Marty makes an excellent point that the pledge case can be distinguished
from McCreary County and many other Establishment Clause cases because it
deals with religion in the public schools.
Footnote 22 may not only have been unnecessary, however, it is
unfortunate for another reason. Constitution
t
says it was
> wrong for the lower court to have reached the merits. Treating
a decision
> that wrongly reached the merits as BINDING seems fishy, at
best. Guess
> I'll have to look up the lower court law on prudential
reversals.
>
> David B. Cruz
> Professor of Law
>
I'm not sure Steve's right. There are two things the Ninth Circuit knows
now that it did not know when it decided the Newdow case. First, it knows
that Newdow was unable to persuade O'Connor on the merits. How many
government display or prayer cases get struck down on establishment
clause grounds
The story is correct. The Supreme Court did not vacate the Ninth
Circuit's decision in Newdow. It reversed it. The District Judge in the
new case argues that a reversal on prudential standing grounds does not
disturb the merits of the Ninth Circuit decision as precedent. "In
sum, because a court
One question that has always bothered me about these hair length standards
in prisons is whether prisons require female inmates to wear their hair as
short as males inmates. Presumably, hiding contraband isn't something that
only male inmates do. If women prisoners are permitted to wear their ha
I guess I disagree with just about all of your points, Brad.
I think a commencement speaker or valedictorian can say a great deal that
is meaningful and substantive without being offensive. Certainly that has
been my experience. It may take more time and effort to prepare that kind
of a talk -
I don't spend a lot of time worrying about the exact words government
officials use to respond to catastrophes, but Art makes a very legitimate
point here. It's not hard to come up with language that is inclusive.
When we face disasters as a people, and feel the need to speak as a
people, an
rs concerning religious
liberty). I think that voucher opponents need to explain why an exclusion
like the effective exclusion of Rick's daughter from public-school teaching
is not as serious a problem as other kinds.
Tom Berg
University of St. Thomas (Minnesota)
_
From: A.E. Brown
I don't know anything about the particular classes at issue in this law
suit. But I do know that in the student planners at the junior high schools
and high school in California where I live, each class will be identified
as to whether it is on the UC or CSU approved course list, whether approva
s, private schools. To me this seems
like a win-win scenario for my daughter as well as for yours.
Cheers, Rick Duncan
"A.E. Brownstein" <[EMAIL PROTECTED]> wrote:
I won't go into all the conventional arguments about why government funding
of religious schools and other
I won't go into all the conventional arguments about why government funding
of religious schools and other social service programs is problematic. I
know Rick and the other list members are familiar with these arguments,
even though they are not persuaded by them.
But to keep the focus on the
I think "religious apartheid" and "religious fragmentation" have very
different meanings.
But putting that issue aside for the moment, the questions Tom asks are
certainly fair and important ones.
I certainly don't know if there is significant empirical literature that
responds to his question
do people think other
factors began to enter in?
Richard Dougherty
-- Original Message --
From: "A.E. Brownstein" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics
Date: Tue, 23 Aug 2005 15:09:37 -0700
>I appre
ic schools accept lower taxes (with
consequent belt-tightening at schools) and more stay-at-home mothers if
those prove to be necessary in practice to increase family time and thus
reduce the moral-teaching responsibilities (and pressures) placed on public
schools? I have my doubts.
Tom Berg
attribute to Alan such a lack of sympathy).
Tom Berg
University of St. Thomas School of Law (Minnesota)
_
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Tue 8/23/2005 10:56 AM
To: Law & Religion issues for Law Academics
Subject: RE: Hostility
Yes. But I think I have been cons
I don't want to belabor the point since no one else is joining this thread
--- but let me take one more shot at explaining why I don't get Eugene's
point -- despite his very good efforts to help me understand his position.
Then I'll give him the last word and end the dialogue.
Eugene writes:
that is
sufficient to avoid the constitutional challenge -- then it seems to me
that purpose analysis can always be circumvented. All the government ever
has to do is say that its purpose is to do what the majority wants. There
is certainly an argument to that effect. But it extends way beyond the
igent design
scientists. I'm introspective enough to know that all these reasons are
doubtless connected, and may well reinforce each others. But I haven't
the foggiest notion of which is 'primary.'" What do we do?
Eugene
> -Original Message-
> From: [
en if important) subjects like
sex education, tolerance, values clarification, and so on -- as so many now
do?
Tom Berg
University of St. Thomas School of Law (Minnesota)
_____
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Mon 8/22/2005 11:42 AM
To: Law & Religion issues for Law Ac
the cost/benefit analysis for
each one.
Eugene
> -Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E.
> Brownstein
> Sent: Sunday, August 21, 2005 5:41 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: S
But the tensions created by pluralism are not limited to schools. They
extend throughout society. And the movement toward "going our separate
ways" isn't limited to schools, it extends to many other public programs
(see, e.g. charitable choice). In theory, it could apply to almost the
entire pu
No one ever suggested that purpose analysis would be easy or even that it
is preferable to grounding constitutional decisions on the effect or the
facial content of laws. We use purpose analysis because purpose matters
(that is, it is related to the normative principles of constitutional law)
a
At 12:23 PM 8/21/2005 -0700, you wrote:
Yes, a scientific view could be religious -- and this is why it is so
important that what is claimed as science be science.
Darwin was Christian when he discovered evolution. He had no religious
intent in publishing the theory. As some wag noted, evolu
I think Ed's point extends beyond science to other parts of the school
curriculum as well. History, art, literature, and other subjects may
reinforce or conflict with various religious beliefs. Generally speaking, I
don't think the Establishment Clause is violated when that occurs
incidentally
I'm not at all as confident as Rick is that "It is always good to stand up
for the academic freedom of teachers," particularly when they are
presenting one-sided religious or political programs in their classrooms
and refuse to accept the curricular guidelines of their school. Perhaps
Rick is b
There are scenes from various movies that are relevant to church-state
issues. For example, with regard to the recent discussion on the list of
the role of military chaplains, there is a scene from one of the great old
James Cagney war movies (I'm pretty sure it's called something like "The
F
their non-evangelical faith, my CO punished me with all the
authority of the government. So really, who's prosthelytizing
whom?
Everybody please call or write me with your interview questions!
Again, please invite your students to review in depth the documents on my
web-site:
www.persuade.tv
ustices with those
who would uphold the Ten Commandments, may this argument for changing
federal law be enjoined by federal judges?
Eugene
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E.
> Bro
Motive and purpose issues are always problematic. I have often thought that
the only reason to incorporate this kind of an analysis into constitutional
doctrine is that there are some situations in which doctrine would be even
worse if courts could not take motive or purpose into account.
Cons
Once we are beyond some basic minimum standard, I don't see the compelling
interest here. If the couple was still married, the wife could not force
her husband to continue in a well paying job -- if he decided to abandon
his career and join the clergy but still provided basic sustenance to his
I'm a bit late joining this thread (I was out of town,), but it seems to me
this is a difficult question. I don't think the one-sided focus of the
conference is necessarily problematic. Five or six years ago, the UC Davis
Law Review sponsored a symposium on state RFRA statutes that only included
We seem to be two ships passing in the night on this one.
Of course, official policy may conform to theological views opposing murder
and the like. My point is that there are other theological precepts, such
as beliefs about the existence, nature, and worship of G-d which have no
real secular
I continue to think the sermon is an easy case, because it does not involve
an official act.
But let me focus on Eugene's second point. I think there is a distinction
between what we used to call sectarian religious beliefs and what we might
call ethical religious precepts. Today, I would use
I understand Eugene's argument here -- but when official and personal
conduct are mixed together, I'm not sure that we can always ignore the
official aspect of the event for Establishment Clause purposes. A
government official participating in church activities, such as giving a
sermon, can be
Speaking of faith-based initiatives and constitutional law, Vik Amar and I
are writing a series of columns on the Findlaw Web site on whether it is
constitutional for government to allow religious organizations that
directly receive state subsidies in order to provide public services to
discri
I hesitate to join in here because I'm enjoying reading two heavyweights
like Chip and Eugene spar on this issue. But I think Eugene's arguments
here (which now extend considerably beyond Locke) need to be broken down to
more discrete questions. Let me suggest some possibilities:
I. What are th
I don't think the problem is lack of logic. It is lack of information. We
don't know enough from Locke to determine the class of situations in which
states will be permitted to decline to provide indirect subsidies to
recipients who want to use those funds for religious activities. And we
don't
I appreciate Chip's clarifying that welfare payments have traditionally
been treated as wages -- but his comment prompted a few thoughts.
First, if we are focusing on the real world consequences of the
hypothetical policy, I have never heard of a church or synagogue denying
membership or access
I think it is a good hypo, Eugene. Perhaps one way to think about an answer
is to ask a different question -- Would it be unconstitutional for the
state to bar a welfare recipient from using his or her welfare payment to
pay church or synagogue membership dues?
Alan Brownstein
UC Davis
At 12:5
In the Amos case, the employee who was terminated for lack of religious
worthiness apparently alleged that to satisfy his employer's religious
requirements, he was asked to respond to inquiries about his sexual
activities, moral cleanliness and purity, past and future contributions to
the Mormo
I was going to express similar thoughts, but Tom sent his post first (and
probably did a better job in expressing this analysis than I would have.)
County boards, city councils, school boards and the like conduct
interactive sessions. The public addresses the board directly. On some
occasions,
I agree that this is an indefensible decision. (I would probably have
described it as shameful, but indefensible will do.) But it does
illustrate the problem with the argument that government may display
religious symbols and sponsor religious activities such as prayer as long
as it does so in a
But, leaving all else aside, not all "cults", or groups that operate in the
way that Stanford describes, are religious. Stanford's implication that
only groups identifying themselves as religious engage in the warned
against conduct is simply wrong.
Alan Brownstein
UC Davis
At 06:33 PM 4/14/20
overnment-imposed burdens on
> religious exercise must march in lockstep with accommodations
> of other secular rights.
>
> Derek L. Gaubatz
> Director of Litigation
> The Becket Fund for Religious Liberty
> 1350 Connecticut Avenue, NW, Suite 605
> Washington DC 20036
>
nal Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Thursday, March 31, 2005 11:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Religion-only accommodation question
Yes. I have been arguing that the Leonard Law is unconstitutional
Yes. I have been arguing that the Leonard Law is unconstitutional since it
was enacted. If it doesn't violate the Establishment Clause under Texas
Monthly, it should be struck down as unconstitutional viewpoint
discrimination in favor of religion and a violation of the Free Speech
Clause under
One of the reasons list members may not be jumping in to discuss this
question is that it is such a hard question to answer. Many of us believe
that courts should consider the harm to third parties or the public good in
setting limits to the scope of permissible legislative accommodations. I
do
I know I'm falling behind in this thread, but let me do my best to catch up.
I think these are better examples than your first group, Eugene. I could
probably distinguish some of them -- but let me see if I can jump over the
trees and look at the forest instead.
I think there are at least two a
See my responses below
Eugene writes
I think this is a great explanation for why pure self-expression
isn't an adequate defense for free speech claims, and it's one reason
that the Court has accepted some exceptions from free speech protection
even when the speaker is deriving self-express
Eugene, let me respond to your three examples in this post. Then I'll
continue discussing the issues I raised in a second post.
I would allow the abridgement of free exercise rights in all three of
Eugene's examples -- for the reasons described below.
1. (A) Larry Flynt inflicts emotional d
I tend to agree with Eugene that free speech and free exercise rights do
not parallel each other -- so that it does not necessarily follow that
because freedom of speech is protected even when the speech causes harm to
third parties, free exercise rights must receive similar protection. But I
h
My comment was not directed at Marci -- it was a response to Prof. Ellis's
post. And I must say I am surprised by his indignation. My point was that
opponents of gay rights and religious exemptions often don't confront the
harm that the laws they support will cause to the persons burdened by suc
To answer Marty's question, we would first have to figure out how to define
what constitutes "harm to third parties" -- which is no easy undertaking
(although there are some easy and obvious examples).
In Texas Monthly, Justice Brennan suggested that the challenged tax
exemption for religious p
There are a variety of answers to this question -- about why religion is
special and merits distinct constitutional consideration. I have written
about several of them -- as have many other list members.
But let me add one answer that suggests something of an analogy between
religious liberty a
To follow up on Doug's point, one of the problem's I have with Marci's
arguments about judicial exemptions and legislative accommodations is that
it sometimes appears as if Marci views religious groups seeking legislative
accommodations or constitutionally mandated exemptions as self interested
Richard,
I understand that some religious people think that government today is
hostile to religion, but I think this is a singularly unhelpful way to
understand current church-state issues - and it tells us very little
about the actual relationship between government and religion in our socie
Marci, of course, is more than capable of speaking for herself. But I would
think that the reference to religious "intensity of belief" that thrives in
an environment of religious neutrality may relate to the inspiration and
energy many religious groups experience in a regime of religious
volu
I appreciate Mark's thoughtful post -- both for its substance and its tone.
I think his post raises two issues -- 1. What is the social meaning of the
display of the Ten Commandments? and 2. Is this a social meaning that the
state is permitted to promote or endorse?
As to the first, I recognize
If the early news reports on today's oral argument are accurate, Justice
Scalia argued that government may memorialize and endorse overtly and
exclusively religious beliefs accepted by a substantial majority of the
polity -- without regard to history or context. Are those reports correct?
Given
Clause would be evidence of the U.S.' persistent objection to
such customary law.
Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.
> [Original Message]
> From: A.E. Brownstein <[EMAIL PROTECTED]>
> To: Law & Religion issue
I think there is a difference between "control" and having "a decent
respect to the opinions of mankind" which some of the framers seemed to
think was important in 1776.
Alan Brownstein
UC Davis
At 10:08 PM 3/1/2005 -0800, you wrote:
It's a little hard to predict because I am not familiar with
I know a little about Australian Constitutional Law. Australia has no Bill
of Rights and there is no explicit constitutional protection of freedom of
speech. There is an implied freedom of political communication. It only
covers speech about government or political matters. I don't know whether
Rick asks, "Would you support a released time
program in your local public schools if it were broad
enough to allow children to be released to attend
religious or secular programs? I would?"
I would too. I would want it at the end of the day so that parents who
wanted to could opt to just have the
Further, the goal of accommodating religion simply can not justify a
religion only release time program. I support religiously exclusive
accommodations when there is some reason not to open the class of
accommodated individuals to include non-religious individuals. And often
that is the case. B
In addition to Marty and Marc's point about the lack of constructive
programs for students who do not participate, isn't there also a problem
with release time programs that are limited exclusively to religious
education. What is the justification for not allowing release time
programming on an
the driver is an employee of the state
and is not acting as part of a church or as a surrogate of the school.
- Original Message -
From: "A.E. Brownstein"
<<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<<
Two quick responses, Eugene.
First, would economists distinguish between the government giving a
religious institution cash subsidies (enough to hire a person for a
particular job with appropriate benefits) to hire someone to provide some
secular assistance to a religious school or charity and t
contrast, I
think the constitutional concern is less pronounced where the aid is
awarded on the basis of objective criteria, or on a per capita basis. But
cf. O'Connor's opinion in Mitchell.
Is that at all responsive?
- Original Message -
From: "A.E. Brownstein&quo
or on a per capita basis. But
cf. O'Connor's opinion in Mitchell.
Is that at all responsive?
- Original Message -
From: "A.E. Brownstein"
<<mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<
In reading arguments defending charitable choice provisions that permit
religious non-governmental providers to discriminate on the basis of
religion in hiring employees to staff government funded programs serving
public purposes -- even if the program is entirely supported by government
funds
I think Bobby's is correct that while the term proselytize is strongly
associated with religious contexts, that does not mean that the term always
has a pejorative meaning. There are obviously benign examples of
proselytizing that would be effectively described by using this term in a
non-pejor
This is really a critical part of the issue. Are we talking about
distinctly American law or more generic "Anglo-American" law. I have no
doubt that the American Tories, the British soldiers who shot down the
Minutemen at Lexington, the Hessian mercenaries, and King George III
himself all belie
When Mike writes that "The Ten Commandments is a stark (if not the
first surviving) demonstration that law comes from "outside"
humankind-- that is, that law is not merely a human artifact," he is
expressing a position with significant sectarian implications. For
traditional Jews, the entire Tora
The ADL has filed a very thoughtful brief elaborating on Marc and Paul's
points. A link to it can be found on the their web cite
http://www.adl.org/PresRele/SupremeCourt_33/4601_33.htm
Alan Brownstein
UC Davis
At 11:09 AM 12/16/2004 -0500, you wrote:
Content-class:
urn:content-classes:messa
As I was reading the SG's brief in McCreary, I was struck by the similarity
of the arguments offered in the brief to justify the Ten Commandments
display and the arguments offered by list members to support Williams'
teaching materials. The SG argues that the Ten Commandments display is
constit
Perhaps the relationship between government and religion and the
relationship between government and science may be different for reasons
that extend beyond the idea that science is "knowledge" and religion is
"opinion". I don't think we deny government the power to declare religious
truth beca
I'm not sure that I understand the point here. Is it that it is
acceptable for public school teachers to teach religious beliefs such as
the resurrection of Jesus as historical fact?
Or is it that it is too burdensome for teachers to be "saddled"
with the responsibility of telling their students
Marci,
Thanks for your thoughtful response. But let me press the issue a bit
further. You suggest in your answer to my hypo about whisky and brandy
that the court may apply strict scrutiny to decisions to accommodate one
religious practice but another when there is no meaningful difference
betwee
ed a specific ex ante curricular prohibition? Why
should the former be entitled to greater constitutional protection, apart
from the fair-notice issue?
----- Original Message -
From: A.E.
Brownstein
To: Law &
Religion issues for Law Academics
Sent: Monday, December 06, 2004 4:39 PM
Subje
I don't think Cockrel is really inconsistent with Marty's earlier
statement that "Under the "government
speech" doctrine, a state may require its teachers, in their
official capacities (i.e., while teaching), to hue to the state's
prescribed curriculum. This is the majority view in the courts of
I think Eugene's question is an important one. Some religious
accommodations provide secular benefit to religious individuals, often
people of particular faiths. Focusing on this issue from the perspective of
coercion is interesting, but I'm not sure that it is essential to Eugene's
argument. W
I should
say at the outset that I think it makes very little sense to posit a
state constitutional rule suggesting that whenever the only way that the
state can comply with a federal constitutional requirement prohibiting
discrimination and a state constitutional provision requiring
discr
Rick's thoughtful post reminded me of an issue I had planned to raise on
the list but never got around to. Having read only a few pieces by early
writers, such as the Elisha Williams excerpt in the McConnell, Garvey,
Berg, Religion and the Constitution casebook, I was struck by the
anti-Catholi
California does not have a state RFRA (but not for want of trying). The CA
Supreme Court so far has ducked the issue of whether it will interpret the
state constitution to follow Smith or to provide more rigorous protection
to free exercise rights (also, but not for want of trying).
Alan (ofte
With respect, I'm not sure I understand Eugene's hypothetical or how it
responds to my post. I recognize (from years of prior posts) that Eugene
and I disagree about the distinctive nature of religion in individual
identity and family life (I think religion is more distinctive than he
does), bu
I apologize for this being a late submission on this topic, but I was out
of town all weekend.
I would like to offer a few responses to some of the many points that have
been raised in this thread -- hopefully without being redundant.
1. Finding the right term. I used harassment. Marty writes
Has anyone given any thought to the federalism-based Establishment clause
arguments raised by Virginia in seeking cert in Bass v. Madison and which
the Court may well consider in its review of Cutter v. Wilkinson?
Virginia argues that the federalism purpose of the Establishment clause --
"to pr
Regarding Marty's post, I have three questions about the granting of cert.
in Cutter.
1. What explains the decision to grant cert. in this case, rather than Madison?
2. Is the Establishment Clause issue raised by the prison provisions of
RLUIPA relatively unique? RLUIPA is held to violate the Es
I would greatly appreciate hearing list members recommendations of what
they think are the one or two best articles supporting the plurality's
position in Mitchell v. Helms (the articles don't have to be about Mitchell
per se -- as long as they support the neutrality analysis advocated by the
M
In her concurrence in Mitchell v. Helms, Justice O'Connor gives three
reasons for distinguishing indirect aid through private intermediaries
(vouchers) from per capita direct aid to religious schools. Her first
reason is that "when the government provides aid directly to the student
beneficiary
Also briefly.
As a formal matter, I 'm not sure I understand why a forum confined to
programs for or about kids necessarily includes religion but excludes
political speech. (As a practical matter, there is probably a significant
difference in what most parents think is important for their kids.)
There is some merit in Doug's argument. But it seems to me there is a real
problem with a school district stating that it only distributes materials
directly related to the curriculum that it explicitly approves while at the
same time having courts conclude that there is no endorsement of the
m
s would be,
though; in particular, I think the Tinker "disruption" test for speech
restrictions wouldn't be that helpful. So in general I'm not sure what
the proper compelled speech analysis would be, though I am sure that it
would apply, as Alan suggests, to all ideological messages
I haven't read the opinion, so this comment may not really be related to
the facts of the case -- but off the top of my head I would have thought
that requiring students to participate in the distribution of private
religious messages violates both free speech and establishment clause
requireme
Kurt,
Would it be fair to say that while that the principle of non-establishment
was still at issue in 1789 at the state level, the principle of generally
applicable free exercise rights (free exercise rights for everyone -- not
just Protestants.) was equally at issue at the state level. Your o
Mark's recommendation below is necessary -- what's unclear is whether or
not it is sufficient.
I'm fond of telling people that having grown up in New York during the
years when students were directed to recite the Regents Prayer, I still
remember the Prayer, and I remember when it was declared
Well, if you state it as a tautology, there isn't much to say about it. But
I would think that the underlying premise -- that non-Christians
are "outsiders" -- not full members of the political community whose
political status is properly determined by the religious community to which
they bel
An odd piece. The author doesn't distinguish between being a minority and
being an outsider. He doesn't distinguish between the experience of
difference that arises when private individuals and institutions espouse
beliefs and engage in practices that do not parallel one's own beliefs and
pract
Eugene is correct that both religious and secular beliefs are incredibly
varied and there is nothing like a literal quid pro quo or balance between
the protection provided by the Free Exercise clause and the limits imposed
by the Establishment Clause. (Although I think there would be more of a
le the
latter would tend to benefit more private faiths and smaller ones.
But the thing that one shouldn't do is complain about "special protection"
for religion without taking into account the special limits placed on
religion in the context of government speech and rationales.
Tom Berg
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