Re: Providing public school credits for release-time religious classes

to understand how this decision is salutary from an academic > perspective. Sounds to me like it is potentially watering down the 3Rs > > Marci > > > > > > On Jun 30, 2012, at 11:11 AM, Marty Lederman wrote: > >> I should add that, wholly apart from wh

Re: German circumcision decision

Actually, I don't think Paul's comment is a "one-liner" -- the fact that this decision comes from Germany is surely the most striking and disconcerting -- and important -- thing about it. As far as "analysis" is concerned, well, how could there be a "correct" answer? I think we can all agree that

Re: German circumcision decision

Chip writes that under our "tradition" (without regard to religious liberty), "the state has the burden of proof that a practice is abusive. So, when reasonable people can and do differ about the social, medical, or hygienic benefits of a practice --as is obviously the case with infant male circum

Re: Parental rights and physical conduct

Eugene's tattoo example is very helpful for teeing up what has seemed to me to be the important distinction here (one I've tried to stress in my earlier posts): I think one big reason that most of us, unlike Eugene, are opposed to an anti-circumcision law is because most men who were circumcised a

Re: Equivocal evidence, and the right to choose

Eugene: Without regard to what "adult subjects" generally think of the procedure having been done (or not done) to them? Shouldn't we defer to parents at least until such time as there are many adults who are outraged that the state didn't step in? On Fri, Jul 6, 2012 at 6:19 PM, Volokh, Eugene

Re: Circumcision

Perry: very helpful. Would you add this as a third category?: if the state demonstrates that many (most) adult men regret their parents' decision to circumcise. It's if and when that ever happens -- not before -- that this will seem like a difficult question. Sent from my iPhone On Jul 11,

Circumcision: Mike Dorf on whether the same standards ought to apply in Germany

http://www.dorfonlaw.org/2012/07/when-would-it-no-longer-be-too-soon-for.html On Sun, Jul 1, 2012 at 11:09 AM, Eric Rassbach wrote: > > I'd be interested to know what the list thinks about the reasoning of the > recent decision by a state appeals court in Cologne holding that performing > a circu

Re: 7th Circuit re High School Graduation in Church Sanctuary

working link to opinions: better link: www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=10-2922_004.pdf On Tue, Jul 24, 2012 at 2:32 PM, Conkle, Daniel O. wrote: > In a decision announced yesterday, the en banc 7th Circuit has ruled, > 7-3, that a public school district violated the E

First German circumcision criminal complaint filed

http://www.haaretz.com/jewish-world/jewish-world-news/complaint-filed-against-israeli-rabbi-in-germany-for-carrying-out-circumcision.premium-1.459792 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get

European circumcision developments

According to the NYT ( http://www.nytimes.com/2012/08/27/science/benefits-of-circumcision-outweigh-risks-pediatric-group-says.html?_r=1&hp ): In Europe, a government ethics committee in Germany last week overruled a court decision

Catholics on the Court -- An historical perspective

Excuse me if this is already well-known. I thought it was quite striking in light of the current religious composition of the Court. Was just reading through AG Francis Biddle's autobiography and happened upon this fascinating anecdote: While Jim Byrnes was on *de facto *leave from the Court to

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

Strikingly, the court rejects the RFRA claim on the ground that there is no substantial burden. The key reasoning, some of which might also be relevant to several other sorts of cases (e.g., landlord cases) in which the religious burden theory is that the provision of funds or services "facilitate

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

_ > From: religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ > lederman.ma...@gmail.com] > Sent: Saturday, September 29, 2012 8:43 PM > To: Law & Religion issues for Law Academics > Subject: Re: Court Reje

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman wrote: > For what it's worth, at our Georgetown Conference on this issue last week > (a video of

Re: Court Rejects Religious Liberty Challenges To ACA Mandate

sion of that > thing. Imagine a Quaker being required to enter into contracts with gun > dealers for provision of guns to his or her employees. Beyond the question > of directness, a contract is an agreement; contract is about assent. > > ** ** > > Mark > > ** **

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the "equivalence" point raised by Rob and Rick: To the extent the court is rejecting a "proximate cooperation with evil" theory of substantia

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

t; > ** ** > > Blogs: > > ** ** > > Prawfsblawg <http://prawfsblawg.blogs.com/> > > Mirror of Justice <http://www.mirrorofjustice.blogs.com/> > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

rotection. > > > > > > > >Marci A. Hamilton > >Paul R. Verkuil Chair in Public Law > >Benjamin N. Cardozo School of Law > >Yeshiva University > >55 Fifth Avenue > >New York, NY 10003 > >(212) 790-0215 > >hamilto...@aol.com > >

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

ervices and pays for those services, and these employers say they > cannot in conscience do those things. > > On Mon, 1 Oct 2012 19:46:50 -0400 > Marty Lederman wrote: > >Fortunately, the question here is far, far removed from whether the state > >can or should require any

Re: RFRA defenses in suits by private plaintiffs

Very helpful, thanks Doug (and Shruti). I suppose that, had the drafters of RFRA (and/or RLUIPA, which also amended RFRA) foreseen the confusion, the statute could and should have been amended to say something such as "assert that violation as a claim or defense in a judicial proceeding and obtain

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

different to those objecting, and plausibly so, because > the money is not paid to the employees or to the government. The employer > buys a package of services that includes the services the employer believes > to be immoral, including the morning-after and week-after pills that the >

Re: Contraception and Conscience: A Symposium on Religious Liberty, Women's Health, and the HHS Rule on Provision of Birth Control Coverage for Employees

add to the page: http://berkleycenter.georgetown.edu/essays/resources-and-background-on-contraception-and-conscience Thanks, Marty On Fri, Sep 14, 2012 at 3:39 PM, Marty Lederman wrote: > Please excuse the plug. I hope this is something that those of you in the > D.C, environs and beyond

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

se to use the money to obtain contraceptives or other services. > > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, October 03, 2012 7:03 AM > > *To:* Law & Reli

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of *Thomas*, and perhaps the burden discussion in

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

y is a much more direct involvement than just paying wages that an > employee may use in any way the employee chooses. > > ** ** > > Mark > > ** ** > > ** ** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.uc

HHS Rule: What is at Stake?

h just doesn’t like > contraception generally, and this is just another tactic to minimize its > spread. But I think a plausible reading of the Church’s position is that > while they dislike contraception across-the-board, there are special > problems with them being forced to provide it

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- becau

Re: HHS Rule: What is at Stake?

ide contraception to their employees, with (2) whether contraception > should be provided *at all* (whether by other employers or the > government). The first is a religious liberty claim, where I am > sympathetic to the Church; the second is a public policy claim, where I am > not.

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

orders > cannot justify them in paying for a policy that will provide these drugs. > > > ** ** > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

34-243-8546 > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, October 03, 2012 4:57 PM > > *To:* Law & Religion issues for Law Academics > *Cc

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

g the practices of others. The free exercise clause doesn't > protect it. > > On a different note, does anyone think that Title VII would permit a > sexual harrassment, gender discrimination, or hostile work environment > claim in the following scenario: > > The employer i

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

to Marty for organizing such a wonderful conversation! Best, Cathleen On Wed, Oct 3, 2012 at 11:31 AM, Marty Lederman wrote: > Mark: My point is that, as far as I know, "for centuries" *neither *case > has been considered impermissible cooperation with evil under the mode of > mor

Re: RLUIPA and prisoner conjugal visits

I think we probably all agree that the RLIUPA claim here should and will fail, because of the compelling prison interest in not so selectively rendering such a universally desired accommodation. And for just that reason, I can't imagine any prison *voluntarily *allowing religiously motivated priso

Re: RLUIPA and prisoner conjugal visits

to obtain conjugal visits "discriminate in > the allocation of a constitutionally protected activity" -- i.e., the right > of intimate association? > > On Mon, Nov 26, 2012 at 6:41 AM, Marty Lederman > wrote: > >> I think we probably all agree that the RLIUPA claim he

Cert. grant today in ceremonial prayer case

This one, involving the assessment of denominational discrimination post-Marsh v. Chambers: http://www2.bloomberglaw.com/public/desktop/document/Galloway_v_Town_of_Greece_681_F3d_20_2d_Cir_2012_Court_Opinion ___ To post, send message to Religionlaw@lists

Marriage -- the Alito dissent

I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts "two competing views of marriage": what he calls the "conjugal" view, in which marriage is the "solemnizing of a comprehensive, exclusive, permanent union t

Re: Marriage -- the Alito dissent

legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman wrote: > I'm surprised there hasn't been more attention paid to the quite > remarkable dissent that Justice Alito filed in Windsor. In it, he > contrasts "two competing views of marriage"

Re: Marriage -- the Alito dissent

t might not be persuasive to all, or to many, but it would > be an injustice to dismiss it so cavalierly. > Richard Dougherty > On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman > wrote: > >> As a couple of you have pointed out t

Citations to Listserv posts/Contraception mandate

Doug Laycock has just posted this very interesting article to SSRN on "Religious Liberty and the Culture Wars" that I recommend (though I would certainly take issue with parts of it): http://papers.ssrn.com/abstract=2304427 Doug's piece prompted me to wonder about a non-substantive point, however

Re: Contraception mandate

OK, here's an effort to get us back on the track (of the current circuit split): What Doug wrote was that there was a common understanding that RLPA "would protect for-profit *businesses* from civil rights claims *that **substantially burdened the owner’s free exercise of religion*." Now, it's no

Re: Contraception mandate - Lee

Perhaps it's a minor point, and I'm very reluctant ever to disagree with Chip!, but neither Braunfeld nor Lee involved free exercise claims by businesses, let alone corporations. The free exercise claims in each case were brought by and on behalf of the individuals who owned the businesses, allegi

Re: Contraception mandate - Lee

traightforward answer to that problem is just > seeing in RFRA what he or she hopes to see. > > > On Mon, Aug 5, 2013 at 9:53 PM, Marty Lederman > wrote: > >> Perhaps it's a minor point, and I'm very reluctant ever to disagree with >> Chip!, but neither Bra

Re: Closely-held corporations, owners of corporations, and RFRAs

Actually, in order to make the hypothetical analogous to these cases . . . well, it really can't be made analogous, because providing a health insurance plan that covers all recognized medical treatments without exception can't be analogized to choosing to use slave labor in any serious moral unive

Re: Rights of corporations and RFRAs

Not yet determined. Almost certainly on the March argument calendar. On Wed, Nov 27, 2013 at 9:06 AM, Marc Stern wrote: > Does anyone know who is going to brief first(upside),and who is going to > brief second (downside in the contraception cases? Or is each case going to > brief on the normal

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contracepti

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

I assume this is the letter, although it does not specifically address the removal of "substantial": http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, wrote: > When a new TRFRA was introduced in

Does "substantial" matter?

Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term "burden" is modified by "substantial" will not matter, because such courts inevitably end up "balancing" the degree (or nature) of the burden on religious exercise -- indeed, the degree

Re: RFRA, the Establishment Clause, and saving constructions

Eugene writes: "Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that

Re: Burdens on others -- compelling interest vs. Establishment Clause

gene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Tuesday, December 03, 2013 8:40 AM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: RFRA, the Establishment Clause, and

Re: Does "substantial" matter?

; > (313) 577-4046 (phone) > > (313) 577-9016 (fax) > > Website—http://law.wayne.edu/profile/christopher.lund/ > > Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun.

Re: Does "substantial" matter?

religious exercise’ includes any exercise of religion, *whether or not > compelled by*, or central to, a system of religious belief.”). > > > > Best, > > Chris > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf

Re: Does "substantial" matter?

> > Chris > > ___ > > Christopher C. Lund > > Associate Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > (313) 577-901

Hobby Lobby/Conestoga Wood scheduling

The Court did not realign any of the parties (somewhat to my surprise), but consolidated amici briefing. Therefore: -- SG brief in HL, and CW brief in CW, are due Friday, Jan. 10 *-- All amici, supporting any side, due Tuesday, Jan. 28* [shades of green on color of briefs TBD, perhaps sometime t

Re: Hobby Lobby/Conestoga Wood scheduling

shall bear a dark green cover. An amicus curiae may file only a single brief in case Nos. 13-354 and 13-356. On Fri, Dec 6, 2013 at 2:02 PM, Marty Lederman wrote: > The Court did not realign any of the parties (somewhat to my surprise), > but consolidated amici briefing. Therefore: > >

Hobby Lobby posts

Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits

Re: Hobby Lobby posts

es for Law Academics > *Subject:* RE: Hobby Lobby posts > > > > I much appreciate Marty’s kind words about my posts, and > I’m very interested in his posts. The argument that there’s actually no > employer mandate for RFRA purposes (the Part III post) strikes me as > especial

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

I apologize for not responding right away, but I'm slammed with other stuff. There is a lot to say here, and I think it's important -- Eugene is raising some good questions. I'll try to respond in the next day or so; in the meantime, I'm very grateful for all the reactions, both supportive and cr

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

Sorry it took so long. My response to Eugene and others raising the same question is here: http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html As always, I welcome any critiques/suggestions from list-members, thanks. On Wed, Dec 18, 2013 at 11:36 AM, Marty Lederman

Re: Can it really be unconstitutional for Congress to create statutes that borrow constitutional law doctrines?

See http://www.jstor.org/stable/1073407 Of course, if a statute incorporates a constitutional test that, according to the Court, had required it to do things no article III court could do -- which is one reading of Smith, namely, that application of the Sherbert/Yoder test was beyond the judicial

The nonprofit contraception services cases

Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman wrote: > Since no one else has mentioned it, I will: > &g

Re: The nonprofit contraception services cases

The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman wrote: > Another post, this one about the nonprofit cases that have now wound their > way to the Court . . .

Re: The nonprofit contraception services cases

or not, the employees will > not receive the services to which the employer objects? Something is missing > from this narrative. > > > Sent from my iPhone > > On Jan 3, 2014, at 10:56 AM, Marty Lederman wrote: > >> The government's brief in Little Sist

Re: The nonprofit contraception services cases

, Jan 3, 2014 at 1:41 PM, Marci Hamilton wrote: > Marty-- could you please elaborate on your response? I am not following > this exchange > > Thanks-- > Marci > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University

Re: The nonprofit contraception services cases

rom:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton > *Sent:* Friday, January 03, 2014 1:42 PM > > *To:* Law & Religion issues for Law Academics > *Cc:* Law & Religion issues for Law Academics > *Subject:* Re: The

Re: The nonprofit contraception services cases

federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman wrote: > And here's a post that (in part) responds to Kevin -- although my > principal point is the *Little Sisters* case is an unimportant sideshow, > and that it won't matter much what the Court does on the eme

Re: The nonprofit contraception services cases

, Marty Lederman wrote: > Sorry, I should have added that if ND prohibited only women, and not men, > from using contraception, that would violate the title IX prohibition on > sex discrimination. But a rule that all students must not indulge in > unmarried sex, or in unmarr

Re: Boy Scouts, Expressive Association, Government Benefits, Religious Discrimination, Etc.

Thanks again for the thoughtful response, Christopher.  A few quick reactions:   1.  It's not only about equality, because virtually none of these programs treats all applicants "equally":  Some are favored over others for a variety of subjective reasons.  And the EC question therefore is wh

Re: Catholic Charities Issue

Doug, under Massachusetts law would CC's inability to engage in "adoption services" (which I assume means being in the business of arranging adoptions) result in a substantial burden on its religious exercise?     - Original Message - From: "Douglas Laycock" <[EMAIL PROTECTED]> To: "

Re: Catholic Charities Not Bending the Knee to Baal

Well, as long as Rick is invoking what "many students of the Bible" think about "true" sexual union, I think it's worth pointing out that in his original post in this thread, Rick quoted the first five paragraphs of today's Boston globe story.  But there's a sixth paragraph, too, which Rick

Re: Catholic Charities Issue

I didn't mean to question the sincere religious motivation of Catholic Charities (or the Bishops whose decree it is following).  I was simply curious what it is, exactly, that Massachusetts prevents CC from doing, and whether and how that particular legal restriction imposes a substantial bu

Re: Catholic Charities Issue

Uh, that would be "genuinely curious."  Sorry - Original Message - From: Marty Lederman To: Law & Religion issues for Law Academics Sent: Saturday, March 11, 2006 5:33 PM Subject: Re: Catholic Charities Issue I didn't mean to q

Re: Catholic Charities Issue

Sorry if I missed it, but has anyone yet posted any reliable information about what it is, exactly, that Massachusetts will deny Catholic Charities if CC does not agree to facilitate adoptions to gays and lesbians? Without a "license," what freedom does CC stand to lose, and how will it affect

Religious Groups and Gays and Lesbians

A very small qualification to this discussion:  The examples Doug and Marc cite are, if I'm not mistaken, all cases involving opposition to religious exemptions.  Gay- and lesbian-rights groups will generally oppose any exemptions from the laws that protect them, regardless of whether the ex

Re: Religious Groups and Gays and Lesbians

With one minor exception, I don't disagree with what Doug has written, although I can't say with any degree of confidence that the gay-rights groups are being tactically unwise in preferring "a weak gay rights law without a religious exemption" to a "strong gay rights law with a strong relig

Another Catholic Charities Issue

Interesting Op-Ed in today's Times by the Cardinal Arhcbishop of Los Angeles, who apparently plans to instruct the priests of his archdiocese to disobey a proposed law that would subject them, as well as other church and humanitarian workers, to criminal penalties for "assisting" undocumente

Re: Another Catholic Charities Issue

we be treating a church's > theological position as a "black box" that should not be deconstructed > or peered into in accordance with non-believers' ideologies? > > Vance > > On 3/22/06, Marty Lederman <[EMAIL PROTECTED]> wrote: > > > > Interest

RE: Sabbatarians and deadlines

"RFRA therefore seems to be an attempt to *require* courts to grant exemptions (at least sometimes) *despite* this slippery slope risk"? That's not my understanding. In assessing the state interest, surely the court must evaluate the *entire class of persons who would be entitled to the exempt

Re: Another Catholic Charities Issue

That's very helpful, Chris. So, please allow me to repeat the question I asked last week, which did not prompt any responses then: If the new statute would, indeed, impinge on churches' religious missions as much as Chris's post suggests, then can/must/should Congress enact a religious exempti

Re: rfrA AND PRIVATE LAWSUITS

Neither the statutory provisions Posner cites, nor the cases he cites, stand for the proposition he states that "RFRA is applicable only to suits to which the government is a party."   The Sutton case does suggest that a plaintiff's claim against a private party for a violation of RFRA (base

San Francicso Board of Supervisors Catholic Charities Resolution

Below is the text of the Resolution, at least according to one newspaper.  I don't know whether it's an Establishment Clause violation.  (It's a lot less religious in substance than, say, the presidential Thanksgiving and Prayer Day proclamations with which we're all familiar.)  Apart from c

Re: San Francicso Board of Supervisors Catholic CharitiesResolution

Marci:  I agree that it would have been perfectly permissible, even laudable, for San Francisco to strongly criticize the Church's policies, and that the use of the word "unacceptable" was merely unfortunate, not unconstitutional.  I also don't think this resolution is based on anti-Catholic

The Posner Ministerial Exception Decision

eligion & Law Seminar.  I used Ballard, EEOC v. Catholic Univ., Elvig, and this Tomic case.  It occurred to me afterward that I wish I had allocated more time to the issues:  Using those four cases alone, one could prompt hours of valuable classroom discussion.   - Original Message ---

Re: San Francicso Board of Supervisors Catholic Charities Resolution

Religion issues for Law Academics <religionlaw@lists.ucla.edu>> Subject: Re: San Francicso Board of Supervisors Catholic Charities Resolution> > > On Apr 6, 2006, at 2:26 AM, Marty Lederman wrote:> > "...it's not really for a municipality to say whether a decree to&g

Dale Carperter on Catholic Charities in Massachusetts

Dale Carpenter has written what I think is a very interesting and formidable Op-Ed and blog post on the Catholic Charities imbroglio in Massachusetts.  I'm assuming that Dale and Eugene won't mind if I copy the blogpost here:   Interestingly, Dale thinks that the case for a constitutional ex

Rick Garnett on Campaigning from the Pulpit -- and Tax Status

Rick Garnett has an interesting Op-Ed in USA Today about politics in sermons: http://www.usatoday.com/news/opinion/editorials/2006-04-16-forum-religion_x.htm Rick makes an excellent point, I think, about how debate on public issues -- and even partisan politics -- should not necessarily be chec

RE: Rick Garnett on Campaigning from the Pulpit -- and Tax Status

Thanks, Doug. That's a very interesting angle that I had not previously considered. (Has anyone written on it?) But wouldn't the same logic apply to the speeches and other expression of the leaders and/or officers of any 501(c)(3), all of whose salaries would be paid regardless of whether the

Unconstitutional BOP Religion in Prisons Program

Religion-in-Prisons Program Marty Lederman The Department of Justice's Bureau of Prisons (BOP) has established "a residential multi-faith restorative justice program" entitled Life Connections. According to the Department of Justice: The 18-month program is open to adult vo

Taxpayer Standing

As many of you know, the Seventh Circuit denied the petition for rehearing en banc in FFRF v. Chao yesterday:  http://www.ca7.uscourts.gov/tmp/SM0EVXT9.pdf.   Many of the judges expressly urge the Supreme Court to hear the case in order to bring some sense to its taxpayer standing jurispruden

Re: Taxpayer Standing

I suppose I should have reviewed the relevant paragraph from Bowen v. Kendrick before I posted.  After Bowen, it appears that the answer turns not on the nature of the aid (e.g., money v. computers), nor on which branch of the federal government is making the allocation decisions, but instea

RE: RE: Taxpayer Standing

Doug: Do you think that the Spending Clause/Property Clause distinction (Flast v. Valley Forge), articluated in Kendrick, *makes any constitutional sense*? Moreover, although Mark may have been wrong about the specific facts of Mitchell, he's right that the Court has recognized *state* taxpayer

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/gonza

Re: Use of Religion to Achieve Secular Ends

In the comments section to his post (http://prawfsblawg.blogs.com/prawfsblawg/2006/05/religion_in_pri_1.html#comments), in response to my assertion that the state cannot and must not act on the conclusion that "religious transformation [and] faith" are a "good" thing (when freely embraced), R

Re: Use of Religion to Achieve Secular Ends

But Doug, assume that the state prison decides that "religion works for some people," and therefore creates a program such as the one you describe:  It establishes within the prison a funded series of voluntary rehab programs, some (but not all) of which are devoted to "religious transformat

Re: Use of Religion to Achieve Secular Ends

Thanks for the thoughtful response, Doug.  I suppose that if one of these prison programs were structured like a Rosenberger program (or what the Court understood the UVa program to be, anyway), then the constitutional problems would be diminished.  That is to say, if the prison were establ

Re: Substantial burden on religious freedom and placing a copy ofthe Koran in toilet

Here's a radical suggestion:  Let's look at what has actually occurred in the Rasul v. Rumsfeld case. The court's decision was a rejection of the government's motion to dismiss the RFRA claim.  As far as I can tell, the government did not argue that the plaintiffs' allegations failed to es

Re: Unconstitutional BOP Religion in Prisons Program

Thanks, Chip and Bob, for that extremely informative and lucid post.  Here's my modest rejoinder:   http://balkin.blogspot.com/2006/05/valuable-new-details-and-analysis-of.html. Valuable New Details and Analysis of the BOP Religion-in-Prisons Program(s) Marty Lederman In two post

Developments on Taxpayer Standing in Establishment Clause cases

o cases.      Al lof which is to say that if the Court grants cert. in the CTA7 FFRF v. Chao case, I think there is some chance that it will tip more in the direction of Flast rather than Valley Forge, notwithstanding the Chief's obvious discomfort with taxpayer standing. --

Re: Teenagers &The Spirit of Liberty

For purposes of constitutional analysis, we're focused on the wrong actors. I agree with Steve and Andy that the students' grotesquely insensitive conduct violated moral and social norms, not legal constraints. But I don't think we should be so quick to assume that the prayer was not de facto

Judge Becker Posthumously Creates Circuit Split on Ministerial Exception

The U.S. Court of Appeals for the Third Circuit today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss a Title VII sex discrimination claim brought by the chaplain of a Chatolic college who was constructively dismissed.  http://www.ca3.uscourts.gov/opinarch/051222p.pd

Re: Third Circuit departs from majority

"This has to be a categorical exception."   Because . . . why, exactly?  What if, for instance, the college did not contend that the decision was based on any religious rationale at all, but was instead purely a matter of (non-religiously motivated) sex discrimination.  Why should it receive

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