Religious organizations, tax-exempt status and same-sex marriage
In an article from the Weekly Standard, the question was raised about the implications for religious organizations losing their tax-exempt status if they continue to oppose same-sex marriage. The article talked about the case of Bob Jones University v. United States (1983), where they lost their tax-exempt status based on their opposition to interracial dating. Given the number of instances I've seen where parallels are drawn between interracial relationships and same-sex relationships, it seems realistic to ask if religious organizations would be similarly stripped of their tax-exempt status if the Supreme Court finds a constitutional right to same-sex marriage. The article includes this piece of discussion between Justice Samuel Alito and Solicitor Donald Verrilli Jr. JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage? GENERAL VERRILLI: You know, I -- I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I -- I don't deny that. I don't deny that, JUSTICE ALITO: It is -- it is going to be an issue. http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-coul d-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same- sex-ma What is the consensus of this list? Would a ruling in favor of same-sex marriage lead to the same requirement that religious organizations accept same-sex marriage to avoid losing their tax exempt status, or would the religious freedom provisions of the First Amendment prevail here where they did not prevail where Bob Jones University is concerned? Brad Pardee ___ 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: The racist prostitute hypothetical
You are misunderstanding me. I'm not saying saying that there ar e true religious objections and false religious objections. I'm saying that, just as there is speech that is protected as free speech and there is speech that is not protected, there are religious objections that are (or once were) protected and there are religious objections that are not protected (think human sacrifice as an extreme example that I think we would all agree is not and never has been protected). The Sherbert rule was useful in distinguishing between them. After Employment Division v Smith dispensed with the Sherbert rule and any meaningful free exercise protection, we wind up in a situations such as where we have no idea what the Court will consider protected and what it will not. Transforming a guarantee of free exercise into a mere anti-discrimination law undermines the very principle of religious freedom. Instead, any time anyone says that a certain law, neutral on its face, places a significant burden on their free exercise, it can (and often is) dismissed with "People supported slavery and opposed interracial marriage the same way." That's not free exercise under any definition that has any meaning. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Sunday, February 15, 2015 6:20 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Sorry -- I hit "send" accidentally before finishing my message below. Here's the omitted paragraph: What is clear from comparing the Court's free speech and free exercise doctrines is that government can regulate "false" speech (with limits); it cannot regulate "false" religious beliefs. As a result, Brad's effort to distinguish between what he believes to be a "true" religious objection to same-sex marriage and a "false" religious objection to interracial marriage is a non-starter under Supreme Court doctrine. Does anyone other than Brad disagree with this? On Sun, Feb 15, 2015 at 4:09 PM, James Oleske wrote: Brad writes of free speech doctrine: "[T]he court isn't determining if a person's words are mistaken . . . when they say that free speech doesn't cover slander or libel. we have long held that actual malice requires material falsity Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861, 187 L. Ed. 2d 744 reh'g denied, 134 S. Ct. 1575, 188 L. Ed. 2d 582 (2014) On Sun, Feb 15, 2015 at 3:37 PM, Brad Pardee wrote: It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: "[T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two." Although Brad thinks the law "ought" to be able to distinguish between "wrong" and "correct" religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? "[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' "Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim." "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection" - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee wrote: I'ts not an all or nothing. The fact that the freedom of spee
RE: The racist prostitute hypothetical
It's not about the Court saying that beliefs are mistaken, insubstantial, plausible, logical, or comprehensible. It's about the Court determining what is covered by the free exercise clause and what is not. Again, to parallel the free speech guarantees, the court isn't determining if a person's words are mistaken, insubstantial, plausible, logical, or comprehensible when they say that free speech doesn't cover slander or libel. That was the value of the Sherbert test because it established a way to determine what exercise of religion is protected and what exercise of religion is not, without making a determination on the merits of of the religious beliefs that are the basis of the exercise in question. In my opinion, the reason why I think Employment Division v Smith ranks right up with Dred Scott v Sandford among the worst decisions the Supreme Court has ever issued. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 10:25 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad writes: "[T]he fact that people have wrongly tried [to] make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two." Although Brad thinks the law "ought" to be able to distinguish between "wrong" and "correct" religious freedom claims, we can all agree that this view is flatly inconsistent with Supreme Court precedent, correct? "[I]t is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction.' "Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim." "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection" - Jim On Sat, Feb 14, 2015 at 8:03 PM, Brad Pardee wrote: I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Saturday, February 14, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to you. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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: The racist prostitute hypothetical
If a person is going into a bakery and buying a cake off the shelf without the baker doing anything, that's one thing. But they wouldn't have to talk to the baker for that. It's by talking to the baker, asking for a cake to be specifically created or designed for this specific occasion that is problematic. That's the point where you are asking the baker to become a participant in the preparation of the event that their faith requires that they not participate in. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Saturday, February 14, 2015 9:59 PM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad: Tell me why is the wedding cake which I pick up at your bakery and take to my wedding any different than the rental tux I pick up, the flowers I bring to the wedding, or the limo I rent. Or, if I buy the car for the wedding party, how is the cake any different than the car I bought at the dealer. Can the liquor store refuse to sell me wine for the wedding reception? Or for the ceremony itself? If the parties take communion before the ceremony, can the liquor store owner refused to sell wine? * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com <http://www.paulfinkelman.com/> * _ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Saturday, February 14, 2015 7:41 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The racist prostitute hypothetical Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical "Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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: The racist prostitute hypothetical
In the absence of some factor not listed here, I don't see a religious freedom issue here. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of K Chen Sent: Saturday, February 14, 2015 8:51 PM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical Brad you said: "The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction." What about, instead of an interracial wedding, the baker/florist/etc. is objecting to two whites, one an immigrant from, say, South Africa and the other a multigenerational American? Sent on my mobile device. Please Excuse my brevity and typographic errors. ___ 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: The racist prostitute hypothetical
I'ts not an all or nothing. The fact that the freedom of speech does not protect slander and libel doesn't mean we disregard every other freedom of speech claim. We are able to distinguish between the two. Similarly, the fact that people have wrongly tried make religious freedom claims doesn't mean we disregard all religious freedom claims. We ought to be able to distinguish between the two. The difference between same sex relationships and interracial relationships seems like one of those distinctions. The difference between people of different races is not the same between the difference between genders. That's why, for instance, the Negro Leagues in baseball have gone by the wayside and yet nobody is saying that the players of the WNBA should just try to make the teams in the NBA. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Saturday, February 14, 2015 8:48 PM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical Brad: The distinction you see between same-sex relationships and interracial relationships makes sense to you. It surely does not make sense to someone who opposes interracial marriages on religious grounds. ___ 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: The racist prostitute hypothetical
Let me clearer. There is a difference between saying you won't serve certain people and saying you won't be a participant in a certain event. A wedding cake is part and parcel of the event, same as providing the floral settings and taking the photographs, although I realize don't agree with that. That's why the baker, florist, or photographer should have the freedom to choose not to be a part of events that their faith forbids them to take part in. If the condition of their remaining in business is that they abandon the tenets of their faith, then they don't have any religious freedom that has any meaning. The problem with comparing a same sex wedding with an interracial wedding is that the color of a person's skin is no different than the color of a person's hair or the color of a person's eyes. I don't think anybody would say that the difference in genders is a strictly cosmetic distinction. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Saturday, February 14, 2015 11:27 AM To: Law & Religion issues for Law Academics Subject: Re: The racist prostitute hypothetical "Refusing to bake a wedding cake for [interracial] couples is about not taking part in a specific event. Refusing to bake bread for someone who is [black] is about not serving a specific type of person. Two very different things." Brad -- with those bracketed alterations, do you stick with what I perceive to be your view that the baker should have a right to refuse to bake the wedding cake? If not, I would suggest that bakers making wedding cakes for the general public do not fall within the intimate sphere of privacy that Eugene is trying to identify with his hypothetical. Like Eugene, I think for-profit ministers and freelance writers present more difficult cases, though I disagree with him that most wedding photographer situations present difficult cases. - Jim ___ 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: The racist prostitute hypothetical
There is a problem with the scenarios you present. Baking bread is a far more context-free activity than baking a wedding cake, for instance. The baker of the wedding cake is taking part in the preparation of a specific event that their faith may say not to take part in. The baker of the bread is taking part in the preparation of breakfast, lunch and supper. Refusing to bake a wedding cake for same-sex couples is about not taking part in a specific event. Refusing to bake bread for someone who is gay is about not serving a specific type of person. Two very different things. As far as therapy goes, I can use my own experience. Although I am not a Catholic, I am seeing a therapist with Catholic Social Services. Right at the beginning, she said that the counseling would be within the context of Catholic moral teaching. If I were to ask her for help in working through the issues that prevent me from divorcing my wife and marrying my mistress my same-sex lover, she's not going to do it. However, the issues I'm working through with her don't involve the repudiation of Church teaching in any way. Consequently, even though I'm a Protestant who will probably never become a Catholic because of some theological disagreements, she still is able to take me on as a client. (This is, of course, hypothetical as my wife and I celebrated our 20th anniversary last year and I could no more stop loving her than I could stop breathing.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Saturday, February 14, 2015 4:49 AM To: Law & Religion issues for Law Academics Subject: RE: The racist prostitute hypothetical I confess that I get off at the second paragraph (or the first substantive paragraph). My spouse is an excellent breadbaker and therapist. For a while, she just bakes for friends and only comforts friends and does so for friendship. Turns out all our friends are of the same race, religion, sexual orientation, etc. I presume these choices are constitutionally protected. One day, after receiving numerous comments of the sort, "you really ought to go into business," she does. The first person who orders bread and asks for therapy is of a different race, religion, sexual orientation, etc. I take it this can be regulated. The first amendment does protect some activities, even when done commercially, but at the very least those activities cannot be described as Eugene does below as "just business." If it is "just business" (and that is not what a clergy person thinks they are doing when they marry someone), then it ought to be subject to anti-discrimination law. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Saturday, February 14, 2015 12:01 AM To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The racist prostitute hypothetical I've been thinking about a little thought experiment, and I thought I'd run it past this list to see whether people see it as helpful. Imagine a state in which prostitution is legalized. A prostitute offers her services to the general public (perhaps through a web site, which as I understand it is not uncommon). She is generally not very selective, because it's just business. But she doesn't like black people. A black would-be customer feels understandably insulted by this, so he sues her for discrimination in public accommodations. And the state law does cover all businesses, bricks and mortar or not, that provide goods or services to the general public. (That, after all, is the sort of law that covers bakers, wedding photographers, and perhaps ministers who charge for their services.) My inclination is that the prostitute should have an absolute right to discriminate on any basis she wants, whether it's race, religion, marital status, age, or whatever else. And that is true even though she charges money, and generally provides her services to everyone. (I say "she" and "he" in this example, but of course the same would apply regardless of the sex or sexual orientation of the parties.) The choice of whom to have sex with is a personal choice, even when done commercially, and no-one should have to have sex with someone they don't want to have sex with - on pain of either facing a fine or having to quit one's chosen line of business - no matter how many for-pay partners they might have. Are people on this list with me so far? Now the next step: I think that, while sexual conduct should involve a right to choose for particular reasons having to do with bodily autonomy, some other conduct should involve a similar right to choose for other reasons. Religious autonomy, intellectual/expressive autonomy, and personal/familial autonomy are examples of that. Forcing a member
RE: Oklahoma bill would protect clergy who won't perform gay marriages
I thought that having nearly ten percent of the legislature oppose it indicates that that the pastors' concerns weren't just products of their imagination, and what nearly ten percent now may grow larger in time as activists and lobbyists play their role in the political process. What I've seen of our legislature here in Nebraska is that, when senators' votes are changed, it seems far more likely that senators who voted with the majority will change rather than one of the minority, which is why I felt it was a serious question. Considering that nearly the entire article as about this piece of legislation and there were no gay rights supporters stating that this proposal was fine and that it was other proposals they would challenge in court, it could be that it is sloppy journalism (not unheared of on Yahoo) or it could be that the gay right supporters included this in the proposals they would challenge. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 13, 2015 3:22 PM To: Law & Religion issues for Law Academics Subject: Re: Oklahoma bill would protect clergy who won't perform gay marriages What does it "say" that seven out of 95 legislators voted against? That this is not a serious question. BTW, the story does not say that "supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching." What it says is that there are "several proposals" "before the Republican-dominated Oklahoma Legislature intended to protect the interests of people who object to the lifting of the gay marriage ban," and that "gay rights supporters have said they would challenge the proposed measures in court if they become law." It does not cite any gay rights supporters as saying they'll sue to require ministers to perform religious weddings for same-sex couples. On Fri, Feb 13, 2015 at 4:13 PM, Brad Pardee wrote: http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriages-230731935.html >From what I have learned here in my time on this list, I wouldn't think that >this law would be necessary because existing law would seem to prevent the >government from mandating when churches are required to invoke God's blessing >and dictating what churches can include in their moral teaching. However, it >says something that a) the pastors felt the protection was required after the >ban on same sex marriage was overturned, b) seven legislators opposed >providing that protection in the law, and c) supporters of gay rights said >they'll challenge the law in the courts if it is passed, indicating that they >believe pastors can be forced to perform same sex weddings that violate a >church's teaching. Brad Pardee ___ 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.
Oklahoma bill would protect clergy who won't perform gay marriages
http://news.yahoo.com/oklahoma-bill-protect-clergy-wont-perform-gay-marriage s-230731935.html >From what I have learned here in my time on this list, I wouldn't think that this law would be necessary because existing law would seem to prevent the government from mandating when churches are required to invoke God's blessing and dictating what churches can include in their moral teaching. However, it says something that a) the pastors felt the protection was required after the ban on same sex marriage was overturned, b) seven legislators opposed providing that protection in the law, and c) supporters of gay rights said they'll challenge the law in the courts if it is passed, indicating that they believe pastors can be forced to perform same sex weddings that violate a church's teaching. Brad Pardee ___ 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: On a different strand of the seamless web
Hobby Lobby itself as a corporation may not have religious beliefs or an immortal soul, but the decisions made for the corporation are made by people who do, as is true for all corporations, large and small. If a corporation had, for instance, engaged int trade with South Africa during apartheid, people wouldn't have simply condemned the corporation. They would have condemned the people who made the decision for the corporation to trade with South Africa. Similarly, it is people with religious beliefs who make the decisions for Hobby Lobby. It is people who establish the values that the corporation operates under and it is people who make the decisions as to what activities the corporation will engage in. There are people who have deeply held religious beliefs that govern the way they live in every aspect of their lives, and to require them to act amorally, solely in pursuit of money, in the office is to say that the law which is supposed to guarantee religious liberty also mandates abject hypocrisy. Either that, or corporations should have on the board room door, "Abandon faith, all ye who enter here." Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Sunday, July 06, 2014 3:48 PM To: Douglas Laycock; Law & Religion issues for Law Academics; Scarberry, Mark Subject: Re: On a different strand of the seamless web unlike Doug, I do not believe corporations are people, that they have religious believes or that they have souls (that is of course an understatement); corporations are legal vehicles designed to make money for the investors and to shield the investors from having to use their own assets to cover losses and debts. I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to heaven or hell, or that it prays. So, I guess I am unpersuaded that there can be an exemption issue for a corporation ___ 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: letter opposing Mississippi RFRA
I think history is replete with examples of people who defended their actions by saying, "I was just following orders", but we rarely if ever accept that defense. The only difference is that, in this instance, the orders are coming from Congress. The Fugitive Slave Law of 1850 is a fair comparison, with the only real difference being that today we all uniformly believe that slavery is wrong but there is not similar uniform belief regarding contraception. The fact remains that the law didn't allow a person to choose whether to return an escaped slave, but the person is still fully involved in the decision to return the escaped slave. Quakers and other abolitionists whose beliefs were formed by the Great Awakening were aware of the requirements of the law, but their faith required otherwise. It may be that, in the current day and on this issue, the government is more able to compel a person to violate the requirements of their faith. The contraceptive mandate, however, is no less a violation of a person's free exercise of religion than the Fugitive Slave Law was. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 8:36 PM To: Law & Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the absence of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer "fully involved in the decision of what is being covered"? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 11, 2014 8:43 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Except that the employer is not involved in determining the range of benefits any more than it determines the minimum wage-- the preventive services are required by law to be in all plans. ___ 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: letter opposing Mississippi RFRA
I'm curious about something in your letter. Toward the end, you say, "Article 3, section 18 of the Constitution of Mississippi already protects as sacred 'the free enjoyment of all religious sentiments and the different modes of worship.' Senate Bill 2681 is unnecessary to protect freedom of belief and worship in Mississippi, and potentially quite harmful." It appears that you are suggesting that religiious liberty simply requires that a person be allowed to believe what they do and to worship however they do. That seems like a very very narrow characterization of religious liberty. The 1st Amendment specifically talks about free exercise, not merely freedom of belief and worship. What would you say that free exercise refers to when it says it is to be protected? Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 11:21 AM To: Law & Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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: letter opposing Mississippi RFRA
Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law & Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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: RFRA's constitutionality
The problem with the parallel to taxation is the nature of the funding. When we pay taxes, it's a blank check that Congress can use for anything it wishes. They can spend it on war or they can use it to feed squirrels in the park. There are no specific directions provide with the payment of the taxes, though. It's the same as salaries. We don't pay employees with limitations on the things they can spend their paycheck on. In contrast, insurance specifically enumerates the things it covers and the things it does not. Consequently, the employers who provide the insurance are being compelled to specifically spend money on coverage for contraceptives. Brad -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, January 05, 2014 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: RFRA's constitutionality I am sure it as been said before, but I cannot help stressing that nothing I know of in the ACA forces anyone to use contraceptives or to undergo an abortion. The religious freedom to make those decisions is fully preserved. As with having to pay taxes to support war, I do not consideration compliance with a government mandate on employee compensation interferes with religious rights protected by the first amendment, but then maybe the first amendment prevents courts from making that judgment. I am curious about the extent to which religion-law jurisprudence prevents courts from considering the sincerity of claims as well as the rationality of the nexus between personal feelings and religious belief. Jon ___ 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: courts and lawmaking
It seems that this definition of free exercise is very narrow in its understanding of what it means to practice one's religion. Some choose to compartmentalize life into religious areas and non-religious areas with different rules to guide their actions in each. I think most people, though, exercise their faith in all areas of life 24/7. I'm exercising my religion when I tell the truth, when I try to treat people with kindness, when I advocate for social justice. The abolitionists of the mid-1800s who came out of the second Great Awakening were exercising their religion when they denounced slavery and when they aided escaped slaves. They didn't limit their activities to their churches, their homes, or gatherings of co-religionists. The same is true of civil right activists such as the Rev. Martin Luther King , Jr. It would be impossible to make the case that Rev. King's religious beliefs were not part and parcel of his fight for racial equality. There is a world of d! ifference between freedom of religious belief and worship and free exercise of religion. I don't believe RFRA would authorize the kind of hiring you describe. Nobody suggests that, in order to accommodate religions freedom, an employer can require its employees to be virgins because of the employer's belief that pre-marital sex is wrong. And in the case of Hobby Lobby, they are not claiming that they can require employees to refrain from using contraception because the owners of Hobby Lobby believe contraception is wrong. What Hobby Lobby has stated is: "The Green family's religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices." None of that has any bearing on what employees do with their paychecks or what decisions they make in their private lives. It simply says that their religious beliefs forbid them to be involved in procuring those contraceptives . Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Monday, December 30, 2013 3:59 PM To: religionlaw@lists.ucla.edu Subject: RE: courts and lawmaking While I am not sure that I can sustain this view in the marketplace of ideas, I think that "free exercise" means practice one's religion, something one does in churches or other such places or even at HumanLight festivals, and at home, and at places with groups of co-religionists. To me, Smith gave a good interpretation that serves the overall purpose of the religion clauses. And to me, RFRA authorizes people to practice their religion when they operate a non-religious corporation imposing their views on employees, customers and others, and in the case of doctors, practicing their religion by imposing their views on their patients. Perhaps, if I thought that pre-marital sex was a sin, I could refuse to hire employees who were not virgins. Or to make it a better hypothetical, just refuse to hire women who were not virgins, thus coming up against anti-discrimination laws. I have a childless friend who severely criticized me when I told him I had a new grandchild. Because ! of the environment, he is against bringing children into the world. If I worshipped nature, could I refuse to hire people who have, or might have, children? Jon ___ 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: Contraception Mandate
Marci, I believe that there should be strict scrutiny before a person is compelled by law to choose between obeying their God and obeying their government. Anything less gives the government a blank check to command or prohibit anything it wants to, and if that means you have to do what your God has prohibited or you cannot do what your God has commanded, that's just too bad. Either chuck your God or face the consequences. Your first example seems like an unlikely hypothetical because I don't know of any situation where providing equal salary and benfits regardless of religious beliefs or gender would force a person to act in opposition to the mandates of their faith. There may be faiths that permit an employer to pay an employee less based on religion or gender, but I'm not familiar of any that would require an employer to do so. I think that there is a compelling interest in the case of blood transfusions because that is a matter of life and death. Contraception is not a life and death issue, and I can't think of any other way in which it would become a compelling interest. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, November 26, 2013 4:04 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception Mandate Brad-Is it your view that for-profit companies over 50 employees (those affected here), who are subject to Title VII, and may not discriminate on the basis of religion or gender, can tailor their salary and benefit plans according to religious beliefs and gender? Separately, what is your view on whether a Jehovah's Witness for-profit company can exclude blood transfusions as part of its benefits plan? Thanks Marci 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 http://sol-reform.com <http://sol-reform.com/> <https://www.facebook.com/professormarciahamilton?fref=ts> <https://twitter.com/marci_hamilton> -Original Message- From: Brad Pardee To: 'Law & Religion issues for Law Academics' Sent: Tue, Nov 26, 2013 4:57 pm Subject: RE: Contraception Mandate There is a problem with using, as the article does, the quote from Justice Learned Hand that "[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." If Hobby Lobby was stating that, because the owners oppose contraception, no employees are allowed to use contraception, then this would be a valid argument. That is not the case here, though. By being compelled to provide contraception coverage for their employees, the owners of Hobby Lobby are being forced to act in a way that is in direct opposition to the teachings of their faith. Nobody is arguing that, based on the owners' religious beliefs, the employees shouldn't be permitted to access contraception if that is their choice. By ruling against Hobby Lobby, the Court will be telling us that nobody who is pro-life can own a large company unless they are willing to check their faith at the door. I'm not sure that fits any definition of religious freedom that I'm aware of. Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu <mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 2:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm l Nelson Tebbe ___ 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 not
RE: Contraception Mandate
There is a problem with using, as the article does, the quote from Justice Learned Hand that "[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." If Hobby Lobby was stating that, because the owners oppose contraception, no employees are allowed to use contraception, then this would be a valid argument. That is not the case here, though. By being compelled to provide contraception coverage for their employees, the owners of Hobby Lobby are being forced to act in a way that is in direct opposition to the teachings of their faith. Nobody is arguing that, based on the owners' religious beliefs, the employees shouldn't be permitted to access contraception if that is their choice. By ruling against Hobby Lobby, the Court will be telling us that nobody who is pro-life can own a large company unless they are willing to check their faith at the door. I'm not sure that fits any definition of religious freedom that I'm aware of. Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 2:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm l Nelson Tebbe ___ 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: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
We may have to agree to disagree on the role of the wedding photographer. My wife and I both considered the wedding photographs to be part and parcel of the event and the photographer to be a member of the wedding party who was most assuredly there to celebrate with us. We would not have chosen a photographer who would not see their role that way. The same would be true of the wedding planner, who is also providing a service for a fee. I have not the faintest idea what you are talking about with regards to the nature landscape or wildlife photographers or how that ties in to the subject at hand. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Friday, August 23, 2013 2:28 AM To: Law & Religion issues for Law Academics Subject: Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays On Aug 22, 2013, at Thu, Aug 22, 9:06 PM, "Brad Pardee" wrote: This is not correct. The issue is neither the customers' identity or the free market. It is about the merchant being required to participate in events that they cannot participate in by virtue of the tenets of thier faith in order to engage in commerce. Speaking as a photographer (although not a wedding photographer) you are not "participating" in the wedding. You are providing a service for a fee. A participant is a member of the wedding party. You are not there to celebrate, you are there to do a job. A photographer isn't standing there with a drink in one hand, and a piece of cake in the other. A photographer has a light meter in one hand, and a cable release in the other. Eventually, the photographer has their hand out for the check. Wedding photography is a business. If you are constrained by your religion to refuse to do business based on sexual orientation, that is discrimination. That's against the law. BTW, I know of no nature/landscape/wildlife photogs who refuse to do their job because trees have orgies in the spring, mountains refuse to "multiply and be fruitful", or swans are known to engage in lifelong same sex pairings. ___ 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 Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
Actually, the baker is facing the potential of a $50,000 fine that will put them out of business. There has been a concerted effort already to poison their business with other wedding vendors to the point where the baker has been forced to take a fulltime job hauling garbage to provide for his family, and that doesn't take into consideration the death threats that have been made. So they are already paying a substantial cost. And does anybody think that forcing people into civil disobedience somehow justifies the law? Would any of us say that the segregation law that Rosa Parks violated through civil disobedience was somehow justified and we should have simply shrugged our shoulders and said, "Hey, there's a cost"? And, as I said to Marci, this is not about refusing customers. As I wrote, "If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination." Similarly, where the baker is concerned, "unless the bakery refused to sell cookies, pies, other cakes, etc. to homosexuals, there might be a question of discrimination." That is not an issue here. No, it is about telling a photographer that, if he wants to be a wedding photographer, he must be an active participant in an event that would place him in violation of the demands his God makes of him. The parallel to Sears automotive is fully flawed because there is no situation that I can think of where Sears automotive is going to be an active participant in a wedding. I would add that this is not about religious "prejudices", unless you are saying that anyone whose understanding of human sexuality, as drawn from the teachings of their faith, are bigots, and I don't believe you would say something like that. I would also suggest this is not as trivial as whether or not we " want to abide by the law" or whether we "like or dislike the law". This is much like the error in Justice O'Connor's concurrence in Thornton v Calder. She wrote, "All employees, regardless of their religious orientation, would value the benefit which the statute bestows on Sabbath observers -- the right to select the day of the week in which to refrain from labor." As Stephen L. Carter noted in (I believe) "The Culture of Disbelief" (my copy is missing so I can't give a precise citation), it would come as a surprise to Sabbath oberservers that they were "selecting the day of the week in which to refrain from labor". They were under the impression that the decision was mandated by God. The same is true in these cases. When the government has a blank check to mandate ANYTHING it feels like mandating and those whose faith would force them to choose between God and government are told to either kick God to the curb or face the consequences, then the free exercise of religion does not exist. If, as some have suggested, this has always been the case, then free exercise never has existed. It was just a matter of waiting for legislative bodies to act accordingly. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, August 22, 2013 10:29 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays I'll bet the photographer is still in business. As would those making cakes. If you choose to engage in civil disobedience, there is a cost. If you choose to follow your religious prejudices in some settings, there is a cost. Interracial marriages and interfaith marriages are indistinguishable on a principled basis. If you want and exception to the law, get it written into the law. If you don't want to abide by the law, get another job. Should the sears photographer be able to refuse customers on this basis? How about sears automotive? Or Walmart? No, brad, NM got it right. We do not, nor should we get unit vetoes on laws we don't like. Even if the dislike is for religious reasons. Steve Sent from Steve's iPhone On Aug 22, 2013, at 10:36 PM, "Brad Pardee" wrote: The problem with this rationale is that the religious liberty issue is about being forced to be an active participant in a specific event. If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination. But a wedding photographer is an active member of the wedding party and an active participant in the wedding activities. The parallel to a wedding between people of different races is flawed because discriminating against people whose skin is a different color makes no more sens
RE: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
This is not correct. The issue is neither the customers' identity or the free market. It is about the merchant being required to participate in events that they cannot participate in by virtue of the tenets of thier faith in order to engage in commerce. As I wrote, " If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination." That is not an issue here. The Christian Scientist as doctor is a false parallel. The two are mutually exclusive. The cases of the photographer, the baker, and the psychologist are not at all cases of mutual exclusivity. Photographers and bakers are fully able to take pictures and bake and still be live in accordance with their religious beliefs. The number of Christians who have successfully practiced psychology without violating the tenets of their faith proves that this is not mutually excluesive either. This is most assuredly an infringement of liberty by the state with the clear effect of expelling anyone who does not line up with the "party line" from the profession. That's no concept of liberty that that means anything that I'm familiar with. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Thursday, August 22, 2013 10:20 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays That's right, Brad, if you want to have a for-profit company in a free market economy, you shouldn't be able to choose your customers based on race, gender, sexual orientation, or religion. Isn't that how the market works best-- being fueled by products and price, rather than purchaser's or seller's identity? The market driven by religion that Hobby Lobby and Elane's Photography would like to occupy is driven by identity, not the fair market. A Christian Scientist can't be a doctor. If you can't fulfill the obligations of a trade due to your religious beliefs, you can't. That is not an infringement of "liberty" by the state; it is an infringement of liberty by the religious belief/organization. No constitutional violation. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 22, 2013, at 10:36 PM, "Brad Pardee" wrote: The problem with this rationale is that the religious liberty issue is about being forced to be an active participant in a specific event. If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination. But a wedding photographer is an active member of the wedding party and an active participant in the wedding activities. The parallel to a wedding between people of different races is flawed because discriminating against people whose skin is a different color makes no more sense than discriminating between people whose hair is a different color or whose eyes are a different color. The difference between males and females, however is quite substantive and not merely a matter of appearance. It's the same situation as in the recent story out of Oregon where the state Attorney General is investigating a bakery that would not make a wedding cake for a lesbian couple. Unless the bakery refused to sell cookies, pies, other cakes, etc. to homosexuals, there might be a question of discrimination. But, much like the wedding photographer, the bakery that provides the wedding cake is an active participant in the wedding activities. We have now established that, if your faith does not allow you to be a participant in a same-sex wedding, you are not permitted to be a wedding photographer for anybody. You are not permitted to bake wedding cakes for anybody. We had a lengthy discussion here some time back about a woman who was, if I recall correctly, kicked out of a graduate psychology program because of what her faith teaches on the subject of sexual orientation. And this is what passes for "religious freedom" in today's climate. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sent: Thursday, August 22, 2013 2:28 PM To: religionlaw@lists.ucla.edu Subject: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays Jonathan Higbee | August 22, 2013 The New Mexico state Supreme Court has ruled against a photography business that refused to photograph a gay couple&#x
RE: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays
The problem with this rationale is that the religious liberty issue is about being forced to be an active participant in a specific event. If the photographer refused to take school pictures, Christmas card photos, etc., of homosexual individuals, then there might be a question of discrimination. But a wedding photographer is an active member of the wedding party and an active participant in the wedding activities. The parallel to a wedding between people of different races is flawed because discriminating against people whose skin is a different color makes no more sense than discriminating between people whose hair is a different color or whose eyes are a different color. The difference between males and females, however is quite substantive and not merely a matter of appearance. It's the same situation as in the recent story out of Oregon where the state Attorney General is investigating a bakery that would not make a wedding cake for a lesbian couple. Unless the bakery refused to sell cookies, pies, other cakes, etc. to homosexuals, there might be a question of discrimination. But, much like the wedding photographer, the bakery that provides the wedding cake is an active participant in the wedding activities. We have now established that, if your faith does not allow you to be a participant in a same-sex wedding, you are not permitted to be a wedding photographer for anybody. You are not permitted to bake wedding cakes for anybody. We had a lengthy discussion here some time back about a woman who was, if I recall correctly, kicked out of a graduate psychology program because of what her faith teaches on the subject of sexual orientation. And this is what passes for "religious freedom" in today's climate. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sent: Thursday, August 22, 2013 2:28 PM To: religionlaw@lists.ucla.edu Subject: New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays New Mexico Supreme Court Rules Against Wedding Photographer Who Discriminated Against Gays Jonathan Higbee | August 22, 2013 The New Mexico state Supreme Court has ruled against a photography business that refused to photograph a gay couple's commitment ceremony because THE BIBLE. Advertisement >From an ACLU press release: The New Mexico Supreme Court ruled today that Elane Photography illegally discriminated against a same-sex couple by refusing to photograph their commitment ceremony due to the business owner's religious beliefs. The opinion stated: "We conclude that a commercial photography business that offers its services to the public, thereby increasing its visibility to potential clients, is subject to the antidiscrimination provisions of the [New Mexico Human Rights Act] and must serve same-sex couples on the same basis that it serves opposite-sex couples. Therefore, when Elane Photography refused to photograph a same-sex commitment ceremony, it violated the NMHRA in the same way as if it had refused to photograph a wedding between people of different races." "When you open a business, you are opening your doors to all people in your community, not just the select few who share your personal beliefs," said Louise Melling, deputy legal director of the American Civil Liberties Union. "The Constitution guarantees religious freedom in this country, but we are not entitled to use our beliefs as an excuse to discriminate against other people." - See more at: http://instinctmagazine.com/post/new-mexico-supreme-court-rules-against-wedd ing-photographer-who-discriminated-against-gays#sthash.NqCIsH37.dpuf Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ 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.
Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
I'm not certain that this is a correct understanding of the purpose of freedom of religion. It's always been my understanding that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government. That's certainly at the heart of free exercise, where the government ought not to have a blank check to command what God prohibits or to prohibit what God commands. (It’s the same philosophy behind conscientious object legislation, where it's a matter of personal conscience rather than God that is involved.) It has its limitations, just as freedom of speech does not protect slander, libel, or the proverbial "yelling fire in a crowded theater". There are certainly instances where it is truly necessary to compel a person to act in a certain way, even if it is in violation of the tenets of their faith, but that won't be the case in every instance just because the legislature wants it to be so. At any rate, though, I believe that this is the purpose of religious freedom. Ideally, people who disagree with one another can choose to live in harmony with each other, whether the disagreement is a matter of religion, economics, foreign policy, or whose team is best positioned to win the Super Bowl, but I don't think that harmony is the driving purpose behind religious freedom. Brad -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Friday, August 16, 2013 11:16 AM To: religionlaw@lists.ucla.edu Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate Freedom of religion should promote harmony. Live and let live. It should not provide religious people with the ability to interfere with the provision of benefits to those who do not share the same views. This is a classic case of an officious intermeddler trying to cause trouble because of personal sensitivities. Even were he to have a right, I think this is a case where it is not right to assert it. Even if he would be satisfied with a judicially mandated provision in the policy excluding coverage for anyone with religious objections to it, it is just wasting money and causing trouble. Religious people should not interfere with benefits given to people who do not share their beliefs and if RFRA really gives them the option to do so, RFRA is not furthering the harmony religious freedom should promote. ___ 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: Marriage -- the Alito dissent
I wasn't discussing lifestyle. There are hedonists among the gay and straight communities alike, just as there are faithful and monogamous relationships within the gay and straight communities alike. However, you actually confirm the point I was making. What people believe is right and what people believe is wrong in moral questions is rarely, if ever, the result of statistical analysis or scientific study. That does not make them, by definition, irrational. Brad Parde From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul Sent: Monday, July 01, 2013 11:45 PM To: Law & Religion issues for Law Academics Subject: RE: Marriage -- the Alito dissent Mr. Pardee, I have just posted some statistics on divorce and out-of-wedlock births that might pass as "facts." They suggest that states that allow same sex marriages have lower divorce rates and lower out of wedlock birth rates than state that oppose same sex marriage. Might we consider this the "hetero-sexual lifestyle"? * Paul Finkelman, Ph.D. President William McKinley Distinguished Professor of Law Albany Law School 80 New Scotland Avenue Albany, NY 12208 518-445-3386 (p) 518-445-3363 (f) paul.finkel...@albanylaw.edu www.paulfinkelman.com * _ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Brad Pardee [bp51...@windstream.net] Sent: Tuesday, July 02, 2013 12:27 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Marriage -- the Alito dissent How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law & Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, "Esenberg, Richard" wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ 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: Marriage -- the Alito dissent
How many moral questions are based on scientific fact? Whether an argument is in support of same sex marriage/relationships or in opposition to them, it ultimately boils down to a question about what you believe is right and and what you believe is wrong, and those questions, no matter which side of the question you find yourself supporting, are rarely, if ever, supported by scientific fact. If they were, then nature's display of the law of survival of the fittest, a scientifically verified phenomena to be certain , would seem to suggest that objection to killing is irrational. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Monday, July 01, 2013 11:00 PM To: Law & Religion issues for Law Academics Subject: Re: Marriage -- the Alito dissent Would you kindly provide one argument that isn't irrational? Understand that it will indeed be scrutinized for basis in scientific fact, and that it if fails, it will have to be deemed irrational. On Jul 1, 2013, at Mon, Jul 1, 6:35 PM, "Esenberg, Richard" wrote: My intended point is that the notion that opposition to same sex marriage - even if based on traditional arguments about the morality of homosexual relationships - cannot be dismissed as irrational or hateful. ___ 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: Interesting Scholarship Tax Credit Decision
I'm intrigued by the wording that "Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students". One could argue that tax deductions for contributions to churches would also run afoul of this logic, seeing as money that would otherwise be flowing to the government is diverted for the very specific purpose of providing religious instruction to adherents. That would lead to a question as to whether it is constitutional for religious entities to be treated less favorably than other non-profits. Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Tuesday, June 18, 2013 6:52 AM To: Law & Religion issues for Law Academics Subject: Interesting Scholarship Tax Credit Decision New Hampshire court finds tax credit equals tax expenditure under state constitution's "No Aid" clause. More on Religion Clause: http://religionclause.blogspot.com/2013/06/in-important-decision-new-hampshi re.html Howard Friedman ___ 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.
New case regarding Christian groups on campus
Rollins College has derecognized Intervarsity as a campus organization because their requirement that student leaders be Christians was considered a violation of the school's anti-discrimination policy. According to the article, when the group was decognized, it "was invited to organize under the college's chapel program. But the school's president intervened and prevented that from happening." http://radio.foxnews.com/toddstarnes/top-stories/florida-college-says-christ ian-group-cant-have-christian-leaders.html Brad Pardee ___ 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: Christian groups on secular campuses
I'm encouraged that the University of Michigan changed course. However, the same situation has been a problem for Christian student groups at Vanderbilt University. Consequently, I was wondering if what I described might be a course of action a Christian student group might take that would avoid the problem. Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Eric Rassbach Sent: Monday, February 25, 2013 10:58 PM To: Law & Religion issues for Law Academics Subject: RE: Christian groups on secular campuses My understanding is that the University later recognized the group as a student organization: http://www.michigandaily.com/news/intervarsity-reinstated-university-club From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee [bp51...@windstream.net] Sent: Monday, February 25, 2013 6:40 PM To: ReligionLaw Subject: Christian groups on secular campuses I was reading an article about another Christian group, this time at Michigan, being forced off campus because their constitution requires the leadership to be Christian. I was thinking about it and I was wondering if this would be a workaround that would withstand the anti-discrimination charge. Suppose a group has a mission statement that states the groups mission to be to advance the gosepel or something of that nature. The constitution could simply require leaders to state that they affirm and support the mission of the group. They wouldn't be barring non-Christians from leadership. They would simply need to know that the non-Christian would affirm a Christian evangelical mission. (This would also work for other groups. For instance, Campus Republicans could have a mission statement to support and elect Republican candidates. They wouldn't be banning Democrats from running for leadership position. The Democrat would simply need to make the case that they support the mission of electing Republican candidates.) In order to prevent this, the campus administrators would then be required to say that campus organizations are not allowed to have an evangelical mission, which would be more difficult to defend than an across-the-board anti-discrimination requirement. Would that be an approach that groups like Intervarsity, etc., could take that would likely pass muster? The article about Intervarsity at Michigan is at http://radio.foxnews.com/toddstarnes/top-stories/university-of-michigan-kick s-christian-club-off-campus.html Brad Pardee ___ 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.
Christian groups on secular campuses
I was reading an article about another Christian group, this time at Michigan, being forced off campus because their constitution requires the leadership to be Christian. I was thinking about it and I was wondering if this would be a workaround that would withstand the anti-discrimination charge. Suppose a group has a mission statement that states the groups mission to be to advance the gosepel or something of that nature. The constitution could simply require leaders to state that they affirm and support the mission of the group. They wouldn't be barring non-Christians from leadership. They would simply need to know that the non-Christian would affirm a Christian evangelical mission. (This would also work for other groups. For instance, Campus Republicans could have a mission statement to support and elect Republican candidates. They wouldn't be banning Democrats from running for leadership position. The Democrat would simply need to make the case that they support the mission of electing Republican candidates.) In order to prevent this, the campus administrators would then be required to say that campus organizations are not allowed to have an evangelical mission, which would be more difficult to defend than an across-the-board anti-discrimination requirement. Would that be an approach that groups like Intervarsity, etc., could take that would likely pass muster? The article about Intervarsity at Michigan is at http://radio.foxnews.com/toddstarnes/top-stories/university-of-michigan-kick s-christian-club-off-campus.html Brad Pardee ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate
It's a flawed ruling in two ways. First, they state, "[P]laintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives." Suppose we go to a pre-Civil War America if a law had been passed that required employers to contribute to a focused benefit plan that was required by law to include payments toward the purchase and sale of slaves. I don't believe a reasonable case could be made that employers whose faith required them to oppose slavery could be told that they "remain free to exercise their religion by not engaging in the slave trade and by discouraging employees from engaging in the slave trade." Second, they state, "[T]he contribution to a health care plan has no more than a de minimus impact on the plaintiff's religious beliefs than paying salaries and other benefits to employees." The parallel is false, though. There are no limitations on what an employee can do with his salary (apart from things that are illegal on their own, i.e., drugs). A health care plan, however, is not open-ended. It lays out specifically what the plan pays for and how much. Certain procedures are covered. Certain procedures are not. Using certain providers will result in a different deductible or copy than using others. There isn't a parallel to landlord cases for the same reason that the salary parallel fails. A rental agreement is largely open-ended just as salary is. The only limitations on what a tenant can do beyond the above-mentioned illegal activities are those that directly bear upon the facility itself (damage to the building, pets, etc.) or intrude on other tenants (such as loud parties, stereos, etc.). Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Saturday, September 29, 2012 7:18 PM To: religionlaw@lists.ucla.edu Subject: Court Rejects Religious Liberty Challenges To ACA Mandate In an important and carefully reasoned opinion yesterday, a Republican-appointed federal district judge rejected on the merits a series of RFRA and First Amendment challenges to the contraceptive coverage mandate under the Affordable Care Act. More at Religion Clause http://religionclause.blogspot.com/2012/09/court-rejects-religious-liberty.h tml *** Howard M. Friedman Professor of Law Emeritus University of Toledo *** ___ 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.
Christian group denied recognition at UNC-Greensboro
<http://radio.foxnews.com/toddstarnes/top-stories/lawsuit-university-ordered -christian-club-to-allow-non-christian-leaders.html> http://radio.foxnews.com/toddstarnes/top-stories/lawsuit-university-ordered- christian-club-to-allow-non-christian-leaders.html >From what I understand and have learned from being a member of this list, I'm thinking that, assuming the news story is accurate, there are three lines that would seem to undermine UNC-Greensboro's position. 1) "UNC-Greensboro's nondiscrimination policy includes an exemption for student organizations that select their members based on a shared set of beliefs." 2) "Tedesco said 'Make Up Your Own Mind' has a clear religious mission and purpose and requires its members and leaders to agree with its statement of faith and beliefs about the value of innocent human life." 3) "However, the university contends that the club is not affiliated with a church - and therefore doesn't meet their criteria for exemption." Am I correct that the exemption in their policy separates this case from the Hastings case and that, apart from any free exercise or freedom of association claims, this one fails to pass the Establishment Clause requirement because of the entanglement inherent in the picking and choosing of what qualifies as a religious organization based on whether or not it is affiliated with a church? Brad Pardee P.S. And if I haven't said it before, let me give my thanks to the members of this group for allowing this non-academic layman to sit among them and learn from them. ___ 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.
The contraception mandate under Empoyment Division v Smith
I've been following the coverage of the mandate that religious organizations provide free contraception through their insurance plans, regardless of whether or not it forces them to violate the tenets of their faith. Today's announcement of an accomodation notwithstanding, ,though, I'm wondering what the chances are that the courts would rule against the administration if the lawsuits that have been filed go to trial. It's my understanding that, in Employment Division v Smith, the Court clearly said that a neutral law of general applicability isn't going to violate the Free Exercise Clause. From what I've read, the regulation in question appears to be both neutral and of general applicability. A strict adherence to Smith would seem to weigh against the religious freedom claims, which is the danger many have seen in Smith since the ruling first came out. What is the sense here whether the Courts would adhere to Smith and uphold the mandate, or would the Courts see it as an opportunity to revisit Smith? I don't remember that there was the same national controversy over Smith when it came out, but it seemed to me that, outside of legal and Native American circles, most folks didn't worry about it because they didn't see it as a ruling beyond peyote. The contraceptive mandate has certainly gotten the attention of a much larger segment of society, though. I wonder if the Court would see a case like this as an opportunity to restore what was lost in Smith. Brad Pardee ___ 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.
Catholic University sued about prayer rooms for Muslims
I'm intrigued by this story. Apparently, in Washington DC, it may turn out to be a human rights violation for Catholic University to be pervasively Catholic. http://radio.foxnews.com/toddstarnes/top-stories/muslims-want-catholic-schoo l-to-provide-room-without-crosses.html Is there some perspective from the view of an impartial scholar where this is NOT patently absurd? Brad Pardee ___ 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.
A Constitutional right to make pilgrimmage
http://news.yahoo.com/s/ap/20101214/ap_on_go_ca_st_pe/us_muslim_teacher According to the Associate Press: The federal government sued a suburban Chicago school district Monday for denying a Muslim middle school teacher unpaid leave to make a pilgrimage to Mecca that is a central part of her religion. In a civil rights case, the department said the school district in Berkeley, Ill., denied the request of Safoorah Khan on grounds that her requested leave was unrelated to her professional duties and was not set forth in the contract between the school district and the teachers union. In doing so the school district violated the Civil Rights Act of 1964 by failing to reasonably accommodate her religious practices, the government said. If I understand current precedent under Employment Division v. Smith, I'd think the District's defense should be fairly simple. The requirement that leave be related to professional duties and/or set forth in the contract with the union is a generally-applicable requirement that is neutral on its face. Am I missing something? As a point of disclosure, I'm not a fan of the Court's decision in Smith, and if this case were to ultimately force the court to re-think that precedent, I'd be happy to see it happen. Under the present rulings in place, though, I'm not sure if the teacher has a case, regardless of whether or not she should have one. Brad Pardee ___ 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.
Augusta State University student sues school over requirement that she undergo "remediation" due to her religious views
Jennifer Keeton is a student at Augusta State University, pursuing a graduate degree in counseling. In line with her religious beliefs, she holds to the traditional view regarding homosexuality. She has expressed those views in classroom discussions as well as in written assignment. In response, the University has informed her that she must complete a remediation program or else she will be expelled from the program. According to the complaint, the "faculty have promised to expel Miss Keeton from the graduate Counselor Education Program not because of poor academic showing or demonstrated deficiencies in clinical performance, but simply because she has communicated both inside and outside the classroom that she holds to Christian ethical convictions on matters of human sexuality and gender identity." >From Atlanta Journal-Constitution: http://www.ajc.com/news/college-punished-her-for-577547.html >From Fox News: http://www.foxnews.com/us/2010/07/27/georgia-university-tells-student-lose-r eligion-lawsuit-claims/ ___ 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.
Is there a parallel between strength of belief and strength of relgious freedom protections in the law?
I saw an interesting poll from the readersdigest.com where they surveyed people in 16 different countries, asking if they believe in God. The results vary from a low of 50% in France and a high of 98% in Malaysia. I found myself wondering if there has ever been a study to determine 1) if there is any correlation between the prevalence of belief in God and the strength of the religious freedom protections in the law, and 2) if it matters which faith's adherents predominate the population? The poll results is at: http://www.rd.com/your-america-inspiring-people-and-stories/do-you-believe-in-heaven-around-the-world-with-one-question/article166340.html Brad___ 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.
FYI: New book on Mockaitis v Harcleroad
For those who are interested, the priest involved in Mockaitis v Harcleroad has written a book about the case from his perspective. This is the case decided by the 9th Circuit in 1997 that said the state cannot violate the confidentiality of a priest hearing a prisoner's confession. The book is "The Seal: A Priest's Story", and there is an interview with the author at http://www.zenit.org/article-26692?l=english Brad Pardee ___ 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: EEOC says Catholic College Discriminated by Removing ContraceptiveCoverage from Health Insurance
From: "Michael R. Masinter" The individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment, and who therefore may have trouble convincing a judge that a finding of sex discrimination is substantially burdens the free exercise of religion, and that Title VII's does not further the government's compelling interest in the eradication of workplace sex discrimination as defined by the PDA in the least restrictive manner. Using this argument, one would have to say that, back when I worked for the University of Nebraska, when I bought a Bible with the proceeds of my employer paid salary, that would be the same as if the University of Nebraska had an employer paid "religious literature beneift" that paid for the Bible. Can we really not distinguish between private purchasing decisions an employee makes and the purchasing decisions that the employer is involved in through the establishment of a beneifts program set up by the employer to fund those purchases? Brad Pardee ___ 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: "A Bible study group and a book club are not treated the same"
It may also be said that most citizens in states with rfras have little idea that there are very real threats to their religious freedom that make rfras necessary. Brad Marci wrote: The big political picture here is interesting, because if religious entities overreach sufficiently, there will be a backlash against rfras generally. And since they are not constitutionally required, legislative repeal is possible. Of course, we are not there yet. While there is a burgeoning and passionate movement against RLUIPA's impact on residential neighborhoods, most citizens in states with rfras have little idea they exist, let alone impose on the public good. ___ 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.
Diocese of Bridgeport sues state over"lobbying" complaint
The Connecticut Office of State Ethics has attempted to require the Diocese of Bridgeport to register as a lobbyist because a) the Diocese spent over $2000 to rent buses to bring protesters to the state capitol for a demonstration against Raised Bill 1098 (the attempt to force the Catholic church to reorganize in violation of church law), b) the Diocese made statements on its website encouraging members to oppose Bill 1098 and Bill 899 (regarding same-sex marriage). >From the Hartford Courant: >http://www.courant.com/news/local/hc-church-ethics-0530.art0may30,0,5479928.story >From the Diocese: http://www.bridgeportdiocese.com/story_Ethics.shtml >From WorldNet Daily: >http://www.worldnetdaily.com/index.php?fa=PAGE.view&pageId=99836 Brad___ 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: AU challenges tax exempt status of Liberty University
The other side of the debate: Liberty talks about the complaint filed by Americans United https://www.liberty.edu/index.cfm?PID=18495&MID=8374 Liberty met with the College Democrats to find a compromise that would satisfy both sides https://www.liberty.edu/index.cfm?PID=18495&MID=8375 Chancellor Jerry Falwell Jr speaks to the media coverage given to this issue https://www.liberty.edu/index.cfm?PID=18495&MID=8373 It seems quite clear that it's not about Republicans versus Democrats as Barry Lynn would have the IRS believe. In this case, the College Democrats didn't lose recognition or funding because they were Democrats. It was because their constitution pledged to support the Democratic platform and candidates without qualification, and the national Democratic Party supports legal abortion and and same-sex marriage. A Republican pro-choice group would not get recognition or funding. A Republican group that supports same-sex marriage would not get recognition or funding. As Chancellor Falwell wrote: "Parents and students support the University because they believe in its distinctly Christian identity and mission. Liberty University is pro-life and believes that marriage between one man and one woman provides the best environment for children. Liberty University will not lend its name or financial support to any student group that advances causes contrary to its mission." If the Republican party platform expressed support for legal abortion and same-sex marriage, and the College Republicans' constitution said they would support the Republican platform and candidates without qualification, they too would receive the same treatment. My bet is that once they alter their constitution to limit their support to Democratic candidates and platform planks that are pro-life and support traditional marriage, neither recognition or funding will be an issue. Brad Pardee - Original Message - From: "Ed Brayton" To: "'Law & Religion issues for Law Academics'" Sent: Friday, May 29, 2009 2:34 PM Subject: AU challenges tax exempt status of Liberty University In the wake of Liberty U pulling recognition from the College Democrats club, Americans United has written a letter to the IRS challenging their tax exempt status. The letter says: "Political clubs operating on campus often endorse and work on behalf of candidates, and officially recognized clubs are eligible for funding through student-activity fees. This decision by Liberty University effectively means that only the Republican club, which works to elect Republicans, will receive funding. The university's decision offers Republican candidates a type of in-kind contribution that is not being made available to Democratic candidates." http://www.au.org/media/press-releases/archives/au-letter-to-irs-re-liberty. pdf Any thoughts on whether they have a strong case here? Ed ___ 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: Law.com - Religious Accommodation Dispute Over Mock Trial ScheduleResolved
In reading about this dispute, it seems that this entire situation exposes the fatal flaw in the thinking in Employment Division v. Smith. It's clear that the rules regarding the mock trial schedule are generally applicable and neutral on their face. However, the end result was discriminatory. The Jewish students' choices were a) choose a different religion that wouldn't place the same requirements on them, b) violate the tenets of their faith, or c) forfeit the competition. The National High School Mock Trial Championship's board could have chosen to accomodate their faith. Their decision not to accomodate, although not intended to be discriminatory, had nonetheless an unmistakably discriminatory effect. They were, however, using the same principles that undergird Smith. Did the schedule cover all the competing teams? Yes, it was generally applicable. Did they single out the Jewish faith (or any other faith) for differing treatment? No, it was neutral on its face. Prior to having their hand forced by the judge, were they a governing body who had the opportunity to choose to accomodate and chose not to? Yes. Now let's take what I wrote above and recast it according to Employment Division v. Smith. Smith's choices were a) choose a different religion that wouldn't place the same requirements on him, b) violate the tenets of his faith, or c) forfeit his unemployment benefits. The Oregon state legislature could have chosen to accomodate his faith. Their decision not to accomodate, although not intended to be discriminatory, had nonetheless an unmistakably discriminatory effect. This is what the First Amendment, as our guarantor of religious freedom, is suppose to prevent. The fact that the logic of Employment Division v. Smith precludes it from offering the protection it is supposed to speaks volumes. The situation with the mock trial competition is helpful in exposing that weakness in the real world. Brad Pardee ___ 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: Americans United: Iowa Supreme Court Ruling On MarriageUpholdsReligious Liberty, Says Americans United
You're talking about different religions, though, Steve. The standard model that we see in the debate over gay rights is to compare it to the civil rights movement in the 60s. People who don't support gay marriage are characterized as being no different than people who didn't support interracial marriage. Do you think it is a stretch to say that there are those who would support saying a church can't refuse to perform marriages of African-Americans? Using the way the debate is waged as a measuring stick, it seems safe to say that it's only a matter of time before there will be those who also support saying a church can't refuse to perform commitment ceremonies of homosexuals. And "fear-mongering"? I can accept that we disagree on the possibility of this line of argument coming to fruition. I fully believe that your views are based on an honest assessment of what you believe to be true. But I don't think I've EVER heard the term fear-mongering used where it wasn't inferring some manner of dishonest manipulation, propagandizing, and pandering. Is that a fair assumption to make about what I wrote? I might be wrong. I hope I'm wrong. But I'm honestly speaking what I believe to be true. Disagree with me if you believe I'm wrong. I wouldn't want you to pretend to agree if you don't. But it's not fear-mongering just because we disagree on whether there is something to legitimately be afraid of. Brad - Original Message - From: "Steven Jamar" To: "Law & Religion issues for Law Academics" Sent: Friday, April 03, 2009 8:05 PM Subject: Re: Americans United: Iowa Supreme Court Ruling On MarriageUpholdsReligious Liberty, Says Americans United It is quite a stretch to say someone must not discriminate in renting property or providing secular services to say that religious organizations and their officiants must perform an action like marrying two other people contrary to their beliefs. We don't force priests to marry a catholic to a jew or an orthodox rabbi to perform the ceremony between an athiest and a orthodox jew, even when the people are of different sexes. Brad is overstating the danger in the typical fear-mongering of those opposing gay marriage. ___ 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: Americans United: Iowa Supreme Court Ruling On Marriage UpholdsReligious Liberty, Says Americans United
Americans United is quite thoroughly wrong, as is their support for the Iowa Supreme Court's ruling. Rev. Lynn says, "Civil law cannot be based on any group's theology," but people who do not support same sex marriage are not any more guided by their theology than the evangelicals emerging from the 2nd Great Awakening to oppose slavery. Was advocating an end to slavery advocating impermissible because it was civil law "based on any group's theology"? Of course not. A person's religious beliefs can't be the What of civil law, but it can most certainly be the Why. Additionally, the notion that this ruling that this protects religious liberty is, at best, the naive clinging to a myth. Rev. Lynn claims that houses of worship will not be required to perform same-sex ceremonies, but that's not what the court says. The article itself quotes the ruling as saying, "A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person's religious faith does not lose its meaning as a sacrament or other religious institution." How long will it be before says, "This church doesn't have to define our relationship as a marriage but they can't discriminate by refusing to perform the ceremony"? The idea that a person would never be forced to act contrary to their religious beliefs would come as a great shock to Elaine Huguenin. Brad Pardee - Original Message - From: "Joel Sogol" To: "Religionlaw" ; "'Brian Sogol'" Sent: Friday, April 03, 2009 6:17 PM Subject: Americans United: Iowa Supreme Court Ruling On Marriage UpholdsReligious Liberty, Says Americans United http://www.au.org/site/News2?abbr=pr&page=NewsArticle&id=10375 ___ 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.
Interesting article with church/state ramifications
>From the Pew Forum on Religion & Public Life The Political Obligations of Catholics: A Conversation With the Most Rev. Charles Chaput, Archbishop of Denver http://pewforum.org/events/?EventID=213 Thought this might be of interest here Brad___ 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: 2 CT lawmakers target Catholic church for opposition to marriageequality
I've been reading about this bill. Under this legislation, a board elected by the congregation would have the following powers: (1) Establishing and approving budgets; (2) Managing the financial affairs of the corporation; (3) Providing for the auditing of the financial records of the corporation; (4) Developing and implementing strategic plans and capital projects; (5) Developing outreach programs and other services to be provided to the community; and (6) Any of the powers enumerated in section 33-1036. It also says, "The pastor of the congregation shall report to the board of directors with respect to administrative and financial matters." I can't imagine how the state dictating the church's governing structure could possible pass 1st Amendment muster. Brad Pardee ___ 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: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof
This would come as a great shock to all the people who work at Catholic Charities and give to Catholic Charities. They dont do these things because they are public-spirited citizens. They do so as a very direct application of their faith because they understood it to be a command from God to feed the hungry, give drink to the thirsty, clothe the naked, care for the sick, etc. But according to the state of New York, apparently they can only do these things if they are willing to turn their backs on the teachings of their faith in matters of life and contraception. Is that REALLY what free exercise is supposed to look like? How many other moral teachings can the state freely require them to disregard if they want to minister to those in need as they understand God to have commanded them to? Brad From: [EMAIL PROTECTED] What NY has done is to incorporate into the Act what everyone knows -- Catholic Charities is a quasi-public organization, kind of like the Jaycees for purposes of the right of accommodation.___ 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: Supreme Court won't hear appeal in Catholic Charities oftheDioceseof Albany v. Dinallo
On the contrary, I think Alan's choice of the term "debased" was substantially more charitable than current free exercise jurisprudence deserves. The essence of religious freedom is that a person ought not be forced to choose between obeying their God and obeying their government unless there is a clear and unmistakable need to require it. I've always believed that the founding fathers understood this, which is why the Constitution protected free exercise, which is by definition an activity, and not merely free belief. When legislatures passed the first amendment, they ceded certain powers, and it is the appropriate role of the courts to determine if the legislatures are now circumventing those self-imposed limitations. If the legislatures you have placed your trust in wish to take those powers back, all they need do is repeal the first amendment and then they can regulate the degree to which a person may practice their religion and live in accordance with their religious beliefs all they wish. But the legislatively-approved Constitution, with all its amendments, are designed to determine what part of government does what and what the limits are upon what those various parts can do. Those Constitutional protections don't disappear when "an inevitable question of public policy" makes them inconvenient. At least, they're not supposed to. Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Monday, October 01, 2007 12:33 PM Subject: Re: Supreme Court won't hear appeal in Catholic Charities oftheDioceseof Albany v. Dinallo I would replace Alan's characterization of free exercise jurisprudence as "debased" with "enlightened". Especially in cases like these, the "autonomy" of religious institutions cannot be the guiding principle. What about the "autonomy" of those who seek medical services contrary to the religious entity's beliefs in an era of increasing consolidation of medical services? The issue poses an inevitable question of public policy balancing and belongs properly to the legislatures, not the courts. This is especially so when the vast majority of the funding is coming from the government and not the private, religious institution. Typically, over 80% of Catholic Charities funding comes from public tax dollars. Marci___ 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.
Supreme Court won't hear appeal in Catholic Charities of the Diocese of Albany v. Dinallo
According to this story on Yahoo, the Supreme Court isn't going to hear an appeal regarding a state law in New York that forces groups like Catholic Charities to cover contraceptives in the prescription drug plan they offer their employees. http://news.yahoo.com/s/ap/20071001/ap_on_go_su_co/scotus_contraceptives_suit I found this snippet particularly persuasive, and accordingly, I found the Court's refusal to hear the case quite thoroughly disappointing: Catholic Charities and other religious groups argued New York's law violates their First Amendment right to practice their religion because it forces them to violate religious teachings that regard contraception as sinful. "If the state can compel church entities to subsidize contraceptives in violation of their religious beliefs, it can compel them to subsidize abortions as well," the groups said in urging the court to take their case. "And if it can compel church entities to subsidize abortions, it can require hospitals owned by churches to provide them." I had hoped for better from the Roberts court. Brad Pardee___ 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.
And God files a response? (Was: Suing God (honest, it's a lawsuit that has really been filed))
http://www.cnn.com/2007/US/law/09/20/suing.god.ap/index.html LINCOLN, Nebraska (AP) -- A legislator who filed a lawsuit against God has gotten something he might not have expected: a response. ... Chambers ... said he's trying to make the point that anybody can sue anybody. Not so, says "God." His response argues that the defendant is immune from some earthly laws and the court lacks jurisdiction. It adds that blaming God for human oppression and suffering misses an important point. "I created man and woman with free will and next to the promise of immortal life, free will is my greatest gift to you," according to the response, as read by Friend. There was no contact information on the filing, although St. Michael the Archangel is listed as a witness, Friend said. ___ 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.
Suing God (honest, it's a lawsuit that has really been filed)
I'm embarrassed to admit that this guy is a long-term state senator here in Nebraska. This does, however, seem to be the biggest possible interaction between religion and law. >From http://news.yahoo.com/s/ap/20070917/ap_on_fe_st/odd_suing_god_2 LINCOLN, Neb. - Fed up with the threats, tired of natural disasters, the state's longest-serving state senator is using his legal muscle against who he says is the culprit - God. State Sen. Ernie Chambers of Omaha sued the Almighty in Douglas County District Court last week. Chambers says in his lawsuit that God has made terroristic threats against the senator and his constituents, inspired fear and caused "widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants." Chambers also says God has caused "fearsome floods ... horrendous hurricanes, terrifying tornadoes." He's seeking a permanent injunction against God. ___ 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 found this line particularly interesting: "The state's request to dismiss Haws' lawsuit notes that Mormon missions are encouraged, not required. Haws was 'under no compulsion to choose between the tenets of his religion and continued receipt of the PROMISE scholarship,' the motion reads." As I've read the posts here over time, it has seemed like the question is often finding the balance between the free exercise clause and the establishment clause. To my layman's eye, though, it would seem, though, that in this case, the state is potentially managing to run afoul of both clauses. It sounds like the student is making a free exercise claim when he talks about being forced to choose between his religion and his scholarship. However, if the state is making pronouncements that distinguish between what a religion encourages and what a religion requires, could a case be made that this qualifies as excessive entanglement? Brad Pardee - Original Message - From: "Volokh, Eugene" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Thursday, August 30, 2007 1:28 AM Subject: "Mormon Student, Justice, ACLU Join Up" > Any thoughts on this? > > > http://www.foxnews.com/wires/2007Aug25/0,4670,ReligionLawsuitScholarship,00.html > > The Justice Department is joining the American Civil Liberties Union in > backing a student who lost his state-funded merit-based scholarship > because he left college to serve a two-year church mission. > > The department's Civil Rights Division filed a friend-of-the-court brief > Friday in U.S. District Court in Charleston on behalf of David Haws, a > student at West Virginia University. > > Haws, a Mormon, is suing a state scholarship board, alleging it violated > his First Amendment right to freely exercise his religion. His attorney > argues that by denying Haws' request for a leave of absence, the board > forced him to choose between his religion and his scholarship through a > state program, known as PROMISE. > > The Justice Department noted that the PROMISE Board grants deferments > for military and community service, and that by denying a deferral for > religious purposes, the board was placing a lower value on religious > deferments > ___ > 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: WVU/ACS Conference on "The Religion Clauses in the 21stCentury"
Sounds very interesting! Do you know if any of this will be aired on C-SPAN or C-SPAN 2? This does seem like the kind of thing they would show when they aren't broadcasting Congress. Brad - Original Message - From: "John Taylor" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Wednesday, February 14, 2007 12:27 PM Subject: WVU/ACS Conference on "The Religion Clauses in the 21stCentury" I thought list members might be interested in the following conference to be held at WVU in April. THE RELIGION CLAUSES IN THE 21ST CENTURY: April 12-13, 2007 West Virginia University College of Law, Morgantown, West Virginia Co-Sponsored by the West Virginia University College of Law and the American Constitution Society for Law & Policy OVERVIEW This symposium brings together some of the nation's preeminent scholars of law and religion to discuss the future of the First Amendment's Religion Clauses. Whether the issue is state-sponsored religious expression, taxpayer funding of faith-based social service programs, or the proper balance between religious freedom and the regulatory state, disputes about the proper interpretation of the Establishment and Free Exercise Clauses continue to provoke public controversy and scholarly reexamination. The last two decades have seen significant changes in the Supreme Court's interpretation of both Clauses, and now the U.S. Supreme Court led by new Chief Justice John Roberts is poised to put its own distinctive stamp on the law of church and state. We hope you will be able to join us in April for what promises to be a rewarding discussion. ___ 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"
Paul Finkelman wrote: Sounds very much like someone tooting his own horn? Is excessive pride also a sin? Interestingly enough, it sounded like somebody who was accused of selfishness attempting to place his actions in context in order to defend the impugning of his character. One can only wonder how G-d will respond to someone who brags about his work to make outcasts of gay members of the human family. Perhaps the Chaplain should try marching a mile or two in the boot of a gay sailor or soldier. Again, where was the bragging? If somebody calls the chaplain selfish, isn't he allowed to say, "No, I don't believe I was being selfish. Here's why." Also, I didn't see a thing about trying to make anybody outcasts. Are you suggesting that a person who believes that Scripture teaches that sexual intimacy is reserved for monogamous heterosexual marriage should simply keep their views to themselves? Or is freedom of religion reserved for those who believe that God simply says, "Be nice people and otherwise do whatever you want"? I am no expert on the chaplain's faith, but have spent a great deal of my life studying religion and this is the first time I have ever heard a Christian assert that praying fomr the Book of Psalms compromised a Christian's faith. Praying from the Book of Psalms is not, in and of itself, compromising a person's faith. Being required to pray ONLY from the Book of Psalms to the exclusion of every other prayer in the Bible, however, is another matter. It sounds to me very much like the Navy has, in essence, said that a person can only be a chaplain if they act as if they don't actually believe anything. That doesn't sound like what 200+ years worth of American fighting men and women were willing to die to defend. Brad Pardee ___ 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: Lawsuits against SYATP.
Ed, You wrote, "And if, as you say, most of those situations are cleared up by a letter explaining the law, is it really an attempt to suppress, or is it merely ignorance of the law? Seems the latter would be a far more reasonable description of what is going on." Certainly there are some who are ignorant of the law and simply require the explanation. But what I've seen as I've tried to follow news stories like this over the years is that it's just as certain that there are those administrators who are hostile to things such as See You At The Pole, and for those individuals, they're working on the assumption that people won't fight an authority figure on the point. In those cases, the letter doesn't merely serve as an explanation of the law. It also serves notice that their bluff is being called, and so they back down, knowing that they would lose. While it's uncharitable to assume that all of these situations are the result of animus against such events, it's equally naive to assume that none of these situations are merely harmless, well-intentioned ignorance. Brad ___ 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: Lawsuits against SYATP.
I wrote: "While it's uncharitable to assume that all of these situations are the result of animus against such events, it's equally naive to assume that none of these situations are merely harmless, well-intentioned ignorance." Obviously, I meant to say, "it's equally naive to assume that ALL of these situations are merely harmless, well-intentioned ignorance." Apparently, just because I can't sleep at 2 a.m., that doesn't mean I can type. *insert red face here* Brad ___ 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: Fox News Forgets Fact in Christian Graduation Speech Story
Not necessarily a contradiction at all. They simply establish whatever non-discriminatory criteria seems appropriate (no profanity, no slander, etc.) and their approval is merely a statement that they have met the criteria. It's kind of like when a radio or TV station airs a pre-recorded program and precedes it by saying "The views expressed in the program are those of the hosts and do not reflect the views of the station, its management, or its employees." Yet, you know that if the program included slander or violated FCC guidelines, it wouldn't hit the air. Same thing here. Brad - Original Message - From: [EMAIL PROTECTED] And, more specifically on the religion law topic, can the school preapprove the message without endorsing it? It's something of a contradiction. Allen ___ 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: Catholic Charities Issue
Michael Newsom wrote, "Being 'marginalized' and called a 'homophobe' is not quite the same thing as having your brains beat in because you are gay. To suppose that the two are morally equivalent is to make, with respect, a categorical error." It's true that these two are not morally equivalent. However, if a person is assaulted on the basis of their sexual orientation (or on the basis of anything else, for that matter), there are laws in place to punish those guilty of the attack (such as the murderers of Matthew Shepard, who are both serving life sentences without possibility of parole). In contrast, the marginilization being described is being done BY the law, not in violation of the law. That is where the issue of religious liberty comes in. Brad ___ 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: Dover Intelligent-Design Case
Perhaps. If he had stopped at saying he believed they lied, that would be one thing. When the judge throws in the accusation that they were breathtakingly inane, though, that doesn't sound like the words of a trier of fact. That sounds like somebody with an axe to grind against the plaintiffs, and I guess the proximity of the charge of lying to this bit of overblown rhetoric caused me to respond to them together. It's certainly beyond his job, though, to talk about how breathtakingly inane the plaintiffs were. If he wants to talk about their veracity, fine. Either they lied or they told the truth. If he wants to talk about the merits of their arguments, fine. Either they are right or they are wrong. But this was over the top, and if that's restraint, then I'd hate to see what an unrestrained opinion says. And if the lies were as plain and obvious as they have been portrayed here as being, then it would be a sad commentary on the appellate courts for them to need him to wax so poetic to tell them about it. Brad - Original Message - From: Ed Darrell To: Law & Religion issues for Law Academics Sent: Tuesday, December 20, 2005 2:15 PM Subject: Re: Dover Intelligent-Design Case Is it not accurate that the trier of fact may make determinations as to the veracity of the witnesses? I think that, if one reads the transcript, one might be astonished at the restraint Judge Jones used. It's one thing to deny a contested statement, another to deny it after it's been reported separately by two newspapers and captured on videotape. Judge Jones was probably wise to include this statement about the defendants' testimony, as a help for appellate courts. Ed Darrell DallasBrad M Pardee <[EMAIL PROTECTED]> wrote: The judge wrote, "Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifest! ly not an activist Court." Has there ever been a Court that admitted that it WAS activist? Is there a decision somewhere that says, "This Court is proud to admit that it is an activist Court, and thank you for noticing"? Rick may be on to something when he says, "The Bard might have said: "The judge doth protest too much, methinks." And maybe it's just my untrained eye, but when I see a judge referring to the defendandts as liars and breathtakingly inane, I find myself wondering how that is part of his job. His job is to interpret the law, not to assess the moral fitness of people whose arguments he did not agree with. If he thinks they're right, say so. If he thinks they're wrong, say so. (And if he truly believes they were lying and that this isn't just extreme rhetorical excess, can I assume perjury charges will be forthcoming?) The snippets posted by Ann make me seriously doubt the judge's impartiality and temperament, and I'm not sure I'd want him judging pecan pies at the County Fair, much less matters of serious Constitutional import. Brad___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.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: Dueling Bible Curricula
When they describe the National Association of Evangelicals as "liberal", they lose a lot of credibility with me right from the get-go. I'm as interested as anyone in being aware of the "end times", but this press release seem a bit "out there" to me. Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, November 30, 2005 9:49 AM Subject: Dueling Bible Curricula The press release linked below crossed my email today and given the subject of it, National Council on Bible Curriculum in the Schools vs. Bible Literacy Project, I thought list subscribers might have an interest. It can be viewed in full at: http://www.earnedmedia.org/kjos1130.htm. ___ 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: The Holiday That Dare Not Speak Its Name
I work in a college library, and in the course of cataloging (and re-cataloging) older materials, I've seen this kind of name adjustment, and it never addresses the underlying issue of what people think of the term in question. The best example of this that I've seen is "handicapped". I've cataloged materials put out by organizations for the "Feeble Minded". But feeble minded became a negative description, so we switched to "retarded". And before long, retarded was just as negative as feeble minded, so then we went to "handicapped". And then "challenged" or "differently abled". In the end, the word changes didn't accomplish anything outside of showing how politically correct a person was because the people who looked down on the feeble minded were going to look down on those people no matter what they were called. We changed words without changing attitudes, and consequently, we really didn't change anything of significance at all. Brad - Original Message - From: "Volokh, Eugene" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Monday, November 28, 2005 4:09 PM Subject: RE: The Holiday That Dare Not Speak Its Name What's more, I'm personally quite tired of being told how many words and phrases I'm not supposed to use: handicapped, policeman, rule of thumb, black, American Indian, and hundreds more. ___ 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: non-disruptive speech ?
Are you seriously suggesting that a kid who talk to your 7 year old about religion in a way that you find offensive is going to be physically assaulted by your child? That's not just unacceptable at school. It's criminal, and I cannot conceive of why you would permit your child to respond to words and ideas with violence. If I'm misunderstanding you, please clarify. Brad - Original Message - From: "Joel Sogol" <[EMAIL PROTECTED]> So let's understand - the next kid that tells my 7 year old that we are going to hell, which whether Rick agrees or not is always where that conversation goes, is going to get a basic understanding of the karate classes Sam is now taking. The speech is in fact more then just disruptive, and it invites a response that will be equally unacceptable at school, but for which my son will not be disciplined at home. ___ 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
I appreciate Art's clarification of what he meant. He's correct that I understood his saying the judge "wanted to do the right thing" as meaning that judge was acting based on his own understanding of right and wrong as opposed to what the law reads. I would think, though, that it would not speak well of him if he had felt a need to issue his decision in a certain way out of his concerns about the unpopularity of his decision. In that I am not a lawyer, much less a judge, perhaps I'm holding onto pollyanish expectations of the judicial branch, but it seems to me that accepting the mantle of a judge requires enough moral courage to do what your job requires of you, regardless of popular opinion. Again, not being a lawyer, I don't feel I'm in a position to accurately understand his motivations based on the quoted section of the opinion, so I will look forward to reading and learning from what I read here from the learned assemblage. Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 8:57 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Brad assumes that when I said the judge "wanted to do the right thing," I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course. What I meant was that the judge may have wanted to do the legally right thing -- as I believe he did -- but may have felt the need to seek the shelter of the 9th Circuit's previous decision to reduce the heat that would (and surely will) come his way because he did a wildly unpopular thing.However, now that I've seen the judge's candid footnote, I agree with Anthony Picarello that he seems to have explained his own reasons pretty well.Art Spitzer ___ 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
If that was the judge's reasoning, then regardless of whether his ultimate ruling was legally right or wrong, he doesn't understand his job. Judges aren't supposed to rule based one what they think is the right thing or the wrong thing. That's what legislators do. Judges are supposed to rule based on what the law says, regardless of whether or not the end result fits with what they think qualifies as "do[ing] the right thing". Brad - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Wednesday, September 14, 2005 7:10 PM Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth Cir cuit's earlier Newdow decision Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems.Art Spitzer ___ 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.
Catholic Judges, the U.S. Constitution and Natural Law
This came from the Zenit News Agency, a Catholic news service based in Rome. I thought it would be of interest here. --Catholic Judges, the U.S. Constitution and Natural LawInterview With Pepperdine's Douglas KmiecMALIBU, California, AUG. 29, 2005 (Zenit.org).- The nomination of Judge John Roberts, a Catholic, to the U.S. Supreme Court has turned the spotlight on the question of the interplay between religion and the law.Douglas Kmiec, the Caruso Family chair and professor of constitutional law at Pepperdine University of Law and co-author of "The American Constitutional Order: History, Cases and Philosophy" (LexisNexis), shared with ZENIT the appropriateness of the U.S. bishops' involvement in the confirmation process, as well as the importance of the natural law tradition for prospective Supreme Court justices.Q: Right now there are three, and there could be four, Catholics sitting on the Supreme Court. However, they often have diverging views on some important issues. Is there a Catholic way of interpreting the U.S. Constitution, or can there be legitimate disagreement about the meaning of the text?Kmiec: The tools of constitutional interpretation are the text, history and structure of the American Constitution. Part of that history includes the Declaration of Independence and its reference to self-evident truths of creation, created equality and unalienable rights. As Lincoln reflected, the Constitution was framed for the philosophy of the Declaration, not the other way around. It is to secure our unalienable rights that "governments are instituted." All those who would seek judicial office should sincerely appreciate the intrinsic value of the human person reflected in the Declaration.Moreover, one would expect, and I do, that those who are truly sustained by the Catholic faith and a Catholic family, and perhaps educated in Catholic schools, would have a special appreciation by study of the natural law tradition and its direct contribution to the American order of these first principles.As to divergence among believers, in law or anything else, that is part of the human condition. In truth, Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy - the three Catholics presently on the Supreme Court -- have a statistically high level of agreement in matters of legal interpretation, though each has had different legal training and experience, and that, rather than their common faith, likely explains the variations among them.Q: Recently, Bishop William Skylstad, president of the U.S. Conference of Catholic Bishops, sent a letter to President Bush calling for a Supreme Court justice that would rule in a number of ways consistent with the bishops' public policy agenda. What would be the jurisprudential consequences for a Catholic justice who heeded Bishop Skylstad's call?Kmiec: Bishop Skylstad's letter was a direct and entirely appropriate _expression_ of Catholic faith. The letter might be perceived as somewhat misunderstanding the intended role of the Supreme Court, but one can hardly fault the bishop for this since some members of Congress, themselves, wrongly think of judges as policy-makers. As a matter of original understanding, nothing in the Constitution is at odds with any of the policies the bishop urges. For example, while the Constitution provides for capital punishment, there is nothing precluding the American people in their respective states to end or limit its application if the people come to be persuaded by the witness and prayer and instruction of Catholics -- and others -- in the public square that, as John Paul II taught in "The Gospel of Life," its application should be rare.Q: What role should a judge's faith and moral beliefs play in his or her role as a nonpartisan adjudicator?Kmiec: The Constitution puts religious belief off-limits for selection or qualification. It states in Article VI: "No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Religious belief is necessarily off-limits in adjudication.Q: Can a Catholic judge in good conscience strike down laws restricting abortion that he or she believes are unconstitutional? What about applying unjust laws? What should a judge do in the case of a moral conflict?Kmiec: As a matter of formal logic, it must be readily admitted that no person in or out of office can set himself or herself above the divine law. Yet, repeatedly and circumspectly, the Church's teaching is directed at "elected officials" or those casting "a legislative vote."So neither John Kerry nor Ted Kennedy, for example, should feign surprise when they are called upon by the Church to use their persuasive gifts to legislatively reduce the incidence of abortion, and certainly not to be its propagandists.So, too, it was entirely appropriate for Bishop Skylstad to write President Bush, an elected offic
A peculiar concept of church-state separation from Canada
The following was aired on the Canadian Broadcasting Corporation last month. I don't think anybody, either on the right or the left, would seriously suggest this in the US, and I don't think any major network would donate air time for them to do so. If people of faith (any faith) in Canada don't find this frightening, they should. The CBC website with this commentary on it (http://www.cbc.ca/insite/COMMENTARY/2005/7/18.html) is presently unavailable due to "a labour disruption" (I'm trying not to cynically see this as awfully convenient) but the transcript is available on the Puritas blog at http://puritas.blogspot.com/2005/07/not-sure-what-to-say-on-this-one.html. Introduction:Men and women within the Roman Catholic faith are still hoping that the church can change to more accurately reflect the World in which we live.This week-end, for example, an international conference will be held in Ottawa to support women's equality in religions. WOW, or Women's Ordination Worldwide, is fighting for the ordination of women in all Christian Churches. It says it wants to open a global debate on the issue. And some were hoping for reform during the period when the old pope was dying and the new pope was being anticipated. Bob Ferguson is a retired professor from the Royal Military College. He believes that Catholics are unlikely ever to see changes in policy on birth control or on the question of married or female priests. In fact, he says change won't come until the churches are forced to comply with the same human rights legislation that affects the rest of society. Bob Ferguson: Given the inertia of the Catholic Church, perhaps we could encourage reform by changing the environment in which all religions operate. Couldn't we insist that human rights, employment and consumer legislation apply to them as it does other organizations? Then it would be illegal to require a particular marital status as a condition of employment or to exclude women from the priesthood. Of course the Vatican wouldn't like the changes, but they would come to accept them in time as a fact of life in Canada. Indeed I suspect many clergy would welcome the external pressure. We could also help the general cause of religious freedom by introducing a code of moral practice for religions. They will never achieve unity so why not try for compatibility? Can't religious leaders agree to adjust doctrine so all religions can operate within the code? I am an engineer so the model I am thinking about is rather like the provincial acts regulating the practice of engineering. For example, engineers must have an engineering degree from a recognized university or pass qualification exams. They must have a number of years of practical experience and pass an ethics exam. The different branches: mechanical, electrical, civil and the like have a code of practice that applies to everyone. Why can't religious groups do the same? I envisage a congress meeting to hammer out a code that would form the basis of legislation to regulate the practice of religion. Like the professional engineers' P.Eng designation, there would then be RRPs (or registered religious practitioners). To carry the analogy to its conclusion, no one could be a religious practitioner without this qualification. I won't try to propose what might be in the new code except for a few obvious things: A key item would have to be a ban on claims of exclusivity. It should be unethical for any RRP to claim that theirs was the one true religion and believers in anything else or nothing were doomed to fire and brimstone. One might also expect prohibition of ritual circumcisions, bans on preaching hate or violence, the regulation of faith healers, protocols for missionary work, etc.Now what is the point of proposing this? I do it because I am worried that the separation between church and state is under threat. Religion is important in our lives, but it can become a danger to society when people claim that the unalterable will of God is the basis for their opinions and actions. Yes religion can be a comfort and a uide, but we cannot take rules from our holy books and apply them to the modern world without democratic debate and due regard for the law.For Commentary, I'm Bob Ferguson in Marysville, Ontario. ___ 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.
Stephen L. Carter on churches and politics
Stephen L. Carter, the William Nelson Cromwell Professor of Law at Yale Law School, has written a very insightful column about the way churches handle politics, with some attention paid to the North Carolina pastor who forced people out of his congregation if they voted for John Kerrey. As with anything I've ever seen Prof. Carter write, it's VERY well done. The article is on the Christianity Today site at http://www.christianitytoday.com/ct/2005/007/30.54.html Brad ___ 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: Government displays protesting against the Supreme Court's Establishment Clause jurisprudence
- Original Message - From: "Steve Klemetti" <[EMAIL PROTECTED]> I don't think it would be because it sounds treasonous or something like that. When one governing body goes against the orders of a higher court, then that first body is violating the constitution by that action. If the people or these government bodies want to add religious symbols, they can amend the constitution to allow it, not defy the interpretation of it by the body that the constitution designates. Under the criteria you are setting forth, any government that assisted escaping slaves post-Dred Scott was guilty of treason or something like it. After all, to paraphrase what you have said, "If the people or these government bodies want to aid escaping slaves, they can amend the constitution to allow it, not the defy the interpretation of it by the body that the constitution designates." It might well be illegal, and they might engage in it as an act of civil disobedience (which has a long history) but it can hardly qualify as anything akin to treason. Brad Pardee ___ 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.
RLUIPA and Kelo v. City of New London
In light of the Supreme Court's decision today in Kelo v. City of New London, will the RLUIPA protect churches if a local government tries to take church property, ostensibly on the grounds that it will better serve a public use as tax generating commercial property? Brad ___ 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: Public university sponsorship of conference on "Examining theReal Agenda of the Christian Right"
The "Religious Right" hardly qualifies as any kind of organized movement, either religious or political. It's simply people of faith whose theology and politics tend toward the conservative side and who choose to exercise their rights and responsibilities as citizens. From what I've seen, the majority of the people who regularly talk about the"Religious Right" are those who are opposed to conservative politics or theology (or both), and find it easier to demonize "The Religious Right" as ambiguous and undefined extremists rather than actually providing thoughtful, reasoned, and civil responses to their arguments and positions. (For the record, I make no assessment of Mr. Newsom in this regard because I haven't seen enough of his writing to have an informed opinion. His post below certainly reminds me of those types of those kinds of blanket assumptions and dismissals, but one post does not an entire position make.) Interestingly enough, there are certainly just as many people of faith whose theology and politics tend toward the liberals side who also choose to exercise their rights and responsibilities as citizens, but you never hear anything about the Religious Left working in lockstep with, or part and parcel of the Democratic Party. For what it's worth, I wrote a piece for our campus paper about the mythical bogeyman of the "Religious Right". It's at http://www.dailynebraskan.com/vnews/display.v/ART/2000/02/25/38b6051e2?in_archive=1 if anybody's interested. Brad Pardee - Original Message - From: "Newsom Michael" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Tuesday, June 21, 2005 3:24 PM Subject: RE: Public university sponsorship of conference on "Examining theReal Agenda of the Christian Right" If the Religious Right were just a religious movement, there might be, at least, a question. But the Religious Right is also a political movement, working in lockstep with, or part and parcel of the Republican Party. ___ 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: Free Exercise, Free Speech, and harm to others
Eugene, You wrote, "I'm not sure that the Free Exercise Clause should be read as requiring the government to bear such harms; I think the Court is right to basically treat it as an antidiscrimination rule, in which case evenhanded restrictions are permissible. But perhaps that's not right: Maybe just like the Free Speech Clause is read as providing modest protection against content-neutral restrictions and extremely strong protection against content-based restrictions, the Free Exercise Clause should be read likewise. But that, I think, is an argument for a modest sort of intermediate scrutiny (if such a thing as possible), and not for full-on strict scrutiny (or more) that we have for content-based speech restrictions. Maybe it's ultimately a good argument -- but if it prevails, it would be (and should be) precisely because it's much less ambitious than the strict scrutiny advocates by defenders of Sherbert and Yoder." My own layman's view is that the Free Exercise clause should actually provide more protection than the Free Speech clause, simply due to the nature of the activity in question. In my own observations, when a person speaks, invoking the Free Speech clause, it is generally because they feel a desire to speak or a need to speak. Rarely, though, is it because they are under an external obligation to speak. In contrast, the adherents of any religion that is founded upon an understanding of a divine being (for lack of a broader term) who requires obedience are going to be compelled externally to do certain things, some of which the person might prefer not to do but does nonetheless because they understand themselves to be under an external obligation to do so. The vast majority of these requirements, such as meatless Fridays during Lent for Roman Catholics, abstaining from premarital and extramarital sexual activity for Roman Catholics, evangelical protestants, and others as well (these are simply the two communities which I have firsthand knowledge of), and so forth, are not likely to cause a conflict with neutral, generally applicable law. When there is a conflict, however, then the adherent is placed in a position of having to choose between faithfulness to their God and obedience to the laws of man. There will be times when it is necessary to compel the latter (for example, to use an extreme case, somebody whose faith involves human sacrifice). However, if you look at the conscientious objector status, you see an example where a person, on the basis of conscience, is exempted from military duty they would otherwise be obligated to serve. We rightly understand that, even in a matter as compelling as our national security, we must tread very lightly when we consider forcing somebody to do something which they understand to be morally incompatible with their perception of right and wrong. When you look at a religious adherent, you take a step further to whether we can or should force a person to do something which is not merely incompatible with their own understanding of right and wrong but is in fact prohibited by their God. This is why I believe that the Free Exercise clause is vastly more than an antidiscrimination measure. The use of the word "Exercise" infers activity that is protected. It's not merely the belief in a religion or the status of being an adherent to a religion. It is the free exercise of religion. This the essence of religious freedom: That a person will not be required, barring some substantive kind of proven necessity, to act contrary to the demands placed on them by their God. If we reduce it to antidiscrimination protection, then we give legislators and judges free reign to run roughshod over people whose faith they either don't like or simply don't care about one way or another, as long as everybody is required to do the same things. Stephen Carter's "Culture of Disbelief" gives clear examples that we can't simply assume that legislators (or judges, for that matter) are going to protect free exercise without being compelled to do so by strong Constitutional protection that goes beyond simply not singling people out for discrimination. Brad Pardee ___ 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: Harm to Others as a Factor in Accommodation Doctrine
Doesn't that render the Free Exercise clause powerless as a guarantor of religious freedom? Suppose, for instance, we were talking about freedom of speech instead of the free exercise of religion. I can't imagine that the legislature would be able to outlaw any type of speech they wanted to as long as it was in a neutral and generally applicable law, and that people would have to lobby the legislature for an accomodation to be able to have the freedom of speech they thought the Constitution already provided. Rather, the legislature would need to be able to justify to the court why the outlawing of a type of speech was not an unconstitutional infringement on an explicitly Constitutionally protected freedom. Why would the Free Exercise clause have less weight and power to protect than the Free Speech clause? Tell me what I'm missing in your understanding of what the Free Exercise clause actually protects. Brad The answer would be that those religious groups would lobby and obtain what they want. Just because the courts don't provide something does not mean religious entities throw up their hands and quit. Quite to the contrary. Marci So my question would be, if Title VII had not included the exemption, what would prevent the Church from being required to comply with anti-discrimination laws in the employment of priests if her position prevailed? It seems like the logical conclusion would be that women wishing to serve as priests would be harmed, so the Church would be required to assimilate, regardless of its understanding of God's requirements.Brad ___ 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: Harm to Others as a Factor in Accommodation Doctrine
I agree that the Free Exercise clause requirea an exemption, regardless of whether or not Title VII provided for one. However, Marci's position, as I understood her to explain it, is that there would be no exemption under the Free Exercise clause for a neutral, generally applicable law unless the legislation creates the exemption. So my question would be, if Title VII had not included the exemption, what would prevent the Church from being required to comply with anti-discrimination laws in the employment of priests if her position prevailed? It seems like the logical conclusion would be that women wishing to serve as priests would be harmed, so the Church would be required to assimilate, regardless of its understanding of God's requirements. Brad - Original Message - From: "Steven Jamar" <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" Sent: Sunday, March 13, 2005 1:13 PM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine There is, of course, an exemption for religious positions in religious organizations in Title VII and it would be required in any event under the Free Exercise clause. ___ 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: Harm to Others as a Factor in Accommodation Doctrine
As I read this, I found myself wondering what the point is of having constitutionally protected free exercise if the exercise is only free when the legislature decides it is. The scenario you describe seems to be one where the legislature is free to demand or prohibit any conduct they like, and to the religious adherent who is unable to comply without violating the tenets of their faith is simply out of luck unless they can get the legislature to exempt them. The legislature can then, out of either hostility or indifference, simply say, "We're not singling you out. Everybody has to do it." Using your theory as I am understanding it, would you say that the Catholic Church is required, by anti-discrimination laws, to hire women as priests unless the anti-discrimination law was to specifically exempt the Church? That certainly is a neutral, generally applicable law, and women who want to be priests could certainly claim that they would be harmed by an accomodation to allow the Church to only have men as priests. And yet, if the Church is required by law to violate what it understands to be the constraints placed upon it by God, how does that equate with the free exercise of religion? Am I missing something in terms of your understanding of accomodation and free exercise? Brad Pardee - Original Message - From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Sent: Saturday, March 12, 2005 7:36 AM Subject: Re: Harm to Others as a Factor in Accommodation Doctrine To clarify my earlier postings before I had to run my kids around to 14 different activities-- I did not mean "forced accommodation" in the sense Doug interpreted it. I meant that there are times when neutral, generally applicable laws require assimilation. Only when an accommodation is enacted by a legislature for the purpose of lifting a burden on religion and only when that accommodation does not harm others is assimilation permissibly avoided. I did not mean to say, Ellis, that across-the-board exemptions are ever good ideas. Mandatory exemptions were clearly not required when the First Amendment was drafted or ratified, and is not a credible approach. Permissive legislative accommodation, though, is valuable in a world where religious belief is an avoidable element of human existence. We actually don't have to figure out "harm to third parties." That, in my view, is the job of the legislatures. I say in my book, though, that in this era, legislatures have been knee-jerk providers of religious accommodations without asking whether someone could be harmed by the law. It boggles the mind to think that Congress could have considered RFRA for 3 years, which was going to potentially hobble every law in the country, without asking whether someone might get hurt if many laws were suspended as applied to religious entities. Religious entities should have latitude like any other groups to lobby to their advantage, but legislators are supposed to ask the hard questions (even when society is not asking them). Marci ___ 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: Protestants and non-Protestants
I wonder, though, to the believer (in any faith), if the ultimate effect is any different whether the government is actively hostile or simply indifferent. I think Stephen Carter's book, "The Culture of Disbelief", gives some good examples (including non-evangelical Christian examples) of people whose faith was simply dismissed on the grounds of what might be termed "the public good". In the end, if the government prohibits what my faith commands or commands what my faith prohibits, does it really make a difference whether the government was openly hostile or simply didn't care? Brad Pardee - Original Message - From: "Richard Dougherty" <[EMAIL PROTECTED]> But I think it also simply a matter of fact that there are many in the government, including the judidicary, who are hostile to religion, and to deny that is to miss what I thought was gimme. That is not to deny that some believers are hostile to non-believers; indeed, I take that as a fact as well. I suppose I could have been more precise and avoided saying that there is a "governmental" movement that is hostile to religion, instead of saying there are some in government who are so moved (I think it means the same thing, but could have been clearer). ___ 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.
Yahoo news story on religion and public life in Europe
My first post: I'm not an academic, just a citizen very interested in the subject of law and religion. I'm finding the discussion here very interesting, and when I saw this Yahoo news story, it looked like something that would be of interest here. It's from the Christian Science Monitor, titled "What Place For God In Europe: Why the Continent is debating what role, if any, religion should play in public life". I hope posting the link is appropriate, and I look forward to seeing what those of you who deal with these issues every day think. http://story.news.yahoo.com/news?tmpl=story&cid=2352&ncid=2352&e=5&u=/csm/20050222/ts_csm/oreligionpageonex Brad Pardee ___ 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.
