I'd appreciate an explanation of why the house photography case is harder if
the refusal to photograph rests on a religious objection (for example, that
one's religious beliefs require that one not facilitate the economic
flourishing of gays).
Mark Tushnet
William Nelson Cromwell Pr
In my view this is a (common) misunderstanding of the decision, which says
explicitly that it's not relying on the spending aspect of the case because the
government could impose the requirement directly (that is, on everyone
regardless of whether they accepted federal funds).
Mark Tu
In connection with this discussion, it might be worth noting that prior to the
Civil War there was, in the South, quite a vigorous discussion of why slavery
was sancitoned by the Bible, and -- toward the end of the pre-war period -- why
it was mandated by Ciristianity properly understood.
Mark
Mightn't this be an ordinary "sincerity" case?
Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
-Original Message-
From: [EMAIL PROTECTED]
ot; on the grounds, the functions
of which I am ignorant.)
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
From: [EMAIL PROTECTED] on behalf of Esenberg, Richard
bstantial burden, and for viewpoint
related reasons, on his right to express his deeply held racist views by means
of expressive conduct) says something very bad about the state of the First
Amendment law as Eugene would construct it.
--
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard
Let me express my doubts about this assertion -- "No one would doubt that a
Christian music concert could be held (and advertised)" -- where the presenter
is a for-profit business. (A genuine question: How do for-profit concert
promoters advertise concerts by Christian rock groups?
you don't like
"the legislative judgment" in that sentence, substitute a version that invokes
Chevron-like deference to legal interpretations proferred by administrative
agencies.)
--
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA
Coming late to this thread, and noting that the discussion has gone off in a
different direction, I'd simply reinforce Marty's observation that "the view
that 'religious transformation [and] faith' are good (when freely embraced)"
is a theological proposition, by noting that it's perfectly cohe
l even for a moment -- that the feds gave
> cash to the state
> > education agency, and that it bought the equipment.
> >
> >
> > Douglas Laycock
> > University of Texas Law School
> > 727 E. Dean Keeton St.
> > Austin, TX 78705
> >512-232-
The standard answer on taxpayer standing in Mitchell is that the criteria
differ for state taxpayer standing and federal taxpayer standing. The
distinction goes back a long way, although I doubt that it has ever been
rationalized well.
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I can't tell from the news story whether the bunny was part of
the secretary's personal space or whether it was in a space
concededly under the control of the city council, although the
story suggests the latter (it appears that the city council
president directed that the bunny be removed, not
This isn't the kind of thing I think about a lot, but I wonder what (if
any) assumptions are made -- in the question anjd by the
hypothesized state institution -- about the category
"Sabbatarians." I think the usual definition is "those who obserfve
their holy day on Saturday," and if that's r
nation, and it
is not clear to me that there is any real (as distinct from rhetorical)
interest
in the movement in seeing that legislatures adopt such declarations.
--
Mark Tushnet
GeorgetownUniversity Law Center
600 New Jersey Ave. NW
Wa
he EC is
substantially burdened should federal courts intervene aginst state and
local government under the incorporated EC.
I hope this helps a little. I would be happy to discuss these
matters with you.
Rick Duncan
Mark Tushnet <[EMAIL PROTECTED]> wrote:
I'm writing som
can think of is the possibility that governments could
issue
declarations that the United States “is” a Christian nation, and it is
not
clear to me that there is any real (as distinct from rhetorical)
interest in the movement in seeing that legislatures adopt such
declarations.
--
Mark Tushnet
Georg
"the Court ruled unanimously that the government may not ban a religious
from using a herbal tea that contains a substance that the government
considers to be harmful. The Chief Justice wrote the opinion. Only new
Justice Samuel A. Alito, Jr., did not take part." -- from SCOTUS Blog
I have no idea what the truth of the matter is, but here's a different
account of what happened in connection with the Silent Night
episode on which there was a post earlier today:
http://thinkprogress.org/2005/12/14/silent-night-fraud
begin:vcard
n:Tushnet;Mark
fn:Mark Tushnet,tushnet
tel;fax:2
The following is not directed at any particular participant in this
thread, but those who have been on this list for more than a year
know that this thread repeats one from last year (and, although
memory fades, probably the year before that, and the year
before that ...). I wonder if those wh
Having now read the article, I think it appropriate to quote what in
my view is the deepest insight I've ever heard about religion and
the Constitution (an insight not inconsistent, I think, with Carter's
perspective). It's from the late John Howard Yoder, the Amish
theologian, and -- I think
I wonder whether this analysis can be reconciled (even on the level of
"quite plausible") with Lynch and Pinette, and the
reasonable-observer-who-knows-a-fair-amount-of-the-context, etc., test
for endorsement. Or, is the test for endorsement more stringent when
the view endorsed is secularist
Ed Brayton's post raises what I thought was the most interesting
question raised by the lawsuit: Can the inclusion of one link (to
what might be a non-neutral site) produce an Establishment
Clause violation -- when the complaint does not (apparently)
identify (according to the report) anything
Any thoughts on this: http://insidehighered.com/news/2005/10/18/evolution . It's a report of
a lawsuit filed against U Cal Berkeley for maintaining a web-site designed for high school teachers seeking information on evolution (the site is http://evolution.berkeley.edu/ ). The complaint apparent
Simply on the predictive issue: (1) Does the Ninth Circuit have a
"related cases" rule, and (2) if so, would the appeal of this
decision fall within the rule?
- Original Message -
From: "Scarberry, Mark" <[EMAIL PROTECTED]>
Date: Wednesday, September 14, 2005 11:12 pm
Subject: RE: New P
Or, it had better halt the proceeding that it (at the very least)
continued after the initial determination favorable to Mr. Li, and
resisted on Mr. Li's appeal to the Fifth Circuit.
Brad M Pardee wrote:
If the present administration expects to
be seen as an advocate for religious freedom,
I thank Allen for the links to the UC guide, and find particularly
helpful the "unapproved courses" link -- http://pathstat1.ucop.edu/
servlet/StoneGround?templateName=course_descriptions/
nonapproved -- and especially the descriptions of the "criminal
justice" and "forensic research" courses.
Co
I'm not sure that we're in a position to discuss this lawsuit at any
useful level of detail without knowing more facts. To pursue Mark
Graber's example, and to remove, at least temporarily, the law-
and-religion hook, conside this: A public university requires as a
condition of admission that
Might I suggest (a) that the limited number of participants in this
thread (and related ones in the recent past), and (b) the
comparative advantage of most list members in law rather than
the philosophy of science, indicates that perhaps the thread has
played itself out?
Content-Type: multipart
I read the summary Rick directed us to, and I'm a bit puzzled. The
doctor intervened in a situation where (the summary says) "there are
only two options--surgery or
death." As a result of the intervention, the alien boy's physical life
is preserved, but in the end his parents kill him because
I'm a few hours behind on these postings, so apologies in
advance if this point has been made: Suppose that the inquiry
into strife is not a direct "touchstone," in the sense that asking
whether X causes religious strife is relevant to deciding whether X
is constitutional. Rather -- as I thin
I suppose that Eugene's reply is a demonstration of why invoking
common sense is better than trying to get fancy about it. (But, I'm
puzzled at how putting up a picture is a "cogent argument" but
putting up a banner is not; I'll give you "vivid" in both cases, but --
at least where I come from
I haven't commented on this thread, mostly because I thought the
answer was pretty straight-forward from Justice Souter's
invocation of "common sense" as a legal technique in addressing
this kind of problem.
I could get fancier about this (in the initial version, what does
common sense tell yo
Isn't the "controlling" test in this context the "religious purpose"
test as elaborated in McCreary County? I read (verb in the
present tense) Justice Breyer's opinion in Van Orden as itself an
elaboration of the purpose inquiry (particularly given that he
joined the majority in McCreary Count
I take it
is close to, but not the same as, O'Connor's "endorsement"
position).
The problem as several postings are making clear, is what
it means to
"use one&
I've been wondering about the "personal/official capacity" distinction
that seems to matter in these contexts. One take on Perry's action is
that he signs bills in his official capacity (although apparently not
the constitutional amendment, which he signed in no official capacity
at all, accor
In connection with Rick's question, you might want to look around your
campus for posters/signs with headlines like "Stop Psychiatric Abuse,"
and for tables with banners like "Stress Management" or "Stress
Reduction." Also, this story -- Andy Newman, "Bumping Up Against
Subway Regulations, New
Given the parenthetical concession ("admittedly have low level expressive
implications"), I wonder whether there is *any* example one could come up with
that wouldn't be covered by the Free Speech Clause by itself. (I suppose
ritual animal slaughter is apossibility, but -- assuming a parallel a
One way of analyzing the state action questions here is this: In
contracting out, the government failed to include a non-
discrimination provision of the relevant sort in its contract with the
other party. We know ffrom Rendell-Baker and Jackson v.
Metropolitabn Edison that there's no *general
I have to say that James Henderson's point about there being no
differences, etc., seems to me undermined by the fact that he refers to
the text in a way previously unfamiliar to me as the Ten Words rather
than the Ten Commandments. Also, I assume that he doesn't literally
mean "set out in ful
I'm not sure that the following intervention will be productive, but:
My sense is that this discussion has reached beyond the limits of
list-relevance in its discussions of the substance of ID, evolutionary
theory, etc. (I remember enough about physics from college to know that
"the law of en
Passing the question of constitutionality, guideline #2 seems quite lunatic unless
it's interpreted to mean that one of these counselors can say, "Speaking not as a
counselor but as a lay person, I think you sound depressed and I think it might be
helpful if you saw a doctor." (And, speaking ag
I assume this is (adapted from) one of Lincoln's letters.
So, to ride my hobby-horse -- is the hypothetical that the
letter is released publicly contemporaneously with its being
sent? Were Lincoln's?
Content-Type: multipart/alternative;
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t.
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf Of Mark
Tushnet
Sent: Tuesday, June 15, 2004 10:46 AM
To: Law & Religion issues for Law Academics
Subject: Re: The President and the Pope
Not to ride a hobby-hor
Not to ride a hobby-horse too hard, but does Eugene think that there's
a relevant difference between public statements (which, if I interpret
his examples correctly, is what he's citing) and a private conversation
with a religious leader (again, in a world of leaks)?
Volokh, Eugene wrote:
M
to a molehill.
>
> Richard Dougherty
>
>
> -- Original Message --
> From: Mark Tushnet <[EMAIL PROTECTED]>
> Reply-To: Law & Religion issues for Law Academics
> <[EMAIL PROTECTED]>Date: Mon, 14 Jun
2004 15:43:05 -0400
>
I have the feeling that this thread may have played itself out, but one
matter hasn't come up -- whether there's a difference between a public
statement soliciting support from religious leaders, etc., and a private
conversation in which such support is solicited (and whether, in a world
of lea
I don't read the manager as saying that "most public religious
activities" are prohibited "in the park." As I read him, he's saying
that such activities are allowed, but only in the shelters (as is true,
as I read it, of political rallies and events by private companies
[which I suppose might
I too wonder about the statutory interpretations Eugene
proffers. Consider first the Illinois statute, which refers to
"physician, hospital, ambulatory surgical center, nor
employee thereof." It seems to me to stretch this
coverage language to include "applicant for employment
thereto." The
To supplement Sandy's quotations from other nations' constitutions, here's the
preamble to the Irish Constitution of 1937:
"In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our
final end, all actions both of men and States must be referred,
We, the people of Éire,
To combine two related metaphors -- I'm way out of my
depth here, but dredging something up from memory, isn't
there a distinction between perlocutionary utterances (as I
think they're called) and illocutionary utterances (or
something like that). Perlocutionary utterrances, if I recall
right
Coming in late on this: I've gone back and forth over the years about what to do
about Cohen, although now I've settled in on using the word (on the ground that -- at
least with my students -- the chances of offense are quite low). (I take it that the
possibility of giving offense is relevant
I'd like to suggest a slight variant on the issues opened up by the
discussion of invited speakers. Consider the philosophy department in a
public university. It offers a number of courses in ethics, in which
teachers survey the field and -- importantly for the problem -- present
their own vi
The "About This Site" section of the web page says: "The Lesbian Gay Bisexual
Transgender Campus Resource Center is a department in Student and Campus Life, a
division of the Student Affairs Organization under the direction of Vice Chancellor
Winston Doby." The quoted material is the textual p
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