 
but b) that this is true for pretty much all constitutional rights.

So the issue is how much do we risk because we value religious freedom 
(remembering that a strategy of risk nothing will have other severe bad 
consequences.

In this vein, may I suggest that the present alternatives are not helpful.  
SMITH seems to suggest a rational basis test that would allow government to 
severely burden religious practice whenever doing so has any appreciable 
tendency to prevent, detect, or punish crime.  Many RFRAs suggest a compelling 
interest test that probably puts too high a burden on government to do a 
variety of acts (not just in the area of criminal justice-so even if you think, 
as I do, that preventing child abuse is obviously a compelling government 
interest, you might still think the compelling interest standard too strong in 
other cases).

Strikes me that one thing we might discuss is what that in-between standard 
looks like.

Mark A. Graber

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Friday, June 15, 2012 9:26 AM
To: religionlaw@lists.ucla.edu; lawyer2...@aol.com
Subject: Re: Religious exemptions in ND

Religious institutions are creating the conditions for abuse in MANY 
circumstances.  That is the reality,
and the notion they should be less culpable than the perpetrators in the 
endangerment of children does them
and children no favors.  Religious institutions should not have one iota more 
latitude to endanger children than
anyone else.  And any RFRA or First Amendment decision that decreases 
deterrents to abuse or lets off
those responsible for endangering children is a mistake in my view.

Not one other person on this listserv has endorsed exempting child safety from 
a RFRA.  Rather, I've heard
that the rfras don't affect these cases.  As someone involved in dozens, and at 
times hundreds of these cases at once, I can tell you the rfras and First 
Amendment do affect these cases.  For the record, I oppose any religious 
liberty decision or rfra that affects the safety of children.

For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in 
California this week, and the jury served
up 21 million in punitive damages.  The evidence included a letter ordering 
keeping the abuse secret.  Just one
case out of thousands.

Best to all--  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
hamilto...@aol.com<mailto:hamilto...@aol.com>

-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ; 
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND
Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage.
Marc

From: hamilto...@aol.com<mailto:hamilto...@aol.com> 
[mailto:hamilto...@aol.com<mailto:hamilto...@aol.com?>]
Sent: Friday, June 15, 2012 07:30 AM
To: lawyer2...@aol.com<mailto:lawyer2...@aol.com> 
mailto:lawyer2...@aol.com&

Re: Religious exemptions in ND

[hamilton02]

Religious institutions are creating the conditions for abuse in MANY 
circumstances.  That is the reality,
and the notion they should be less culpable than the perpetrators in the 
endangerment of children does them
and children no favors.  Religious institutions should not have one iota more 
latitude to endanger children than
anyone else.  And any RFRA or First Amendment decision that decreases 
deterrents to abuse or lets off
those responsible for endangering children is a mistake in my view. 


Not one other person on this listserv has endorsed exempting child safety from 
a RFRA.  Rather, I've heard 
that the rfras don't affect these cases.  As someone involved in dozens, and at 
times hundreds of these cases at once, I can tell you the rfras and First 
Amendment do affect these cases.  For the record, I oppose any religious 
liberty decision or rfra that affects the safety of children.  


For those who missed it, the Jehovahs Witnesses lost a child sex abuse case in 
California this week, and the jury served
up 21 million in punitive damages.  The evidence included a letter ordering 
keeping the abuse secret.  Just one
case out of thousands.


Best to all--  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
hamilto...@aol.com




-Original Message-
From: Marc Stern 
To: 'religionlaw@lists.ucla.edu' ; 
'lawyer2...@aol.com' 
Sent: Fri, Jun 15, 2012 8:07 am
Subject: Re: Religious exemptions in ND


Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage. 
Marc
 

From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Friday, June 15, 2012 07:30 AM
To: lawyer2...@aol.com ; religionlaw@lists.ucla.edu 

Subject: Re: Religious exemptions in ND
 

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where 
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.




So do a lot of secular and individuals, but they are not capable of wrapping 
themselves 
in the mantle of claims for religious liberty or freedom.   




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
hamilto...@aol.com




-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which 
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: Religious exemptions in ND

[Marc Stern]

Allowing religious liberty defenses(which have so far been mostly unsuccessful) 
no more endangers children than does placing the burden of proof on the 
plaintiff in civil cases and the state(beyond a reasonable doubt) in criminal 
cases,rules against hearsay or requiring actual confrontation with accusers and 
so on. What is so troubling about Marci's message is not so much the bottom 
line result as the suggestion that interests of religious institutions-who 
after all are not themselves molesting children whatever their culpability for 
not acting more vigorously to protect children-are somehow systematically less 
worthy of protection than other social interests.
While I accept Eugene's rebuke about rhetoric,and his observation about both 
equality and religious liberty being protected,it seems to me fair to observe 
that while there often ways to maximize both interests, there is an increasing 
tendency-readily visible in positions on conscientious objection by pharmacists 
to eschew such balancing tests in favor of sweeping assertions of the 
overarching importance of equality.
The same trend is evident in the debates over religious exemptions in the 
context of same sex marriage.
Marc

From: hamilto...@aol.com [mailto:hamilto...@aol.com]
Sent: Friday, June 15, 2012 07:30 AM
To: lawyer2...@aol.com ; religionlaw@lists.ucla.edu 

Subject: Re: Religious exemptions in ND

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.


So do a lot of secular and individuals, but they are not capable of wrapping 
themselves
in the mantle of claims for religious liberty or freedom.


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
hamilto...@aol.com<mailto:hamilto...@aol.com>


-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton mailto:hamilto...@aol.com>>
Sender: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
Date: Fri, 15 Jun 2012 03:08:48
To: Law & Religion issues for Law 
Academicsmailto:religionlaw@lists.ucla.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Cc: Law & Religion issues for Law 
Academicsmailto:religionlaw@lists.ucla.edu>>
Subject: Re: Religious exemptions in ND

___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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read the Web archives; and list members can (rightly or wrongly) forward the 
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Re: Religious exemptions in ND

[hamilton02]

Please explain what is objectionable about that statement?  Are you saying that 
religious
groups do not endanger children?  That is simply false.  This is a law prof 
listserv where 
the discussion needs to focus on facts, doctrine, and policy.  The mythology 
that religious
groups always protect children or do not need the hand of the law to forestall 
harm is
that -- mythology -- and not worthy of serious scholarly discussion.




So do a lot of secular and individuals, but they are not capable of wrapping 
themselves 
in the mantle of claims for religious liberty or freedom.   




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
hamilto...@aol.com




-Original Message-
From: lawyer2974 
To: Law & Religion issues for Law Academics 
Sent: Fri, Jun 15, 2012 6:45 am
Subject: Re: Religious exemptions in ND


"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which 
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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Re: Religious exemptions in ND

[lawyer2974]

"Giving religious groups more power to endanger children"

Wow

To be charitable, I will chalk that one up to the lateness of the hour in which 
it was written.

-Don Clark
  Nationwide Special Counsel
  United Church of Christ
Sent from my Verizon Wireless BlackBerry

-Original Message-
From: Marci Hamilton 
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 15 Jun 2012 03:08:48 
To: Law & Religion issues for Law Academics
Reply-To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

___
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Re: Religious exemptions in ND

[Marci Hamilton]

The Sherbert/Yoder test was never treated by the 
Supreme Court as a test available across the 
board.   So NARAL's concerns and CHILD 's
Issues would not have been controlled by it

The concern is not over enforcement but rather enforcement
Giving religious groups more power to endanger children is
not a good idea.   

Marci



On Jun 14, 2012, at 11:34 PM, "Christopher Lund"  wrote:

> Connecticut and Alabama use “burden” instead of “substantial burden” in their 
> state RFRAs.  Rhode Island, New Mexico, and Missouri speak of “restrictions 
> on religious liberty.”  But I really don’t know how much the difference in 
> language ends up mattering.  Connecticut is a “burden” state, like North 
> Dakota would have been.  But the lower courts in Connecticut have interpreted 
> Connecticut’s RFRA to be equivalent to the standard laid out in Employment 
> Division v. Smith.  It’s hard to see how that is even possible, given what 
> state RFRAs were designed to do.  But there it is.  My South Dakota piece 
> (which Doug referred to earlier) provides the details. 
>  
> Given all this, it’s hard for me to understand these fears of dramatic 
> overenforcement.  Even with explicit authorization from state legislatures, 
> we can’t even seem to get back to Sherbert/Yoder—and it’s not as if the 
> Sherbert/Yoder regime led to the horrible things that NARAL was fearing.
>  
> Best, Chris
> ___
> Christopher C. Lund
> Assistant Professor of Law
> Wayne State University Law School
> 471 West Palmer St.
> Detroit, MI  48202
> l...@wayne.edu
> (313) 577-4046 (phone)
> (313) 577-9016 (fax)
> Website—http://law.wayne.edu/profile/christopher.lund/
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer
> Sent: Thursday, June 14, 2012 9:45 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Religious exemptions in ND
>  
> I believe that New Mexico's speaks in terms of "restrict[ing] a person's free 
> exercise of religion."
>  
> Roman
>  
> Storzer & Greene, P.L.L.C.
>  
> 1025 Connecticut Avenue, Northwest
> Suite One Thousand
> Washington, D.C. 20011
> Tel: (202) 857-9766
> Fax: (202) 315-3996
>  
> 110 Wall Street
> Eleventh Floor
> New York, N.Y. 10005
> Tel: (212) 943-4343
> Fax: (202) 315-3996
> 
> http://www.storzerandgreene.com
> stor...@storzerandgreene.com
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Thursday, June 14, 2012 9:32 PM
> To: religionlaw@lists.ucla.edu; b...@jmcenter.org
> Subject: Re: Religious exemptions in ND
> 
> Other than Conn and Alabama, I'm not aware of another state that eliminated 
> "substantial" from the formulation.
> Are there others?
>  
>  
> I don't know that all bets would need to be off in any case, since other 
> state 
> RFRAs have long used "burden" rather than "substantial burden," e.g. 
> Connecticut's.
>  
> 
>  
> 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
> hamilto...@aol.com
>  
> 
> -Original Message-
> From: Eric Rassbach 
> To: Law & Religion issues for Law Academics ; bob 
> 
> Sent: Thu, Jun 14, 2012 9:26 pm
> Subject: RE: Religious exemptions in ND
> 
>  
>  
> I don't know that all bets would need to be off in any case, since other 
> state 
> RFRAs have long used "burden" rather than "substantial burden," e.g. 
> Connecticut's.
>  
>  
>  
> 
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
> On 
> Behalf Of Douglas Laycock [dlayc...@virginia.edu]
> Sent: Thursday, June 14, 2012 9:15 PM
> To: b...@jmcenter.org; Law & Religion issues for Law Academics
> Subject: Re: Religious exemptions in ND
>  
> The Supreme Court of the United states would have had nothing to say about 
> the 
> meaning of Measure 3. It would have been a state law issue.
>  
>  
>  
> On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
>  "b...@jmcenter.org"  wrote:
> >Eric,
> > 
> >Glad to see you focusing on the claims made with respect to Measure 3. I've 
> been
> >counseling a nontheistic North Dakota group for over a year on Measure 3 and 
> its
> >predecessor. My primary concern has been the potential 

RE: Religious exemptions in ND

[Christopher Lund]

Connecticut and Alabama use "burden" instead of "substantial burden" in
their state RFRAs.  Rhode Island, New Mexico, and Missouri speak of
"restrictions on religious liberty."  But I really don't know how much the
difference in language ends up mattering.  Connecticut is a "burden"
state, like North Dakota would have been.  But the lower courts in
Connecticut have interpreted Connecticut's RFRA to be equivalent to the
standard laid out in Employment Division v. Smith.  It's hard to see how
that is even possible, given what state RFRAs were designed to do.  But
there it is.  My South Dakota piece (which Doug referred to earlier)
provides the details.  

 

Given all this, it's hard for me to understand these fears of dramatic
overenforcement.  Even with explicit authorization from state
legislatures, we can't even seem to get back to Sherbert/Yoder-and it's
not as if the Sherbert/Yoder regime led to the horrible things that NARAL
was fearing.

 

Best, Chris

___

Christopher C. Lund

Assistant Professor of Law

Wayne State University Law School

471 West Palmer St.

Detroit, MI  48202

l...@wayne.edu

(313) 577-4046 (phone)

(313) 577-9016 (fax)

Website-http://law.wayne.edu/profile/christopher.lund/

Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Roman P. Storzer
Sent: Thursday, June 14, 2012 9:45 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Religious exemptions in ND

 

I believe that New Mexico's speaks in terms of "restrict[ing] a person's
free exercise of religion."

 

Roman

 

Storzer & Greene, P.L.L.C. 

 

1025 Connecticut Avenue, Northwest

Suite One Thousand

Washington, D.C. 20011

Tel: (202) 857-9766

Fax: (202) 315-3996

 

110 Wall Street

Eleventh Floor

New York, N.Y. 10005

Tel: (212) 943-4343

Fax: (202) 315-3996


http://www.storzerandgreene.com
http://www.storzerandgreene.com/> 

stor...@storzerandgreene.com
mailto:stor...@storzerandgreene.com> 

 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Thursday, June 14, 2012 9:32 PM
To: religionlaw@lists.ucla.edu; b...@jmcenter.org
Subject: Re: Religious exemptions in ND

Other than Conn and Alabama, I'm not aware of another state that
eliminated "substantial" from the formulation. 

Are there others?

 

 

I don't know that all bets would need to be off in any case, since other
state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.

 

 

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

hamilto...@aol.com

 

-Original Message-
From: Eric Rassbach 
To: Law & Religion issues for Law Academics ;
bob 
Sent: Thu, Jun 14, 2012 9:26 pm
Subject: RE: Religious exemptions in ND

 
 
I don't know that all bets would need to be off in any case, since other
state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.
 
 
 

From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] On 
Behalf Of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, June 14, 2012 9:15 PM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND
 
The Supreme Court of the United states would have had nothing to say about
the 
meaning of Measure 3. It would have been a state law issue.
 
 
 
On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
> 
>Glad to see you focusing on the claims made with respect to Measure 3.
I've 
been
>counseling a nontheistic North Dakota group for over a year on Measure 3
and 
its
>predecessor. My primary concern has been the potential use of Measure 3
to
>legalize discrimination against atheists, members of minority religions
and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation
and
>six of nine justices self-identify themselves as Catholic, all bets are
off 
what
>would have benn protected by mere burden in Measure 3.
> 
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
> 
> 
>On June 14, 2012 at 4:42 PM Eric Rassbach 
wrote:
> 
>> 
>> These appear to be some of the main arguments against passing the RFRA:
>> 
>> http://ndagainst3.com/get-the-facts/
>> 
>> As an exa

RE: Religious exemptions in ND

[Volokh, Eugene]

OK, sorry, that wasn't meant for the whole list   D'oh!

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, June 14, 2012 8:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Thanks - I much appreciate the kind words!

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, June 14, 2012 8:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND


Very well stated, Eugene. My compliments.



Alan


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Thursday, June 14, 2012 7:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND
Folks:  Again, perhaps it might be good to avoid the rhetoric 
and focus on the serious issues involved.  American law has long valued both 
equality and accommodation of religious beliefs.   For many decades, it has 
valued equality in treatment by many nongovernmental actors (and incidentally 
in requiring certain nongovernmental actors to accommodate religious beliefs, 
but that isn't involved here).  The ACLU has likewise long valued both equality 
and accommodation of religious beliefs.

The difficulty is that the two often conflict.  Sometimes the legal system 
deals with this conflict by categorically prioritizing liberty (from government 
intrusion) over equality of treatment by nongovernmental actors.  For instance, 
the government may not tell people not to discriminate in marriage, or, I take 
it, in choice of friends, and no state laws purport to do that.  The government 
may not bar parade organizers from discriminating against gay-themed floats, 
and (more controversially) may not bar the Boy Scouts from discriminating 
against gay scoutmasters.  The Ninth Circuit recently interpreted California 
fair housing law as leaving people free to discriminate in choice of roommates, 
in part because of constitutional concerns.

Likewise, statutes often don't regulate even behavior that they 
constitutionally may regulate.  The Civil Rights Act of 1964, for instance, 
left the vast majority of businesses and professionals free to choose whom to 
deal with as customers; it defined regulated places of public accommodation 
quite narrowly.  Many state laws, though, have provided far broader coverage 
for the equality mandate, thus diminishing the business owners' liberty (and, 
in the process, religious liberty).

Other times the legal system deals with this conflict by categorically 
prioritizing equality of treatment over liberty; for instance, to my knowledge 
courts have consistently rejected religious exemption claims from employment 
discrimination laws, outside the context of (1) ministerial positions and (2) 
statutory exemptions (for instance, exemptions for religious institutions from 
bans on discrimination based on religion, and in some states based on sexual 
orientation).

Still other times, though rarely, courts have carved out religious exemptions 
under RFRAs and similar state constitutional exemption regimes; to my 
knowledge, this has only happened with regard to housing discrimination based 
on marital status.

How to resolve this is not, I think, easily answered either with assertions 
that "equality is a core American value" or that "religious freedom is a basic 
American value," or claims that the ACLU doesn't "value[] religious liberty" 
"for conservative faiths."  My sense is that we need to talk more specifically 
and concretely about the arguments for and against respecting equality and 
liberty in each instance.  (For instance, the argument for letting taxi cab 
drivers discriminate based on passengers' consumption of alcohol - a right that 
most other businesses enjoy, since it doesn't involve discrimination based on 
the passenger's religion, race, etc. - is different from the argument for 
letting landlords refuse to rent to atheists or from the argument for letting 
photographers choose which kinds of expressive works to create.)

My sense is that it might also be helpful to talk about the level of law at 
which a religious exemption regime is enacted.  A state statutory RFRA leaves 
the state legislature free to decide that some laws (including 
antidiscrimination laws) should be exempted from the RFRA, and to effectively 
overturn the results of court decisions that grant exemptions.  A state 
constitutional RFRA doesn't do that.  A federal statutory RFRA that binds state 
governments, and a federal Sherbert/Yoder regi

RE: Religious exemptions in ND

[Volokh, Eugene]

Thanks - I much appreciate the kind words!

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, June 14, 2012 8:07 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND


Very well stated, Eugene. My compliments.



Alan


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene 
[vol...@law.ucla.edu]
Sent: Thursday, June 14, 2012 7:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND
Folks:  Again, perhaps it might be good to avoid the rhetoric 
and focus on the serious issues involved.  American law has long valued both 
equality and accommodation of religious beliefs.   For many decades, it has 
valued equality in treatment by many nongovernmental actors (and incidentally 
in requiring certain nongovernmental actors to accommodate religious beliefs, 
but that isn't involved here).  The ACLU has likewise long valued both equality 
and accommodation of religious beliefs.

The difficulty is that the two often conflict.  Sometimes the legal system 
deals with this conflict by categorically prioritizing liberty (from government 
intrusion) over equality of treatment by nongovernmental actors.  For instance, 
the government may not tell people not to discriminate in marriage, or, I take 
it, in choice of friends, and no state laws purport to do that.  The government 
may not bar parade organizers from discriminating against gay-themed floats, 
and (more controversially) may not bar the Boy Scouts from discriminating 
against gay scoutmasters.  The Ninth Circuit recently interpreted California 
fair housing law as leaving people free to discriminate in choice of roommates, 
in part because of constitutional concerns.

Likewise, statutes often don't regulate even behavior that they 
constitutionally may regulate.  The Civil Rights Act of 1964, for instance, 
left the vast majority of businesses and professionals free to choose whom to 
deal with as customers; it defined regulated places of public accommodation 
quite narrowly.  Many state laws, though, have provided far broader coverage 
for the equality mandate, thus diminishing the business owners' liberty (and, 
in the process, religious liberty).

Other times the legal system deals with this conflict by categorically 
prioritizing equality of treatment over liberty; for instance, to my knowledge 
courts have consistently rejected religious exemption claims from employment 
discrimination laws, outside the context of (1) ministerial positions and (2) 
statutory exemptions (for instance, exemptions for religious institutions from 
bans on discrimination based on religion, and in some states based on sexual 
orientation).

Still other times, though rarely, courts have carved out religious exemptions 
under RFRAs and similar state constitutional exemption regimes; to my 
knowledge, this has only happened with regard to housing discrimination based 
on marital status.

How to resolve this is not, I think, easily answered either with assertions 
that "equality is a core American value" or that "religious freedom is a basic 
American value," or claims that the ACLU doesn't "value[] religious liberty" 
"for conservative faiths."  My sense is that we need to talk more specifically 
and concretely about the arguments for and against respecting equality and 
liberty in each instance.  (For instance, the argument for letting taxi cab 
drivers discriminate based on passengers' consumption of alcohol - a right that 
most other businesses enjoy, since it doesn't involve discrimination based on 
the passenger's religion, race, etc. - is different from the argument for 
letting landlords refuse to rent to atheists or from the argument for letting 
photographers choose which kinds of expressive works to create.)

My sense is that it might also be helpful to talk about the level of law at 
which a religious exemption regime is enacted.  A state statutory RFRA leaves 
the state legislature free to decide that some laws (including 
antidiscrimination laws) should be exempted from the RFRA, and to effectively 
overturn the results of court decisions that grant exemptions.  A state 
constitutional RFRA doesn't do that.  A federal statutory RFRA that binds state 
governments, and a federal Sherbert/Yoder regime, make it even harder for 
legislatures who feel strongly about the need for an exemption-less equality 
rule to implement those views into law.

Eugene


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionla

RE: Religious exemptions in ND

[Alan Brownstein]

Very well stated, Eugene. My compliments.



Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, June 14, 2012 7:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

Folks:  Again, perhaps it might be good to avoid the rhetoric 
and focus on the serious issues involved.  American law has long valued both 
equality and accommodation of religious beliefs.   For many decades, it has 
valued equality in treatment by many nongovernmental actors (and incidentally 
in requiring certain nongovernmental actors to accommodate religious beliefs, 
but that isn’t involved here).  The ACLU has likewise long valued both equality 
and accommodation of religious beliefs.

The difficulty is that the two often conflict.  Sometimes the legal system 
deals with this conflict by categorically prioritizing liberty (from government 
intrusion) over equality of treatment by nongovernmental actors.  For instance, 
the government may not tell people not to discriminate in marriage, or, I take 
it, in choice of friends, and no state laws purport to do that.  The government 
may not bar parade organizers from discriminating against gay-themed floats, 
and (more controversially) may not bar the Boy Scouts from discriminating 
against gay scoutmasters.  The Ninth Circuit recently interpreted California 
fair housing law as leaving people free to discriminate in choice of roommates, 
in part because of constitutional concerns.

Likewise, statutes often don’t regulate even behavior that they 
constitutionally may regulate.  The Civil Rights Act of 1964, for instance, 
left the vast majority of businesses and professionals free to choose whom to 
deal with as customers; it defined regulated places of public accommodation 
quite narrowly.  Many state laws, though, have provided far broader coverage 
for the equality mandate, thus diminishing the business owners’ liberty (and, 
in the process, religious liberty).

Other times the legal system deals with this conflict by categorically 
prioritizing equality of treatment over liberty; for instance, to my knowledge 
courts have consistently rejected religious exemption claims from employment 
discrimination laws, outside the context of (1) ministerial positions and (2) 
statutory exemptions (for instance, exemptions for religious institutions from 
bans on discrimination based on religion, and in some states based on sexual 
orientation).

Still other times, though rarely, courts have carved out religious exemptions 
under RFRAs and similar state constitutional exemption regimes; to my 
knowledge, this has only happened with regard to housing discrimination based 
on marital status.

How to resolve this is not, I think, easily answered either with assertions 
that “equality is a core American value” or that “religious freedom is a basic 
American value,” or claims that the ACLU doesn’t “value[] religious liberty” 
“for conservative faiths.”  My sense is that we need to talk more specifically 
and concretely about the arguments for and against respecting equality and 
liberty in each instance.  (For instance, the argument for letting taxi cab 
drivers discriminate based on passengers’ consumption of alcohol – a right that 
most other businesses enjoy, since it doesn’t involve discrimination based on 
the passenger’s religion, race, etc. – is different from the argument for 
letting landlords refuse to rent to atheists or from the argument for letting 
photographers choose which kinds of expressive works to create.)

My sense is that it might also be helpful to talk about the level of law at 
which a religious exemption regime is enacted.  A state statutory RFRA leaves 
the state legislature free to decide that some laws (including 
antidiscrimination laws) should be exempted from the RFRA, and to effectively 
overturn the results of court decisions that grant exemptions.  A state 
constitutional RFRA doesn’t do that.  A federal statutory RFRA that binds state 
governments, and a federal Sherbert/Yoder regime, make it even harder for 
legislatures who feel strongly about the need for an exemption-less equality 
rule to implement those views into law.

Eugene


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Religious exemptions in ND

[Volokh, Eugene]

Folks:  Again, perhaps it might be good to avoid the rhetoric 
and focus on the serious issues involved.  American law has long valued both 
equality and accommodation of religious beliefs.   For many decades, it has 
valued equality in treatment by many nongovernmental actors (and incidentally 
in requiring certain nongovernmental actors to accommodate religious beliefs, 
but that isn’t involved here).  The ACLU has likewise long valued both equality 
and accommodation of religious beliefs.

The difficulty is that the two often conflict.  Sometimes the legal system 
deals with this conflict by categorically prioritizing liberty (from government 
intrusion) over equality of treatment by nongovernmental actors.  For instance, 
the government may not tell people not to discriminate in marriage, or, I take 
it, in choice of friends, and no state laws purport to do that.  The government 
may not bar parade organizers from discriminating against gay-themed floats, 
and (more controversially) may not bar the Boy Scouts from discriminating 
against gay scoutmasters.  The Ninth Circuit recently interpreted California 
fair housing law as leaving people free to discriminate in choice of roommates, 
in part because of constitutional concerns.

Likewise, statutes often don’t regulate even behavior that they 
constitutionally may regulate.  The Civil Rights Act of 1964, for instance, 
left the vast majority of businesses and professionals free to choose whom to 
deal with as customers; it defined regulated places of public accommodation 
quite narrowly.  Many state laws, though, have provided far broader coverage 
for the equality mandate, thus diminishing the business owners’ liberty (and, 
in the process, religious liberty).

Other times the legal system deals with this conflict by categorically 
prioritizing equality of treatment over liberty; for instance, to my knowledge 
courts have consistently rejected religious exemption claims from employment 
discrimination laws, outside the context of (1) ministerial positions and (2) 
statutory exemptions (for instance, exemptions for religious institutions from 
bans on discrimination based on religion, and in some states based on sexual 
orientation).

Still other times, though rarely, courts have carved out religious exemptions 
under RFRAs and similar state constitutional exemption regimes; to my 
knowledge, this has only happened with regard to housing discrimination based 
on marital status.

How to resolve this is not, I think, easily answered either with assertions 
that “equality is a core American value” or that “religious freedom is a basic 
American value,” or claims that the ACLU doesn’t “value[] religious liberty” 
“for conservative faiths.”  My sense is that we need to talk more specifically 
and concretely about the arguments for and against respecting equality and 
liberty in each instance.  (For instance, the argument for letting taxi cab 
drivers discriminate based on passengers’ consumption of alcohol – a right that 
most other businesses enjoy, since it doesn’t involve discrimination based on 
the passenger’s religion, race, etc. – is different from the argument for 
letting landlords refuse to rent to atheists or from the argument for letting 
photographers choose which kinds of expressive works to create.)

My sense is that it might also be helpful to talk about the level of law at 
which a religious exemption regime is enacted.  A state statutory RFRA leaves 
the state legislature free to decide that some laws (including 
antidiscrimination laws) should be exempted from the RFRA, and to effectively 
overturn the results of court decisions that grant exemptions.  A state 
constitutional RFRA doesn’t do that.  A federal statutory RFRA that binds state 
governments, and a federal Sherbert/Yoder regime, make it even harder for 
legislatures who feel strongly about the need for an exemption-less equality 
rule to implement those views into law.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern
Sent: Thursday, June 14, 2012 7:01 PM
To: 'b...@jmcenter.org'; 'religionlaw@lists.ucla.edu'
Subject: Re: Religious exemptions in ND

In short,any accommodation of religion is a violation of the equal protection 
clause. This would certainly be a rather sharp departure from the "best" of the 
American tradition. And I guess I have been misinformed all these years in 
thinking religious freedom was a basic american value.
Bob's message does illustrate the sharp divide between an egalitarian 
understanding of the constitution and a liberty based one-a divide highlighted 
today when the aclu sent the senate a letter calling for a very narrow 
religious exemption from ENDA. There was a time the aclu valued religious 
liberty.
Apparently no longer for conservative faiths.
Marc

From: b...@jmcenter.org<mailto:b...@jmcenter.org> [mailto:b...@jmcen

Re: Religious exemptions in ND

[Marc Stern]

In short,any accommodation of religion is a violation of the equal protection 
clause. This would certainly be a rather sharp departure from the "best" of the 
American tradition. And I guess I have been misinformed all these years in 
thinking religious freedom was a basic american value.
Bob's message does illustrate the sharp divide between an egalitarian 
understanding of the constitution and a liberty based one-a divide highlighted 
today when the aclu sent the senate a letter calling for a very narrow 
religious exemption from ENDA. There was a time the aclu valued religious 
liberty.
Apparently no longer for conservative faiths.
Marc

From: b...@jmcenter.org [mailto:b...@jmcenter.org]
Sent: Thursday, June 14, 2012 09:12 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Religious exemptions in ND


Eugene,


Just to follow up on your point that some discrimination in the name of 
religion would possibly be tolerated under Measure 3 such as . . .

 1.  A pharmacist refusing to dispense Plan B.
 2.  A taxi cab driver refusing to transport a person with the smell of alcohol 
on his breath.
 3.  A professional photographer refusing to photograph an LGBT civil ceremony.
 4.  A landlord refusing to rent to an atheist.

Seems to me this is precisely why Measure 3 was defeated and RFRAs should be 
repealed -- because equality is a core American value.



Bob Ritter

On June 14, 2012 at 7:29 PM "Volokh, Eugene"  wrote:


Thanks for the pointer.  Out of this list at the ndagainst3.com site, the only 
item that seems at all plausible is that “people could break” certain “laws on 
non-discrimination,” though almost certainly not employment discrimination 
laws.  The other claims would either be almost certainly rejected under strict 
scrutiny, or (in some circumstances) would prevail even without a RFRA, for 
instance if a church employer is firing an unmarried pregnant minister or 
teacher of religion.



A man could be allowed to marry girls, as young as 12, in the name of religion.1

An employer could fire an unmarried pregnant woman simply because of the 
employer’s religious beliefs.2

A man could claim domestic violence laws don’t apply to him because his 
religion teaches that a husband has the right to discipline his family, 
including his wife and children as he sees fit.3

A parent who believes in faith healing could to deny critical medical treatment 
to a seriously ill child.4

Simply put, people could break our laws in the name of religious freedom, 
including laws on non-discrimination, domestic violence and child abuse.5



Eugene



> -Original Message-

> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach

> Sent: Thursday, June 14, 2012 1:42 PM

> To: Law & Religion issues for Law Academics

> Subject: RE: Religious exemptions in ND

>

>

> These appear to be some of the main arguments against passing the RFRA:

>

> http://ndagainst3.com/get-the-facts/

>

> As an example, this TV ad said that the RFRA would allow men to marry girls

> aged 12 and to beat their spouses:

>

> http://www.youtube.com/watch?v=14ngnqGR6e8

>

> There was also quite a bit of blog chatter about sharia law being enforced in

> North Dakota as a result of passing the RFRA.

>

> I did not see anything about Native Americans.


___
To post, send message to Religionlaw@lists.ucla.edu
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Religious exemptions in ND

[Roman P. Storzer]

I believe that New Mexico's speaks in terms of "restrict[ing] a person's
free exercise of religion."
 
Roman
 
Storzer & Greene, P.L.L.C. 
 
1025 Connecticut Avenue, Northwest
Suite One Thousand
Washington, D.C. 20011
Tel: (202) 857-9766
Fax: (202) 315-3996
 
110 Wall Street
Eleventh Floor
New York, N.Y. 10005
Tel: (212) 943-4343
Fax: (202) 315-3996

http://www.storzerandgreene.com http://www.storzerandgreene.com/> 
stor...@storzerandgreene.com mailto:stor...@storzerandgreene.com> 

  _  

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, June 14, 2012 9:32 PM
To: religionlaw@lists.ucla.edu; b...@jmcenter.org
Subject: Re: Religious exemptions in ND


Other than Conn and Alabama, I'm not aware of another state that eliminated
"substantial" from the formulation. 
Are there others?



I don't know that all bets would need to be off in any case, since other
state 

RFRAs have long used "burden" rather than "substantial burden," e.g. 

Connecticut's.





 
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
hamilto...@aol.com



-Original Message-
From: Eric Rassbach 
To: Law & Religion issues for Law Academics ;
bob 
Sent: Thu, Jun 14, 2012 9:26 pm
Subject: RE: Religious exemptions in ND






I don't know that all bets would need to be off in any case, since other
state 

RFRAs have long used "burden" rather than "substantial burden," e.g. 

Connecticut's.









From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] On 

Behalf Of Douglas Laycock [dlayc...@virginia.edu]

Sent: Thursday, June 14, 2012 9:15 PM

To: b...@jmcenter.org; Law & Religion issues for Law Academics

Subject: Re: Religious exemptions in ND



The Supreme Court of the United states would have had nothing to say about
the 

meaning of Measure 3. It would have been a state law issue.







On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)

 "b...@jmcenter.org"  wrote:

>Eric,

>

>Glad to see you focusing on the claims made with respect to Measure 3. I've


been

>counseling a nontheistic North Dakota group for over a year on Measure 3
and 

its

>predecessor. My primary concern has been the potential use of Measure 3 to

>legalize discrimination against atheists, members of minority religions and

>LGBT. Considering the fact that Justice Scalia doesn't believe the 

Establishment

>Clause protects atheists, Justice Thomas doesn't believe in incorporation
and

>six of nine justices self-identify themselves as Catholic, all bets are off


what

>would have benn protected by mere burden in Measure 3.

>

>Bob Ritter

>Jefferson Madison Center for Religious Liberty

>A Project of the Law Office of Robert V. Ritter

>Falls Church, VA

>703-533-0236

>

>

>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:

>

>>

>> These appear to be some of the main arguments against passing the RFRA:

>>

>> http://ndagainst3.com/get-the-facts/

>>

>> As an example, this TV ad said that the RFRA would allow men to marry
girls

>> aged 12 and to beat their spouses:

>>

>> http://www.youtube.com/watch?v=14ngnqGR6e8

>>

>> There was also quite a bit of blog chatter about sharia law being
enforced in

>> North Dakota as a result of passing the RFRA.

>>

>> I did not see anything about Native Americans.

>>

>>

>>



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

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Re: Religious exemptions in ND

[hamilton02]

Other than Conn and Alabama, I'm not aware of another state that eliminated 
"substantial" from the formulation.
Are there others?





I don't know that all bets would need to be off in any case, since other state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.





 
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
hamilto...@aol.com




-Original Message-
From: Eric Rassbach 
To: Law & Religion issues for Law Academics ; bob 

Sent: Thu, Jun 14, 2012 9:26 pm
Subject: RE: Religious exemptions in ND




I don't know that all bets would need to be off in any case, since other state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On 
Behalf Of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, June 14, 2012 9:15 PM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>>

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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RE: Religious exemptions in ND

[Eric Rassbach]

I don't know that all bets would need to be off in any case, since other state 
RFRAs have long used "burden" rather than "substantial burden," e.g. 
Connecticut's.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, June 14, 2012 9:15 PM
To: b...@jmcenter.org; Law & Religion issues for Law Academics
Subject: Re: Religious exemptions in ND

The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
>been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
>its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
>Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
>what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>>

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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Re: Religious exemptions in ND

[hamilton02]

Presumably the federal Establishment Clause would limit the reach of Measure 3.





 
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
hamilto...@aol.com




-Original Message-
From: Douglas Laycock 
To: bob ; Law & Religion issues for Law Academics 

Sent: Thu, Jun 14, 2012 9:17 pm
Subject: Re: Religious exemptions in ND


The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>> 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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Re: Religious exemptions in ND

[Douglas Laycock]

The Supreme Court of the United states would have had nothing to say about the 
meaning of Measure 3. It would have been a state law issue.



On Thu, 14 Jun 2012 20:50:43 -0400 (EDT)
 "b...@jmcenter.org"  wrote:
>Eric,
>
>Glad to see you focusing on the claims made with respect to Measure 3. I've 
>been
>counseling a nontheistic North Dakota group for over a year on Measure 3 and 
>its
>predecessor. My primary concern has been the potential use of Measure 3 to
>legalize discrimination against atheists, members of minority religions and
>LGBT. Considering the fact that Justice Scalia doesn't believe the 
>Establishment
>Clause protects atheists, Justice Thomas doesn't believe in incorporation and
>six of nine justices self-identify themselves as Catholic, all bets are off 
>what
>would have benn protected by mere burden in Measure 3.
>
>Bob Ritter
>Jefferson Madison Center for Religious Liberty
>A Project of the Law Office of Robert V. Ritter
>Falls Church, VA
>703-533-0236
>
>
>On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:
>
>>
>> These appear to be some of the main arguments against passing the RFRA:
>>
>> http://ndagainst3.com/get-the-facts/
>>
>> As an example, this TV ad said that the RFRA would allow men to marry girls
>> aged 12 and to beat their spouses:
>>
>> http://www.youtube.com/watch?v=14ngnqGR6e8
>>
>> There was also quite a bit of blog chatter about sharia law being enforced in
>> North Dakota as a result of passing the RFRA.
>>
>> I did not see anything about Native Americans.
>>
>>
>> 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546
___
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Re: Religious exemptions in ND

[b...@jmcenter.org]

Eugene,

Just to follow up on your point that some discrimination in the name of religion
would possibly be tolerated under Measure 3 such as . . .
1. A pharmacist refusing to dispense Plan B.
2. A taxi cab driver refusing to transport a person with the smell of alcohol on
his breath.
3. A professional photographer refusing to photograph an LGBT civil ceremony.
4. A landlord refusing to rent to an atheist.
Seems to me this is precisely why Measure 3 was defeated and RFRAs should be
repealed -- because equality is a core American value.

Bob Ritter


On June 14, 2012 at 7:29 PM "Volokh, Eugene"  wrote:


> 
>  Thanks for the pointer.  Out of this list at the ndagainst3.com site, the
> only item that seems at all plausible is that “people could break” certain
> “laws on non-discrimination,” though almost certainly not employment
> discrimination laws.  The other claims would either be almost certainly
> rejected under strict scrutiny, or (in some circumstances) would prevail even
> without a RFRA, for instance if a church employer is firing an unmarried
> pregnant minister or teacher of religion.
> 
> 
> 
>  A man could be allowed to marry girls, as young as 12, in the name of
> religion.1
> 
>  An employer could fire an unmarried pregnant woman simply because of the
> employer’s religious beliefs.2
> 
>  A man could claim domestic violence laws don’t apply to him because his
> religion teaches that a husband has the right to discipline his family,
> including his wife and children as he sees fit.3
> 
>  A parent who believes in faith healing could to deny critical medical
> treatment to a seriously ill child.4
> 
>  Simply put, people could break our laws in the name of religious freedom,
> including laws on non-discrimination, domestic violence and child abuse.5
> 
> 
> 
>  Eugene
> 
> 
> 
>  > -Original Message-
> 
>  > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> 
>  > boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> 
>  > Sent: Thursday, June 14, 2012 1:42 PM
> 
>  > To: Law & Religion issues for Law Academics
> 
>  > Subject: RE: Religious exemptions in ND
> 
>  >
> 
>  >
> 
>  > These appear to be some of the main arguments against passing the RFRA:
> 
>  >
> 
>  > http://ndagainst3.com/get-the-facts/ <http://ndagainst3.com/get-the-facts/>
> 
>  >
> 
>  > As an example, this TV ad said that the RFRA would allow men to marry girls
> 
>  > aged 12 and to beat their spouses:
> 
>  >
> 
>  > http://www.youtube.com/watch?v=14ngnqGR6e8
>  > <http://www.youtube.com/watch?v=14ngnqGR6e8>
> 
>  >
> 
>  > There was also quite a bit of blog chatter about sharia law being enforced
>  > in
> 
>  > North Dakota as a result of passing the RFRA.
> 
>  >
> 
>  > I did not see anything about Native Americans.
> 
___
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RE: Religious exemptions in ND

[b...@jmcenter.org]

Eric,

Glad to see you focusing on the claims made with respect to Measure 3. I've been
counseling a nontheistic North Dakota group for over a year on Measure 3 and its
predecessor. My primary concern has been the potential use of Measure 3 to
legalize discrimination against atheists, members of minority religions and
LGBT. Considering the fact that Justice Scalia doesn't believe the Establishment
Clause protects atheists, Justice Thomas doesn't believe in incorporation and
six of nine justices self-identify themselves as Catholic, all bets are off what
would have benn protected by mere burden in Measure 3.

Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236


On June 14, 2012 at 4:42 PM Eric Rassbach  wrote:

>
> These appear to be some of the main arguments against passing the RFRA:
>
> http://ndagainst3.com/get-the-facts/
>
> As an example, this TV ad said that the RFRA would allow men to marry girls
> aged 12 and to beat their spouses:
>
> http://www.youtube.com/watch?v=14ngnqGR6e8
>
> There was also quite a bit of blog chatter about sharia law being enforced in
> North Dakota as a result of passing the RFRA.
>
> I did not see anything about Native Americans.
>
>
> ___
To post, send message to Religionlaw@lists.ucla.edu
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Religious exemptions in ND

[Volokh, Eugene]

Thanks for the pointer.  Out of this list at the ndagainst3.com site, the only 
item that seems at all plausible is that "people could break" certain "laws on 
non-discrimination," though almost certainly not employment discrimination 
laws.  The other claims would either be almost certainly rejected under strict 
scrutiny, or (in some circumstances) would prevail even without a RFRA, for 
instance if a church employer is firing an unmarried pregnant minister or 
teacher of religion.



A man could be allowed to marry girls, as young as 12, in the name of religion.1

An employer could fire an unmarried pregnant woman simply because of the 
employer's religious beliefs.2

A man could claim domestic violence laws don't apply to him because his 
religion teaches that a husband has the right to discipline his family, 
including his wife and children as he sees fit.3

A parent who believes in faith healing could to deny critical medical treatment 
to a seriously ill child.4

Simply put, people could break our laws in the name of religious freedom, 
including laws on non-discrimination, domestic violence and child abuse.5



Eugene



> -Original Message-

> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

> boun...@lists.ucla.edu] On Behalf Of Eric Rassbach

> Sent: Thursday, June 14, 2012 1:42 PM

> To: Law & Religion issues for Law Academics

> Subject: RE: Religious exemptions in ND

>

>

> These appear to be some of the main arguments against passing the RFRA:

>

> http://ndagainst3.com/get-the-facts/

>

> As an example, this TV ad said that the RFRA would allow men to marry girls

> aged 12 and to beat their spouses:

>

> http://www.youtube.com/watch?v=14ngnqGR6e8

>

> There was also quite a bit of blog chatter about sharia law being enforced in

> North Dakota as a result of passing the RFRA.

>

> I did not see anything about Native Americans.
___
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RE: Religious exemptions in ND

[Eric Rassbach]

These appear to be some of the main arguments against passing the RFRA:

http://ndagainst3.com/get-the-facts/

As an example, this TV ad said that the RFRA would allow men to marry girls 
aged 12 and to beat their spouses:

http://www.youtube.com/watch?v=14ngnqGR6e8

There was also quite a bit of blog chatter about sharia law being enforced in 
North Dakota as a result of passing the RFRA.

I did not see anything about Native Americans.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
On Behalf Of Finkelman, Paul  
[paul.finkel...@albanylaw.edu]
Sent: Thursday, June 14, 2012 4:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: Religious exemptions in ND

I posted something  briefly from my droid that was short, but now raise it more 
completely.  Is there any evidence that the defeat in ND was at least in part 
about Indian religious freedom. There is some serious tension between Indians 
and non-Indians in ND and since the whole issue of RFRA came out of Oregon's 
hostility to the Native American Church  -- Oregon could easily have gone the 
other way just on the fact of Smith -- I wonder if there is some sense that 
this issue was present in ND as well.

Paul



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkel...@albanylaw.edu<mailto:paul.finkel...@albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com>
*


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Vance R. Koven [vrko...@gmail.com]
Sent: Thursday, June 14, 2012 1:57 PM
To: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse

I think someone needs to raise a word in defense of Marci here. The perspective 
of someone who actively litigates these cases has to be different from that of 
someone who sits in an office reading the decisions and synthesizing the 
rationales of the cases.

The fact that religious-institution defendants raise RFRAs as a defense to 
causes of action or to discovery means that the plaintiffs have to go to that 
much more work (and legal expense) to counter the arguments. In that sense, 
whether the defenses "work" or not, there is an additional burden on litigants 
in having that extra string on the defendant's bow.

That said, the fact that RFRA-based claims don't succeed very well may over 
time cause them to wither as a tactic, especially if plaintiffs can whack the 
defendants with Rule 11 sanctions for putting them to that bother. And, of 
course, this additional burden on plaintiffs may itself not be sufficient to 
outweigh the benefits that RFRAs have in terms of facilitating non-violent 
religious practice and conscience.

I just wanted to add an observation about the fact that "everyone agrees" that 
child (and female) abuse is "indefensible." This is true in a sense, but the 
definition of these things matters. Marci's citing the LDS as one of the 
black-hat institutions raises a red flag that maybe an unsophisticated and 
tendentious notion of "abuse" is doing too much work in this discussion--there 
are practices that many sincere believers do not consider abusive that have 
become part of the culture wars. To the extent that RFRAs force courts to 
recognize the potential conscientious validity of these practices, and weigh 
the countervailing government interest, they can help prevent  anti-religious 
(or anti-denominational) lynch mobs from having free rein. You shouldn't be 
permitted to just wave your hand in a culturally biased way at a broad spectrum 
of practices and call them all abusive because they're not the norm in New York 
10025 or Cambridge 02138.

Vance

On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:
I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997).  If that's the poster 
child for why RFRAs are bad, it's not much of a poster.  In the first place, it 
didn't involve a RFRA at all, just the First Amendment, with which we're stuck 
for better or for worse.

First, motions to dismiss claims of battery, negligent infliction of emotional 
distress, and intentional infliction of emotional distress against the priest 
were denied by the lower courts, and these decisions were not reviewed by the 
Missouri Supreme Court.

the court did dismiss claims of negligent hiring or ordination of clergy, 
negligent failure to supervise clergy, negligent infliction of emotional 
distress by clergy, and independent negligence by the diocese on First 
Amendment grounds.  Some of those rulings may have been to

RE: Religious exemptions in ND

[Finkelman, Paul]

I posted something  briefly from my droid that was short, but now raise it more 
completely.  Is there any evidence that the defeat in ND was at least in part 
about Indian religious freedom. There is some serious tension between Indians 
and non-Indians in ND and since the whole issue of RFRA came out of Oregon's 
hostility to the Native American Church  -- Oregon could easily have gone the 
other way just on the fact of Smith -- I wonder if there is some sense that 
this issue was present in ND as well.

Paul



*
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
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From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Vance R. Koven [vrko...@gmail.com]
Sent: Thursday, June 14, 2012 1:57 PM
To: Law & Religion issues for Law Academics
Subject: Re: Religious exemptions and child sexual abuse

I think someone needs to raise a word in defense of Marci here. The perspective 
of someone who actively litigates these cases has to be different from that of 
someone who sits in an office reading the decisions and synthesizing the 
rationales of the cases.

The fact that religious-institution defendants raise RFRAs as a defense to 
causes of action or to discovery means that the plaintiffs have to go to that 
much more work (and legal expense) to counter the arguments. In that sense, 
whether the defenses "work" or not, there is an additional burden on litigants 
in having that extra string on the defendant's bow.

That said, the fact that RFRA-based claims don't succeed very well may over 
time cause them to wither as a tactic, especially if plaintiffs can whack the 
defendants with Rule 11 sanctions for putting them to that bother. And, of 
course, this additional burden on plaintiffs may itself not be sufficient to 
outweigh the benefits that RFRAs have in terms of facilitating non-violent 
religious practice and conscience.

I just wanted to add an observation about the fact that "everyone agrees" that 
child (and female) abuse is "indefensible." This is true in a sense, but the 
definition of these things matters. Marci's citing the LDS as one of the 
black-hat institutions raises a red flag that maybe an unsophisticated and 
tendentious notion of "abuse" is doing too much work in this discussion--there 
are practices that many sincere believers do not consider abusive that have 
become part of the culture wars. To the extent that RFRAs force courts to 
recognize the potential conscientious validity of these practices, and weigh 
the countervailing government interest, they can help prevent  anti-religious 
(or anti-denominational) lynch mobs from having free rein. You shouldn't be 
permitted to just wave your hand in a culturally biased way at a broad spectrum 
of practices and call them all abusive because they're not the norm in New York 
10025 or Cambridge 02138.

Vance

On Thu, Jun 14, 2012 at 12:15 PM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:
I've just read Gibson v Brewer, 952 SW.2d 23 (Mo.1997).  If that's the poster 
child for why RFRAs are bad, it's not much of a poster.  In the first place, it 
didn't involve a RFRA at all, just the First Amendment, with which we're stuck 
for better or for worse.

First, motions to dismiss claims of battery, negligent infliction of emotional 
distress, and intentional infliction of emotional distress against the priest 
were denied by the lower courts, and these decisions were not reviewed by the 
Missouri Supreme Court.

the court did dismiss claims of negligent hiring or ordination of clergy, 
negligent failure to supervise clergy, negligent infliction of emotional 
distress by clergy, and independent negligence by the diocese on First 
Amendment grounds.  Some of those rulings may have been too broad.

But it allowed a claim of intentional failure to supervise clergy to go 
forward, rejecting the diocese's First Amendment defense.

It also dismissed a respondeat superior claim against the diocese, based on 
ordinary principles of Missouri respondeat superior law that would apply to any 
employer.  Missouri respondeat superior law appears to be narrower than, e.g., 
DC law, where the claim probably would have been allowed to proceed, but that 
has nothing to do with religion.   Likewise, it found no First Amendment bar to 
a claim of intentional infliction of emotional distress by the diocese, but 
dismissed that claim because the allegations of the complaint did not state a 
claim under state law.

It would be interesting to know what happened on remand to the claims against 
the priest and the claim against the diocese for intentional failure to 
s