Re: Religion and Alabama Tax Law
Dear James, You make a compelling argument, but I find myself troubled by it. After Smith and Lukumi, it appears that the Court has saved for heightened scrutiny at least that government action that targets a religion. At what point in a putative range of motivations can we ~ in a principled way, plausibly and convincingly ~ disentangle targeting from motive? Perplexed, Louise At 08:31 AM 6/11/03, you wrote: Does motive ever enter into the equation? Isn't the analysis a question of intended effect or consequences? So long as the effect is one that can exist independently from religion, the fact that the motivation is religious ought not matter. After all, most legislators who vote for statutes making murder a crime do so, at least in part, because of a religious conviction that murder is wrong. Otherwise, all laws that are or can be religiously motivated would be rejected. There wouldn't be much left. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/10/03 11:30PM Here are the first two paragraphs of a NY Times story. Full text at http://www.nytimes.com/2003/06/10/opinion/10TUE4.html. Does anyone think Gov. Riley's proposals violate the Establishment Clause because they are directly motivated by his religion? I don't. What Would Jesus Do? Sock It to Alabama's Corporate Landowners By ADAM COHEN MONTGOMERY, Ala. If the religious right had called up Central Casting last year to fill the part of governor, it could hardly have done better than the teetotaling, Bible-quoting businessman from rural central Alabama who now heads up the state. As a Republican congressman, Bob Riley had a nearly perfect record of opposing any legislation supported by the liberal Americans for Democratic Action. But Governor Riley has stunned many of his conservative supporters, and enraged the state's powerful farm and timber lobbies, by pushing a tax reform plan through the Alabama Legislature that shifts a significant amount of the state's tax burden from the poor to wealthy individuals and corporations. And he has framed the issue in starkly moral terms, arguing that the current Alabama tax system violates biblical teachings because Christians are prohibited from oppressing the poor. ... Mark Scarberry Pepperdine
Re: Teacher Fights for Right to Teach Religion After School
The act does not in terms do so,but the Supreem Court in Mergens read the provisions about teacher participation as a prohibition. Marc Stern -Original Message-From: Law Religion issues for Law Academics [mailto:[EMAIL PROTECTED]On Behalf Of Bradley P JacobSent: Wednesday, June 11, 2003 12:34 PMTo: [EMAIL PROTECTED]Subject: Re: Teacher Fights for Right to Teach Religion After School I don't have the text of the EAA in front of me and haven't looked at it in a while, but my recollection is that it does NOT forbid teachers from playing a substantive role in Equal Access clubs; rather, it creates a "safe harbor" provision making it clear that non-substantive teacher supervision is protected by the Act. If the teacher is involved in a more substantive way, the Act is silent and, presumably, we would look to Establishment Clause case law for an answer. Dr. Paterson, is my recollection of the Act mistaken? Does it say that teachers may not participate? Brad Jacob -Original Message-From: Law Religion issues for Law Academics [mailto:[EMAIL PROTECTED]On Behalf Of [EMAIL PROTECTED]Sent: Wednesday, June 11, 2003 12:26 PMTo: [EMAIL PROTECTED]Subject: Re: Teacher Fights for Right to Teach Religion After SchoolRecognizing that the cons.. trumps statutes, what about the Equal Access Act? Doesn't this, and by extension, the Milford decision, do an end-run around its no control/regular attendance by outsiders and teachers cannot participate provisions. Of course, the EAA was intended to govern student clubs in secondary schools, but it seems that you can't have in an elementary school what Congress forbade in secondary schools. Is this logical? Did Congress not intend to prevent outsiders from initiating and controlling clubs, i.e., making satellite Sunday schools in public school settings. Is the EAA unconstitutional because it discriminates against religious clubs, i.e., a teacher-sponsor can play chess in chess club but not pray with the Fellowship of Christian Athletes? Frances R. A. Paterson, J.D., Ed.D. Associate Professor (school law) Department of Educational Leadership Valdosta State University Valdosta, GA 31698-0090
Re: Religion and Alabama Tax Law
Dear James, Yes, in the Establishment Clause cases probably all of the Lemon tests and endorsement and neutrality can be helpful, and an effects test, as you say, would take in most if not all of this. The point I was making was that your remark that motive never counts does not work as well when we are talking about Free Exercise. There, the reservation in Smith for Lukumi targeting seems to me to require an objective determination of legislative intention in the sense of the teleos or point or function or purpose of the legislation. To be sure, that is very different from actual or even aggregate actual motive. Best, Louise At 11:51 AM 6/11/03, you wrote: Louise, If the effect isn't the establishment of religion, motive ought not matter. If the effect is primarily the establishment of religion, the statute's out. If the effect is secondarily or tangentially the establishment of religion (e.g., a statute concerning capital punishment gets people talking about Judeo-Christian culture), then motive would be a factor in determining purpose or intent. I think this is in accord with what you've suggested. Jim Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/11/03 10:23AM Dear James, What you say suggests to me that what courts should not consider is the motive of individual legislators, or their aggregated actual motive, perhaps. This suggests, further, that, when divining the intent or purpose of the legislation, apparently the method must be more objective and teleological. Individual expressions of motive would retain evidentiary value, but a court would glean from many sources the purpose or intention of the legislation. Does this sound right? This might be one way to save targeting for heightened scrutiny while eliminating actual motive. Louise At 08:55 AM 6/11/03, you wrote: If a legislator says The only reason I vote for a statute making murder a crime is my religious belief is that vote not valid? Or, if all the legislators say that is the statute invalid? Does it matter that there are non-religious motives that COULD have been invoked and the fact these particular legislators ignore those motives enough to rescue the statute? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/11/03 09:36AM Dear James, You make a compelling argument, but I find myself troubled by it. After Smith and Lukumi, it appears that the Court has saved for heightened scrutiny at least that government action that targets a religion. At what point in a putative range of motivations can we ~ in a principled way, plausibly and convincingly ~ disentangle targeting from motive? Perplexed, Louise At 08:31 AM 6/11/03, you wrote: Does motive ever enter into the equation? Isn't the analysis a question of intended effect or consequences? So long as the effect is one that can exist independently from religion, the fact that the motivation is religious ought not matter. After all, most legislators who vote for statutes making murder a crime do so, at least in part, because of a religious conviction that murder is wrong. Otherwise, all laws that are or can be religiously motivated would be rejected. There wouldn't be much left. Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/10/03 11:30PM Here are the first two paragraphs of a NY Times story. Full text at http://www.nytimes.com/2003/06/10/opinion/10TUE4.html. Does anyone think Gov. Riley's proposals violate the Establishment Clause because they are directly motivated by his religion? I don't. What Would Jesus Do? Sock It to Alabama's Corporate Landowners By ADAM COHEN MONTGOMERY, Ala. If the religious right had called up Central Casting last year to fill the part of governor, it could hardly have done better than the teetotaling, Bible-quoting businessman from rural central Alabama who now heads up the state. As a Republican congressman, Bob Riley had a nearly perfect record
Re: Teacher Fights for Right to Teach Religion After School
--- Mark Graber [EMAIL PROTECTED] wrote: Professor Duncan writes, I think that parents don't need federal courts or school boards to protect their children from after school programs in which the parents wish to enroll their children. We are wandering into sociology here, though relevant to constitutional law. Here the issue is whether it is reasonable for a court to believe otherwise. I'll simply relate an experience and ask others whether they have similar reactions. Quite frequently, my children came home from elementary school with information on American history and even the constitution that I thought was wrong. The vast percentage of the time, they sided with the teacher (and not simply because doing so was obviously the best strategy for grades). If Ms. Smith tells the fourth grade that Herbert Hoover was president in 1924 and I do not have four books handy to refute that claim, my kids and many others that I know, will believe Ms. Smith other their parents. Again, this is anecdotal and none of us are experts. What I can say is this phenomenon seems sufficiently widespread as to justify a school rule prohibiting Ms. Smith from teaching religion (or advocating gay rights) in the school at 3:00. Mark A. Graber I agree with Mark that the public schools constantly indoctrinate our children in whatever ideologies and values the school board wishes to impose. That is why I think school choice is *required* by a proper understanding of freedom of thought under the First Amendment. But during the after school hours, parents do indeed have the right of choice. Parents who do not trust Mrs. Smith (or who do not trust public school teachers as a class) can refuse to consent to their children's participation in Good News Club. That should be sufficient to protect the children from any proper concern of the EC. However, there is no reason to forbid Mrs. Smith from after school association with children whose parents have chosen to enroll them in her program. That is for the parents to decide. --Rick = Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 Politics is not a bad profession. If you succeed there are many rewards, if you disgrace yourself you can always write a book. Ronald Reagan __ Do you Yahoo!? Yahoo! Calendar - Free online calendar with sync to Outlook(TM). http://calendar.yahoo.com
Re: Religion and Alabama Tax Law
Louise, Sure, the free exercise side presents a different set of analyses. I had limited my brain's work to establishment because that's what the original set of facts had suggested. That is, a tax law that incorporates (and arguably establishes though I don't think it does) a religious principle as part of economic regulation. Maybe there's a free exercise issue, namely, that such a tax law (tax the rich) prevents free exercise of a theological belief system that has as one of its tenets the taxation of the poor to support the rich. There may be some of those around; there were many in ancient days. On this side, yes, my descriptions don't work. Jim Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/11/03 02:14PM Dear James, Yes, in the Establishment Clause cases probably all of the Lemon tests and endorsement and neutrality can be helpful, and an effects test, as you say, would take in most if not all of this. The point I was making was that your remark that motive never counts does not work as well when we are talking about Free Exercise. There, the reservation in Smith for Lukumi targeting seems to me to require an objective determination of legislative intention in the sense of the teleos or point or function or purpose of the legislation. To be sure, that is very different from actual or even aggregate actual motive. Best, Louise At 11:51 AM 6/11/03, you wrote: Louise, If the effect isn't the establishment of religion, motive ought not matter. If the effect is primarily the establishment of religion, the statute's out. If the effect is secondarily or tangentially the establishment of religion (e.g., a statute concerning capital punishment gets people talking about Judeo-Christian culture), then motive would be a factor in determining purpose or intent. I think this is in accord with what you've suggested. Jim Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/11/03 10:23AM Dear James, What you say suggests to me that what courts should not consider is the motive of individual legislators, or their aggregated actual motive, perhaps. This suggests, further, that, when divining the intent or purpose of the legislation, apparently the method must be more objective and teleological. Individual expressions of motive would retain evidentiary value, but a court would glean from many sources the purpose or intention of the legislation. Does this sound right? This might be one way to save targeting for heightened scrutiny while eliminating actual motive. Louise At 08:55 AM 6/11/03, you wrote: If a legislator says The only reason I vote for a statute making murder a crime is my religious belief is that vote not valid? Or, if all the legislators say that is the statute invalid? Does it matter that there are non-religious motives that COULD have been invoked and the fact these particular legislators ignore those motives enough to rescue the statute? Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist Genealogist (www.maulefamily.com) [EMAIL PROTECTED] 06/11/03 09:36AM Dear James, You make a compelling argument, but I find myself troubled by it. After Smith and Lukumi, it appears that the Court has saved for heightened scrutiny at least that government action that targets a religion. At what point in a putative range of motivations can we ~ in a principled way, plausibly and convincingly ~ disentangle targeting from motive? Perplexed, Louise At 08:31 AM 6/11/03, you wrote: Does motive ever enter into the equation? Isn't the analysis a question of intended effect or consequences? So long as the effect is one that can exist independently from religion, the fact that the motivation is religious ought not matter. After all, most legislators who vote for statutes making murder a crime do so, at least in part, because of a religious conviction that murder is wrong. Otherwise, all laws that are or can be
Re: Teacher Fights for Right to Teach Religion After School
Title: RE: Teacher Fights for Right to Teach Religion After School But there is the rub, Rick, does the disclaimer do what you say that it does? I don't think so. To focus on parents and ignore impressionable children, peer pressure, stigma and other forms of psychological harm is problematic. To the typical child, I suspect, the teacher does not stop being a teacher merely because the shcool day is over. On the other hand, I can see no solid EC objection if the teacher teaches religion in some program or another that doesn't begin until school has been out for a few hours. What is so unseemly and what betrays, I fear, your argument, is this mad rush to teach religion as soon as school is over, a patently transparent attempt to blur the distinction between school and after-school events. It is too bad that the majority didn't get it in Good News, but that case is distinguishable and perhaps a Santa Fe majority would come together to say so. (Of course I cover this general point at great length in my religion in school article.) -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED]] Sent: Wednesday, June 11, 2003 3:15 PM To: [EMAIL PROTECTED] Subject: Re: Teacher Fights for Right to Teach Religion After School --- Newsom, Michael [EMAIL PROTECTED] wrote: If a disclaimer is enough, Rick, then I take it that you find no EC objection if the federal government decides to provide whopping amounts of financial assistance to Bahai's, but issues a disclaimer that it is not really preferring Baha'is. This can't possibly be right, can it? Once the school day is done the teacher is no longer acting as an agent of the state. The disclaimer simply eliminates anyone from mistaking her private participation as that of the state. Direct preferential payments of govt. funds to a religious group are clearly attributable to the state for purposes of the EC. A disclaimer can not alter the facts; its purpose is to make the fact that Mrs. Smith is acting in her private capacity clear to the parents when deciding whether to enroll their children in the private, after school club. Or how about this? A teacher is free to lead prayer in her classroom, students have the right to opt out, and the school issues a disclaimer. Apart from the fact that the caselaw would seem to hold that we have an EC violation here, would you find this acceptable? Again, when acting as a teacher during the school day, the teacher is an agent of the state and therefore may not *in that capacity* lead the class in voluntary prayer. But again, once the school day is done, Mrs. Smith-the-private-citizen is free to lead a Good News Club, so long as a disclaimer makes clear that the school is not endorsing or sponsoring the club. Rick -Original Message- From: Rick Duncan [mailto:[EMAIL PROTECTED]] Sent: Wednesday, June 11, 2003 1:51 PM To: [EMAIL PROTECTED] Subject: Re: Teacher Fights for Right to Teach Religion After School --- Levinson [EMAIL PROTECTED] wrote: I confess I find it batty to say that it is sufficient if the parents realize that the state is not endorsing an activity even if the highly impressionable children continue to regard their beloved Ms. Smith, who teaches them reading, writing, and arithmetic for seven hours/day, as an authority figure when she moves, at 3:30 into another room to spread the good news about salvation. It is not Rick, I hasten to add, who is batty, but, rather the Supreme Court if this is indeed what they said in the Good News case. Well, Sandy, as Emily Dickinson might have said, I must be batty too, because I think that parents don't need federal courts or school boards to protect their children from after school programs in which the parents wish to enroll their children. A disclaimer sent to the parents is all that we need to protect any conceivable EC interest. The fact is that this is a private program and Mrs. Smith is a private citizen participating on her own time. The children are participating only because their parents have given permission after full disclosure about the nature of Mrs. Smith's participation and the school's non-endorsement. No one is harmed by this program. The children are protected by their parents (and by Mrs. Smith, who is beloved not because she works for the government during the school day, but because she is a kind and loving person). There is no reason in law or in justice to deny Mrs. Smith the opportunity to participate in this program and the children the opportunity to associate with Mrs. Smith, their beloved friend and fellow citizen. --Rick sandy -Original Message- From: Rick Duncan [EMAIL PROTECTED] To: [EMAIL PROTECTED] Date: Wed, 11 Jun 2003 09:43:49 -0700 Subject: Re: Teacher Fights for Right to Teach Religion After School --- Levinson [EMAIL PROTECTED] wrote: I think that the age of the kids matters. I think
Re: Teacher Fights for Right to Teach Religion After School
Rick Duncan writes Once the school day is done the teacher is no longer acting as an agent of the state. I disagree. As a factual matter teachers frequently act as state agents even though the bell has rung and students have gone home. Typically, teachers are required to be at school past the bell (and before the first bell), they attend PTA/PTO meetings, meet with parents (perhaps at a time past their on-campus hours at specially scheduled time), they attend athletic events as school employees rather than community members. So, in my opinion, it is not such a bright line (as Rick sees) between state agent and acting in one's private capacity. Moreover, it is not a bright line to my students, administrators and educators who aspire to be administrators so I am inclined to believe that students, even secondary school students, would not be entirely able to make the distinction. I tell my students to think about why they are there. Praying at the flagpole at your daughter's school--fine--at your own school, you are there because of your employment and that makes you an agent of the state even though the bell may not ring for five minutes. BTW, Charles answered the EAA provision question before I got back from the vet's. Frances R. A. Paterson, J.D., Ed.D. Associate Professor (school law) Department of Educational Leadership Valdosta State University Valdosta, GA 31698-0090
Re: Spirit of Satan case
It's been a long time since I studied the tort of defamation, but back in the day there was some movement away from the fact/opinion disctinction as too artificial. Perhaps Iowa has gone that direction? Steve On Wednesday, June 11, 2003, at 07:28 PM, Volokh, Eugene wrote: I just read the opinion, , and I'm puzzled by one thing: Even if has the spirit of Satan has a secular meaning -- which, I take it, is that the target is an evil person -- the meaning still seems to be an expression of pure opinion. If you call me evil, I have no cause of action unless the statement communicates some unexpressed false statements of fact (e.g., in context it's clear that you're calling me evil because you think I committed some specific bad act). The Iowa Supreme Court opinion didn't point to any factual connotation that the has the spirit of Satan remark had. Am I just missing the particular factual allegation? Or, if I'm not, then why would such an allegation be actionable defamation, whether said entirely to fellow congregants or to noncongregants, and whether it's a purely religious opinion or a secular opinion? Eugene -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
