Re: Re-upping: Sterling: A helpful test case on RFRA burdens

Okay, I’ll bite. I don’t have firm views yet on this. My questions below all go to the “front end” of the analysis. And I get the distinction between a court’s engaging in its own (God’s-eye?) analysis of whether a practice is important to a religion simpliciter/in the abstract and a court’s

Re: Johnson Amendment E.O.

(This) one would hope. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: on behalf of Marty Lederman Reply-To: Law & Religion issues for Law

Re: Johnson Amendment E.O.

rofit corporation, or other kind of association. But even if you disagree, and would find a substantial burden, it would still be unconstitutional to give churches special political-speech rights--and avoiding that constitutional violation means the government ought to win under RFRA. On Thu, May

Re: Johnson Amendment E.O.

In Branch Ministries, “the Church d[id] not maintain that a withdrawal from electoral politics would violate its beliefs.” 211 F.3d at 142. This fact played a role in the court’s “no substantial burden” reasoning. If a Church did so maintain today, Marty, what extra analysis would you

Re: Off list -- Re: The Charlotte City Ordinance and Religious Freedom

It strikes me that suggestions that (some) trans men should just use men’s restrooms in South Carolina and would get away with it because they would be perceived as a men does not really speak to the fact that to do so, they will now have to be lawbreakers. This to me just underscores and/or

Re: North Carolina Magistrate Law

Utter silence could be a reflection of the time of the school year and holiday timing. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: >

Re: 3rd Circuit's Interesting Religious Discrimination Decision

Judge Roth always struck me as a very careful judge when I was clerking for the late Judge Becker at the Third Circuit. Her concurrence here is thus all the more striking. I’m assuming she meant something like "in other types of discrimination cases" where strict scrutiny is not required by

Re: What's happening in the Kim Davis case

matter to the validity of the licenses because ...," I am asking because I don't understand what comes after "because." If the answer is "yes," I am wondering what the name of the county clerk is, if not Kim Davis. David's premise seems to be that the answer is in Ky. Rev. S

Re: What's happening in KY? -- wrong case, wrong parties

I think you’ve said this (quotation below) at least a couple times now, Mark, but I’m a bit puzzled by it. Don’t federal courts always make such assessments any time a plaintiff sues a state actor for violating a federal constitutional right that is judicially protected with strict scrutiny?

Re: Damages based on a person's speaking out in defense of his tortious action

). Whatever the veteran can recover for the denial of service itself, I can’t see how he can recover for speech about the denial of service, even if the speech “was related to the discriminatory act” in the sense of having been motivated by the lawsuit related to the act. Eugene David

Re: Business speech supporting gay rights vs. opposing gay rights

but not against others? Eugene David Cruz writes: If they are publishing in newspapers, interviewing on radio or television, or displaying signs at their home, they should be fine. (Signs in the workplace could implicate whether they’re equally treating their customers, which is related

Re: Baker in Oregon told not to advocate against public accommodation law

public accommodation law So would you advise the client to ignore the logic of the ruling? On Fri, Jul 3, 2015 at 11:41 AM, David Cruz dc...@law.usc.edumailto:dc...@law.usc.edu wrote: Nor should some aspect' of the reasoning supporting an order lead is to embrace a facially implausible

Re: Baker in Oregon told not to advocate against public accommodation law

Nor should some aspect' of the reasoning supporting an order lead is to embrace a facially implausible and certainly not inevitable interpretation of that order in contradiction of the (incorporated) First Amendment rights of freedom of speech. David B. Cruz Professor of Law University of

Re: By the power vested in me . . . ?

Under California law, http://www.leginfo.ca.gov/cgi-bin/displaycode?section=famgroup=1-01000file=400-402m solemnization may be performed by religious leaders, judges, legislators or certain other state officers, county supervisors, some city clerks, certain mayors, and “deputy

Re: Religious organizations, tax-exempt status and same-sex marriage

Since Michael Worley asked these questions of Marty in a post, rather than private email, I'd like to ask for a clarification of what he's asking with number 2: Permissions from whom? Who/what is entitled to, is able to, and/or is in the habit of conveying such “permissions”? David B. Cruz

Re: Anti-discrimination, legislative compromise, and strict scrutiny

Is it permissible under current law for government actors to assess whether “religious reasons for exemption are stronger in very small businesses that generally are personally run by the owner than in larger and generally more impersonal businesses” (emphases added)? I thought plenty of cases

Re: I would not have enacted this statute - Justice Scalia on RLUIPA

It still sounds like Chip still may be exercised (no pun intended) about Scalia’s comments. One need not take “I would not have enacted” so far as indicating stupidity or silliness; there are other ways short of that that something could be bad policy. Recall Justice O’Connor’s dissent in

Re: City subpoenas pastors' sermons in equal rights ordinance case

The accuracy of the ostensible scare claims depends, I suppose, on what they actually said, and whether men-using-women’s-restrooms, as it was characterized by Allen Asch, is the same as people who were assigned one sex at birth based usually on genitalia using restrooms in conformity with

Re: Sixth Circuit reverses hate-crime convictions in Amish hair-cutting case

Marty’s blog contribution says: “In other words, the majority is of the view that where someone decides to assault someone else for nonreligious reasons--where, in the majority's words, a nonreligious ground was the motive for the assault--but specifically chooses to physically force the

Re: Question about the President's executive order on sexual orientation discrimination

Although to the extent “the debate” is so framed, it overlooks the place of sex discrimination in the Title VII/EO antidiscrimination regime and occludes the possibilities that sexual orientation and gender identity discrimination might properly be understood as akin to sex discrimination, or

Re: Question about the President's executive order on sexual orientation discrimination

Thanks for the citation, Eugene. -David From: Volokh, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Wednesday, July 23, 2014 at 3:53 PM To: Law Religion issues for

Re: Untangling the confusion of the Wheaton College order

Is the government actually claiming it has a compelling interest in use of the form? If so, I apologize in advance to Mark for the following comment: I thought the form was a means toward an end, so one would examine the means for the requisite constitutional degree of tailoring. But the

Re: Hobby Lobby Question

Hobby Lobby was a RFRA case, so I’m puzzled below by the references below to the First Amendment (point 1) and a “constitutionally protected right” (point 6). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Daniel J.

Re: Protecting Religious Conscience from Private Suits -- How far do we go under the Const and under RFRAs?

I share Chip’s concerns about Mark’s attempt to exempt trespass suits categorically from the scope of RFRAs, but Doug’s comments below made me think that perhaps Mark’s approach might try to draw some support from Flagg Brothers v. Brooks, 436 U.S. 149 (1978). David B. Cruz Professor of Law

Re: final thoughts on the importance/availability of contraception

I'd like to see a bunch of examples before I'd conclude this is common in any circle. It is possible I just have not read or heard the right people or have failed to notice it, but I'm usually fairly attentive to sex-differentiated language. I don't see that this goes to the substance of

Re: courts and lawmaking

I apologize for obtuseness, but I do not understand how a belief can do anything, such as file a lawsuit. May I please ask for a clarification of what Michael Worley meant by this phrasing below? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles,

Re: Are large employers really better off dropping health insurance?

Alan, Did you mean the two quoted passages below to be equivalent? They seem somewhat different (at least potentially) to me. That is, the cost of having the government rather than employers provide a benefit might outstrip the amount an employer gains by not providing the benefit, might it

Re: Contraception mandate

I know I'm not the listmod, but could we please keep the posts on topic for the listserv? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Aug 1, 2013, at 6:32 PM, Volokh, Eugene

Re: New Suit Argues Prop 8 Is Still Enforceable

http://cruz-lines.blogspot.com/2013/07/prop-8-proponents-ask-california.html David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jul 15, 2013, at 5:17 PM, Jean Dudley jean.dud...@gmail.commailto:jean.dud...@gmail.com wrote:

Re: Hosanna-Tabor

know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz dc...@law.usc.edumailto:dc...@law.usc.edu wrote: It seems to me an easy distinction between the case

Re: Hosanna-Tabor

It seems to me that part of the problem with the framing of the distinction between Smith and Hosanna-Tabor is that physical acts vs. internal governance does not well describe in parallel the concerns of the state in both cases. Internal governance is what Hosanna Tabor protects for religious

Re: Hosanna-Tabor

It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's

Re: Avitzur

The Ketubah at issue in Aviztur provided (in the English version): “[W]e, the bride and bridegroom * * * hereby agree to recognize the Beth Din of the Rabbinical Assembly and the Jewish Theological Seminary of America or its duly appointed representatives, as having authority to counsel us in

Re: Fifth Circuit holds that Texas RFRA mandates exemption from school hair-length restriction

Agreed -- though I would add that hair length restrictions can and do oppress more than just those students who have religious reasons for not complying with them. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jul 21,

Re: Factual Clarification re CLS

I'm not sure my understanding of the CLS policy agrees 100% with Doug's. Whether or not you call it a disparate impact, I believe there is what groups like Lambda have been litigating as an insurmountable obstacle faced by same-sex couples that different-sex couples don't face. My

RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to WearReligiousScarf

[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, April 08, 2009 8:24 AM To: Law Religion issues for Law Academics Subject: RE: Law.com - 3rd Circuit Rejects Muslim Cop's Bid to Wear ReligiousScarf I don't understand why counsel would not have argued

Re: Americans United: Iowa Supreme Court Ruling On MarriageUpholdsReligious Liberty, Says Americans United

If Steve thinks that Brad's asserted fear is preposterous, then I don't think that fearmongering would be an improper way for him to characterize it, as one need not have dishonesty (though one might perhaps infer that depending on how outlandish another's claim seemed) for someone to be 'involved

Re: 2 CT lawmakers target Catholic church for opposition to marriageequality

I¹m getting ready to teach Constitutional Law and Federal Courts today and for the start of The Global Arc of Justice conference I¹ve been helping plan (http://www.law.ucla.edu/williamsinstitute/programs/GlobalArcofJustice2009.h tml), so I haven¹t had time to read the bill or about it. Question:

RE: Taxation, Conscience, and Action vs. Inaction

Maybe you were thinking of Browne v. U.S., 176 F.3d 25 (2d Cir. 1999), although they claimed a right to withhold some taxes and then have the IRS levy it without interest or penalty. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA

RE: Atheists on Jury Duty in Alabma

Dear Carol Moore, I would encourage you to contact the Alabama ACLU affiliate. http://www.aclualabama.org/ContactUs/ContactUs.htm David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. -Original Message- From: CAROL MOORE

RE: [BULK] Governor and Assembly resolve to overturn CA homeschooling decision

Wouldn't it involve less posturing, if the legislature and the governor truly care about the issue, to change the outcome by simply amending the statute upon which the Court of Appeal (not Court of Appeals, as erroneously denominated in the resolution below) relied, rather than calling upon the

RE: Scalia and Motive

Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo, though his preferred view (as revealed in his Lukumi and Edwards v. Aguillard opinions) would render legislative motivation irrelevant in cases of facially neutral laws? David B. Cruz Professor of Law University of Southern

RE: A new religion and custody case

Just looking at the text, it's not clear to me that it would be violated by a state's allowing a custodial parent to send a kid to a school of that parent's choosing. A noncustodial parent would not get her way (or not during the time the other parent had custody under a joint arrangement),

RE: Of Phelps and Persecution

Alan suggests that holding a march expressing an anti-Semitic message in a town where many Jews live does not present a sufficiently focused location/context/message to trigger my balancing analysis. What if it's the Village of Kiryas Joel? I ask not to be facetious but to explore the extent of

RE: Is First Amendment viewpoint-discriminatory against antigay speech

I too found that comment a little cryptic. If Michael meant to be doctrinal rather than just attitudinally predictive, my guess would be that he didn't mean that a different First Amendment rule would apply, but that those decisions might somehow justify a conclusion that there's a compelling

RE: What War on Christmas? ACLU Fights for Christmas Tree!

For more recent cases, see http://www.aclu.org/defendingreligion. [In an abundance of caution I will note that I am on the board of directors of the ACLU-Southern California and of the national ACLU, and am one of the national ACLU's General Counsel.] Happy holidays, all. David B. Cruz

RE: Salt Lake Tribune: Appeals court weighs dispute between religious sect, Duchesne

Add a forward slash after com in the URL of the View Full Story link if you want it to work, viz., http://www.sltrib.com/null/ci_4668752?source=email . David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A.

RE: Dent Link Again

Dear Mr. Sanders: Thank you for calling Dent out on this. Let us hope he corrects his falsehoods before hard copy publication somewhere. (Professor now Judge Michael McConnell failed to do so even after I had immediately cited him to Badgett when he circulated a draft chapter for an anthology.)

RE: Kermit Hall

Dear Paul, I am very sorry to hear of the loss of your friend Kermit. I hope that your and others' fond memories of him and his work will be of some consolation to you in this sad time. -David -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL

RE: Christian Skating Time

On Mon, 3 Jul 2006, Douglas Laycock wrote: Does New York maybe prohibit religious discrimination in places of public accommodation? Douglas Laycock Alice McKean Young Regents Chair in Law The University of Texas at Austin And aren't public accommodations perhaps so designated based on

Re: Christian Skating Time

On Mon, 3 Jul 2006, Paul Finkelman wrote: [snip] The other difference, of course, is that one IS religious and the other is not. It was not Catholic night at the ball park and I bet there were few priests bringing their sunday school class in for Polish Catholic night. If Paul's point is

Re: Federal Judges: Can they Violate RFRA? Does it Apply to Them?

On Sun, 16 Apr 2006 [EMAIL PROTECTED] wrote: [snip] If mine is a sound reading of the statute, what to do with the situation in which a party comes to court (federal court, that is) and seeks some relief (injunctive, declaratory, damages). Is the Court obliged to be aware of the

Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision

I too am unconvinced. If the Court reverses a lower court, it 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.

Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision

On Wed, 14 Sep 2005, Marty Lederman wrote: Why is it inconsistent? Assume a court of appeals that, after briefing and argument, carefully considers the merits question in case A and holds X. The judgment in case A is not binding on lower courts and future panels dealing with different

RE: Floodwaters and Undermined Walls

In Frances Paterson's defense, while this may be the place for the noting that Henderson did, considerations of appropriate time are also relevant. And just now, when we don't even know how many people have died, haven't recovered their bodies, haven't even necessarily rescued all the trapped,

RE: ACLU sues over court oaths

On Thu, 28 Jul 2005 [EMAIL PROTECTED] wrote: Exodus 20:1-3: And God spake all these words, saying, I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.Thou shalt have no other gods before me. --- John Lofton. Could John Lofton please explain

Re: ACLU sues over court oaths

On Thu, 28 Jul 2005, Gene Garman wrote: Article 6 is clearly stated and very specific: [snip] (3) The ... members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to

RE: Discrimination Against Wiccans; Simpson v. Chesterfield County

On Fri, 15 Apr 2005, West, Ellis wrote: [snip] If, however, the reason for these prayers is because the members of the Board truly want divine guidance or blessing from the deity in which they believe, the God of the Judeo-Christian faith, [snip] Does that count as a *secular* purpose?? I

Re: Question about a line in Mitchell

Perhaps: At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. . . . Third, we have found relevance in at least five characteristics of the aid itself . . . . David B. Cruz Professor of Law University of Southern

Re: Atheist's challenge to religion-only exemption to school uniform policy

In this self-styled non-precedential opinion, the atheistic plaintiff, for whatever reason, based her constitutional claim *only* on rational basis review under the Equal Protection Clause (with Amos being dispositive of the standard of equal protection review to apply to the religious

RE: Required to stand for the Pledge?

Yes, but can state-run schools' principals call students to their office (out of class, recess, or lunch, presumably) and urge them to stand? Ann distinguished (or repeated a distinction) between requiring and urging. David B. Cruz Professor of Law University of Southern California Law School

Re: Maryland license tags for the Episcopal Church

On Wed, 14 Jul 2004, Volokh, Eugene wrote: [snip] SIMPLE 2 STEP PROCESS First, fill out a form that affirms your membership in any Maryland Episcopal Church, [snip] Any potential EC issues lurking in this requirement? David B. Cruz Professor of Law University of Southern California Law

Newdow (duck)

The Washington Post is reporting that all eight participating Justices agreed that Newdow did not have standing. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message

Re: The President and the Pope

On Mon, 14 Jun 2004, Volokh, Eugene wrote: Now I don't want to constrain Paul's imagination, fascinat[ion], or sense of irony -- all three of which are fine things to have, and give ourselves a lot of pleasure. But as best I can tell, Paul's posts are largely ways to express his contempt

RE: Cert. Petition in RLUIPA Case

On Thu, 8 Apr 2004, Petron, David wrote: Marty's mention of the Madison case (in which my colleagues in the Religious Institutions Practice Group here at Sidley represent the respondent) prompts me to bring another recent cert. petition to the list's attention. Along with John Mauck and

RE: UU ministers arrested

On Tue, 16 Mar 2004, Gene Summerlin wrote: Do you know what the criminal charge is? I could certainly envision the state refusing to recognize the marriages performed by the ministers or, perhaps, the state revoking the ministers licensure, but what is the criminal law which they have

RE: UU ministers arrested

On Tue, 16 Mar 2004, Volokh, Eugene wrote: [snip] (2) PUNISHING THE CLERGY FOR VIOLATING A VALID LAW: Now the question is whether the expression of this opinion leaves the clergy open to punishment for violating a valid law. Tom says yes -- but I don't see why. There is a valid law that

Re: Axson-Flynn

On Wed, 4 Feb 2004, Rick Duncan wrote: The 10th Circuit finally came down in Axson-Flynn (the case involving the LDS drama student who refused to say the F word or to curse in God's name as part of class exercises at the U of Utah). The Court ruled in her favor and reversed and remanded.

RE: Is UCLA violating the Establishment Clause?

On Tue, 27 Jan 2004, Scarberry, Mark wrote: This isn't academic freedom, in my view. Rather, this is nearly the opposite of academic freedom. The university is not just allowing teachers to teach what they believe to be the best academic understanding of a subject. Instead the university as