RE: Can religious and secular courts exist in the same nation?
With respect to the discriminatory sex based issue raised by Eugene, I am curious as to how we can judge discrimination as applied to Shari'a. For example, everyone complains about the Islamic standard that women receive one half of what their male siblings receive under inheritance. What is not discussed is that Shari'a also imposes an affirmative duty to support those same female siblings on the male. The woman takes her inheritance free and clear. The male, no matter how large or small the inheritance, does not. Should the law judge this trade off of benefits and obligations as mutually discriminatory and enforce neither? What if the Islamic courts enforce only one of the two obligations? (Many Western feminists tend to complain that favoring the men only is the case in practice.) David David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 Subject: RE: Can religious and secular courts exist in the same nation? Date: Wed, 19 Nov 2008 10:38:53 -0800 From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu I'm inclined to say that this is exactly right. In fact, the Court's church property and church government cases suggest that religious arbitration is the only permissible mode for resolving those cases that require interpretation of religious doctrine. And U.S. law has certainly coexisted for decades, if not longer, with religious arbitration by Beth Dins, Christian arbitration bodies, and a smaller number of Islamic arbitration bodies. I was curious, though, about two related questions: (1) Does Jewish, Muslim, or Christian religious law, as interpreted by at least some prominent arbitral bodies, set up rules that are either substantively (e.g., men are favored over women in divorce settlements, or vice versa) or procedurally (e.g., male witnesses are treated as more credible than female witnesses, or religiously orthodox witnesses are treated as more credible than apostate witnesses) discriminatory based on sex, religion, or ethnicity? (2) Is there a generally applicable principle of arbitration law (both religious and secular) that declares arbitration awards to be against public policy if they are based on similarly discriminatory rules? It may well be that we shouldn't have such a generally applicable principle of arbitration law, because parties should be free to waive their nondiscrimination rights, at least in certain kinds of contexts. But if there such a generally applicable principle, and some religious arbitral decisions do indeed tend to involve the application of discriminatory rules, then presumably those decisions would be unenforceable unless some religious exemption is granted from the arbitration law principle. Eugene Vance Koven writes: We've discussed this a bit on the list before, but I don't see why in principle religious courts should not be treated pretty much as commercial arbitration is: as a consensual alternative to the state legal system (with enforcement permissible through the national courts where required). In all such cases, the national legal system provides an umbrella of protections, including among other things the necessity for consent and honesty in obtaining the agreement by which the parties submit to the alternative jurisdiction. It should not be an objection in most instances that the substantive rights of the parties differ from the norms of the secular courts. There are very few rights, even constitutional ones, the exercise of which in particular circumstances cannot be waived. For example, people waive their free speech rights in private contexts all the time (think of non-disparagement clauses and even confidentiality agreements, including those attached to litigation settlement agreements); they waive statutory rights such as nondiscrimination rights and antitrust rights; and so on. Some things cannot be waived, such as one's right to be free as opposed to enslaved, but of course this is understood to be a matter of the perpetuity of the arrangement--any employment agreement restricts one's freedom of action to an extent--and the mechanism for enforcement (prohibition of contrary employment rather than specific performance). One also is restricted in waiving rights of third parties (e.g. one's children), which might create some issues under religious law. Still, the general principle ought to be that as to the consenting party an agreement to refer most matters to religious courts ought to be upheld and enforced by the secular courts. I frankly don't see what Matthew or Luke (or Mark or John, for that matter) have to say on the matters quoted below have to do with the subject. Vance _ Proud to be a PC? Show the world. Download the “I’m
FW: Can religious and secular courts exist in the same nation?
The European Court, in claiming incompatibility with the rule of law (an extraordinarily amorphous term), is, of course, ignoring the example of Israel, India and Indonesia who all allow the coexistence of multiple jurisdictions. Are they all examples of rule of law-less domains? David David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Subject: Re: Can religious and secular courts exist in the same nation? Date: Wed, 19 Nov 2008 20:52:31 + The issue of Shar'ia courts in the United Kingdom is, of course, primarily a political question. The 'headlines' are no more than the common use of arbitration (Arbitration Act 1996) for dispute resolution. In the United Kingdom, as noted, there is only so far that one can go to 'surrender' constitutional rights. The interesting position is that of the government which wishes to promote 'false jurisdictions' leaving many Islamic women unaware of their rights. It is unlikely secular courts will face any challenges to enforcement. The creation of separate communities is unlikely to be healthy, which is the object of the policy. In normal times, this might be a sign of a pluralistic society, but not without a concept of the 'common good'. At the core of this debate is the basic need of a liberal State to re-produce itself, namely to produce liberal citizens with common values. In 1995, the Turkish Constitutional court dissolved Refah, the government party, for straying from secularism, which is the guiding doctrine of the Turkish State. In the subsequent case of Refah Partis v. Turkey, the European Court held that the establishment of a plurality of legal systems based on religious beliefs is incompatible with the rule of law. Paul Paul Diamond Chambers of Paul Diamond PO Box 1041 Barton Cambridge CB23 7WY United Kingdom 01223 264544 www.pauldiamond.com - Original Message - From: Douglas Laycock To: religionlaw@lists.ucla.edu Sent: Wednesday, November 19, 2008 7:37 PM Subject: RE: Can religious and secular courts exist in the same nation? This argument that voluntary submission to religious courts is like voluntary submission to arbitration has a lot of force. And it can be carried a step further: arguably it discrimiantes against religion if agreements to secular arbitration are enforceable and agreements to religious arbitration are not. As against the discrimination argument, there is the response that secular arbitrators at least purport to be enforcing the law of the land (even though they often create ad hoc compromises in practice); religious courts make no pretense of enforcing secular law. I'm not sure how far that carries. The more serious argument against civil enforcement of judgments of religious courts is that the right to change one's religion is fundamental to free exericse. If I sign a commercial arbitration agreement at time 1, and object to arbitration at time 2, when a dispute has actually arisen, I am out of luck. But if I agree to submit to a religious court at time 1 (say, when I get married), and I object to the religious court at time 2, when a dispute has actually arisen, I may have abandoned the faith in the meantime; I have at the very least changed my view of religious courts. If government holds me to my time 1 agreement, government is preventing me from changing my religion. This is not a problem if both parties agree, after the dispute has arisen, to go to the religious court, and if both parties abide by the judgment. That is just a mechanism for voluntary dispute resolution; the government is not involved. But even in this situation, if the religious court grants a divorce that the state recognizes, we have gone beyond voluntary dispute resolution. Quoting Volokh, Eugene [EMAIL PROTECTED]: I'm inclined to say that this is exactly right. In fact, the Court's church property and church government cases suggest that religious arbitration is the only permissible mode for resolving those cases that require interpretation of religious doctrine. And U.S. law has certainly coexisted for decades, if not longer, with religious arbitration by Beth Dins, Christian arbitration bodies, and a smaller number of Islamic arbitration bodies. I was curious, though, about two related questions: (1) Does Jewish, Muslim, or Christian religious law, as interpreted by at least some prominent arbitral bodies, set up rules that are either substantively (e.g., men are favored over women in divorce settlements, or vice versa) or procedurally (e.g., male witnesses are treated as more credible than female witnesses, or religiously orthodox witnesses
RE: Mark of the beast lawsuit by Amish
The mark of the beast is drawn from Revelations 13:16-18 and refers to Satan's mark (666). David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 From: [EMAIL PROTECTED] Subject: Re: Mark of the beast lawsuit by Amish Date: Fri, 14 Nov 2008 11:23:10 -0800 To: religionlaw@lists.ucla.edu Getting my grammatical pedant on: Shouldn't that be mark in (or on) the beast? As for references to Smith and Twombly, I'm in the utter dark. I'm just a photographer, after all. On Nov 14, 2008, at Fri, Nov 14, 11:10 AM, Marc Stern wrote: Plainly the use of id's on cattle is a mark of the beast. I am puzzled by Professor Masinter's s reference to Twombly-i don't see the relevance of the reference. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Friday, November 14, 2008 2:03 PM To: Law Religion issues for Law Academics Subject: Re: Mark of the beast lawsuit by Amish Complaint: http://blog.wired.com/27bstroke6/files/satanfiling.pdf DOJ Brief: http://blog.wired.com/27bstroke6/files/beast.pdf On Fri, Nov 14, 2008 at 11:34 AM, Jean Dudley [EMAIL PROTECTED] wrote: http://blog.wired.com/27bstroke6/2008/11/bush-administra.html From the Wired article: The Amish farmers claimMichigan regulations requiring them to use radio frequency identification devices on their cattle constitutes some form of a 'mark of the beast' and/or represents an infringement of their 'dominion over cattle and all living things' in violation of their fundamental religious beliefs, according to the farmers' lawsuit filed in September in U.S. District Court for the District of Columbia. Thoughts? Jean ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private.Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___To post, send message to [EMAIL PROTECTED] subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _ Windows Live Hotmail now works up to 70% faster. http://windowslive.com/Explore/Hotmail?ocid=TXT_TAGLM_WL_hotmail_acq_faster_112008___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: 130 Muslim workers fired over unauthorized breaks during Ramadan
I think one problem you run into is that breaking the fast is an act with significant religious and cultural meaning. I don't know if it can be characterised as a religious rite -- but it is very, very close to one if not. While taking an energy bar or water meets the physical need, that would be like substituting water and an energy bar for the wine and bread at a seder. David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 Subject: RE: 130 Muslim workers fired over unauthorized breaks during Ramadan Date: Fri, 12 Sep 2008 12:21:30 -0700 From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu I appreciate Doug's practical point, but I was wondering whether this is enough to make the breaking of the fast an aspect[] of religious observance and practice. One more question: Assume that Swift doesn't offer a break, but doesn't object to people's having an energy bar or drinking a bottle of water at their work station. (Perhaps that's not allowed when people are engaged in food processing, but assume that it is, or assume that people can hit the restroom for a minute or two whenever they need to, so they can catch a very quick bite on a minute-long break.) Would that suffice as an accommodation (or perhaps even make it unnecessary to have an accommodation, if there's no prohibition on such munching)? Obviously this isn't as appealing to many people as a break during which they could eat a regular meal. But if the argument is that the fast-breaking is needed to avoid health problems or serious discomfort, wouldn't the energy bar and the bottle of water suffice for that purpose? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Friday, September 12, 2008 11:46 AM To: religionlaw@lists.ucla.edu Subject: Re: 130 Muslim workers fired over unauthorized breaks during Ramadan So if they have already passed the point where they have a mandatory lunch break under federal law, even though none of them eat, a break at sunset would be a second break, with more than de minimis cost, and therefore not required under TWA v. Hardison, the leading case on Title VII accommodations. Unfortunate, but possibly true. But if the shifts in this plant are anything like the US norm, that's not a problem. The usual shifts are 8-4, 4-midnight, and midnight to 8, or sometimes minor variations of that, such as 7-3, 3-11, and 11-7. There's nothing magic about that, but it puts one shift on people's normal daytime schedule. Assuming the shifts at Swift are something like that, then workers at sunset would be on roughly a 4-12 shift, and would be asking for an early lunch break rather than a federally forbidden late one. Eugene asks a good question, but sunset in LA this time of year is nearly 13 hours after sunrise. The need for food after a 13-hour fast is sufficiently intense that there's not much difference between the need for food at sunset and the religious need to keep the fast. A chance to eat at sunset is a reasoanble accommodation of the religious need to fast until sunset. Quoting Alan Leigh Armstrong [EMAIL PROTECTED]: Swift also has a federal law and perhaps a state law problem. Federal law requires that employees who work a shift longer than 6 hours must take a 30 minute lunch break. The lunch break cannot be more than 5 hours 30 minutes after they start. (I ran into this many years ago when i worked for the Navy. Some people would come in early saturday, work 8 hours then go home. They were told they had to take a 30 minute lunch break. Under federal law, they can work a 6 hour shift without a lunch break. Does Swift let the employees take 2 30 minute breaks? What does that do to production? Can Swift put them all on swing or graveyard shift so they are at work during the night and avoid the problem of lunch between sunrise and sunset? When reasonable accommodation hits federal law, which prevails? Alan Armstrong Huntington Beach California On Sep 11, 2008, at 12:03 PM, Douglas Laycock wrote: A typically garbled press account, with paragraphs that sound like they're from two different disputes. So it's hard to tell what's really going on. But if the dispute is really just about a lunch break at sunset, it's a pretty straightforward Title VII accommodation claim. Hard to imagine what Swift's undue hardship would be if that standard were taken seriously. Hard to imagine even what a de minimis hardship would be if nearly the whole work force is Muslim. If there are also lots of non-Muslim workers, Swift might claim it has scheduling problems. It sounds like at this point they made no effort to accommodate and don't give a damn, but of course
FW: Mass self-flaggelation for the Muslim holiday Ashura
From a colleague. -Original Message- From: Hamoudi, Haider [mailto:[EMAIL PROTECTED] _ Just a few points on this, from someone who would know very little about the New York law aspect of it, but a reasonable amount concerning the Islamic law side. First, the practice of bloodletting during Ashura is not so much Islamic as Shi'i Islamic, and secondly, and more importantly, if the police did intervene, there are not an insignificant number of Shi'is who would probably regard that decision rather favorably. More moderate Shi'a, and more educated Shi'a, tend to view these practices as misguided in the best case, and an embarrassment in the worst case. Even rather conservative voices such as the late Ahmed Al-Waeli, the preacher whose voice almost symbolizes the Ashura lamentations in the modern era given how popular and widespread his rendition of the event was throughout the Shi'i world, spoke out rather forcefully against bloody commemorations in Hyde Park, dismissing them as barbaric and outdated. When the police came down rather hard on one such event in Detroit last year, the general reaction among the Shi'is I knew was rather sympathetic to the police. (In that case, it wasn't so much a decision by the police to end the commemoration, they didn't even know there was one, as to respond to what looked like some sort of serious problem at a mosque they thought must have been attacked---men without their shirts off with blood on their backs crying suggested to them something of this sort). I believe the same mosque still does these things in Detroit but in an enclosed area far from the view of everyone else, including the rest of the Shi'is commemorating, which I think does tend to suggest some level of Shi'i community, if not disapproval, then equivocation as to the matter. The community told them to take it indoors. Moreover, police are not generally viewed as hostilely in Muslim communities as, say, the FBI or the military. I don't mean to suggest they are welcomed as heroes by all, but that when Muslims join police forces, and they do, they neither hide it from other members of the community nor do they seem to feel the need to engage in excessive apologetics over it. The biggest problem I find with conservative Muslims who immigrate when they first enter is that they call 911 too often, not too little (because they assume the police have assumed the role their uncle once had when he negotiated their disputes). The Shi'i jurists in particular have made sharp distinctions between joining a police force, which they consider generally okay, and joining the US army, where they generally do not. Of course, a crackdown could backfire too, as an example of some sort of perceived persecution. After all, jurists haven't banned these things, making many believe they are acceptable and therefore they have a right to do them. And even if the police aren't viewed as necessarily hostile, still when interfering with a commemoration resentments can be stirred. Nevertheless, I'm not convinced that the reaction to police intervention to something Shi'is are of two minds about would be necessarily negative so long as it was limited and intelligent (ie through consulations and explained, as opposed to an unannounced mosque raid which would surely annoy if not enrage just about everyone). For those interested in these subjects, I do run a blog on Islamic law, as per below. Haider Ala Hamoudi Assistant Professor of Law University of Pittsburgh School of Law 3900 Forbes Avenue Pittsburgh, PA 15260 (412) 624-1055 [EMAIL PROTECTED] You can access my papers on SSRN at http://papers.ssrn.com/author=641155 You can access my papers on Bepress at http://works.bepress.com/haider_ala_hamoudi/ Check out my blog at http://muslimlawprof.org/ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
Starting from a grounding within a particular belief system simply does not entail being committed to an ideology without circularity. In that case ideology simply loses any analytic or political significance and should be abandoned. I have no idea what this means. My dictionary labels an ideology as a systematic body of concepts.the integrated assertions, theories, and aims that constitute a sociopolitical program. (Websters New Collegiate). I do not see how either the neo-atheists or people of faith fail to fit within this definition. They not only start from the premises contained in their respective ideologies, they advocate on their behalf. In terms of religious freedom, it is easy to label religions as ideologies-I simply stress that there are many comparable secular ideologies and, as Doug Laycock and Michael McConnell among so many others on this list have argued, favoring the secularist position often advanced by the neoatheists is discriminatory. David David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 _ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, September 08, 2007 9:44 AM To: religionlaw@lists.ucla.edu Subject: Re: Mormon Student, Justice, ACLU Join Up In a message dated 9/7/2007 11:51:59 A.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: My only concern is to point out that while everyone recognizes that theists start from a grounding within a particular belief system, so too do atheists. Starting from a grounding within a particular belief system simply does not entail being committed to an ideology without circularity. In that case ideology simply loses any analytic or political significance and should be abandoned. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ http://ratiojuris.blogspot.com/ Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ _ See what's new at AOL.com http://www.aol.com?NCID=AOLCMP0030001170 and Make AOL Your http://www.aol.com/mksplash.adp?NCID=AOLCMP0030001169 Homepage. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
I believe this distinction to be incorrect. Both atheists and evangelicals adhere to particular ideological perspectives. The atheist, as you posit him or her, does not believe in god because god cannot be proven by empirical means (i.e. sufficient evidence.) True. But that assumes that science can either prove or disprove god. That is like saying science (in the hard, empirical, lab-experimental sense) can prove or disprove love or morality or some other complex social phenomena. It is not enough to say that the default in the absence of proof must be disbelief. At best it should be agnosticism at something that is posited to exist outside of the materialist paradigm. That is not the position atheists like Dawkins take. I should add, my posts are not directed at an abstract, theoretical atheist, but rather at the public discourse surounding the neo-atheists (Harris, Dawkins, etc.) David From: [EMAIL PROTECTED]: Fri, 7 Sep 2007 07:57:10 -0400Subject: Re: Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu David E. Guinn wrote: Third, to say atheists are not evangelical ignores the passion and furor around Harris, Dawkins, Hutchens et. al. and the best selling books they have written. The distinction between evangelism and atheism should not be collapsed because both exhibit passion or that there is furor surrounding the work of some atheists. The distinction is that the former eschews the kind of evidence that everyone, including evangelicals, rely upon in everyday dealings, personal and professional relationships, business, politics, and of course science. A principled, thoughtful atheist will renounce his or her position when confronted with sufficient evidence. Evangelicals relying upon faith will not, or at least they claim that they will not because nothing for them can constitute sufficient evidence. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelawareRatio Juris, Contributor: http://ratiojuris.blogspot.com/Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ Get a sneak peek of the all-new AOL.com. _ More photos; more messages; more whatever – Get MORE with Windows Live™ Hotmail®. NOW with 5GB storage. http://imagine-windowslive.com/hotmail/?locale=en-usocid=TXT_TAGHM_migration_HM_mini_5G_0907___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
I do not think I am going outside of the rigors of a theoretical understanding. The very term atheism (as an -ism) definitionaly acknowledges its ideological commitment. My only concern is to point out that while everyone recognizes that theists start from a grounding within a particular belief system, so too do atheists. Moreover, as I said before, atheism is a belief system that makes a affirmative commitment -- i.e. that god does not exist -- an assertion that stands outside the epistemological grounding of the empirical belief itself. To me that clearly demonstrates the ideological nature of the belief. As an agnostic, I acknowledge the virtues of the empirical world view. I simply recognize that it has limits and cannot answer every question asked. It cannot prove or disprove the existence of a first cause or what happened before the big bang (as presently understood--though it might disprove current understandings).David From: [EMAIL PROTECTED]: Fri, 7 Sep 2007 10:21:17 -0400Subject: Re: Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu In a message dated 9/7/2007 9:33:17 A.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: Both atheists and evangelicals adhere to particular ideological perspectives. While this may be true of particular individuals, it's far from an accurate account of the concepts--evangelical and atheist--themselves. Moreover, we will never understand the actual debates in public discourse without having some familiarity with the theoretical sense of these terms. And so theoretical analysis is inescapable. In that regard, I think it is a radical mistake to use the term ideological to capture what might be term a pragmatic atheist. Sure everyone has their starting points, but all starting points are not equal and only some are ideological. If ideology is used to depict all starting points then the word loses any analytic punch and should be abandoned. I think the mistake derives from thinking that a passionate devotion to one's position is the same thing as not needing reasons or embracing faith to substantiate one's position. Faith and a commitment to the proposition that God works in mysterious ways when used by a theist to reject any ordinary attempt--ordinary in the sense of the way we reason about non-religious matter--to refute or criticize his or her position reveals or at least suggests that pragmatic reasoning has come to an end. Don't get me wrong! Many atheists are probably driven by faith. But that is an inessential feature of explicating the meaning of atheism. And further when a theist contends that reason guides his or her commitment to God that commitment, in my view, is equal to the pragmatic atheist's commitment to the position that there is no God. Neither are ideological. Both are driven by reason. In this case, reason not God governs. It's unclear whether the Court needs the distinction between evangelism in its religion-clause jurisprudence, but I think it's probably true that the distinction is not used by the Court. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelawareRatio Juris, Contributor: http://ratiojuris.blogspot.com/Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ Get a sneak peek of the all-new AOL.com. _ Can you find the hidden words? Take a break and play Seekadoo! http://club.live.com/seekadoo.aspx?icid=seek_wlmailtextlink___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
Three points: My citation of Paul and Calvin is not offered as a form of religious revelation (i.e. scripture) but simply to reflect the perspective of believers which you appear unable to comprehend. As someone who is NOT a believer myself, I nonetheless find it helpful to try to understand the perspectives of people of faith. Second, there is a distinction between rational - which includes the concepts of logically consistent, and coherent through the application of reason to basic concepts and principles and empirical -- which suggests grounding in a materialist ideology. You seem to equate rational with empirical. Third, to say atheists are not evangelical ignores the passion and furor around Harris, Dawkins, Hutchens et. al. and the best selling books they have written. David E. Guinn, JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Susan Freiman Sent: Thursday, September 06, 2007 5:24 AM To: Law Religion issues for Law Academics Subject: Re: Mormon Student, Justice, ACLU Join Up I don't see answering whether belief is a question of choice by reference to a religious belief, which is the same as referring to Calvin and Paul for the answer. And if theology grows out of the belief, that doesn't mean the theology is not irrational, it means only that it is logically consistent if the validity of the premise (belief) is conceded. Nor is faith more rational if one values it for touching something deeper and more profound. Deeper that what? More profound than what? And how do we know? Atheists aren't trying to persuade anyone of anything. Most are too laid back to care what others believe, although they try to teach others the difference between rational, evidence-based conclusions and beliefs which are not proved. One can choose to look for proof or not, and to be guided by success in finding proof. Susan David E. Guinn wrote: It does seem to me that one of the most compelling arguments in favor of religious freedom is the recognition that religious belief is not simply a matter of choice--like deciding whether or not to join a fraternity or sorority. As Calvin and Paul suggested, it is a product of grace. That does not mean that people of faith are irrational with respect to the theology that grows out of that belief, it does mean that faith touches something much deeper and more profound. That said, I think the evangelical fervor displayed by the neo-atheists (as E.J. Dionne so aptly labels them) demonstrates that this religious connection can attach to a materialist ideology as well as a transcendentalist one. The mistake Harris and company make is in thinking that their choices are purely rational and that everyone should believe exactly as they do. (Sounds like some religious fundamentalists to me.) In this sense, I think the issue does touch significantly on religion and law. David From: [EMAIL PROTECTED] Date: Wed, 5 Sep 2007 08:58:10 -0400 Subject: Re: Mormon Student, Justice, ACLU Join Up To: religionlaw@lists.ucla.edu I'd welcome an on-list discussion of this matter, with Eugene's permission of course. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware */ /**/Ratio Juris/*, Contributor: http://ratiojuris.blogspot.com/*/*/ Essentially Contested America/*, *Editor-In-Chief *http://www.essentiallycontestedamerica.org//* Get a sneak peek of the all-new AOL.com http://discover.aol.com/memed/aolcom30tour/?ncid=AOLAOF0002000982. Discover the new Windows Vista Learn more! http://search.msn.com/results.aspx?q=windows+vistamkt=en-USform=QBRE ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can
RE: Mormon Student, Justice, ACLU Join Up
It does seem to me that one of the most compelling arguments in favor of religious freedom is the recognition that religious belief is not simply a matter of choice--like deciding whether or not to join a fraternity or sorority. As Calvin and Paul suggested, it is a product of grace. That does not mean that people of faith are irrational with respect to the theology that grows out of that belief, it does mean that faith touches something much deeper and more profound. That said, I think the evangelical fervor displayed by the neo-atheists (as E.J. Dionne so aptly labels them) demonstrates that this religious connection can attach to a materialist ideology as well as a transcendentalist one. The mistake Harris and company make is in thinking that their choices are purely rational and that everyone should believe exactly as they do. (Sounds like some religious fundamentalists to me.) In this sense, I think the issue does touch significantly on religion and law. David From: [EMAIL PROTECTED]: Wed, 5 Sep 2007 08:58:10 -0400Subject: Re: Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu I'd welcome an on-list discussion of this matter, with Eugene's permission of course.Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelawareRatio Juris, Contributor: http://ratiojuris.blogspot.com/Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ Get a sneak peek of the all-new AOL.com. _ Discover the new Windows Vista http://search.msn.com/results.aspx?q=windows+vistamkt=en-USform=QBRE___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
My apologies to Paul and the list for any confusion caused by my post. I had no intention of accusing Paul of claiming people of faith were irrational. I had assumed that Bobby's post had opened a new thread on choice and religious freedom which I was attempting to address. My comments were about the approach taken by Harris and Dawkins (et. al.) My mistake was in not changing the subject line. David Date: Wed, 5 Sep 2007 10:05:34 -0400 From: [EMAIL PROTECTED] To: [EMAIL PROTECTED]; religionlaw@lists.ucla.edu Subject: RE: Mormon Student, Justice, ACLU Join Up The choice issue, at least for me, is not about being a neo-atheist, since I am not one. The issues here is seems is that the student does have choice to not do the mission. As I understand it not all Mormons do; and no one has answered the question as to the timing of the mission. MUST he do it at a certain age. If not, then there is a great deal of choice. He can choose to go to college and then do the mission. He can choose to do the mission and then go to college. I assume, for example, that Mormons attend West Point or the other service academies and that they do not leave school for a year to do a mission. Try this, suppose instead of being in regular university the student was at a service academy and therefore a member of the military -- which is a choice. And then asks for a leave to go on a mission. Suppose he is not a student but enlists at 17 or 18, serves until 19 and as he is about to be shipped to Iraq says I need a leave for a year. I don't think he gets it and I don't see how that would be a necessary accommodation of religious practice. I have never suggested people are irrational in their belief and I find David's suggestion that I have to be way over the top. Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 09/05/07 9:41 AM It does seem to me that one of the most compelling arguments in favor of religious freedom is the recognition that religious belief is not simply a matter of choice--like deciding whether or not to join a fraternity or sorority. As Calvin and Paul suggested, it is a product of grace. That does not mean that people of faith are irrational with respect to the theology that grows out of that belief, it does mean that faith touches something much deeper and more profound. That said, I think the evangelical fervor displayed by the neo-atheists (as E.J. Dionne so aptly labels them) demonstrates that this religious connection can attach to a materialist ideology as well as a transcendentalist one. The mistake Harris and company make is in thinking that their choices are purely rational and that everyone should believe exactly as they do. (Sounds like some religious fundamentalists to me.) In this sense, I think the issue does touch significantly on religion and law. David From: [EMAIL PROTECTED]: Wed, 5 Sep 2007 08:58:10 -0400Subject: Re: Mormon Student, Justice, ACLU Join UpTo: religionlaw@lists.ucla.edu I'd welcome an on-list discussion of this matter, with Eugene's permission of course.Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelawareRatio Juris, Contributor: http://ratiojuris.blogspot.com/Essentially Contested America, Editor-In-Chief http://www.essentiallycontestedamerica.org/ Get a sneak peek of the all-new AOL.com. _ Discover the new Windows Vista http://search.msn.com/results.aspx?q=windows+vistamkt=en-USform=QBRE Get news, entertainment and everything you care about at Live.com. Check it out! _ News, entertainment and everything you care about at Live.com. Get it now! http://www.live.com/getstarted.aspx___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Mormon Student, Justice, ACLU Join Up
Isn't this analogous to the conscientious objector cases where sincere commitment should determine the exemption? David Subject: RE: Mormon Student, Justice, ACLU Join Up Date: Thu, 30 Aug 2007 10:49:38 -0700 From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu A quick question: Say the Mormon student wins, on a Sherbert-like rationale. Another student wants a similar exemption on the grounds that he feels a religious motivation to take two years off to meditate, or to make money to help support his family, or to fulfill what he sees as God's command to step back from formal education and take time to find the meaning of life. Assume that the student's religious motivation for this is found to be sincere. I take it that he'd have to be treated the same as the Mormon, right? I'm not saying that this is a particularly horrible result, but I just wanted to explore what the result would end up being. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _ Discover the new Windows Vista http://search.msn.com/results.aspx?q=windows+vistamkt=en-USform=QBRE___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Lofton / Falwell Not Preacher He SHOULD Have Been
I tend to agree with Eugene that the initial posts on this thread were clearly off topic and represented personal animous or favor rather than promoting an informative discussion. Interestingly, subsequent efforts to justify those posts have been far more substantive and useful. In considering the role of the individual in the law of religious freedom, I don't think one can draw a single dichotomous line. Issues fit more within concentric circles of relevance. For example, in evaluating the Clinton impeachment, it seems to me that Clinton's behavior with Monica, while morally objectionable not only in terms of infidelity but in an abuse of position and power over a young person who was a White House intern and relevant to whether or not I might want to vote for him, was largely irrelevant to an inquiry about the law of impeachment. His lying to the Grand Jury, the crime he was charged with was relevant, if not convincing. Similarly, Gingrich's extra-marital affair might be relevant in making judgments about his character and intentions, it similarly tells me little to nothing about the law of impeachment. With respect to Falwell, his attitude towards the state, the role of religion in law and how he personally acted in relation to those issues (whether as an advocate or as a supplicant for government assistance) are clearly important for this list. His private behavior to convert an individual that never involved recourse to law or government seems irrelevant--unless the person making the assertion can make a connection that I fail to see. David -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Shiffrin Sent: Thursday, May 17, 2007 1:58 PM To: Law Religion issues for Law Academics Subject: Re: Lofton / Falwell Not Preacher He SHOULD Have Been One of the arguments for avoiding tight connections between church and state is that churches are corrupted by their entanglements with the state. The question whether religious leaders have been coopted is relevant to that discussion and seems clearly on topic. David Kuo, for example, in his recent book discusses how brushes with power affected Billy Graham and Jerry Falwell. From his perspective, this is a discussion of sin (or not), but it is surely on topic. In addition, the religion clauses are embedded in a culture and the nature of that culture has a bearing on how the clauses are interpreted. Jerry Falwell played a role in the development of our religious culture. His involvement affected the understanding of what the relations between church and state should be, I would guess, for millions of people including many public officials charged with interpreting the Constitution. Admitting that it is possible to make remarks about Falwell that are marginally important, I tend to agree with Bobby. Steve Volokh, Eugene wrote: A discussion of Falwell's role in the development of Religion Clauses law is surely entirely on-topic. A discussion of whether Falwell acted in sad or sinful ways under one's own theological view (however sincere or well-reasoned) of what behavior is sad or sinful strikes me as no more on-topic than a discussion of whether, say, Justices Brennan or Blackmun acted in sad or sinful ways. Eugene [EMAIL PROTECTED] 05/17/07 9:01 AM In a message dated 5/16/2007 9:59:21 P.M. Eastern Daylight Time, [EMAIL PROTECTED] writes: Please remember that this is a list devoted to the law of government and religion -- not on whether some people (recently dead or otherwise) acted in sad or sinful ways, except insofar as that pretty closely connects to the law of government and religion. I am incredulous that an open discussion of one of the most important operatives in religion and constitutionalism in the last three decades should be inappropriate on this List. Of course, this is Eugene's List and therefore I will respect his wishes. But I could not disagree more with his sense of relevance or appropriateness in this matter. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor: _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) ** See what's free at http://www.aol.com. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Paid days off for religious holidays
On first reading, the distinctions do appear troubling and for a government developing a policy on this ground, it would appear much more appropriate and non-discriminatory to create a special 3 day personal day allowance that included an absolute right by the individual to take those days on designated religious holidays. However, one point that is interesting here is that since this is in a collective bargaining agreement, it presumably arose through a demand by the employees bargaining unit. This doesn't seem like a proposal the government-employer would come up with on its own. So: does this make this a private transaction? If not, what responsibility does the union have? David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Thursday, May 03, 2007 5:29 PM Subject: Paid days off for religious holidays Troy v. City of Lynn School Dep't, 2007 WL 1289409 (Mass. Comm'n Against Disc. Apr. 18), holds that a collective bargaining agreement that gave certain Jewish, Greek Orthodox, and Russian Orthodox administrators their religious holidays off with pay was religiously discriminatory against a Catholic administrator who wanted Holy Thursday and Ascension Thursday off. Jews got three days off for Rosh Hashanah and Yom Kippur. Greek and Russian Orthodox got one day off for Orthodox Good Friday. Everyone got Christmas and Good Friday off. This, the Commission held, was discriminatory: Respondent's refusal, pursuant to the parties' CBA, to grant Complainant paid leave for Holy Thursday and Ascension Thursday, while granting paid leave to members of the Jewish faith for Rosh Hashanah and Yom Kippur, and granting paid leave to members of the Greek Orthodox and Russian Orthodox faiths for Good Friday, raises a reasonable inference of discrimination. At the second stage of proof where indirect evidence is concerned, Respondent has not come forward with a legitimate, nondiscriminatory reason for the disparate treatment of members of different faiths. See also Fleming v. Boston Public Library, 22 MDLR 8 (2000). 1. Say the Commission reasoned that many Jews feel a religious obligation to take Rosh Hashanah and especially Yom Kippur off, and Christians feel the same as to their Good Friday (recall that everyone gets Heterodox Good Friday off, and Orthodox Christians get Orthodox Good Friday off), but most Catholics do not feel the same obligation as to Holy Thursday and Ascension Thursday. Should that justify the disparate treatment? Should it be enough that this particular Catholic claim a felt obligation to take those days off? Or should that not even be relevant, given that members of other religions apparently get their holidays off without any need to claim a felt obligation not to work on those days? 2. Say an irreligious administrator now complains, on the grounds that some people get 3 days off -- with pay -- because of their religion, others get 1 day off, others get 2 days off, but he gets no days off because he is not religious. a. Would that scheme violate state or federal antidiscrimination law, as applied to the atheist? (Which days should the irreligious administrator be entitled to claim, if he is entitled to claim some days?) 3. Would that scheme violate the Establishment Clause, on the grounds given in the Texas Monthly v. Bullock plurality -- that it constitutes a financial subsidy to religious practice, and that it's not necessary to alleviate a government-imposed burden on religious practice (since a day-off-without-pay accommodation would do that just fine)? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions for the non-religious
I must admit having some sympathy for Perry's position. In my book FAITH ON TRIAL, I advanced the following argument supporting an expansive protection of religious exceptions that would justify attention to traditional religions: 1 Law regulates behavior based upon social utilitarian grounds (e.g taking drugs is bad for you and society.) 2 We reject pure claims of conscience as being anarchic (Scalia's each man a law unto himself) 3. Behavior that is compelled by a religious community not only reflects religious values, it includes a demonstrated social utility -- that is, the behavior is not only endorsed by a group (ergo not an idiosyncratic assessment of merit) it must have also contributed to the ongoing viability of that group (such as the fact that use of peyote by the NA Church in Smith contributed to a community in which there was far less drug abuse than prevalent in the general native American population.) 4. Therefore, the courts can and should incorporate an appreciation of this social endorsement under the First Amendment in considering objections. While I continue to believe in the merits of this argument, I cannot point to any court that has agreed with me (outside of the YODER outlier that predated by work.) David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Perry Dane To: religionlaw@lists.ucla.edu Sent: Thursday, March 01, 2007 11:05 AM Subject: Religious exemptions for the non-religious Doug Laycock writes that the willingness to treat atheism as a religion is very encouraging. I agree that, for certain purposes, including rights of expression, religious views and anti-religious views need to be treated equally. On the other hand, it has always seemed to me that to extend the idea of religion-based exemptions beyond the realm of specifically religious norms conflicting with secular law would, in effect, create a universal libertarian presumption that no law can be applied against a dissenting individual unless that law is supported by a compelling governmental interest. And that sort of universal libertarian presumption just strikes me as implausible and inconsistent with our constitutional and legal structure. Doug is right that some opponents of religion-based exemptions make something like the following argument: 1. We can't exempt only believers, because that would discriminate against nonbelievers. 2. But we can't exempt nonbelievers, because nonbelief is not a religion. 3. Therefore, we can't exempt anybody. But I think that we should be equally concerned about the following argument: 1. We can't exempt non-believers, because that would create a universal libertarian presumption in the law, which is implausible. 2. But we can't exempt only believers, because that would discriminate against nonbelievers. 3. Therefore, we can't exempt anybody. In both cases, the flaw in the reasoning (which Doug agrees is a flaw) is the notion that we can't exempt only believers. Of course we can exempt only believers, and there are good, normatively compelling, reasons to do so. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ www.ssrn.com/author=48596 *** -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Atheist inmate refused authorization for atheism study group
Sorry, I meant technically in the sense that in popular discourse much has been made of the irony of the American Atheist Assoc. and American Humanists society have sought and obtained tax exempt status similar to the exemption provided traditional religious groups. A point that atheists have made as a badge of equality. But that doesn't provide legal grounds for equal treatment. - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, February 22, 2007 5:39 PM Subject: RE: Atheist inmate refused authorization for atheism study group I'm not sure there's any technically to it -- isn't the tax exemption for a wide range of nonprofits, including colleges, schools, advocacy groups (so long as they don't engage in lobbying or electioneering), and more? -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn Sent: Thursday, February 22, 2007 2:53 PM To: Law Religion issues for Law Academics Subject: Re: Atheist inmate refused authorization for atheism study group True. And the tax exemption that protects both religious institutions and the American Humanist and American Atheist societies is not technically confined to religions.. - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] Recall that only one Justice, Harlan, took the view that equal treatment for atheist conscientious objectors was constitutionally mandated; the plurality relied instead on a (tortured) interpretation of the statute. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of David E. Guinn Sent: Thursday, February 22, 2007 2:41 PM To: Law Religion issues for Law Academics Subject: Re: Atheist inmate refused authorization for atheism study group This doesn't make sense to me. Assuming that the prison does allow meetings for religious groups, then under the selective services cases requiring equal protection for atheism or other beliefs equivalent to religion would seem to be required. As for protecting the publications--that does seem to follow the common bias that wants to treat the 1st Amend. as simply a free speech amendment--though I agree with you that it is incoherent in terms of this case. David David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, February 22, 2007 4:28 PM Subject: Atheist inmate refused authorization for atheism study group Any thoughts on this? From Kaufman v. Schneiter, 2007 WL 521218 (W.D. Wis. Feb. 15, 2007): Petitioner is an atheist. He contends that prison officials have violated his rights under the free exercise clause and RLUIPA in three ways: (1) by refusing to authorize a study group for inmates who have described themselves as atheists, freethinkers, humanists and 'other' and those who have identified themselves to prison officials as having no religious preference; (2) by failing to provide petitioner with publications about atheism; and (3) by preventing him from ordering publications about atheism. Petitioner has not stated a claim under the free exercise clause for one simple reason. He does not allege (nor is it possible to see how he could plausibly do so) that merely reading books about atheism or meeting in a study group with inmates of various philosophical bents constitutes the exercise of his religion, that is 'the observation of [ ] central religious belief[s] or practice[s]' of atheism. Civil Liberties for Urban Believers, 342 F.3d at 760. Therefore, petitioner must be denied leave to proceed on his claim that respondents Taylor, Hepp and Huibregtse violated his First Amendment free exercise rights by refusing to provide him with materials about atheism or to authorize a study groups for atheist, humanist and freethinking inmates and inmates with no or an 'other' religious preference In this case, petitioner is not challenging the prison's decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates
Re: Atheist inmate refused authorization for atheism study group
This doesn't make sense to me. Assuming that the prison does allow meetings for religious groups, then under the selective services cases requiring equal protection for atheism or other beliefs equivalent to religion would seem to be required. As for protecting the publications--that does seem to follow the common bias that wants to treat the 1st Amend. as simply a free speech amendment--though I agree with you that it is incoherent in terms of this case. David David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, February 22, 2007 4:28 PM Subject: Atheist inmate refused authorization for atheism study group Any thoughts on this? From Kaufman v. Schneiter, 2007 WL 521218 (W.D. Wis. Feb. 15, 2007): Petitioner is an atheist. He contends that prison officials have violated his rights under the free exercise clause and RLUIPA in three ways: (1) by refusing to authorize a study group for inmates who have described themselves as atheists, freethinkers, humanists and 'other' and those who have identified themselves to prison officials as having no religious preference; (2) by failing to provide petitioner with publications about atheism; and (3) by preventing him from ordering publications about atheism. Petitioner has not stated a claim under the free exercise clause for one simple reason. He does not allege (nor is it possible to see how he could plausibly do so) that merely reading books about atheism or meeting in a study group with inmates of various philosophical bents constitutes the exercise of his religion, that is 'the observation of [ ] central religious belief[s] or practice[s]' of atheism. Civil Liberties for Urban Believers, 342 F.3d at 760. Therefore, petitioner must be denied leave to proceed on his claim that respondents Taylor, Hepp and Huibregtse violated his First Amendment free exercise rights by refusing to provide him with materials about atheism or to authorize a study groups for atheist, humanist and freethinking inmates and inmates with no or an 'other' religious preference In this case, petitioner is not challenging the prison's decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates of different religious or philosophical persuasions for the purpose of facilitating inter-religious dialogue. By refusing to authorize a study group for inmates who designate themselves as atheists, humanists, freethinkers and other and inmates who have no religious preference, respondents Taylor and Hepp did not violated petitioner's rights under the free exercise clause or RLUIPA. On the other hand, from the same case: [If] petitioner was unable to order books about atheism because of the facility's ban on publications ... [then] the actions of prison officials may have violated his rights under the free exercise clause and RLUIPA as well as the free speech clause of the First Amendment. Why would studying atheism together be unprotected by RLUIPA because it isn't the observation of [ ] central religious belief[s] or practice[s] of atheism, but ordering books about atheism be protected by it? And why would a request for a study group for atheists/freethinkers/humanists/other and those who have no religious preference be treated as a request to authorize a group for inmates of differing religious and philosophical persuasions -- simply because the group doesn't just include self-described atheists but also others who sound pretty close to atheism but don't fit within that denomination? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
Re: AlterNet website
As I recall, he wrote a book about his time at the Harvard Divinity School in the late 80s early 90s. He went back after he had established his career as a writer for publications like the NY Times, the New Yorker, etc.. David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Douglas Laycock To: religionlaw@lists.ucla.edu Sent: Monday, February 12, 2007 4:58 PM Subject: RE: AlterNet website In his Colbert appearance, Hedges said he is a Christian and a seminary graduate. He complained of his faith being hijacked by the people he is attacking in the book. He revealed no details on what he actually believes about his religion. Quoting Newsom Michael [EMAIL PROTECTED]: I too have read the piece, but have a decidedly different reaction to it. I wouldn't call it hate speech, or his attack vicious. That is, perhaps, a bit too intemperate. He raises a series of legitimate questions and concerns. The fact that his particular solutions might - or might not - be problematic does not mean that the questions and concerns are not real and serious. By the way, your use of the word Christian suggests that Christian applies only to a rather narrow subset of Christians. I am not sure that that is appropriate either. Or to put it differently, there are some Christians who agree with much of what Hedges has to say. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Monday, February 12, 2007 10:10 AM To: Law Religion issues for Law Academics Subject: RE: AlterNet website I just read Hedges' piece. It was pure hate speech, but speech I believe the Constitution protects. It sounds like Hedges also wishes to restrict not only Christian broadcasters, but also Christian schools, such as the one my son attends. His real problem is not so much the Christian fascists he attacks so viciously, but all three Clauses of the First Amendment. Hedges piece is a sad and bitter piece, written by a man who believes that both political parties have blessed the unchecked rape of America and that those who believe in the teachings of the Bible have moved from the reality-based world to one of magic -- to fantastic visions of angels and miracles, to a childlike belief that God has a plan for them and Jesus will guide and protect them. This mythological worldview, one that has no use for science or dispassionate, honest intellectual inquiry, one that promises that the loss of jobs and health insurance does not matter, as long as you are right with Jesus, offers a lying world of consistency that addresses the emotional yearnings of desperate followers at the expense of reality. I think the real threat we face is not Christian fascism, but rather religious persecution directed at anyone who has a committed,childlike faith in God and God's lies, or who believes in this mythological worldview. We need a strong First Amendment now more than ever. Returning to lurk mode, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. Food fight? http://answers.yahoo.com/dir/index;_ylc=X3oDMTFvbGNhMGE3BF9TAzM5NjU0NTE wOARfcwMzOTY1NDUxMDMEc2VjA21haWxfdGFnbGluZQRzbGsDbWFpbF90YWcx?link=asks id=396545367 Enjoy some healthy debate in the Yahoo! Answers Food Drink QA. http://answers.yahoo.com/dir/index;_ylc=X3oDMTFvbGNhMGE3BF9TAzM5NjU0NTE wOARfcwMzOTY1NDUxMDMEc2VjA21haWxfdGFnbGluZQRzbGsDbWFpbF90YWcx?link=asks id=396545367 Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others
Re: Are churches public venues for NFL purposes?
There are several policy and politics issues arising in this exception: 1) The reason that businesses have better rights than non-profits is simply because they had better lobbyists during the copyright revision process. 2) These are exceptions to copyright in large part driven by music copyrightholders. Since composers and writers and their publishers make substantial income from licensing public performances (even to non-profits) they want to limit the exceptions to their copyright. In this case, television is simply following the same model in large part because music rights holders are afraid that lessening the protection for TV would ultimately lessen their performance rights. (Note the common ownership of each by media conglomerates.) 3) I am not sure why you find it surprising that television owners would want to protect the measurability of their viewership. They sell advertising based upon projected viewership -- and if they do not achieve their numbers (even through mismeasurement) they have to refund the payments. 4) Finally, I would point out that this provision covers not only broadcast, but cable television--where the cable owners income would be impacted by a broader exemption. Since copyright and free speech are both constitutionally protected rights, I do not subscribe to the position that the first amendment should take precedent. David David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Cc: jack.balkin ; William Patry Sent: Saturday, February 03, 2007 1:37 PM Subject: Re: Are churches public venues for NFL purposes? The basic prohibition stems from 17 USC 106(5), which gives the copyright owner the exclusive right to publicly display an audiovisual work. The restriction here presumably is triggered if the church's display is public (on which see more below). There is an exemption in section 110(5)(B) for a communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if-- (i) in the case of an establishment other than a food service or drinking establishment, either the establishment in which the communication occurs has less than 2,000 gross square feet of space (excluding space used for customer parking and for no other purpose), or the establishment in which the communication occurs has 2,000 or more gross square feet of space (excluding space used for customer parking and for no other purpose) and-- (I) if the performance is by audio means only, the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or (II) if the performance or display is by audiovisual means, any visual portion of the performance or display is communicated by means of a total of not more than 4 audiovisual devices, of which not more than 1 audiovisual device is located in any 1 room, and no such audiovisual device has a diagonal screen size greater than 55 inches, and any audio portion of the performance or display is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space. I don't think a church qualifies as an establishment under the Copyright Act, which is defined (section 101) as a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly. Thus, even if its television were under 55 inches, the church presumably would not qualify for the exemption. On the other hand, if it's display were not public, then it would not appear to be restricted in the first instance. If invitees were limited to church members, would that be a public display? Well, the statute provides that to perform or display a work 'publicly' means-- (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive
Re: Smith and exemptions
I agree with Alan's refinement of the issue -- but wonder about his solution. If one collapses protection of religion into speech, why is religion relevant? Are there not characteristics of religion, such as it associational or communitarian aspects, that are unique to religion? If the religion clauses have any independent, non-speech content, wouldn't that require some consideration of these non-speech factors? David E. Guinn JD, PhDRecent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Brownstein, Alan To: Law Religion issues for Law Academics Sent: Tuesday, October 17, 2006 11:15 AM Subject: RE: Smith and exemptions I think the more interesting question raised by this case at least based on Marcs description of it is whether courts should provide more rigorous review of regulations burdening religious organizations or individuals when the law at issue regulates speech or voting or ballot access. If a law in any of these areas would be subject to some standard of review less than strict scrutiny when the law is applied to a secular organization or individual, would the same law be subject to strict scrutiny with regard to its application to a religious organization or individual. In light of the Courts often stated conclusion that religion is a viewpoint of speech, does the free exercise clause require that speakers expressing religious viewpoints particularly in the context of political campaigns must receive greater protection for their expressive activities than speakers expressing secular viewpoints. I think the answer to that question has to be that it does not and that the few cases touching this issue support this answer. Alan Brownstein From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of Marc SternSent: Tuesday, October 17, 2006 6:58 AMTo: Law Religion issues for Law AcademicsSubject: RE: Smith and exemptions Church Ferry Road Baptist Church v Higgins was a church's challenge to a Montana statute requiring disclosure of certain activities and expenditures in regard to ballot initiatives. Most of the opinion addresses free speech implications of campaign finance law regulation, but the court also addressed and dismissed the churchs claim that it could not be subject to disclosure laws on free exercise grounds. It claimed that since there were some exemptions in the statute (for newspapers and membership organizations) Lukumi required application of compelling interest analysis. The court rejected this submission, on the ground that Lukumi held that a statue was neutral and generally applicable so long as religion was not the only non-exempt category. Is that right? The Third Circuit apparently disagreed in the Newark Police cases. Marc Stern ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Smith and exemptions
I'm not sure how far I disagree with Alan as a practical matter, though I was concerned about the description of the case that suggested some "associations" were exempted from the law but not religion. However, I guess the greater concern is that the courts, particularly Scalia,have often used speech as a way to avoid religious issues and the possible criticism that protecting religion violates equal protection requirements. If we automatically default to a free speech analysis we miss the potential bias in the law (as the court missed the Christian bias in"Goldman.") David - Original Message - From: Brownstein, Alan To: Law Religion issues for Law Academics Sent: Tuesday, October 17, 2006 12:17 PM Subject: RE: Smith and exemptions I think Davids absolutely right that there are characteristics of religion that justify it receiving special constitutional treatment. And I certainly did not intend to suggest that we should collapse the protection of religion into the protection of speech whenever there is any speech dimension to religious activity. Most of the time the practice of religion should not be viewed as speech but rather as the exercise of religion. But there are situations where religious expressive activities should be treated as speech for the purposes of reviewing regulations that burden or restrict them. Drawing that line may not be that easy to do, but I think it has to be done. Some of the places where I think strong arguments can be offered to treat religious expressive activities as speech involve content neutral speech regulations, and the regulation of elections (regulations relating to voting, ballot access, campaign financing laws etc.) Alan Brownstein From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of David E. GuinnSent: Tuesday, October 17, 2006 9:30 AMTo: Law Religion issues for Law AcademicsSubject: Re: Smith and exemptions I agree with Alan's refinement of the issue -- but wonder about his solution. If one collapses protection of religion into speech, why is religion relevant? Are there not characteristics of religion, such as it associational or communitarian aspects, that are unique to religion? If the religion clauses have any independent, non-speech content, wouldn't that require some consideration of these non-speech factors? David E. Guinn JD, PhDRecent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Brownstein, Alan To: Law Religion issues for Law Academics Sent: Tuesday, October 17, 2006 11:15 AM Subject: RE: Smith and exemptions I think the more interesting question raised by this case at least based on Marcs description of it is whether courts should provide more rigorous review of regulations burdening religious organizations or individuals when the law at issue regulates speech or voting or ballot access. If a law in any of these areas would be subject to some standard of review less than strict scrutiny when the law is applied to a secular organization or individual, would the same law be subject to strict scrutiny with regard to its application to a religious organization or individual. In light of the Courts often stated conclusion that religion is a viewpoint of speech, does the free exercise clause require that speakers expressing religious viewpoints particularly in the context of political campaigns must receive greater protection for their expressive activities than speakers expressing secular viewpoints. I think the answer to that question has to be that it does not and that the few cases touching this issue support this answer. Alan Brownstein From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of Marc SternSent: Tuesday, October 17, 2006 6:58 AMTo: Law Religion issues for Law AcademicsSubject: RE: Smith and exemptions Church Ferry Road Baptist Church v Higgins was a church's challenge to a Montana statute requiring disclosure of certain activities and expenditures in regard to ballot initiatives. Most of the opinion addresses free speech implications of campaign finance law regulation, but the court also addressed and dismissed the churchs claim that it could not be subject to disclosure laws on free exercise grounds. It claimed that since there were some exemptions in the statute (for newspapers and membership organizations) Lukumi required application of compelling interest analysis
Re: Victory for Military Chaplains Who Pray In Jesus Name
I hardly agree that he lost on the merits of the argument. I have yet to read any reasonable interpretation of law or history thatsupports yourposition. - Original Message - From: Gordon James Klingenschmitt To: Paul Finkelman ; religionlaw@lists.ucla.edu Sent: Monday, October 02, 2006 9:13 AM Subject: Re: Victory for Military Chaplains Who Pray "In Jesus Name" Having lost this debate onits intellectual merits, Mr. Finkelman resorts to personal attacks on my character. Yet I agree with him on one point,that pride is a terrible sin, so I shall here endeavor to humblypracticeProverbs 27:2: "Let another praise you,and not your own mouth; someone else, and not your own lips" lest I appear to toot my own horn. 84% of the Sailors on my ship agreed, "the command chaplain cares for all denominations, regardless of faith or belief. 94% of Americans supported me during my hunger strike, and only 6% supported the Navy's position, in this poll: http://persuade.tv/frenzy/WNDpoll.pdf 85% of Americans supported my position on the issue of letting chaplains pray in Jesus name, in this poll: http://persuade.tv/frenzy6/DecaturDaily17Sep06.pdf Ultimately, even public opinion is secondary to God's opinion, and if I have pleased Him then I am justified. Buthaving lost this NATIONAL debate, the anti-Jesus crowd was properly rebuked by the American public (who is decidedly pro-Jesus), and so the Navy and Air Force were ordered by Congress to respect public opinion (and the Constitution), sofreedom of religious _expression_was properly restored. I don't mind the personal insults by Mr.Guinn and Mr. Finkelman, (I've been insulted by better men), but theirlack of intellectual argumentappears very much as "sour grapes." Chaplain Klingenschmitt Paul Finkelman [EMAIL PROTECTED] wrote: Sounds very much like someone tooting his own horn? Is excessive pridealso a sin? One can only wonder how G-d will respond to someone who brags about hiswork to make outcasts of gay members of the human family. Perhaps theChaplain should try marching a mile or two in the boot of a gay sailoror soldier.I am no expert on the chaplain's faith, but have spent a great deal ofmy life studying religion and this is the first time I have ever heard aChristian assert that praying fomr the Book of Psalms compromised aChristian's faith.Paul FinkelmanPresident William McKinley Distinguished Professor of Lawand Public PolicyAlbany Law School80 New Scotland AvenueAlbany, New York 12208-3494518-445-3386 [EMAIL PROTECTED] Do you Yahoo!?Everyone is raving about the all-new Yahoo! Mail. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Victory for Military Chaplains Who Pray In Jesus Name
I am appalled by the selfishness of this line of argument -- that the only point of concern is to "protect the chaplain"-- as opposed to serve the religious needs and interest of our armed forces. Not only are these interpretations of history and law enormously biased and inaccurate, they are offensive. If the chaplaincy's purpose is solely to promote Chaplain Klingenschmitt's sectarian faith than perhaps Madison was correct in arguing that Congress' decision to hire chaplains was wrong and should now be recended. David - Original Message - From: Gordon James Klingenschmitt To: Law Religion issues for Law Academics Sent: Saturday, September 30, 2006 8:16 PM Subject: RE: Victory for Military Chaplains Who Pray "In Jesus Name" Excellent comment Professor Scarberry, But now that the policy is rescinded, so is any distinction between "public worship at divine services" and "public worship at command ceremonies" and so the law (once again) protects the chaplain at all events whenever he prays...prayer itself is restored as an act of "public worship" the same way italways had been since 1860. The origins of the 1860 law were described recently by ournew friend CDR Wildhack, who wrote in the Naval Law Review Vol 51 (2003): "As in our day, questions about the manner and forms of worship have also long been a part of the history of the Chaplain Corps. Early regulations specified that the duties of chaplains included having to 'read' prayers (53). In 1859, the Speaker of the House of Representatives asked the Secretary of the Navy whether chaplains were required to 'read' prayers or follow any particular forms or ceremony in leading worship, and if the Navy had any evidence of a requirement that non-Episcopal chaplains had to follow the Episcopal liturgy (54). In replying, the Secretary explained that he was not aware that the instruction to 'read' had ever been construed to require a literal reading from a particular prayer book, but rather as a requirement that prayers be offered aloud without specifying they be read from a book, written down by the chaplain beforehand to be read later, or offered extemporaneously (55). To further reassure the Speaker and his colleagues in Congress, the Secretary announced a new order officially interpreting the requirement that prayers be 'read' to mean that prayers be 'offered,' thus leaving the chaplain free to follow the dictates of his own religious tradition.(56) Perhaps in response to such communication with Congress, new Navy Regulations adopted in 1860 included this addition: "Every chaplain shall be permitted to conduct public worship according to the manner and forms of the church of which he may be a member."(57) No longer merely a regulation, that language is now in force as part of the United States Code.(58)" Thanks to CDR Wildhack for this insightBut it reveals today'stragic ironythe Episcopal Book of Common Prayer was once seen as 'mandatory' for all chaplains...but Congress (wisely) overcame that, to allow non-Christian chaplains (i.e. first 3 Jewish chaplains appointed by Abe Lincoln in 1860) total freedom to NOT the use Christian prayer book...and now in 2006, the policy actually PROHIBITED using the Christian prayer bookin publicthe pendulum swung too far...so now Congress has (wisely) righted itself, to restorereligious diversity, allowing any variety of prayers to be said,instead of punishing Christian prayers while forcing Christian chaplains to pray Jewish prayers (i.e. theologically sensitive prayers). Chaplain Klingenschmitt "Scarberry, Mark" [EMAIL PROTECTED] wrote: It seems there is a distinction between "Divine/Religious Services" and other "command functions." I don't suppose Marty is saying that a chaplain may not pray in Jesus' name during Divine/Relgious Services. Paragraph 6(c) does not require that Divine/Religious Services be non-sectarian but only that religious elements in other command functions be non-sectarian. If Divine/Religious Services were required to be nonsectarian then they couldn't be divine services for the chaplain's particular faith; note that the chaplains are required to "provide ministry to those of their own faith" which rules out nonsectarian requirements for such ministry whether or not that ministry occurs in a Divine/Religious Service. I suppose there could be a serious question whether a particular memorial service for a deceased sailor (the context, I believe of Chaplain Klingenschmitt's disagreement with the Navy) is a Divine/Religious Service or instead a different kind of remembrance of the sailor. Whether nonsectarian prayer would be required might depend on how the event was classified, I think.Mark ScarberryPepperdine
Re: Christian Skating Time
I don't konw about rock promotors, but gospel concerts (which I believe are almost as popular) are explicitly religious in their advertising in terms of visuals, lyrical excerpts, and framing headings. David - Original Message - From: Mark Tushnet [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Scarberry, Mark [EMAIL PROTECTED] Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, July 03, 2006 1:37 PM Subject: RE: Christian Skating Time 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?) -- Mark Tushnet William Nelson Cromwell Professor of Law Harvard Law School Areeda 223 Cambridge, MA 02138 Quoting Scarberry, Mark [EMAIL PROTECTED]: The music is a substantial part of the skating experience. No one would doubt that a Christian music concert could be held (and advertised). Does the combination of a physical activity (skating) with the playing of music deprive the business owner of the free speech rights that a concert promoter would have? Suppose the owner of the rink decided to have a global warming evening featuring the audio from Vice President Gore's movie. Would that be permitted, even though a lot of people would choose not to come to the rink in order to avoid what they would perceive as propaganda? If it would be permitted, then doesn't the NY law discriminate against religious speech? And if, as I think someone suggested, a spiritual evening would be permitted, so long as it was inclusive by not focusing on any particular religious tradition, then isn't this a matter of viewpoint discrimination? Mark S. Scarberry Pepperdine University School of Law ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Re: Teenagers The Spirit of Liberty
This strikes me as theologically incoherent as well as constitutionally troubling (though more in terms of constitutional morality rather than law.) First, the students (as approved by Prof. Duncan) are using prayer not as a religious devotion but as a political act -- to express their disapproval of the one student and the "unelected judiciary" and as a weapon against others that don't share in that faith. That strikes me as sacralege as well as a perversion. Second, why is it necessary to make these prayers public in a public forum? This sounds a little too much like the hypocrites of Mt. 6:5 If it is a matter of needing community, why not a community made up of fellow believers rather than demanding the audience of those who might not believe (or believe as they do)? While it may be "their" commencement, it is also the commencement of all of the other students and their families present. Should everyone be allowed to interrupt the service and impose their religious exhortation on everyone else? Graduations frequently involve not just commencement, but a series of celebrations over the course of the weekend. Why not reserve religious celebrations for a separate ceremony shared among their community of faith? The only justification I can come up with is the belief that their faith is so weak that it must be endorsed by the school in the public ceremony. I find the whole thing offensive and sad. David Date: Tue, 23 May 2006 12:50:19 -0700From: [EMAIL PROTECTED]To: religionlaw@lists.ucla.eduSubject: Re: Teenagers The Spirit of Liberty Here is the way I look at it. "One poor kid" tried to censor his classmates with the help of a powerful legal ally, the ACLU. His classmates did not like being silenced by the "poor kid." So they made a stand--not to ostracize the poor kid, but to stand up for their liberty of religious _expression_ at their own commencement. They did not violate the spirit of the EC. The spirit of the EC deals with government coercionand religion. The true spirit of the Religion Clause is on the side of the students who would not be cowed and silenced by the ACLU and the unelected judiciary. I am proud of these kids. I hope their spirit spreads to many other schools and impacts many other commencements. There is no need to ask school officialsto sponsor prayer. All students need to do is pray: without asking for endorsement or permission from government authorities. Cheers, Rick Duncan[EMAIL PROTECTED] wrote: Some info from the involved ACLU affiliate isat this link: http://www.aclu-ky.org/news.html#Grad%20Prayer That info includes the following paragraph: "School-sponsored prayer constitutes a symbolic and tangible ‘preference… given by law’ to a religious sect by exalting it over contrary religious beliefs deemed less worthy of government endorsement,� the ACLU argues in the court papers. “It compels attendance at a place of worship by conditioning participation at public graduation ceremonies on acceptance of prayer at those ceremonies.� I don't see how having a student body election for "graduation chaplain" as I saw described in this Kentucky case cures the problem post Lee and Santa Fe. I don't know why anyone would cheer the ostracism of some poor kid at his own high school graduation. With all due respect to Prof. Duncan, that doesn't sound like "religious liberty" to me. Allen Asch In a message dated 5/23/2006 10:14:01 AM Pacific Standard Time, [EMAIL PROTECTED] writes: For a somewhat different take on this, see my Religion Clause blog post titled “Looking for Establishment Clause Loopholes� at http://religionclause.blogspot.com/2006/05/commentary-looking-for-establishment.html *Howard M. Friedman Disting. Univ. ProfessorEmeritusUniversity of Toledo College of LawToledo, OH 43606-3390 Phone: (419) 530-2911, FAX (419) 530-4732 E-mail: [EMAIL PROTECTED] * From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick DuncanSent: Tuesday, May 23, 2006 12:04 PMTo: Law Religion issues for Law AcademicsSubject: Teenagers The Spirit of Liberty Link(See also link) Excerpt from the second link): High School Students Defy ACLU and Court May 20, 2006 01:43 PM EST By Sher Zieve – Despite U.S. District Judge Joseph McKinley’s ruling that no prayer was to be allowed at Kentucky’s Russell County High School commencement ceremonies, at least 200 students recited the Lord’s Prayer during the ceremony. The ACLU had argued to have prayer banned at graduation, due to a complaint from 1 student. Thunderous applause is said to have broken out towards the end of the prayer and senior Megan Chapman continued with her praise, when she said that her fellow students should trust God as they continue their lives after high school.Chapman commented "It [the prayer] made the whole senior class come together as one and I think that's the best way to go out",
Re: Early dismissal for Muslims on Friday
- Original Message - From: Will Linden [EMAIL PROTECTED] So, are you suggesting this is really the same sort of thing as minority religions seeking to add their representation to the list of alternate-side-parking-exemption days here in New York, whether there is any particular need for parking on the days or not? I think this trivializes the desire to be recognized and respected by one's country through some type of acknowledgement of religious difference. In this regard, it is far more understandable for a minority to seek a minor accomodation as opposed the the annual hysteria over Christmas displays and seasons greetings by a majority religion whose religious traditions are overwhelmingly respected and incorporated within the social norm. David ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Early dismissal for Muslims on Friday
I agree that the local tradition takes precedence -- but what is the principle that controls? If this is maliable to fit the local group, do they have absolute autonomy to determine their norm -- or do we require that they adjust their tradition to fit our norms? Or must they adjust to the norm adopted by the group that is most accomodating to existing norms? For example, if one mosque adopts an evening service,does that means that all can and therefore no accomodation is necessary? I was simply citing the Middle East as a broad, diverse (Shi'a and Sunni) comparative norm from a region that most Muslims would consider relavent. David - Original Message - From: Steven Jamar To: Law Religion issues for Law Academics Sent: Monday, May 15, 2006 9:31 AM Subject: Re: Early dismissal for Muslims on Friday In the particular instance in Howard County Maryland, the primary weekly service is on Fridays at 1:45 pm, which would effectively cut out the last class period of the day on Fridays under the Howard County school schedule. The Muslim community associated with the one mosque in Howard County is seeking the accommodation for its male members who are required to attend. Women are encouraged to attend. There is nothing magical or critically important about the 1:45 start time, as opposed to a somewhat later or earlier time, but there are practical logistical reasons as well as religiously premised-reasons for that timing. In evaluating the request, it is important, is it not, to take it on its own terms and on the understandings of this Muslim community and its practices -- not those of several Sunni countries or Wahabi or Maliki or New York or any other Muslim community. Accommodation as a principle doesn't rest on the universality of some norm within a large category of religion, does it? We don't accommodate Christians based on them being just Christians or some practice in the Greek Orthodox tradition. We accommodate based on the local version, regardless of how idiosyncratic, right? Steve On May 12, 2006, at 5:55 PM, David E. Guinn wrote: This is a difficult answer to parse down to a principle. I am most familiar with Islamic practice in the Middle East (Iraq, Jordan and Egypt). While Friday is usually taken as part of the weekend in those counties, Friday is not considered the Sabbath -- so there is no religious obligation to observe the whole day. I would suspect that the Islamic students in this country are seeking an accomodation that, they feel, respects their faith in the same waySabbatarians are accomodated. Moreover, the principle religious service is noon prayers -- so evening service (to the extent that it exists)is an American adaptation. Should the School seek to enforce the adaptation? While this Middle Eastern based understanding might suggest an accomodation (i.e. allow these Muslim students to schedule study hall and lunch together to facilitate their attending noon prayers on Friday), what happens to an Americanized Muslim congregation that seeks to treat Friday as a Sabbath? David - Original Message - From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: Friday, May 12, 2006 3:59 PM Subject: RE: Early dismissal for Muslims on Friday I would think that there's a difference -- the sort of difference in quantity that becomes a difference in quality -- between skipping a couple of days and skipping every Friday afternoon. It may be worth accommodating students even in the latter instance, but I'm not sure the two are fully on point. Incidentally, if I were a school administrator, I'd want to know how firm the students' insistence is likely to be (as well as, of course, knowing how much of each Friday afternoon they wanted to take off). If they're likely to be unbudgeable, then I might figure that there's little gained in being a hardass. On the other hand, if the felt obligation isn't that strong -- for instance, if they could and would attend Friday evening services were they to be required to stay in school until the end of the school day -- then I might be more insistent. (I also probably wouldn't disclose this decision tree to them up front.) Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Steven JamarSent: Friday, May 12, 2006 4:06 AMTo: Law Religion issues for Law AcademicsSubject: Early dismissal for Muslims on FridaySome Muslim students have requested that Howard County Maryland schools release them early
Re: Early dismissal for Muslims on Friday
Since atheists, by definition, deny religious obligation -- one can't help feeling that the effort to include Darwin's birthday is little more than a hostile protest. - Original Message - From: Will Linden [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, May 15, 2006 1:50 PM Subject: Re: Early dismissal for Muslims on Friday At 11:28 AM 5/15/06 -0500, you wrote: - Original Message - From: Will Linden [EMAIL PROTECTED] So, are you suggesting this is really the same sort of thing as minority religions seeking to add their representation to the list of alternate-side-parking-exemption days here in New York, whether there is any particular need for parking on the days or not? I think this trivializes the desire to be recognized and respected by one's country through some type of acknowledgement of religious difference. Then what do you call some recent calls by NY atheists to add Darwins's birthday to the list? Are they trivializing the issue or not? r wrongly) forward the messages to others. -- No virus found in this incoming message. Checked by AVG Anti-Virus. Version: 7.1.392 / Virus Database: 268.5.6/339 - Release Date: 5/14/06 -- No virus found in this outgoing message. Checked by AVG Anti-Virus. Version: 7.1.392 / Virus Database: 268.5.6/339 - Release Date: 5/14/06 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Early dismissal for Muslims on Friday
Title: Message This is a difficult answer to parse down to a principle. I am most familiar with Islamic practice in the Middle East (Iraq, Jordan and Egypt). While Friday is usually taken as part of the weekend in those counties, Friday is not considered the Sabbath -- so there is no religious obligation to observe the whole day. I would suspect that the Islamic students in this country are seeking an accomodation that, they feel, respects their faith in the same waySabbatarians are accomodated. Moreover, the principle religious service is noon prayers -- so evening service (to the extent that it exists)is an American adaptation. Should the School seek to enforce the adaptation? While this Middle Eastern based understanding might suggest an accomodation (i.e. allow these Muslim students to schedule study hall and lunch together to facilitate their attending noon prayers on Friday), what happens to an Americanized Muslim congregation that seeks to treat Friday as a Sabbath? David - Original Message - From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: Friday, May 12, 2006 3:59 PM Subject: RE: Early dismissal for Muslims on Friday I would think that there's a difference -- the sort of difference in quantity that becomes a difference in quality -- between skipping a couple of days and skipping every Friday afternoon. It may be worth accommodating students even in the latter instance, but I'm not sure the two are fully on point. Incidentally, if I were a school administrator, I'd want to know how firm the students' insistence is likely to be (as well as, of course, knowing how much of each Friday afternoon they wanted to take off). If they're likely to be unbudgeable, then I might figure that there's little gained in being a hardass. On the other hand, if the felt obligation isn't that strong -- for instance, if they could and would attend Friday evening services were they to be required to stay in school until the end of the school day -- then I might be more insistent. (I also probably wouldn't disclose this decision tree to them up front.) Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Friday, May 12, 2006 4:06 AMTo: Law Religion issues for Law AcademicsSubject: Early dismissal for Muslims on FridaySome Muslim students have requested that Howard County Maryland schools release them early from school to attend Muslim services Friday afternoons. Any advice for our County Board on this one? Here we take not just the major Christian holidays off, but also Rosh Hashana and Yom Kippur, if I recall correctly. And of course allow release for other religious observances and accommodate Seventh Day Adventists and others as much as can be done practicably (scheduling sporting events and the like). Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "God, give us grace to accept with serenity the things that cannot be changed, courage to change the things which should be changed, and the wisdom to distinguish the one from the other." Reinhold Neibuhr 1943 ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Use of Religion to Achieve Secular Ends
I agree Marty that the most challenging issue relating to the governments use of religion relates to it secular efficacy. I don't know the details of the BOP program -- but based on my experience with government programs, it strikes me as very likely that the administrators of the BOP program are in fact operating based upon a proposal made by Colson's group -- which I am sure includes statistical claims about recidivism of prisoners that have gone through its program. Thus the question is, as Marty suggests, can the government utilize a religious program to accomplish a secular goal? The BOP program strikes me as little different from other types of therapy or treatment programs, such a drug rehab. Let's assume that there are three treatment plan proposals offered. One uses strict Skinnarian behavioral therapy; one uses traditional 12 step; and the third uses religious discipline based therapy. (There are such therapies and active disputes over effectiveness claims for each.) Assume that their outcomes are comperable or, as a lot of evidence suggests, that the effictiveness of the 12 step and religious therapies are better than the behavioral. Which can and should the state fund? Few would object to the behavioral therapy. But if it is less effective than the others, must the state favor it? What about the mandate that the state not discriminate between religion and non-religion by favoring non-religion? If the state cannot justify choosing the secular program based upon the objective criteria of outcomes -- how do you avoid the charge of favoritism? 12 step programs are widely accepted and often state funded. However, if you look closely at most 12 step therapies they walk a very narrow line between the secular and the religious. Indeed, for those of us who adopt a functionalist definition of religion, they are often a type of religion. Moreover, as Michael McConnell has so elequently argued, the cultural war is not between religion and no religion, but between religion and the ideology of secularism. Clearly the religious treatment is the most problematic -- particularly if it is the sole form of treatment offered. But this reverts back to the problem with all faith based initiatives and the need to provide alternatives. The challenge is what happens when religious therapy is found efficatious? In this regard, it should be noted that there is a significant amount of research already being conducted (both foundation supported and government supported) about the therapeutic benefit of spirituality in health care. So the line is being crossed regularly. I would add that Stephen Carter's warnings that it may be in religion's best interest not to seek government involvement is apt. This type of government programming represents real dangers to religion: threats of secularizing religion or disproving it when the criteria becomes one of therapeutic benefit. But that does not and cannot answer the role the government should play. David - Original Message - From: [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, May 05, 2006 2:30 PM Subject: Use of Religion to Achieve Secular Ends The other day I posted about the unconstitutionality of the BOP religious-rehabilitation funding program. See http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html. FYI, the Freedom from Religion Foundation has now sued to challenge the program: http://ffrf.org/legal/gonzales_complaint.html Rob Vischer and Rick Garnett have each posted thoughtful questions about my assertion that the state's interest in promoting religious transformation is an illegitimate (and troubling) governmental objective. Vischer: http://www.mirrorofjustice.com/mirrorofjustice/2006/05/government_fund.html Garnett: http://prawfsblawg.blogs.com/prawfsblawg/2006/05/religion_in_pri_1.html Rick writes, for example, the following: I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's secular ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be profoundly disturbing -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that religious transformation [and] faith are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.) Also, Marty writes, [t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. Does this mean, I wonder, that government may (or should) not act with an eye
Re: The Posner Ministerial Exception Decision
With respect to Posner's creating religious doctrine -- I don't know the details of the trial or appelate record, but it does seem to me that the court is simply acknowledging common fact. Many churchs designate the organist as the music minister and talk about the musical ministry. This is particularly prevalent in those denominations that use musical programming as alternate forms of liturgical service (such as the current Evangelical and Black Church relationship to Gospel). Moreover, if I recall correctly, many seminaries include courses on musical ministry. This would be particularly true for Catholic or Episcopal churchs where one of the litergical alternatives is the plainsong tradition or a variation on it and Judaism with the important place of theKantor (sp?). Posner's decision might be troubling if none of the parties mentioned this -- but, again, the fall back is judical notice. David - Original Message - From: Marty Lederman To: Law Religion issues for Law Academics Sent: Thursday, April 06, 2006 9:42 AM Subject: The Posner Ministerial Exception Decision In addition to his questionable comments about RFRA, there is much else worth pondering in the Posner opinion. 1. For starters, he begins his analysis with the following greatly overstated claim (p.2): "Federal courts are secular agencies. They therefore do not exercise jurisdiction over the internal affairs of religious organizations." Of course, courts often resolve disputes concerning the "internal affairs of religious organizations." The difficulty is in deciding which disputes are cognizable and which are not. Posner later concedes as much (p.5): "The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction." He then spends two pages giving examples of where courts do interfere with internal church governance, including some cases in which courts must "take a stand on a religious question." This discussion demonstrates, I think, that there remains virtually no coherence to the "internal governance" doctrine generally, and the "ministerial exception" in particular. 2. In his discussion, Posner includes this fascinating purported distinction: "A church could not subject its clergy to corporal punishment or require them to commit criminal acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000). But it would not be constrained in its dealings with them by employment laws that would interfere with the churchs internal management, including antidiscrimination laws." WHY? What's the distinction? He doesn't say. If the Smith doctrine applies to certain internal church governance decisions, why not to others? 3. In the end, Posner rejects the plaintiff's claim because the church was asserting that the organist's dismissal was based on his choice of music for Easter services, and the dispute about whether that was the real reason (as opposed to age discrimination) "could propel the court into a controversy, quintessentially religious, over what is suitable music for Easter services." But would that aesthetic dispute really be "quintessentially religious," particularly if religious doctrine didn't have anything to say about Easter music? Posnerincludes this wonderfully provocative passage: [T]here is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass. Raymond F. Glover, Liturgical Music: Its Forms and Functions, in Liturgy and Music: Lifetime Learning 231, 247-48 (Robin A. Leaver Joyce Ann Zimmerman, eds. 1998). At argument Tomics lawyer astonished us by arguing that music has in itself no religious significanceits only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handels Messiah or to Three Blind Mice. That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral; and religious music written for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family
Re: Catholic Charities Issue
One should, of course, never say never. The conflict in the Chicago suburbs of a few years ago was over the takeover of a community center by a mosque. No one could have possibly argued that the "use" by the mosque was in any way more disruptive than its use as a community center -- except that it would be used by Muslims. Yet the challenge, as I recall, was justified on grounds of land use. David - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Sunday, March 12, 2006 3:00 PM Subject: Re: Catholic Charities Issue It has absolutely nothing to do with religious activities, but rather the intensity of the use of land. I haven't met someone opposed to a religious project yet that could have cared less whether it was a religious project or an automotive repair shop. First, those opposedare invariably religious themselves (often the same religion as the applicant). Second, theychose to live where they do because of the character of thearea, whether it is low traffic because they have children or low rooflines because they live near the ocean or the desert. None of them had any idea thatPres. Clinton would sign legislation that would radically transform their neighborhoods in ways that undermine their reasonable expectations. Marci In a message dated 3/12/2006 3:26:54 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The widespread NIMBY attitude towards religious activities in land use law raises a substantial cumulative barrier to religious activity, especially for new and small religious organizations. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New yORK Lawsuit
This seems to me to be very consistant with the general tendency in the courts to treat free exercise rights as a subsidiary of free speech rights (i.e. Rosenberger). I agree with Marc that in one sense it appears insensitive to not at least acknowledge the religious free exercise interest -- but if the judge did, what would he say: we hold religion doesn't rate? On a political basis, it is much easier to dodge the bullet. David - Original Message - From: Marc Stern To: Law Religion issues for Law Academics Sent: Friday, February 10, 2006 10:22 AM Subject: RE: New yORK Lawsuit I do not disagree that ordinarily consent is not required .Perhaps because of that consent should not be required when the artist would have no reason to think that a particular subject would have religious objections to being photographed. I do find it curious that the court seems to assume the value of secular first amendment rights and gives no thought (at least according to the law journal summary) to religious first amendment rights .The court did express some sympathy for plaintiff but not at the level of law. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford LevinsonSent: Friday, February 10, 2006 10:59 AMTo: Law Religion issues for Law Academics; Law Religion issues for Law AcademicsSubject: RE: New yORK Lawsuit I think that one can limit the "practice of one's faith" to a refusal consciously to be photographed. (This, obviously, arises in the drivers' license cases.) I am not persuadedthat a serious art or news photographer must get the consent of everyone he/she surreptitiously photographs, even if the photographs are to be sold in a market.(I'm curious:Did Alfred Eisenstadt get release forms from the famous couple he photographed in Times Squareon V-J Day?) All of us run certain risks when we enter the public square. sandy From: [EMAIL PROTECTED] on behalf of Marc SternSent: Fri 2/10/2006 8:21 AMTo: Law Religion issues for Law AcademicsSubject: RE: New yORK Lawsuit Today's NY Law journal reports on Nussenzweig v. di Corcia in which a Hassidic Jew with religious objections to be photographed sued a photographer who took a surreptitious picture of the plaintiff and sold 10 prints for between 20-3 dollars. New York law permits artists to use other persons images for artistic, but not for commercial, purposes. The narrow question was whether the sale of a few copies of the picture for substantial sums artistic or commercial. In the course of holding it was the former, the court (according to the law journal) noted that New York law favors freedom of artistic _expression_. For some reason, the court thought it irrelevant to observe that the protection of those first amendment rights came at the expense of other first amendment rights that of the plaintiff to freely practice his faith without state interference, here in the form of allowing the reproduction of his image without his consent. Marc Stern ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Survey - DePaul Center for Church/State Studies
As the Center for Church/State Studies of DePaul University College of Law enters its 24th year, we are undertaking a complete program review for the Center. To support that review, I would appreciate receiving your responses as someone interested in the field of religious freedom to the following questions. (Please answer off line to: [EMAIL PROTECTED] ). 1. Are you familiar with the work of the Center for Church/State Studies? If so, what is your opinion of its work? (Its webpage is: http://www.law.depaul.edu/institutes%5Fcenters/ccss/default.asp) 2. The Center seeks to advance the conversation on relations between religion and the state without adopting an advocacy or sectarian position. In this regard, does the Center still provide an important service or have other institutions (either independent advocacy based, academic, or other) taken its place? If so, who? 3. What areas in the field should it focus its efforts on? 4. Who is the public it should be seeking to serve: the general public, religious leaders, practicing members of the bar, academics, others? Thanks for your assistance. David ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey Question
I am not sure I understand the distinction between devotional and non-devoltional theology separated from the degree it is associated with. At the University of Chicago, in pursuing a Masters in the constructive study of religion, my "theology" classes were largely indistinguishable from a historical philosophy class and, I would think, should comfortably fit within the religious studies exemption. However, MDiv students (ie. those pursuing a Masters of Divinity as a qualification for ministry) took these same classes, along with classes dedicated to ministry. Presumably, the problem in Locke was his acknowledgement that he was pursuing an MDiv. David - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Wednesday, January 25, 2006 12:08 PM Subject: RE: Locke v. Davey Question Awile ago Doug Laycock asked: To particularize the question, what do they do with Gonzaga? My research assistant called Gonzaga and asked what they do there aboutstate-fundedscholarships. He was told that they certify that their theology majors are not pursuing a degree in devotional theology. He also checked at some other religious colleges in Washington, and at least some others certify that their theologymajors are not pursuing a devotional theology degree. Sothe denominational preference issue seems very much a legitimate one--theology majors at some religious colleges receive state funding, while those at other religious colleges do not. And the preference depends upon the particular denominational viewpoint of theology instruction at religious colleges in the state (or on the subjective process of self-certification). Cheers, Rick DuncanDouglas Laycock [EMAIL PROTECTED] wrote: To particularize the question, what do they do with Gonzaga? Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick DuncanSent: Wednesday, January 11, 2006 9:51 AMTo: Law Religion issues for Law AcademicsSubject: Locke v. Davey Question This is a factual question about Washington's denial of Promise Scholarship funding to students, like Josh Davey, who are pursuing a degree in "devotional theology." Does anyone know whether Promise Scholars at Catholic universities in Washington are denied funding if they major in theology or religious studies? In other words, if a school like Notre Dame were located in Washingto! n, would its theology students be disqualified from the Promise Scholarship Program because theology is taught from a "devotional" perspective? Or is their approach sufficiently "objective" to escape exclusion as "devotional?" What about a school like Yale and it's Divinity studies program? Eligible for funding because not "devotional?" Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! PhotosRing in the New Year with Photo Calendars. Add photos, events, holidays, whatever.___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round ! Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner What are the most popular cars? Find out at Yahoo! Autos ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or
Re: Pilgrim Baptist Church
You wrote: Nevertheless, even if the sort of "formal neutrality" rule espoused in Thomas's Mitchell plurality becomes the governing doctrine, as I think it will, these cases are still difficult, because there's nothing neutral, or objective, about the decision to fund the rebuilding of the Pilgrim Baptist Church. Illinois presumably does not rebuild all buildings destroyed by fire, or all "community services" buildings, or all churches, for that matter. The decision to rebuild this particular structure is very subjective, and discretionary. I suppose it's possible that the decision to fund would be made completely without regard to the building's status as a church, but that seems unlikely, no?: Isn't it at least a strong possibility that the state would not pledge a million dollars if the building had never been a synagogue and church? And if its religious status is part of the reason for the pledge, isn't that a form of religious favoritism that is problematic under the EC, even if the Thomas view prevails? I agree that this may be classified as discretionary. However, I do not necessarily believe that it is driven strictly out of concern for the fact that it is a church or synagogue. Illinois -- and Chicago in particular -- is very attentive to its architectural heritage. In this case, the Church not only has cultural significance to the religious community, but it is also valued for its connection with Adler and Sullivan. Louis Sullivan is a particularly revered architect here in Chicago. I do believe that the state has funded renovation and reconstruction costs for building by Frank Lloyd Wright, Sullivan and other famous architects. I think the equal protection argument lies in the fact that this building is valued according to secular standards by people independent of the the church as a architectural gem worthy of protection. One may or may not add its historical relevance to Chicago to the judgement. David - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Sunday, January 15, 2006 8:09 PM Subject: Re: Pilgrim Baptist Church The case I've seen cited on this issue is Committee for Public Ed. Religious Liberty v. Nyquist, 413 U.S. 756, 777 (1973) which says: "If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair." Full text at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=413invol=756#777 See also Tilton v. Richardson, 403 U.S. 672, 678 (1971) available at: http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=casecourt=usvol=403invol=672#678 For a Bush Administration view, see the 2003 DOJ memo titled "AUTHORITY OF THE DEPARTMENT OF THE INTERIOR TO PROVIDE HISTORIC PRESERVATION GRANTS TO HISTORIC RELIGIOUS PROPERTIES SUCH AS THE OLD NORTH CHURCH," at: http://www.usdoj.gov/olc/OldNorthChurch.htm Hope that helps Allen Asch In a message dated 1/15/2006 3:56:48 PM Pacific Standard Time, [EMAIL PROTECTED] writes: I trust that many members of the list may have heard about the tragic fire at the Pilgrim Baptist Church. The church, designed by the firm of Adler and Sullivan, started life as a major synacoge on the South side of Chicago that was eventually taken over by the Pigrim Baptist Congration. Interestingly, the new congregation did not strip the decorative features of the synagogue but instead simply added christian decorative features.The church became a leading institution within the Black community in Chicago and was the birth place of gospel music. It has also become a significant stop on the many archetectural tours that Chicago is famous for. The attached link describes the virtues of the building and the need to rebuild.http://www.chicagotribune.com/news/opinion/chi-0601150287jan15,1,4394171.story?coll=chi-opinionfront-hedYou may have also heard about the controversy. As the news reports puts it: "Gov. Rod Blagojevich, who has stirred the wrath of the American Civil Liberties Union by pledging $1 million in state funds for the church."In order to avoid the first amendment challenge, Blagojevich stated that the grant could only be used for reconstruction of the administrative offices for the church -- which is arguably associated with the community service functions of the church.While I recognize that there are some problems in helping to rebuild a sanctuary, in this case given the existing public uses of the building as a part of the cultural heritage of the city of Chicago, I am not sure that I can distinguish rebuilding
Re: Can a murderer ever be redeemed?
One can take this a step further and distinguish, as Rawls does, between constitutional /democratic contexts (where this type of public reasoning occurs) and the cultural background (where it does not.) It becomes very problematic when the standards of public reason are applied to cultural background arguments or discourse. Personally, I'm not sure I see such a bright line between the two and believe that cultural background arguments (such as about the religious/moral significance of redemtion) will inevitably spill over into an influence on legal/constitutional politics. David - Original Message - From: Sanford Levinson [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, December 13, 2005 12:35 PM Subject: RE: Can a murderer ever be redeemed? A friendly amendment to Eugene's question is whether anyone on this list subscribes to the philosopher Robert Audi's View that conscientious citizens are required to engage in epistemic abstinence by filtering out any arguments even in their own consciousness that depend on religious presuppositions. A more moderate version is (one understanding of) John Rawl's argument that articulated arguments must be made in a publicly accessible discourse that rules out reference to inevitable religious arguments that many members of the audience would find inaccessible. Sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, December 13, 2005 12:49 PM To: Law Religion issues for Law Academics Subject: RE: Can a murderer ever be redeemed? I agree with Sandy that *this* aspect of the redemption inquiry is indeed related to the law of government and religion. (I anticipated this in some measure when I wrote that we ought to discuss [the redemption question] only to the extent that it touches on the law of government and religion rather than suggesting that we ought not discuss the question at all.) Yet surely the answer is that it's perfectly legitimate for people to base either their support or opposition to capital punishment on religious justifications, just as it's legitimate for people to base their opposition to murder, slavery, racism, and the like on religious justification. Am I mistaken? Would some on this list argue otherwise? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Sanford Levinson Sent: Monday, December 12, 2005 8:43 PM To: Law Religion issues for Law Academics Subject: RE: Can a murderer ever be redeemed? I can understand Eugene's point, but let me try this response: We spend a lot of time arguing about the extent to which explicitly theological notions should be allowed to play a part in political decisionmaking. There are many secular arguments both for and against capital punishment. But it seems to me that the possibility-of-redemption argument ultimately sounds, for many people, in a religious sensibilty. Does that mean that it is illegitimate to base one's opposition to capital punishment on it (or, for that matter, a literal, albeit debatable, reading of Thou Shalt Not Kill), or, conversely, that it is illegitimate to base one's support for capital punishment on a biblical notion of eye-for-an-eye retribution? sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, December 12, 2005 11:23 PM To: Law Religion issues for Law Academics Subject: RE: Can a murderer ever be redeemed? Folks: This is an interesting question, but it seems to me that on this list we ought to discuss it only to the extent that it touches on the law of government and religion. (What religious people should think about death penalty law wouldn't, I think, quite qualify.) Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Madison on Abridge and Prohibit
I am sorry, but I found this post extremely offensive. The only person who was not seriously responsive in this exchange was Mr. Garman who seemed to believe that simply because he interpreted certain texts in a certain way, everyone else was compelled to adopt the same belief. Personally, I found his approach rathernaive and unpersuasive. David - Original Message - From: Larry Darby To: 'Law Religion issues for Law Academics' Sent: Wednesday, November 23, 2005 1:30 PM Subject: RE: Madison on Abridge and Prohibit If you ever do respond directly to the matter, Ill forward it to Mr. Garman. Larry Darby -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Wednesday, November 23, 2005 11:25 AMTo: Law Religion issues for Law AcademicsSubject: RE: Madison on Abridge and Prohibit The post below, although it claims victory,is utterly nonresponsive to Madison's express rejection of any distinction between "respecting," "abridging," and "prohibiting." Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Gene GarmanSent: Wednesday, November 23, 2005 8:25 AMTo: Law Religion issues for Law AcademicsSubject: Re: Madison on Abridge and Prohibit Professor Laycock,The First Amendment eviseration of national congressional or governmental power over both religion and speech in terms of either establishment of religion or prohibiting of the free exercise thereof and the abridging of speech is not questioned. Madison's point was Congress had no such power under the religion commandments of the Constitution. Regardless, let the record show, my question which stands unanswered is the meaning of the two different words "prohibiting" and "abridging." I rest my case.Your effort was admirable, but I will continue to promote my position, which I consider supported by examples I routinely use, such as, Jefferson's letter to the Danbury Baptists, Madison's "Detached Memoranda," and the unanimous decision in Reynolds v. U.S., as well as others. I will not pursue the point further on religion.law. It has been a pleasure discussing the issue. Thanks to the attorney who encouraged me to join your listserv and to all of you for allowing my input. You have helped strengthen my position, but I now need to use my time in other ways.Gene Garman, M.Div.americasrealreligion.orgDouglas Laycock wrote: You can't duck by pointing to the Article I part of Madison's argument and ignoring the First Amendment part. The structure of his argument was that speech and religion were equally protected by the lack of any Article I power to regulate them, and that the First Amendment could not be read to reduce the equality of that protection. So his premise was equal lack of Article I power, but his conclusion was equal treatment in the FirstAmendment.We now know the premise was wrong; exploring the full implications of Article I powers led Congress to discover many ways to get at speech and religion under powers that did not mention speech or religion explicitly. But the premise was widely assumed when the First Amendment was drafted, and the later failure of the premise does not do much to undermine Madison'scontemporary interpretation of the First Amendment. And he did speak directly to "abridge" and "prohibit." He argued that the difference between "prohibiting" and "abridging" is entirely parallel to the difference between "abridging" and "respecting," which the Federalists claimed enabled them to make laws "respecting" freedom of speech, including the Sedition Act.He was rejecting the Federalistdistinction, so his parallel plainly requires him to reject both distinctions, and the appeal of his argument at the time is precisely that he thought it would be unthinkable to much of his audience to distinguish between "prohibiting" and "abridging." Quoting just the most specific part now, without the larger argument that gives it context and inadvertently gave a means of avoiding the issue: Fourth. If the words and phrases in the amendment are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press under the limitation that its freedom be not abridged, the same argument results from the same consideration for a power over the exercise of religion, under the limitation that its freedom not be prohibited. For if Congress may regulate the freedom of the press, provided they do not abridge it, becuase it is said only "they shall not abridge it," and is not said, "they shall make no
Re: Kansas and Intelligent Design: A Twist
A couple of quick observations: 1. Insofar as ID claims status as science, then it is fair game for any critique -- including one that claims it is myth. It cannot claim protection as religion without surrendering its claim to scientific status. 2. Religious studies programs commonly study religion as myth. I am not sure what establishment objection could arise in this case that differs from those. David - Original Message - From: Christopher C. Lund [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tuesday, November 22, 2005 1:56 PM Subject: Kansas and Intelligent Design: A Twist The University of Kansas is planning to teach a course on intelligent design next semester. But it's not a science class. It is a religious-studies class, and it's titled, Special Topics in Religion: Intelligent Design, Creationism and other Religious Mythologies. (The chairman of the department, in explaining the class, said this, Creationism is mythology . . . Intelligent design is mythology. It's not science. They try to make it sound like science. It clearly is not.) It's the next step in the intelligent design/evolution fight. http://news.yahoo.com/s/ap/20051122/ap_on_re_us/intelligent_design_course Does anyone on the listserv see a potential Establishment Clause problem here? Let me be provocative. Surely, the University of Kansas cannot teach that intelligent design is false, right? Government cannot pass directly on the truth or falsity of religious teaching. The University's teaching of ID as myth seems to suggest that it will teach (or at least imply) that ID is false. (Surely, no one would miss the point if some professor taught a class entitled, Special Topics in Religion: Christianity and other Religious Mythologies or Wicca: How Could It Be Something Other Than Mythology?) To the extent the class teaches ID is false, it is unconstitutional, no? The conclusion that this class is unconstitutional will surely be embraced by those who support intelligent design. And this the counterintuitive point: shouldn't it also be embraced by those who are earnest opponents of it? After all, opponents of ID object to it principally because they see it as inherently religious. It's therefore unconstitutional when taught by the government as true. But doesn't the same principle act to protect ID from being taught by the government as false? (The obvious analogy is perhaps prayer - the government should have no power to encourage it, but also should have no power to discourage it.) Chris Lund ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Candor
I am afraid that this appears to be a misuse of the term. To accuse Eugene of not being candid is to attack his integrety and honesty -- i.e. a circuitous way of saying he is lying. To suggest that Eugene's opinions are biased by his world view, does nothing but state the obvious in a somewhat insulting way. Obviously, we are all influenced by our environment. The idea of this list, it seems to me, is to provide a forum in which we each express our ideas and challenge the ideas of others in an effort to better understand the issues at stake, the position taken by others and, occassionally be persuaded to change or adjust our ideas. I haven't seen Eugene do anything other than pursue this goal. At least, that is my perception. - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Tuesday, November 08, 2005 4:24 PM Subject: Re: Candor In a message dated 11/8/05 4:45:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes: I like to think that I do practice candor. I know you do, Eugene. But I believe that you are influenced by your viewpoints, even though you are unaware of how they are shaping your reactions. And no, Eugene, I cannot point to a single discrete instance, but rather my oberservations based on having been a member of this list since 1996 or 1997-ish. And it may well be that this isn't apparent to those who share your general approach--sort of like a fish not feeling water (which, of course, is the difficulty for those in a particular faith tradition). It is hard to empathize with those who are unlike you and the more unlike you someone is the harder it is to empathize. I am moved to compassion more by a fuzzy little Shetland Sheepdog than by an pit bull or an alligator or a house fly. I sympathize with what I have a kinship with or that something I find already appealing. The evangelical doesn't truly "see" the problem with being proselytized because for him or her it isn't a problem. He or she may not like being proslytized by someone of a different faith or religion, but deep down there is an understanding because they only differ on the particulars. Frances R. A. Paterson, J.D., Ed.D.Associate ProfessorDepartment of Educational LeadershipValdosta State UniversityValdosta, GA 31698Cuimhnich air na daoine o'n d'thàinig thu--- Remember the people from whom you came. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
It seems to me the thing that distinguishes a holding from an advisory opinion is that the holding results from a competently litigated case. By reversing the judgment on the grounds that Newdown lacked standing, the SC was also asserting that the case was not competently litigated -- i.e. litigated by someone with the interest and standing appropriate to serve as the responsible advocate or adversary for the case. David - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED]; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thursday, September 15, 2005 10:18 AM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, binding on district courts and future panels, in the first place? The quick answer that comes to mind: Because courts have no authority to issue holdings apart from judgments in the first place. That is, federal courts can't issue advisory opinions apart from a genuine case or controversy under Article III. From: Marty Lederman [EMAIL PROTECTED] Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Date: Wed, 14 Sep 2005 20:43:34 -0400 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 parties. Nor does the judgment have res judicata effect in such future cases. The holding X, however, is deemed binding in future cases, precisely because the first panel came to conclusion X after full briefing, argument and consideration (assuming, of course, that the holding was not contradicted (reversed) by the court sitting en banc or by a higher court). Now let's say a higher court subsequently determines that the court of appeals should never have considered case A (or the merits questions) at all -- either becauise the plaintiff didn't have standing, or because the court didn't have jurisdiction, or because the case wasn't ripe, etc. The effect of this reversal, or vacatur, might be that the judgment no longer has any operative effect. But why should the precedential effect of the holding change? After all, it was the court's reasoning -- not its judgment -- that bound lower courts, and other panels, in future cases. - Original Message - From: A.E. Brownstein To: Law Religion issues for Law Academics Sent: Wednesday, September 14, 2005 7:50 PM Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision The District Court opinion did not identify a Ninth Circuit rule of precedent on this issue and seemed to be discussing the question as a matter of general law. I don't know whether the kind of rule Marty describes exists here. I think Justice Steven's opinion in Newdow reads very much like the Court does not think the resolution of this case by the Ninth Circuit on the merits was appropriate. Stevens writes, In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law . . . . When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than to reach out to resolve a weighty question of federal constitutional law. That language seems to me to be inconsistent with the idea that the Ninth Circuit's decision should still be considered binding law in the Circuit. Alan Brownstein At 07:12 PM 9/14/2005 -0400, you wrote: Severl folks in this thread are writing as if there is some inherent, or consistent, right answer to the question of whether the CTA9 merits decision in Newdow is binding on district courts within that circuit -- or, presumably, on future Ninth Circuit panels -- and whether it makes a difference that the panel decision was reversed (on prudential standing grounds), rather than vacated. But if I'm not mistaken, whether the prior decision is binding in a future case -- two different questions, really: whether a lower court in some sense must follow it, and whether it triggers the rules of stare decisis for future panels of the same appellate court -- is solely a function of whatever rules of precedent the Court of Appeals chooses to implement. These would be analogous to the rules the U.S. Supreme Court has developed to govern (i) when lower courts must follow various dispositions of the SCOTUS
Re: proselytization
Ultimately, its seems to me that this exchange boils down to context and intent. Almost any word can be used in a way (with appropriate inflection, intent and context) that makes it appear pejorative. As a matter of practical concern, I am curious as to what term might be offered as an appropriate substitute for someone attempting to address the issue of proselytism (the effort to introduce or convert one person from one state -- i.e. believer in an alternate tradition or no tradition -- to that of believer in the faith of the one making the effort) as a legal or social construct? For example, evangelism doesn't work in a multi-religious context because it is a Christian theological term (i.e. proclaiming the Good News.) What is the appropriate alternative? David International Human Rights Law Institute DePaul University College of Law - Original Message - From: A.E. Brownstein [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Tuesday, December 21, 2004 1:59 PM Subject: Re: proselytization 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-pejorative sense. Bobby gave some personal examples. There are others. When a Jehovah's Witness knocks on my door to discuss religion, I would characterize his or her conduct as proselytizing, but I mean nothing pejorative when I do so. I have never felt offended or burdened by such encounters and have always responded politely to my visitor. Also, there are legitimate, non pejorative reasons for using a term to distinguish religious advocacy from political or other kinds of advocacy. As many list members recognize, religion plays a role in a person's identity and life that is seldom if ever matched by secular beliefs. Thus, advocacy directed at persuading persons to change their faith urges a more fundamental change in the person addressed than occurs in most political debates. Further, there is a one-sided dimension to proselytizing for religious purposes that does not exist in political discourse. Some religions are committed to proselytizing (as Bobby notes) while other faiths, such as Judaism, do not engage in proselytizing. Thus, from the perspective of most Jews, proselytizing is a form of advocacy that is always directed at them, but which is rarely a part of their own discourse. Such distinctions are less common in political speech where all sides argue the merits of their positions and try to get others to accept their views. Still, I think that a term with both benign and pejorative connotations may be understood to reflect only one of its meanings in certain contexts. The term discrimination is usually employed in a pejorative way in discussions about civil rights and equal protection doctrine, although the word obviously has more benign meanings. I think the same is true for discussions on this list. It is rare that we discuss situations that involve the respectful sharing of beliefs among individuals of other faiths. (While many of us have experienced such interactions, there is usually no legal dispute that arises out of these events.) Much more typically, our discussions will be directed at legal disputes involving speech that invokes government support for a religious message (e.g. the teaching of religious truth in schools), or an encounter where someone is alleged to be taking advantage of their position of authority to urge acceptance of religious doctrine, or speech to a captive audience etc. When this is the context of most of our discussions, it is hardly surprising that the term proselytizing will often carry with it a pejorative meaning -- at least when it is employed by list members who object to persuasive religious speech in these kinds of circumstances. Alan Brownstein UC Davis At 04:50 PM 12/20/2004 -0500, you wrote: Both Webster's Third International and the Shorter OED define proselytize as having special application to religious contexts, and indicates that the term is not always used pejoratively. Further, any religion embracing the commitment to convert others should be able to use the term in good faith. Why isn't the statement Some (if not all) Christian religions encourage (if not require) proselytizing, while Judaism frowns on proselytizing. If a person's religion encourages or requires her to proselytize, how can the term only apply to the other guy? Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please
Re: Jefferson Quotation
True at the time, but Jefferson clearly altered his thinking from the time he attempted to enact his bills on religion in Virginia to the time of his presidency where he refused to order days of thanksgiving and wrote his famous letter to the Baptists. - Original Message - From: David W. New To: Law Religion issues for Law Academics Cc: [EMAIL PROTECTED] Sent: Tuesday, September 21, 2004 2:29 PM Subject: Re: Jefferson Quotation In 1779, Thomas Jefferson personally wrote a Sabbath law for Virginia. See The Paper of Thomas Jefferson, Vol. 2., pg. 555.published by Princeton University Press.See"A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." Madison was able to get Jefferson's Sabbath Law passed on November 26, 1786. Six months later Madison was in Philadelphia attending the constitutional convention. Apparently, Jefferson believed that religion should influence government law and policy. David W. New, Attorney at Law. - Original Message - From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] Sent: Tuesday, September 21, 2004 2:18 PM Subject: Re: Jefferson Quotation In a message dated 9/21/2004 9:31:12 AM Eastern Standard Time, [EMAIL PROTECTED] writes: But what could Jefferson have meant by denying he sought a governmentwithout religion? How would he have allowed religion to manifest itself ingovernment? Wouldn't this depend upon whatDr. William Linn meant by "a government without religion"? Speculating on the meaning of this locution,it seems the following possibilities exist: (1) Jefferson sought a government where law was not derivedfrom religious morality, but rather through the use of commonly accepted ideas (including religious ones) subjected to (and revised by)the critical scruitiny or reason. (2) Jefferson was a decided atheist and wished to divest government of anything smacking of religious concepts or values. (3) Jefferson sought to exclude particular religions, or the majority religion, frominfluencing government decisions. (4) Jefferson sought to exclude religious people from government, and (5) Jefferson believed in a sharp distinction between religious morality and secular morality. From my incomplete study of Jefferson, only (1) strikes me as potentially true. What are some other possibilities?BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The President and the Pope
I agree with Eugene. The reality is that when a political leader is talking to a church leader s/he is doing so because the church leader represents a political constituancy. While there is a place for public negotiations, there is also a time for private talks as well. In terms of attempting to negotiate sensitiveproblems it may be better and more appropriate to deal in private than in public because in our adversarial system the mere agreement to talk is sometimes interpreted as a political concession or loss of face. It is unlikely that Jerry Falwell would have been willing or able to engage in a serious dialogue with lesbigay leaders in a public forum where he would have felt compelled to advance his position for fear that the media would misinterpret his meeting with them-- whereas after a series of private conversations both reported benefiting from their conversations. The peace negotiations in Ireland leading up to the Good Friday agreement were mediated by religious leaders in private. Would it have been inappropriate for Clinton to talk to them in private? If the anti-abortion movement turns violent again, would it be inappropriate for Bush to talk privately to some leaders to seek to calm the situation? As a Constitutional matter, I agree that I don't think this is a serious issue. Talking with religious leaders is no more problematic than talking with any other political leadership. Trying to coerce them would, of course, be a different matter. David - Original Message - From: Mark Tushnet To: Law Religion issues for Law Academics Sent: Tuesday, June 15, 2004 1:07 PM Subject: Re: The President and the Pope I wonder. If (an important qualification) there's something constitutionally sensitive about the general matter we're discussing, I would think that openness would diminish the sensitivity by ensuring that the political leader's religious appeals were exposed to public discussion -- and therefore to the public's evaluation of the constitutional propriety of the leader's actions. And, since we're agreed that this is a context where political discussion is the mechanism by which matters that are constitutionally sensitive are properly handled, openness would seem to make that mechanism more likely to function effectively. (Again, that's why I've included qualifications about a "world of leaks" in my questions.)Volokh, Eugene wrote: There may well be important political differences -- but I don't think there'd be a constitutional difference. Sometimes, the best way to bring allies on board is by speaking to them publicly. Sometimes, it's by speaking to them privately. And sometimes, it's by speaking to them both ways. If LBJ thought in 1964 that the best way to help promote the Civil Rights Act was by calling a leading Southern religious leader and asking him to get on board (rather than appealing to him publicly, which might risk embarrassing him or putting him on the spot and thus alienating him), I don't think there'd be anything wrong with that. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Mark TushnetSent: Tuesday, June 15, 2004 10:46 AMTo: Law Religion issues for Law AcademicsSubject: Re: The President and the PopeNot 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: I wouldn't say hypocrisy -- I'd just say that it's easy even for well-meaning people to (1) see the conduct of those they oppose as wrong and even unconstitutional, and think that this is so for some objective, nonpolitical reason, but (2) then to think better of the matter when they see similar conduct shorn of their strong political disagreement with the actor or the actor's proposed policies. I know this has often happened to me; that's why considering situations where the political polarity is reversed is often helpful. But as to Marc's suggestion, I don't quite see why the distinction he proposes makes a difference. Say that the stories read "Vice President Gore today called on church leaders to join with the administration in 'healing our land,' and to ask ministers in their churches to do the same," or "Mr. Clinton called on religious leaders to put the heat on Congress to approve the funding, and to work through their ministers and congregations to turn up the heat," or "Clinton called on the religious leaders . .
Re: Michigan Muslim decision
- Original Message - From: Menard, Richard H. .. Church bellsdo not generally chime for a long stretch five times every day; if they did, you can bet most residents, Christians included, would object. Neither does the call to prayers. And whether you find the call to prayers more annoying than church bells seems to be a matter of opinion and cultural taste. As someone who appreaciate diversity, I like both. David E. Guinn -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]On Behalf Of Derek GaubatzSent: Friday, May 14, 2004 11:16 AMTo: Law Religion issues for Law AcademicsSubject: RE: Michigan Muslim decision Sounds like the slippery slope consequences you imagine would simply result in more speech. Hardly troubling, unless one has something to fear from hearing different ideas expressed. Derek L. Gaubatz Senior Legal Counsel The Becket Fund for Religious Liberty 1350 Connecticut Avenue, N.W., Suite 605 Washington D.C. 20036 202 955-0095 phone 202 955-0090 fax From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Friday, May 14, 2004 12:23 AMTo: Law Religion issues for Law AcademicsSubject: Re: Michigan Muslim decision Thanks. But suppose the permission to the muezzins was indeed an exemption from the noise ordinance, and suppose some mean old atheists, out of sheer spitefulness, in retaliation for the loss of peace and quiet, insisted on an exemption from the noise ordinance for chanted calls to reason, enlightenment, progress, and moderation? Five times a day, from a huge donated tower to be built especially for the purpose? And suppose ~ church bells being insufficiently verbal and expressive ~ missionizing Christian bible-beaters insisted on an exemption from the noise ordinance so that five times a day they could harangue us about brimstone and hellfire from a fleet of donated trucks with megaphones? Is it possible given the Capitol Square case that we can preserve peace and quiet?LouiseAt 02:10 PM 5/13/04, Doug Laycock wrote: This is private speech; failure to regulate is not establishment. The imam at least claims this is not even an exemption from some noise ordinance or the like; the loudspeaker was already legal and the amendment is clarifying. If he is wrong about that and it is an exemption, of course the exemption would have to be sect neutral. I think it should have to be neutral as between religious and political speech. But it does not have to be neutral as between speech and other sources of noise. And of course the city does not have to broadcast Christian or Jewish messages; it need only refrain from interfering with them. And I would be surprised if it has interfered with them. Church bells are designed to be widely heard for the same purpose, they were not illegal in Hamtramck.At 01:33 PM 5/13/2004 -0500, Louise Weinberg wrote: I find the below message somewhat disturbing. The thought of having amplified Muezzins five times a day calling to prayers in my own residential community is disturbing. My neighbors and I would be forced repeatedly to talk over or stop our ears against intrusive chanted messages from a faith we do not share. I fail to see why a town government in America, even one in which a majority of the population is Moslem, should be allowed to impose religious harangues on the minority of its residents who happen not to be Moslems. It is true that these harangues are customary in Islamic traditions, but it is the prayers that are a pillar of Islam, not the calls to prayer. Once having made such an "accommodation," does the town then have to broadcast immediately before or after each muezzin call the Hebrew chant, "Hear O Israel, the Lord thy God, the Lord is one?" Will an amplified shofar have to be blown five times a day? How about The Lord's Prayer? And what noise will accommodate the atheists? Unless the atheists are allowed to summon their listeners to reason at least five times a day, why isn't all this holy racket an establishment of religion?At 08:07 AM 5/13/04, Stuart BUCK wrote: An interesting law out of Hamtramck, Michigan. It apparently amends the noise ordinance there to allow loudspeakers to broadcast Muslim calls to prayer 5 times per day. Story here:http://www.latimes.com/news/nationworld/nation/la-na-mosque6may06,1,4014143.story?coll=la-headlines-nationor here:http://www.freep.com/news/locway/call8_200
Re: UU ministers arrested
I think I agree with Doug that there is some merit in separating the religious and legal aspects of the marriage relationship. However, it seems to me that there are two separate components of the marriage process: the contractual and the solemnization. I find that idea that the state could or should demand a secular solemnization as the exclusive means to consumating the legal requirement to form the contractual relationship very troubling. Soleminzation is nothing more then a certain proscribed ritual layered on top of the documentary requirements of the marriage license process. Why mandate that the ritual be conducted solely according to a secularized version of religion rather than providing couples with an option to solemnize their wedding according to the ritual most meaningful for them? So long as couples have an option to undergo a secular ritual - why favor the one over the other? David - Original Message - From: David Cruz [EMAIL PROTECTED] To: Law Religion issues for Law Academics [EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 11:38 PM Subject: 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 says that New York doesn't recognize same-sex marriages; but that's not a law that the clergy can violate. There is also a law that bars people from solemnizing marriages that aren't recognized in New York, where solemnization is defined as performing a particular ceremony, a ceremony that consists, as I understand it, entirely of speech and often of religious practice. But I don't see how New York can ban such speech and religious practice; it is *that* law, which bars the clergy from solemnizing the marriage -- which, as #1 suggests, simply involves saying various words including expressing the opinion that under The Right Understanding Of The Law As I See It the marriages are valid -- that is invalid. [snip] I have written and still believe that civil marriage itself is an expressive resource, used by private couples, the distribution of which is constrained by the First Amendment. That noted, here is one place where it seems -- and my tentativeness is intentional -- that a government speech argument might be apt. As I understand solemnization, which I have not yet studied extensively, it is something said or done on behalf of the government. Thus, if it's not conduct but speech, it is speech done by the deputies or agents of the government. When people purport to be exercising 'authority vested in [them] by the State of New York,' wouldn't they literally be speaking for the state? If so, then why couldn't the state impose misdemeanor sanctions for misspeaking for the government? Cf. Rust v. Sullivan (holding that government may take steps to make sure its message is not garbled). Now, this would raise at least two big issues for me. The first is whether the facts of what the clergy at issue did/said sufficiently clearly support the government characterization to avoid any unconstitutional chilling of bona fide private (and in this case religious) speech. The second and related point is whether Doug Laycock isn't right that there is something troublesome about such a fusion of governmental and religious authority. I had previously thought that perhaps allowing clergy to perform the government's solemnization function might be justifiable as a form of accommodation, at least loosely speaking. Many people who marry will do so before clergy, and allowing clergy to solemnize thus spares the marrying couple the need to go get a separate solemnization from a government official. We might need to read such statutes with Seeger/Welch broadness to avoid religious favoritism (as I suspect that some marriages are officiated by nongovernmental yet nonreligious private parties). But, even if we did, do prosecutions such as New York's suggest that there is an improper entanglement of religion and government when it comes to solemnization of marriages? David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
