RE: Is Trinity Lutheran Church moot?

[Levinson, Sanford V]

I can't refrain from asking the snarky question as to whether anyone believes 
that the decision of the Supreme Court to decide or to dump the case will 
represent a "principled" elaboration of mootness doctrine, as against 1) a 
desire by Gorsuch and the other four to announce their solicitude for religious 
organizations in a comparatively easy case; 2) a prudential desire by the Court 
to wait a while before it so clearly illustrates the possible difference 
between a Justice Gorsuch and Justice Garland (contrary to my assertion that 
this is an "easy" case, which rests on its not being a 5=4 decision.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:36 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Is Trinity Lutheran Church moot?


I am once again reminded why I refuse to teach the 11th Amendment :-).  But of 
course you are all correct, I had forgotten about that line of cases.



Ash


Ash Bhagwat
Martin Luther King, Jr. Professor of Law
UC Davis School of Law
(530) 752-8687

Find my papers at:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=193880


From: 
religionlaw-boun...@lists.ucla.edu 
> 
on behalf of Laycock, H Douglas (hdl5c) 
>
Sent: Tuesday, April 18, 2017 2:59 PM
To: Law & Religion issues for Law Academics
Subject: RE: Is Trinity Lutheran Church moot?


Doh! Not sure why I forgot about Edelman; maybe because the focus there was on 
the line between prospective and retrospective relief. But that is the 
fundamental modern Eleventh Amendment case, and it squarely holds that § 1983 
does not override sovereign immunity. Somewhat conclusory, but unambiguous.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Tuesday, April 18, 2017 5:53 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Is Trinity Lutheran Church moot?



See, e.g., Quern v. Jordan, 440 U.S. 332, 340-41 (1979):



"Mr. Justice BRENNAN in his opinion concurring in the judgment argues that our 
holding in Edelman that § 1983 does not abrogate the States' Eleventh Amendment 
immunity is 'most likely incorrect.' To reach this conclusion he relies on 
'assum[ptions]' drawn from the Fourteenth Amendment, on 'occasional remarks' 
found in a legislative history that contains little debate on § 1 of the Civil 
Rights Act of 1871, 17 Stat. 13, the precursor to § 1983, on the reference to 
'bodies politic' in the Act of Feb. 25, 1871, 16 Stat. 431, the 'Dictionary 
Act,' and, finally on the general language of § 1983 itself. But, unlike our 
Brother BRENNAN, we simply are unwilling to believe, on the basis of such 
slender 'evidence,' that Congress intended by the general language of § 1983 to 
override the traditional sovereign immunity of the States. We therefore 
conclude that neither the reasoning of Monell or of our Eleventh Amendment 
cases subsequent to Edelman, nor the additional legislative history or 
arguments set forth in Mr. Justice BRENNAN's concurring opinion, justify a 
conclusion different from that which we reached in Edelman.





- Jim





On Tue, Apr 18, 2017 at 2:44 PM, Eric J Segall 
> wrote:

There's also language in other cases involving federal jurisdiction that 
Congress didn't intend 1983 to abrogate immunity. Will is only a state court 
case.



Best,



Eric

Sent from my iPhone

On Apr 18, 2017, at 5:40 PM, Laycock, H Douglas (hdl5c) 
> wrote:

Because the Court held that neither a state, nor a state official in his 
official capacity, is a "person" within the meaning of § 1983. It is a slightly 
round about way of saying that § 1983 does not override sovereign immunity. 
Will v. Michigan Dept. of State Police.



Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ashutosh A Bhagwat
Sent: Tuesday, April 18, 2017 5:31 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Is Trinity Lutheran Church moot?



I may be completely wrong here, but if this is a section 1983 case enforcing 
the 

RE: Religious objections to deportation policies

[Levinson, Sanford V]

I am taking the liberty of posting a column that I wrote in Sept. 2014  for the 
Al Jazeera Web site that touches on the shifting politics of religious freedom. 
 Perhaps we can even hope for some kind of detente between right and left 
(though I’m not holding my breath).  But Jeff Sessions is certainly drawing red 
lines that should provoke more full scale resistance by a newly invigorated 
alliance between the secular left and the committed religious w will remember, 
as is appropriate at the Passover season, that one has responsibilities to 
those who are the equivalent of  “strangers in the land of Egypt.”   (And, of 
course, I presume that our conservative friends take some pleasure in the new 
embrace by people like me of such decisions as US v. NY and other “new 
federalism” decisions as underpinning the resistance against the former 
states-rights buff Sessions.)

sandy

The new (religious) face of civil disobedience
A resurgent sanctuary movement may complicate the precepts of the Christian 
right
Al Jazeera online, available at  
http://america.aljazeera.com/opinions/2014/9/religion-sanctuarymovementimmigrationrefugeespoverty.html
  September 7, 2014 6:00AM ET

by Sanford 
Levinson
How are the young refugees fleeing from violence in Central America connected 
to contraception?
In June’s Hobby Lobby decision, a sharply divided Supreme Court interpreted the 
Religious Freedom Restoration Act of 1993 (RFRA) to require the exemption of an 
incorporated business owned by conservative Christians from the duty imposed by 
the Affordable Care Act to offer health insurance policies covering 
contraception. Hobby Lobby sparked a national discussion about the degree to 
which religious belief should mandate exemptions from complying with 
legislation. Unsurprisingly, the debate has divided sharply along liberal and 
conservative lines. Conservatives tend to endorse religious freedom and 
liberals emphasize — often using the language of democracy — the duty of all 
Americans to obey the law.
But different issues — from the children crossing our borders, fleeing 
oppressive circumstances in Central America, to the plight of poor people 
without regular access to medical care — are now complicating that divide.
The standard conservative responses, of course, haven’t disappeared. Many 
conservatives, typified by Texas Sen. Ted Cruz, have labeled the Central 
American children “illegals” and demanded swift deportation. Another Texas 
conservative, Gov. Rick Perry, has vociferously refused to join the enhanced 
national Medicaid program. But it is becoming clearer that neither of these 
politicians, both carrying presidential ambitions, unequivocally speaks for 
conservatives. And interestingly, their critics increasingly speak the language 
of religious belief and obligation.
Support for the young refugees — and corresponding criticism of those calling 
for harsh treatment — has started coming from religious leaders who, looking 
beyond abortion and contraception, evoke their particular notions of divine 
commands to succor the poor and defenseless. At the end of April, The Christian 
Science Monitor 
reported
 on more than 250 evangelical leaders who had decamped on Congress to lobby 
representatives and senators to move toward immigration reform. John Carlson, 
an associate professor of religious studies at Arizona State University in 
Tempe, is quoted in the article as saying, “You’ve got all sort of theological 
and ethical traditions and foundational concepts that are concerned with the 
stranger in one’s midst.” Some of these leaders may be identifiable as 
liberals, but many more are not.
The efforts of these religious figures evoke the sanctuary movement of the 
1980s, during which many churches, citing a biblical tradition of sites of 
refuge, refused to turn over Central American refugees to police. Today, 
Arizona for many people has become identified with efforts to crack down on 
undocumented immigrants. But consider that two churches in Arizona, the 
Southside Presbyterian Church in 
Tucson
 and the University Presbyterian Church in 
Tempe,
 have declared themselves safe havens designed to protect such immigrants 
against deportation. Many of the strongest supporters of the prior sanctuary 
movement were Roman Catholic prelates who — in contemporary political terms, 
given the laser focus on abortion — would have almost automatically been 
assigned the conservative label.
It may be too optimistic to hope for a full-fledged truce in the culture war 

Re: Successful RFRA defense in EEOC case against funeral home that fired a male-to-female transgender employee for insisting on wearing a skirt suit to work

[Levinson, Sanford V]

I note for the record, with fully snarky intentions, that I know of no 
imaginative rendering of Moses or Jesus that depicts them in suits, nor is it 
my impression that modern Popes dress gender appropriately.

The argument basically boils down to "customer's" veto, and I see no difference 
between this and the complaint that "grandpa would have been outraged by having 
a black person attend to his dead body."

Sandy

Sent from my iPhone

On Aug 18, 2016, at 7:16 PM, Roger Severino 
> wrote:

I agree with Eugene. The whole point of uniform policies (other than purely 
functional ones like hard hats) relates to the message the clothing sends. 
Here, the funeral home owner had very particularized employee dress 
requirements in keeping with the solemnity and sensitivity required to help 
grieving families who he sought to serve consistent with his religious 
conviction. Is it unreasonable for the owner to believe it goes contrary to his 
faith for him to knowingly put his customers, many of whom share his religious 
beliefs, in awkward situations at an extremely vulnerable time?

Several and perhaps many/most states require a funeral home employee accompany 
the body continuously which includes being physically present at church 
services and burials. So imagine a funeral home employee who violated the dress 
policy by wearing a swim suit and flip flops to church funerals. I think few 
would say such an employee can't be fired if the funeral home owner discharges 
the employee because he or she believes it is offensive for its representative 
to dress that way at funerals as a religious matter.

Shift the hypo to the present case. Now imagine a mother whose husband has died 
having to answer her 6-year old child who asks "mommy, why is there a man 
dressed in a skirt following daddy's body around?"  If the swimsuit hypo is 
rational/defensible, business owners of faith should be able to argue "with a 
straight face" that their faith moves them to prevent this similarly 
uncomfortable situation as well.

It would be no answer to the family or the business owner to say, as the 
administration has argued in NC, that the employee who was born male is 
"actually" a woman now (or always was) when neither the owner or the grieving 
family believe it.

One more hypo. Imagine an owner of a swimming pool open to dues paying members 
has a policy of allowing its male lifeguards to work shirtless but not its 
female lifeguards.  Does a female lifeguard who identifies as a man, but has 
not had any surgery, have a claim under Title VII if she is fired for going to 
work topless one day? If so, does such a claim defeat a RFRA defense if the 
owner, as a matter of faith, does not want to subject customers to seeing 
topless women at his or her business (regardless of how they self identify)?

Roger Severino






On Aug 18, 2016, at 21:00, Volokh, Eugene 
> wrote:

I don’t think the substantial burden argument is quite that weak.  One’s 
employees who speak to customers speak on one’s behalf.  I would think that, if 
for instance, a Quaker who opposed deadly self-defense (not all do, I think, 
but some do) might be substantially burdened by a (hypothetical) employment 
rule that required him to let his customer-facing employees open-carry guns 
while on the job.  One can then ask whether there’d be a compelling government 
interest in enforcing such a rule, but I think the substantial burden claim 
would be strong:  The very people who are speaking on his behalf to customers 
are at the same time conveying a pro-violence message that he doesn’t want his 
business to convey.  Likewise here, though again it may be that the business 
should lose under strict scrutiny.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 18, 2016 3:18 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Successful RFRA defense in EEOC case against funeral home that 
fired a male-to-female transgender employee for insisting on wearing a skirt 
suit to work

Exactly, Eugene.  The employer already has available to it the "alternative" 
the judge creatively surmised.  The employer himself didn't propose it, no 
doubt because he would object to Stephens not wearing a tie (not to mention 
other indicia of the fact that she's a woman, e.g., make-up), and to requiring 
all other employee to wear the court's proposed unisex uniform.

The employer's own proposed "less restrictive alternatives," on the other hand, 
are the reductio ad absurdum examples that flow from Alito's misbegotten 
reasoning in Hobby Lobby:

Moreover, the government could employ other alternatives to ensure that 
Stephens retains employment or the benefits of 

Re: thoughts on constitutionality of single-sex hours for public pool?

[Levinson, Sanford V]

Is it fair to say that Eugene is presenting a minimum rationality account of 
the state interest here. No doubt he is correct that there are marginal 
benefits to feeling confident in water--which I lament that I never have--but 
that is true also, say, with regard to the benefits of eating broccoli.

I'm all for accommodations that impose no serious costs on non-believers. This 
doesn't strike me as such a case. I suppose the most serious problem for me 
involves all the other constraints on open access. If the kids or lap swimmers 
are treated as special, then why not the religious?  A good exam question!

Sandy

Sent from my iPhone

On Jun 3, 2016, at 4:08 AM, Volokh, Eugene 
> wrote:

   Government interests in people going to the pool are at least of 
some importance.  Pool time helps people learn to swim, which can prevent 
drownings; further pool time helps them improve their swimming, which can 
further help prevent drownings (and help people become strong enough swimmers 
that they can rescue others).  Swimming is good exercise, which can improve 
people’s health.  And there is a significant government interest in having 
people of all religions being able to take advantage of the services that are 
paid for with their tax dollars.

   The key question, I think, is what kind of justification is 
required here.  Are single-sex places aimed at protecting privacy and modesty, 
such as single-sex changing rooms, constitutional only because they pass the 
usual very demanding Equal Protection Clause scrutiny for sex classifications?  
Or is it that there is a lesser standard of scrutiny for single-sex programs 
aimed at protecting privacy and modesty, much as the Court has said that there 
is a lesser standard for sex classifications that reflect real biological 
differences (such as the difference in the difficulty of proving paternity 
versus maternity)?  And if there is such a lesser standard, would it extend to 
programs aimed at protecting privacy and modesty as understood by a minority 
cultural group, even when that departs from the national majority’s 
understanding of privacy and modesty?

   Eugene



From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, June 02, 2016 6:48 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: thoughts on constitutionality of single-sex hours for public pool?

I strongly suspect Alan's Adventist basketball team example involves 
discrimination, because no games were scheduled on Sunday. The discrimination 
is the burden from which relief is deserved.
Religious diversity in higher education might well be a compelling interest, so 
CUNY might want to accommodate religious minorities re: privacy or modesty 
concerns, though there would remain questions of harm to third parties. 
Religious diversity in public swimming pools does not seem to present an 
interest of any importance whatsoever.

On Thursday, June 2, 2016, Alan E Brownstein 
> wrote:
I think it is both reasonable and valid to accommodate religious groups whose 
members would be unable to enjoy benefits that the majority enjoys  because of 
conflicts with a minority faiths beliefs.
No one has to attend the prom or go on discretionary field trips or play in 
intra mural sports. But these are valued opportunities.I fully appreciate that 
the cost of accommodations may be too high -- as it often will be if it 
requires discrimination against third parties. But that is very different than 
arguing there is no valid interest in providing accommodations in these cases.
Years ago I helped out in a case involving an Adventist high school that was 
barred from playing in a state basketball tournament because they asked for an 
accommodation so they would not have play on the Sabbath.
If their games could be scheduled to avoid playing on the Sabbath at minimal 
cost to others, why shouldn't their religious beliefs be accommodated? The fact 
that there is no requirement to play in state basketball tournaments seems to 
me to be an unpersuasive basis for denying an accommodation in this kind of a 
case.
Alan

Sent from my iPhone

On Jun 2, 2016, at 7:49 PM, "Ira Lupu" 
> wrote:
Paul is raising, among other questions, an entirely appropriate baseline 
question -- how do sexually integrated public pools burden anyone's religious 
freedom? No one is coerced to use them. The pools are a constitutionally 
gratuitous benefit, offered on conventional conditions of no sex 
discrimination. If there is no burden on religious freedom, then there is no 
justification for an accommodation.

On Thursday, June 2, 2016, Volokh, Eugene 

Re: Excluding religious institutions from public safety benefits

[Levinson, Sanford V]

For what it's worth, I want to endorse the comments of Mark Graber and Marty re 
the dispositive importance of the fact that we're living in a welfare state 
that was probably literally unimaginable to Madison and his friends. 
Rehnquist's dissent in Thomas makes this point.

Also for what it's worth, when I began updating Robert McCloskey's The American 
Supreme Court in 1994--the latest edition has, incidentally, just gone to press 
in time for fall adoptions?--I suggested that the most important new role of 
the Court was monitoring the greatly enhanced welfare state that took off in 
the 1960s.

Sandy
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RE: Excluding religious institutions from public safety benefits

[Levinson, Sanford V]

As is obvious, all "neutrality" principles depend on agreement on the baseline. 
 When I was teaching courses on the Constitution and the welfare state, I often 
began with the UAW food stamp case, in which the majority solemnly asserted 
that Congress was simply trying to "level the playing field" in depriving 
strikers (and their families) of food stamps, while Justice Marshall was 
accurately describing it as part of the vehemently anti-union program of the 
newly empowered Republican Party.  This is, of course, the identical debate 
surrounding Friedrich.  I think Lewis Powell must be smiling from the grave at 
the extent to which the Supreme Court has become rabidly anti-union; others, of 
course, will present a quite different analysis, no doubt adopting "neutralist" 
language.

It's not that I'm opposed to neutrality arguments; it is, rather, that I rarely 
think they will really persuade anyone who begins with a different baseline.  
Consider, e.g., whether the United States and the states systematically favor 
Christianity by adopting Sunday as the ostensible day of rest.  Surely the 
answer is yes.  One of the additions to the new edition of our casebook is 
consideration of the fascinating debate during the Jacksonian era about mail 
delivery on Sunday, and the proclamation by the Baptist senator who headed the 
relevant committee that separation of church and state required that the US be 
indifferent to the Christian Sabbath (and thus deliver mail).  It was not until 
1912 that Sunday delivery was finally stopped.  Should that have been ruled 
unconstitutional then, or now, as a violation of the "neutrality" principle?

What all laws do is put pressure on people to conform with the law, especially 
when benefits or burdens are attached.  High taxes, as Ben Carson points out, 
makes it harder for religious individuals to tithe, as a practical matter.  So 
what?

sandy



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Re: The Establishment Clause question in the Trinity Lutheran case

[Levinson, Sanford V]

Shouldn't we admit that "play in the joints" is simply a euphemism for judicial 
balancing between the competing notions of no establishment, on the one hand, 
and free exercise+equality on the other. Neither makes sense as maximalist 
theory. The former would prohibit police protection, the latter would require 
the state to build churches if it auditoria for the people to use as gathering 
places to discuss important issues. So we rely on Rehnquist's and his 
successors' hunches as to where one should draw the line. We delude ourselves 
in believing that legal doctrine can work itself pure in this--or, for that 
matter, any other significant--area. "The life of the law is experience, not 
logic."

The problem is that it is awkward for well-paid law professors to teach their 
students that law often comes down to the idiosyncratic views of the median 
justices and that it is basically foolish to believe there are true doctrinal 
rationales that can predict future decisions.

Sandy

Sent from my iPhone

On Jan 17, 2016, at 7:45 AM, Steven Jamar 
> wrote:

It seems to me that the play-in-the-joints theory and providing accommodations 
between exercise and establishment shoiuld win out in this instance thereby 
upholding the Missouri Constitutional ban on direct and indirect financial 
support for religious organizations.

A ruling that pushes the neutrality principle this far as to prohibit states 
from making these sorts of choices and judgments seems likely to further make a 
hash of the problem rather than simplifying or clarifying things.  A rule that 
allows for such subsidy of religion by the state while allowing states not to 
so subsidize religions in these ways seems to be what the voucher cases seem to 
indicate as the direction the law is going.

But as for me, all bets are off on this one as to result and as to theories 
selected from the grab-bag the court has created over the decades.

Steve

--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

"The two most important days in your life are the day you are born and the day 
you find out why."
Mark Twain




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Re: Funds for madrasas

[Levinson, Sanford V]

I of course agree with Eugene and his examples. The real question I was asking 
was whether a lawyer should emphasize the implications of broadening state 
subsidies to religious institutions re funding Moslem schools and whether the 
judges, at least privately, will think of these implications in the present 
state of American politics.

Sandy

Sent from my iPhone

On Jan 15, 2016, at 6:46 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:

   It seems to me that taxpayers routinely subsidize speech the 
majority disapproves of:

   1.  Saudi-funded madrasas, like other religious schools - and 
other nonprofits - get a subsidy through tax exemptions.  The same goes, of 
course, for educational nonprofits that distribute secular ideas that many 
people find repulsive.  If the government sought to exclude pernicious 
doctrines from these benefits, I take it that this would violate the First 
Amendment, yes?

   2.  Saudi-funded pernicious Wahabi materials get the same post 
office subsidies (media mail, the old second-class mailing rate) that any other 
media materials do.

   3.  Pernicious Wahabi speech can't be excluded from benefit 
programs such as the one in Rosenberger - and I take it that even the 
dissenters would have agreed that an exclusion of funding for pernicious 
viewpoints (as opposed to all religious viewpoints) would have violated the 
First Amendment.

   If a Wahabi school is getting pretty massive tax benefits 
(property tax exemptions, income tax deductibility of contributions), why 
should we balk at the Wahabi school getting funding to keep its - however 
perniciously taught - children from injuring themselves on gravel playgrounds?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, January 15, 2016 4:31 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Cert Granted in Blaine Amendment case

Why does the particular subsidy matter?  It obviously frees up funds that can 
be used for sectarian purposes.

Sandy ...

Sent from my iPhone


To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion "a" above, to point out that any such doctrine 
would require "sovereign states" to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I'm just asking, though, as 
with Trump, I'm confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy ...
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RE: Cert Granted in Blaine Amendment case

[Levinson, Sanford V]

To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion “a” above, to point out that any such doctrine 
would require “sovereign states” to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I’m just asking, though, as 
with Trump, I’m confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 4:15 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Cert Granted in Blaine Amendment case

On first glance, this has the potential to be a huge case.  Not only will it 
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke 
even survives the departure of Rehnquist and O'Connor) on the Free Exercise 
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v. 
Helms -- implicating whether and under what circumstances a state can offer 
selective, discretionary "direct funding" to a religious institution . . . 
indeed, to a church itself!

Under O'Connor's controlling opinion in Mitchell, recall, there remain "special 
dangers associated with direct money grants to religious institutions," and the 
Court's "concern with direct monetary aid is based on more than just diversion. 
In fact, the most important reason for according special treatment to direct 
money grants is that this form of aid falls precariously close to the original 
object of the Establishment Clause's prohibition."

It'd be quite something if the Court moved from the current view that such 
funding is constitutionally prohibited (e.g., Tilton, Nyquist, the SOC opinion 
in Mitchell) to the view that it's constitutionally required (i.e., that the 
state can't discriminate against the church as recipient of the direct aid); 
but in light of the composition of the current Court, that's a very real 
possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would mean no 
funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though that's 
been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. 
> wrote:
SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman

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Re: Cert Granted in Blaine Amendment case

[Levinson, Sanford V]

Why does the particular subsidy matter?  It obviously frees up funds that can 
be used for sectarian purposes.

Sandy

Sent from my iPhone

On Jan 15, 2016, at 5:22 PM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:

Just to be clear:  The grants are not to pay teachers "teach," or to operate 
the school, as such, but instead to purchase used tires to be melted down into 
playground surfaces.  The application here was for use at a playground at the 
church, to be used by children in the church daycare and preschool.  The State 
received 44 applications and had funding to pay for 14 of them.

On Fri, Jan 15, 2016 at 6:11 PM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:
To what extent is it either required or ethically questionable to point out, if 
one is objecting to conclusion “a” above, to point out that any such doctrine 
would require “sovereign states” to pony money up to Moslem schools, including, 
say, madrasas funded by Saudi Arabia in order to teach various pernicious 
Wahabi doctrines?  As Donald Trump might put it, I’m just asking, though, as 
with Trump, I’m confident that a lot of Evangelical Christians who will not be 
happy with an argument that their tax dollars have to go to fund Islamic 
schools.

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Marty Lederman
Sent: Friday, January 15, 2016 4:15 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Cert Granted in Blaine Amendment case

On first glance, this has the potential to be a huge case.  Not only will it 
almost certainly test the limits of Locke v. Davey (and, perhaps, whether Locke 
even survives the departure of Rehnquist and O'Connor) on the Free Exercise 
side, but it also is the first SCOTUS case in 16 years -- since Mitchell v. 
Helms -- implicating whether and under what circumstances a state can offer 
selective, discretionary "direct funding" to a religious institution . . . 
indeed, to a church itself!

Under O'Connor's controlling opinion in Mitchell, recall, there remain "special 
dangers associated with direct money grants to religious institutions," and the 
Court's "concern with direct monetary aid is based on more than just diversion. 
In fact, the most important reason for according special treatment to direct 
money grants is that this form of aid falls precariously close to the original 
object of the Establishment Clause's prohibition."

It'd be quite something if the Court moved from the current view that such 
funding is constitutionally prohibited (e.g., Tilton, Nyquist, the SOC opinion 
in Mitchell) to the view that it's constitutionally required (i.e., that the 
state can't discriminate against the church as recipient of the direct aid); 
but in light of the composition of the current Court, that's a very real 
possibility.

In theory, at least, all three dispositions are in play:

i.  Missouri must fund the church
ii.  Missouri can't fund the church
iii. Missouri has discretion to go either way (which in this case would mean no 
funding, per the Missouri Constitution)

If I had to guess, I'd say (ii) is the least likely outcome, even though that's 
been the governing law for many decades.

On Fri, Jan 15, 2016 at 4:21 PM, Friedman, Howard M. 
<howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>> wrote:
SCOTUS today granted cert in Trinity Lutheran Church v. Pauley.  Details at 
http://religionclause.blogspot.com/2016/01/supreme-court-grants-review-in-missouri.html

Howard Friedman

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Religionl

RE: Muslim-focused "reflection room" in airport

[Levinson, Sanford V]

Is it at all relevant that we're talking about $250,000 instead of, say, 
$25,000 for a more modest chapel.  And it sounds as this is an attempt to curry 
favor not only with Moslem passengers (perfectly appropriate), but also 
specifically with the Emirate Airline, which one presumes is Islamic in 
ownership.  Could an airport eager to get El Al's business promise a lavish 
chapel for Jewish passengers (perhaps with suitably segregated seating for the 
Orthodox), as against a specifically "Jewish chapel" to go along with 
"Protestant" and "Catholic" and other denominational chapels that might be 
provided?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Justin Butterfield
Sent: Wednesday, October 28, 2015 12:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Muslim-focused "reflection room" in airport

I agree that there's a possible accommodation approach that would allow the 
reflection room as well.

Setting aside accommodation, the Sixth Circuit rests pretty strongly on 
neutrality as the guiding principle in holding that government funds may be 
used to refurbish churches, which seems more like your hypothetical . Am. 
Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 567 F.3d 278 (6th Cir. 
2009). In that opinion, the Sixth Circuit said, "Since Tilton, the Court 
repeatedly has held that the Establishment Clause does not require the 
government to exclude religious groups from participating in open-access 
programs that make state-owned buildings available to all comers, even if such 
groups use the property for 'religious worship and religious discussion.' 
Widmar, 454 U.S. At 265, 270-75; see Good News Club, 533 U.S. At 113-14, 119; 
Lamb's Chapel, 508 U.S. At 394-95; see also Rosenberger, 515 U.S. at 839-46. 
What mattered in those cases was not that religious activity took place in 
facilities that the State had built and paid to maintain, but that the 
government provided access to those facilities on equal terms to all, ensuring 
that whatever use the groups made of them could not be chalked up to the 
State." Am. Atheists, 567 F.3d at 299.

Justin

---
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From: Ira Lupu >
Reply-To: Law & Religion issues for Law Academics 
>
Date: Wednesday, October 28, 2015 12:20 PM
To: Law & Religion issues for Law Academics 
>
Subject: Re: Muslim-focused "reflection room" in airport

Is this any different than creating chapels or worship/reflection spaces on a 
state university campus, in a county hospital, or on a military base?  What 
holds these examples (including the airport) together is the desire to 
accommodate the worship needs of patrons/participants who have no ready 
alternative available (they are far from home, perhaps trapped physically for a 
long time, and perhaps under unusual stress).  So government may make these 
spaces available, but may not encourage or promote their use.  Eugene's airport 
example may just reflect the likely "gerrymandering" of traditional chapel 
space in the design associated with Christian worship.

We would think very differently about all this if the government set up a 
program for helping nonprofits more generally (like schools or social service 
providers) construct new space, and permitted the construction of worship 
spaces within such a program. That would go to the core of the Establishment 
Clause prohibition on government financial support for salary of clergy or the 
building of churches. What Nyquist and Tilton said about that seems to me quite 
good law still, and it has nothing to do with denominational neutrality.

On Wed, Oct 28, 2015 at 11:18 AM, Volokh, Eugene 
> wrote:
   A blog reader asked me about this, and I thought I'd pose the 
question to the list.  Orlando Airport is apparently spending $250,000 to build 
a "reflection 

Good faith

[Levinson, Sanford V]

Roberta Kwall makes an excellent point. Who among us can really be confident of 
what drives people?  Whether Kim Davis is or is not in good faith should be 
irrelevant. Her demand for accommodation is excessive with regard to the social 
costs inflicted on innocent third parties. If the costs were truly minor, we 
could take the risks associated with bad faith or strategic misrepresentation. 
(We can be quite confident that few will really emulate Davis, unlike, say, the 
"conscientious tax resister."  The sincere resister loses only because we fear 
the actions of the insincere. That fear is not really present here, save, 
perhaps, for a legitimate fear that public officials would receive great 
pressure, especially if elected, to conform to local prejudices--see, eg, the 
politics of the death penalty in Texas, where everyone is elected). 

Sandy

Sent from my iPhone
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Re: Davis doubles down

[Levinson, Sanford V]

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
> wrote:

Yes,  the policy, though unstated, dates back at least to the early 1970’s.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department’s lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst’s name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Doug Laycock
Sent: Wednesday, September 09, 2015 10:05 AM
To: 'Law & Religion issues for Law Academics' 
>
Cc: 'Michael Dorf' >; 'Dellinger, 
Walter' >; 'Howard Wasserman' 
>
Subject: RE: Davis doubles down

I don’t know that the Attorney General analogy is particularly helpful one way 
or the other. But for what it’s worth, it very occasionally happens that high 
ranking lawyers in the Justice Department refuse to sign a brief because of 
principled disagreement with the position asserted. These are generally, 
probably always, legal objections, not religious objections. The others file 
the brief.

Not only has the absence of the dissenter’s name been thought to sufficiently 
disassociate him, but if it’s a name that would normally be in the brief, it’s 
absence makes a powerful statement to a Court accustomed to seeing that name on 
every government brief.

Similarly, the absence of Kim Davis’s name in a place where it would normally 
appear makes a powerful statement of her refusal to participate to anyone 
familiar with the forms. On the other hand, it may go entirely unnoticed by a 
couple unfamiliar with the forms.


Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] 

Re: Davis doubles down

[Levinson, Sanford V]

I think Greg is too pessimistic. What is really at issue is what 
"accommodation" requires. Even in these parlous times, I suspect that most 
people, elite and non-elite, would agree that a Jewish postal worker should be 
allowed not to work on Yom Kippur and that a non-Jewish worker should agree to 
fill in, in part because the Jewish worker will gladly reciprocate on, say, 
Good Friday. Similarly, I'd be truly shocked if anyone on this list disapproves 
of the defacto DOJ policy.

But "accommodation," for me, does not extend to a postal worker's unwillingness 
to deliver mail to a Planned Parenthood office or to the Sons of the 
Confederacy. And so on...

Sandy



Sent from my iPhone

On Sep 9, 2015, at 5:17 PM, Sisk, Gregory C. 
<gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote:

I wonder how long the DOJ policy will survive, though, in an era in which 
accommodating the values of others with which one strongly disagrees appears to 
be no longer in favor, especially among the elites, and accusations of malice 
or bad faith or bigotry are so quick to be made in so many circles.  The 
present scorched earth approach to political and legal policymaking, from both 
sides of the political spectrum when they take power, is depressing.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Wednesday, September 09, 2015 12:52 PM
To: Law & Religion issues for Law Academics 
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Davis doubles down

Fortunately, this very sensible policy is the result of political prudence and 
not adversarial litigation.

Sandy

Sent from my iPhone

On Sep 9, 2015, at 1:49 PM, Brian Landsberg 
<blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote:
Yes,  the policy, though unstated, dates back at least to the early 1970’s.  I 
was excused from processing Vietnam war protestors, at a time when most of the 
Department’s lawyers were needed because of the large number detained at RFK 
Stadium. In addition to various briefs that I was excused from signing, I 
recall that even Solicitor General Griswold refused to sign a Supreme Court 
paper in a busing case; only Attorney General Kleindienst’s name appeared, a 
strong signal that the Court should pay little attention to the filing.  [Of 
course, Griswold was fired as part of a general house-cleaning after Pres. 
Nixon was re-elected].

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, September 09, 2015 10:31 AM
To: 'Law & Religion issues for Law Academics'
Cc: 'Michael Dorf'; 'Dellinger, Walter'; 'Howard Wasserman'
Subject: RE: Davis doubles down

The Department of Justice long had (and I hope still has) a policy of 
accommodating the religious and civil consciences of its lower-level lawyers as 
well when possible in terms of assignments.  During my time at DOJ  many years 
ago, a lawyer who objected to the “don’t-ask-don’t-tell” policy of the military 
was respected in asking not to be assigned those cases.  I exercised the option 
to request reassignment once in an appeal where the government was insisting 
that a Jewish seminary reinstate an individual who had taken leave for military 
service, which I thought (on religious and moral, beyond legal grounds) was an 
improper intrusion of the state into the operation of a theological institution.

Then-Chief Judge Patricia Wald of the D.C. Circuit spoke approvingly of this 
accommodation:
With changes in administrations, many government counsel understand that, at 
least in DOJ, lawyers are not required, at the peril of ending their careers, 
to represent government policy that collides with their most fundamental 
beliefs. . . . This kind of leeway is wise policy for an agency; given that the 
government is a vast enterprise required to take on a multitude of subjects, 
the possibilities of both conflict and substitution are greater. It is also 
wise for government counsel to take their employer up on the offer: Their 
discomfort is often discernible to the court, and no government counsel should 
be asked to ignore deeply felt convictions (so long as he does not have too 
many).
Patricia M. Wald, “For the United States”: Government Lawyers in Court, 61 Law 
& Contemp. Probs. 107, 121 (Winter 1998).



Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thoma

RE: Davis doubles down

[Levinson, Sanford V]

I realize I really am a babe in the woods in this area, and I am learning a lot 
from the discussion.  But how long should applicants for marriage be expected 
to wait to sort out what seem to me to be increasingly abstruse questions of 
Kentucky state and constitutional law.  After all, as someone who lives in 
Texas, I regularly teach my students that whatever may be the case with the 
national government, Texas by no means has a "unitary executive."  The Governor 
has extremely little "authority" over most other Texas officials, given that 
they are all elected.  After all, just think of the number of Republican 
Attorney Generals who insisted on fighting the Affordable Care Act even in 
states with Democratic Governors or, possibly, vice versa, where Democratic 
Attorney Generals resisted pleas by Republican Governors.  Having lived in 
Texas, I cannot tell you with confidence exactly who has authority in what 
circumstances, except that I'm absolutely confident that a governor coul!
 d not order the Attorney General or anyone under the AG to do anything 
whatsoever.  I suspect the same is true of the elected clerk of court or tax 
collector in Travis County.  So is  Kentucky more like Texas or like, say, New 
Jersey, one of the very, very few states that approaches the "unitary 
executive" model?  My bet is on Texas!

Pullman abstention, insofar as I remember anything about it, requires federal 
courts to take the time to find out what state courts think, which means, by 
definition, that the particular plaintiff has to wait for any  potential 
remedy.  But I assume that most (though not all?) of us believe that those 
seeking marriage licenses are entitled to them now, without more than a very 
few minute of delay while the assistant down the hall is summoned to sell the 
license that the protesting clerk is refusing to.  This is in fact the position 
taken by Texas's Attorney General, who will, I suspect, allow no one to portray 
him/herself as more devoted to religion than Paxton.  That being said, he wrote 
a remarkably nuanced letter supporting both conscientious objection and 
emphasizing that Texas would in fact provide the license to anyone asking for 
it quite quickly.  There was no nonsense about having to drive to the next 
county, etc.  The local debate focused, for example, on whether th!
 e compliant clerk was on a lunch break.  Would the applicants have to wait the 
hour until he/she returned, or did there always have to be someone within, say, 
five minutes to sell the license?  Or does even a five minute delay constitute 
a sufficient breach of a constitutionally-supported dignitary interest to be 
insupportable?  (My own view, for what it's worth, is that there should be no 
litigation about five or perhaps even ten minutes, whatever one's answer to the 
question about dignitary harm, which I think is present, but that's another 
matter.)

sandy



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin
Sent: Tuesday, September 08, 2015 9:21 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; Howard Wasserman
Subject: RE: Davis doubles down

Based on a quick review of the filings, I don't see how Davis's position has 
shifted. 

Davis's opposition to the preliminary injunction motion from July 30 says: 
"Even though one of her deputy clerks (and perhaps two) is (or are) willing to 
issue a SSM license, she instructed all deputy clerks to stop issuing marriage 
licenses because licenses are issued with her authority (not the deputy 
clerk's) and every license requires her name to appear on the license (even if 
signed by a deputy clerk)." 

The idea that licenses issued from the Rowan County Clerk's Office are issued 
under the authority of the Rowan County Clerk makes sense. And it also makes 
sense that if Davis does not wish her authority to be used to authorize 
marriages, then she would not wish her office to issue authorizations to marry. 
It would have been odd, for example, if Kentucky's Attorney General had said 
that he would not be defending Kentucky's marriage law, but that his office 
would continue to do so through his deputy. It made sense that the state hired 
private counsel instead.

It is not "no big deal" to let a marriage licensing official take his or her 
office out of the business of doing something the official's religious 
conscience forbids. But neither is doing so "terribly burdensome" if the 
government could easily substitute another official to carry out the state's 
duty so that nobody's right to marry is burdened.  

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of James Oleske [jole...@lclark.edu]
Sent: Tuesday, September 08, 2015 7:28 PM
To: Law & Religion issues for Law Academics
Cc: Michael Dorf; Dellinger, Walter; conlawp...@lists.ucla.edu; Howard 

Re: What's happening in KY? -- my differences with Eugene

[Levinson, Sanford V]

With regard to Roberta Kwall's interesting post:  what if the case being taught 
were Bob Jones?  Would she (or the rest of us) teach that their animus against 
interracial dating wasn't "bigotry" but instead the result of a serious 
theological position. Ditto on a Christian a Identity group that refused to 
interact with Jews. And so on. I don't mean to suggest that all 
"discriminations" are equal, so to speak. I am genuinely curious as to how we 
decide which views we respect and which we reject  re the way we present them 
in a classroom. (I have no problem, for example, defending Dred Scott as a 
plausible interpretation of a Garrisonian Constitution, but I don't go on to 
defend the plausibility of racialized chattel slavery as a way of organizing a 
labor system.)

Sandy

Sent from my iPhone

On Sep 7, 2015, at 8:34 AM, Kwall, Roberta 
<rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant Jews who might disagree with that).  In fact, many observant (even 
Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to 
secular vs. Jewish marriage (although again, there is a range on this point as 
well).  On a related point, Michael Helfand just published a very interesting 
piece in Mosaic Magazine which discusses RFRA and some of the issues related to 
these posts.



Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249



From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] 
on behalf of Levinson, Sanford V 
[slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>]
Sent: Sunday, September 06, 2015 3:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

I think Steve gets it exactly right.



Sent from my iPhone

On Sep 6, 2015, at 12:42 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

I don’t know that anyone can really know the extent of their biases influencing 
their thinking.  Deep things like being a trained historian vs. an engineer can 
infect how we view the law.  Life experiences — poor or rich, elite or 
marginal, black, white or other, etc. surely impact how we view things.

But on this one, I am in favor of reasonable accommodations that favor 
religious exercise.  I’m even in favor of finding an accommod

Re: What's happening in KY? -- my differences with Eugene

[Levinson, Sanford V]

A hypothetical:  an Orthodox Jew is elected to a public office that often 
requires meeting people. He puts up a sign explaining that he will gladly shake 
the hand of makes, but will not do the same for women. I assume that most of us 
would be "accommodating."  Now imagine a member of Christian Identity who will 
refuse to shake the hand of any Jew, or a believer in the curse of Ham who 
similarly announces that he is theologically precluded from offering similar 
courtesies to anyone thought to be black.

Indeed, as I think about this, perhaps we should simply imagine a receptionist 
at a public agency, one of whose duties is to introduce him/herself to 
visitors, shaking hands, and then accompanying them to the public official's 
office.

Do we rank order the offensiveness if the discriminations, or instead rank 
order the degree to which we respect the overall theological system, or ...?

Sandy

Sent from my iPhone

On Sep 7, 2015, at 9:03 AM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

With regard to Roberta Kwall's interesting post:  what if the case being taught 
were Bob Jones?  Would she (or the rest of us) teach that their animus against 
interracial dating wasn't "bigotry" but instead the result of a serious 
theological position. Ditto on a Christian a Identity group that refused to 
interact with Jews. And so on. I don't mean to suggest that all 
"discriminations" are equal, so to speak. I am genuinely curious as to how we 
decide which views we respect and which we reject  re the way we present them 
in a classroom. (I have no problem, for example, defending Dred Scott as a 
plausible interpretation of a Garrisonian Constitution, but I don't go on to 
defend the plausibility of racialized chattel slavery as a way of organizing a 
labor system.)

Sandy

Sent from my iPhone

On Sep 7, 2015, at 8:34 AM, Kwall, Roberta 
<rkw...@depaul.edu<mailto:rkw...@depaul.edu>> wrote:

I don't know how many folks on this list have actually taught Obergefell yet 
given that it is so early in the semester but having done so just last week, I 
wanted to share my experience doing so.

I was a bit surprised that one student strongly articulated the view that Davis 
is operating out of bigotry. This required me to think--very quickly--of how to 
respond.  Instinctively, I redirected the conversation by 1) pushing back on 
the bigotry issue by articulating why she would feel as she does from a 
theological standpoint, assuming good faith and 2) refocusing the attention on 
the legal aspects of the case (by emphasizing many of the points folks on this 
list have made over the past several days). Given that I typically do not teach 
topics that are polarizing in this way, this was a pretty new experience for me 
(even though I am a veteran teacher!).

After class, a student (who happens to be African American) emailed me saying 
she doesn't agree with same-sex marriage and she has learned to refrain from 
articulating her views given the negative reactions she has received in the 
past from others. She said she also felt somewhat uncomfortable.  I invited her 
to come speak with me (which she will do tomorrow). My point here is that apart 
from the constitutional nuances of all of these fascinating discussions, as 
teachers we have the real world challenge of dealing with student bias (one way 
or the other) in the classroom.  I am curious how others have handled such 
situations.

One last point about bias--The Myth of the Cultural Jew which Sandy mentioned 
yesterday is essentially all about how bias of one sort of another works its 
way into the law (specifically there, Jewish law).  Throughout this discussion, 
I have been pondering whether a Kim Davis type situation would arise with an 
observant Jew in her situation.  I think it would be very different because 
according to Jewish law there is a principle stating "the law of the land is 
the law."  In other words, if Kim Davis was an observant Jew, I think she would 
have a far less strong free exercise argument (although there may be some 
observant Jews who might disagree with that).  In fact, many observant (even 
Orthodox) Jews draw a distinction concerning same-sex marriage when it comes to 
secular vs. Jewish marriage (although again, there is a range on this point as 
well).  On a related point, Michael Helfand just published a very interesting 
piece in Mosaic Magazine which discusses RFRA and some of the issues related to 
these posts.



Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law & Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249


__

Re: What's happening in KY? -- my differences with Eugene

[Levinson, Sanford V]

I think Steve gets it exactly right.



Sent from my iPhone

On Sep 6, 2015, at 12:42 PM, Steven Jamar 
<stevenja...@gmail.com<mailto:stevenja...@gmail.com>> wrote:

I don’t know that anyone can really know the extent of their biases influencing 
their thinking.  Deep things like being a trained historian vs. an engineer can 
infect how we view the law.  Life experiences — poor or rich, elite or 
marginal, black, white or other, etc. surely impact how we view things.

But on this one, I am in favor of reasonable accommodations that favor 
religious exercise.  I’m even in favor of finding an accommodation for Ms. 
Davis.  But the propriety of finding/making an accommodation does not excuse 
her flouting of clear constitutional requirements.  If she plays MLK Jr or 
Gandhi and says “I will not follow your unjust law but I recognize your right 
to jail me for failing to follow it” — well that would be one thing.  But she 
is not.  She is claiming to above the law, not merely that she is acting 
according to the dictates of her conscience or her religion — but that this 
higher law excuses her refusal to do her job.  It does not.

She is taking a stand and witnesses for her beliefs by becoming a martyr for 
her cause.  But she is not a private citizen in a private job.  She is an 
elected official elected to do a ministerial job.  She is not rendering unto 
Ceasar that which is his.  She is denying the validity of Ceasar’s power.  She 
is not walking the extra mile, shouldering the Centurian’s burden; she is 
dropping the load on the road and demanding to be applauded for it.  She is 
placing her personal religious beliefs above the requirements of We the People 
acting through our Supreme Court and federal government.

Disliking that is not a matter of political stance on same sex marriage or the 
morality of homosexuals.

One can claim as the dissenters in Obergefell did and still do with respect to 
abortion rights that the court got it wrong.  But even so that does not give 
one the right to play President Jackson and send thousands to their death along 
the trail of tears.  The magnitude is different; the principle is the same.

Steve Jamar


On Sep 6, 2015, at 10:57 AM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:

I do find myself wondering how much the reaction to Ms. Davis is simply a proxy 
for our politics. Consider, eg, the efforts by some of the conservative pols 
who support Ms. Davis (like Ted Cruz) to go after "sanctuary cities). I suspect 
that many of us support such sanctuaries against our Draconian immigration 
policies, and one might recall that the leader of an earlier sanctuary movement 
was Los Angeles' Cardinal McIntyre. As someone who has long criticized 
extravagant theories of judicial supremacy and still (weakly) supports RFRA, I 
do find it challenging to figure out exactly why I'm so hostile to Ms. Davis. 
Part of it, of course, is my own support for same-sex marriage and Obergefell. 
But another, I'm afraid is my animus against the absurdity of her claim. I know 
I shouldn't take that into account, but I can't help it. Catholic arguments are 
deeply reason-oriented, and I can disagree with them, as I do on same-sex 
marriage, on the basis of what I'd like to think are equally reasoned 
arguments. Ms.
Davis takes us out of the realm of reason into sheer subjective "sincerity."  
Tertullian is famous for defending Christian belief precisely because it was 
"absurd."  As Eugene reminded us, one can easily say the same thing about the 
purported revelation at Sinai.

I apologize if this is too rambling. Some of you might be interested in a 
recent symposium on Balkinization on Roberta Kwall's The Myth of the Cultural 
Jew.

Sandy

Sent from my iPhone

On Sep 6, 2015, at 12:11 AM, Scarberry, Mark 
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:

Section 402.100 appears to require that the license include “[a]n authorization 
statement of the county clerk issuing the license.” The section allows the 
license to be signed by the clerk or deputy clerk (which shows that the 
legislature knew how to include the deputies where it wanted to include them) 
but the authorization statement authorizing the appropriate celebrants to 
perform the marriage and unite the couple in marriage  must be a statement of 
the county clerk. The county clerk must authorize the uniting of the couple in 
marriage. Here is the relevant language:

“Each county clerk shall use the form prescribed by the Department for 
Libraries and Archives when issuing a marriage license. This form shall provide 
for the entering of all of the information required in this section, and may 
also provide for the entering of additional information prescribed by the 
Department for Libraries and Archives. The form shall consist of:

(1) A marriage license which provides for the entering of:

Re: What's happening in KY?

[Levinson, Sanford V]

Marty's Balkanization post is, as usual, remarkably illuminating on the legal 
issues under Kentucky law. As I read it, I found myself thinking of the statues 
on public property cases, where the claim, as in the Texas Ten Commandments 
case is that the observer will attribute to the state the speech of the private 
parties who put it up. (There's also the Texas license plate case, of course.). 
Davis' argument is that here name (which is different from her physical 
signature) constitutes her personal endorsement of same-sex marriage. But all 
reasonable observers who find O'Connor's arguments remotely plausible know that 
is a mistake. To have her name on the license is simply and exclusively stating 
a fact:  she is the clerk. It's like having a sign saying Rowan County 
Courthouse and Grounds and then seeing an Eagles Ten Commandments statue.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:52 AM, Marty Lederman 
> wrote:

FWIW, my effort to make sense (?) of the mess; please let me know if I've 
gotten anything wrong (or if anyone has a transcript of the contempt hearing on 
Thursday, which might help explain things).  Thanks

http://balkin.blogspot.com/2015/09/does-anyone-have-any-idea-whats.html

On Thu, Sep 3, 2015 at 5:49 PM, Marty Lederman 
> wrote:
The reports I've seen (e.g., 
http://www.nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html) do not 
make clear exactly what's happening, other than that Davis is incarcerated.

1.  Is the County Executive Judge now issuing certificates and licenses (which 
might ironically eliminate the grounds for Davis's contempt incarceration . . . 
until she refuses to allow the documents to be issued to the next couple that 
appears)?

2.  What was the deal the judge offered her, regarding her deputies issuing the 
documents?  Did she refuse it because her name would continue to appear on the 
two lines?  Or did the judge say that she could omit her name and she still 
refused?

Thanks in advance for any info, or, better yet, links to actual documents.

On Thu, Sep 3, 2015 at 2:14 PM, Cohen,David 
> wrote:
Hi all - a mootness question for you.  In the case of the KY clerk who was 
jailed today for refusing to comply with a district court order that required 
her to issue a marriage license to a gay couple (and stay denied from the 6th 
Circuit or Supremes), according to some news reports, now that she is in jail 
and not able to serve, state law allows a county’s executive judge to now issue 
licenses.  So, presumably that will happen relatively quickly, and the 
plaintiffs will get their licenses.

Is the case now moot and the clerk can get out of jail because she’d no longer 
be in contempt of a court order, since the case is vacated as moot?  And the 
issue isn’t capable of repetition at this point for the plaintiffs, as they now 
have a license and can’t get another (until divorced, which may never happen).  
It certainly is capable of repetition for other people, but not these 
plaintiffs (and they haven’t filed a class action, to the best of my 
knowledge).  We’ve been around this issue before, and to the best of my 
recollection, most people believe the cases say that the “capable of 
repetition” part has to be for the particular plaintiffs, not for someone else.

In other words, is she in jail for an hour, maybe a day, and then back at it 
shortly to deny someone else a license (when that eventually happens) only to 
repeat the whole thing again?

David

David S. Cohen
Professor of Law

Thomas R. Kline School of Law
Drexel University
3320 Market St.
Philadelphia, PA 19104
Tel: 215.571.4714
drexel.edu | 
facebook | twitter
Available NOW: Living in the Crosshairs: 
The Untold Stories of Anti-Abortion Terrorism (Oxford)


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Re: "Absurd complicity claims"

[Levinson, Sanford V]

es possession nonetheless, based on that connection.

And that’s just the criminal law. If you know or have reason to know that your 
actions are materially helping someone infringe copyright, you are guilty of 
contributory copyright infringement. And in some situations, you can be 
vicariously liable for copyright infringement even if you weren’t negligent — 
for instance, if a band performs a song in a bar that you own and it turns out 
that (despite their assurances to the contrary) they weren’t licensed by the 
owner of the copyright in the song. Beyond copyright law, people can be liable 
for negligently facilitating another’s criminal conduct. Landlords can have 
their property seized if they negligently allowed it to be used for drug 
transactions. And the list could go on.

What about causation?  Well, it turns out that causation is generally not 
required for complicity liability under criminal law – but not just actual 
cause but proximate cause is required for complicity liability under tort law, 
with “proximate cause” being famously complicated, especially when aiding third 
parties’ voluntary actions is involved.  Don’t get me started on the various 
rules related to this under various states’ tort laws.

   That’s just the law.  If you look at moral judgments, even of 
people who are trying to engage in secular moral reasoning, things are much 
more complex.  Some people (e.g., Thoreau) believe that paying taxes that fund 
unjust government policies is complicity; others disagree.  Some people believe 
that a company’s buying products from suppliers who supposedly don’t provide 
employees with proper working conditions are complicit in the suppliers’ 
actions; others disagree.  The list could go on.  I don’t really see how the 
lines religious people draw as to complicity are any more absurd than the lines 
our own legal systems, and many of our secular fellow citizens, have drawn.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Saturday, September 05, 2015 12:25 PM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

If we take all of these absurd (to us) complicity claims seriously, then I 
still want to know why a religious pacifist is required to pay taxes that 
empirically finance killings chimes or anti-capital punishment adherents 
financing what Blackmun called the machinery of death. This really IS the 
"broccoli moment" for religious exercise buffs.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 2:19 PM, Volokh, Eugene 
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
   Marty doesn’t view her issuance of the licenses as 
authorization.  He may well be right that Kentucky law doesn’t view it as 
authorization.  But, as I understand it, Kim Davis claims that God would view 
her issuing such licenses with her name on them as authorization.  If that is 
indeed Kim Davis’s claim, which it seems to be, then I don’t think it matters 
that Kentucky’s view is not Kim Davis’s view of God’s view.

   Now I agree that Davis is not entitled to the cessation of all 
issuance of marriage licenses in her county as an accommodation – that would 
unduly interfere with the state’s interest in providing marriage licenses to 
its citizens (and possibly the citizens’ federal constitutional right in having 
licenses issued by their county of residence, though that’s a somewhat more 
contested question).  But if she continues to seek a 
just-not-with-my-name-on-them accommodation, which she indeed said in her stay 
application would be adequate, then the Kentucky RFRA would entitle her to that 
exemption.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Saturday, September 05, 2015 11:47 AM
To: Law & Religion issues for Law Academics
Subject: Re: What's happening in KY? -- my differences with Eugene

On Points 1 and 2 of Eugene's post, Davis's religious objection is not, as 
Eugene suggests, independent of whether her name serves to provide her 
"authorization" of a same-sex marriage; instead, she claims that it violates 
her religion because it in fact serves as an authorization.  And thus, 
understandably, she cites Kentucky law for that proposition, because it's a 
question not of religious doctrine but of the legal affect of the appearance of 
her name.  Her reading of that law is, I suggest, mistaken if not tendentious.  
And since her religious objection is predicated on a mistake of fact/law that 
civil authorities can assess, rather than on a disputed religious tenet, 
there's no substantial burden on her religious exercise.  (Obviously, this same 
issue is now front and cen

Re: Question about the Kentucky County Clerk controversy

[Levinson, Sanford V]

Would a capacious interpretation of the Kentucky RFRA Law in effect allow state 
officials to nullify federal law?  Scalia is looking more prescient in Smith 
every day!

Sandy

Sent from my iPhone

On Sep 3, 2015, at 7:09 AM, Conkle, Daniel O. 
> wrote:

Thanks, Marty.  My point was simply that there is a Ky. RFRA claim in the 
actual case, which I believe the federal courts properly can consider as a 
matter of pendent jurisdiction.  Therefore there is no need for a separate 
state court action to raise the Ky. RFRA claim (regardless of its merit or lack 
thereof).  Right?

Dan Conkle
From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 9:50 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

The judge did reject the KY RFRA argument, Dan, but only based upon this:

Davis is simply being asked to signify that couples meet the legal requirements 
to marry. The State is not asking her to condone same-sex unions on moral or 
religious grounds, nor is it restricting her from engaging in a variety of 
religious activities.

That doesn't really get at her argument, which is that the form, by its terms, 
"authorizes" the marriage.  The better response would have been simply that she 
doesn't have to do the authorizing (or even to "signify" anything).

On Thu, Sep 3, 2015 at 9:26 AM, Conkle, Daniel O. 
> wrote:
One additional point about the actual litigation: the federal district court in 
fact considered a claim under the Ky. RFRA, rejecting the claim on its merits.  
Is there any reason to believe that he should not have done so?  I’m wonder why 
Eugene has been suggesting there would have to be a separate state court 
lawsuit invoking the Ky. RFRA.

Daniel O. Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu




From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Thursday, September 03, 2015 5:42 AM
To: Law & Religion issues for Law Academics
Subject: Re: Question about the Kentucky County Clerk controversy

I would tend to agree with Eugene here, but for two things.

First, Davis only took office as County Clerk seven months ago, when it was 
quite foreseeable that her office would be required to issue same-sex marriage 
licenses and certificates.  As we discussed in an earlier thread, I doubt the 
prospect of losing this new job would place a substantial burden on her 
religious exercise, assuming she could then go back to her longtime position as 
Deputy Clerk.

But let's put aside that debate, which we ran to ground last time.  Let's 
assume, for instance, that she'd have to resign from the Clerk's office 
altogether if she does not comply with Kentucky law, thereby forfeiting her 
vocation of 30 years.  In that case, I might agree with Eugene about Kentucky's 
RFRA if the facts were as Davis alleges.  That is to say:  If Kentucky law 
otherwise required her, as County Clerk, to (as her brief alleges) "authoriz[e] 
and approv[e] a proposed union to be a 'marriage,' which, in her sincerely-held 
religious beliefs, is not a marriage," then perhaps the Kentucky RFRA should be 
construed to permit her deputy clerk, rather than herself, to sign all marriage 
certificates and licenses in her county (same-sex and opposite-sex alike).  
(One of her deputy clerks does not share her religious objection and has agreed 
to do so.)

Here's the catch, however:  Even apart from RFRA, Kentucky law already allows 
the wiling deputy clerk to sign the certificate and license, in lieu of Davis.  
(The license authorizes the officiant to perform the marriage; the certificate 
records the marriage itself.)  Davis does not have to sign or approve them.

So why is she instructing her deputies not to issue such certificates and 
licenses?  Because, she claims, even if a deputy signs the forms, her name will 
continue to appear in one place on each of them.  And she's right about that:  
Her name will continue to appear.

However, I believe Davis is mistaken when she argues that "every license 
requires her name to appear on the license as the authorizing person."  As you 
can see from the forms themselves -- on page 139 of the pdf -- the authorizing 
person will be the deputy clerk who signs the forms, not Davis.  Her name would 
appear on each form only to identify in which 

Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Levinson, Sanford V]

Not for the first time, I'm grateful to Marty for providing clarification on 
the RFRA point. I should have read the decision more carefully.

Sandy

Sent from my iPhone

On Sep 2, 2015, at 8:06 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:

No, Sandy.  Leon doesn't read RFRA to extend to nonreligion.  The RFRA claims 
he recognizes -- those of two employees of MfL who want coverage without 
contraception -- are based on their religion.  MfL's own claim is upheld on EPC 
grounds.

On Tue, Sep 1, 2015 at 10:45 AM, Levinson, Sanford V 
<slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote:
So, is the argument that RFRA would be unconstitutional if it protected only 
"religious freedom," so that we a) expand it to protect any and all claims of 
"conscience," even if based on admittedly non-religious grounds and b) we must 
assume as well that Congress would prefer this solution to one that would, as 
Justice Stevens had suggested, simply invalidate RFRA?  If I'm wrong in my 
surmise, then I think that Leon's RFRA argument makes no sense, unlike his 
equal protection argument, which requires no Orwellian interpretation of 
"religion."

Although no one agreed with me at the time of Hobby Lobby, I continue to be 
perplexed how anyone who finds Leon persuasive could defend Gillette or, 
indeed, forcing pacifists to help finance the killing machine of government by 
paying taxes.

Sandy

Sent from my iPhone

On Sep 1, 2015, at 7:42 AM, Marty Lederman 
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:

So rules Judge Richard Leon:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30

His rationale is that because HHS extended the exemption to churches because 
their employees are unlikely to use contraception, it does not satisfy rational 
basis review for HHS to deny a comparable exemption to March for Life, a 
secular group whose employees allegedly would not use IUDs, ella and Plan B 
(because MfL refuses to hire employees who are not opposed to use of such 
methods of contraception).

On first glance, I'm dubious.  HHS exempts churches not only because HHS 
assumes that most of their employees share their objections to the use of 
contraception, but also because HHS assumes that requiring payment for such 
coverage would burden the churches' religious exercise (or beliefs) -- 
something that is not present in the case of March for Life.  As the agencies 
wrote when they first established the exemption:  "In the Departments' view, it 
is appropriate that HRSA, in issuing these Guidelines, takes into account the 
effect on the religious beliefs of certain religious employers if coverage of 
contraceptive services were required in the group health plans in which 
employees in certain religious positions participate."  Or as they wrote in 
their brief in this case:  "[T]he religious employer exemption serves the 
'legitimate purpose' of 'limiting governmental interference with the exercise 
of religion' by religious institutions." (quoting Amos).  See also 78 Fed. Reg. 
at 39874 ("exemption respect[s] the religious interests of houses of worship 
and their integrated auxiliaries").

Judge Leon also holds that as to two of MfL's employees who have religious 
objections to participating in insurance plans that cover the four methods in 
question, RFRA grants them an exemption notwithstanding Priests for Life, 
because (and only because) their insurer is willing to offer them a plan that 
does not include those methods.  This holding doesn't have any effect on MfL as 
long as Judge Leon's equal protection judgment stands (because MfL will be 
entirely exempt, anyway).  But what would its effects be if the EPC ruling is 
overturned?  Not much as to the employees themselves, of course, because they 
won't use the contraception in any event.  But it would presumably deny the 
benefit to their dependents who might use those methods, including those aged 
18-26.
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Re: Equal Protection violation for not extending contraception coverage exemption to secular anti-abortion group?

[Levinson, Sanford V]

So, is the argument that RFRA would be unconstitutional if it protected only 
"religious freedom," so that we a) expand it to protect any and all claims of 
"conscience," even if based on admittedly non-religious grounds and b) we must 
assume as well that Congress would prefer this solution to one that would, as 
Justice Stevens had suggested, simply invalidate RFRA?  If I'm wrong in my 
surmise, then I think that Leon's RFRA argument makes no sense, unlike his 
equal protection argument, which requires no Orwellian interpretation of 
"religion."

Although no one agreed with me at the time of Hobby Lobby, I continue to be 
perplexed how anyone who finds Leon persuasive could defend Gillette or, 
indeed, forcing pacifists to help finance the killing machine of government by 
paying taxes.

Sandy

Sent from my iPhone

On Sep 1, 2015, at 7:42 AM, Marty Lederman 
> wrote:

So rules Judge Richard Leon:

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv1149-30

His rationale is that because HHS extended the exemption to churches because 
their employees are unlikely to use contraception, it does not satisfy rational 
basis review for HHS to deny a comparable exemption to March for Life, a 
secular group whose employees allegedly would not use IUDs, ella and Plan B 
(because MfL refuses to hire employees who are not opposed to use of such 
methods of contraception).

On first glance, I'm dubious.  HHS exempts churches not only because HHS 
assumes that most of their employees share their objections to the use of 
contraception, but also because HHS assumes that requiring payment for such 
coverage would burden the churches' religious exercise (or beliefs) -- 
something that is not present in the case of March for Life.  As the agencies 
wrote when they first established the exemption:  "In the Departments' view, it 
is appropriate that HRSA, in issuing these Guidelines, takes into account the 
effect on the religious beliefs of certain religious employers if coverage of 
contraceptive services were required in the group health plans in which 
employees in certain religious positions participate."  Or as they wrote in 
their brief in this case:  "[T]he religious employer exemption serves the 
'legitimate purpose' of 'limiting governmental interference with the exercise 
of religion' by religious institutions." (quoting Amos).  See also 78 Fed. Reg. 
at 39874 ("exemption respect[s] the religious interests of houses of worship 
and their integrated auxiliaries").

Judge Leon also holds that as to two of MfL's employees who have religious 
objections to participating in insurance plans that cover the four methods in 
question, RFRA grants them an exemption notwithstanding Priests for Life, 
because (and only because) their insurer is willing to offer them a plan that 
does not include those methods.  This holding doesn't have any effect on MfL as 
long as Judge Leon's equal protection judgment stands (because MfL will be 
entirely exempt, anyway).  But what would its effects be if the EPC ruling is 
overturned?  Not much as to the employees themselves, of course, because they 
won't use the contraception in any event.  But it would presumably deny the 
benefit to their dependents who might use those methods, including those aged 
18-26.
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Re: Colorado Cakeshop decision

[Levinson, Sanford V]

Obviously, my lament is that O'Connor's opinion did NOT replace Scalia's as the 
majority opinion in Smith.

Sent from my iPhone

On Aug 14, 2015, at 11:03 AM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:

What Eugene’s argument does is simply reinforce my ever-stronger lament that 
Justice O’Connor’s opinion in Smith, which I thought was analytically terrible 
insofar as she simply asserted without further argument that Oregon’s law met 
the strict scrutiny required, had become the majority opinion and thus saved us 
from RFRA, a statute that I supported, but about which I now have severe 
doubts.  Much of this is because, as Eugene eloquently emphasizes, religious 
arguments are not subjected to any kind of “rational analysis” at all, since 
they rest, ultimately, on “This is the way I feel about the world, and who are 
you to tell me otherwise?”

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:27 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   I still don’t quite understand.  “No hoasca” means that the 
ordinary right of citizens to ingest what they please is eliminated – but RFRA 
says otherwise.  “You must serve on a jury” means that the ordinary right of 
citizens to decide where to go and what to do with their time is eliminated – 
but religious exemption regimes say otherwise.  What’s magical about common 
carrier law that somehow immunizes it from religious exemption regimes, while 
other laws are deliberately covered by those regimes?  (I set aside the 
possibility that common carrier law, like drug law and other laws, would often 
be justifiable under strict scrutiny, since I take it that isn’t Sandy’s 
argument.)

   As people on this list know, I’m not a religious exemption 
maximalist.  Once upon a time, I was one of the very few First Amendment people 
who supported Employment Division v. Smith, though I notice that the tide has 
turned on that in recent years.  I support state RFRAs, but precisely because 
they are trumpable by legislatures (which could, if they choose, carve out drug 
laws or common carriers or antidiscrimination law from the state RFRAs); I also 
would have preferred it if RFRAs had used looser standards than strict scrutiny.

   But if we’re talking about the actual religious exemption model 
under RFRAs and the state constitutional religious exemption regimes, I just 
don’t see how assumptions about what “common carrier” “just means” resolve the 
religious exemption analysis.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

I suppose I’m like the naïve first-year student who begins with the assumption 
that “common carrier” just means that the ordinary right of the seller to pick 
and choose among customers is eliminated (at least so long as the purchaser can 
pay the regular price or, in the cases of innkeepers, is behaving properly).  
Would an English innkeeper at common law been able to say to a Catholic “we 
don’t like your kind here” and turned him/her away (perhaps on Christmas Eve)?  
I thought the essence of “common carrier” law (about which I know extremely 
little, obviously) is that it refers to a category of businesses—inns, moving 
companies, telephone companies, etc.—and not to that subset of companies that 
can be described as “monopolists.”  The duties we impose on monopolists rest, 
presumably,  on a different analysis than the duties we impose on Ollie’s 
Barbecue to stop being a bigot.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   Sandy:  Why exactly should we all agree that anyone covered by 
“common carrier” law could not refuse to provide service to an abortion center 
– or a KKK delegation or what have you?  After all, we don’t agree that 
everyone covered by drug laws couldn’t get a religious exemption, or that 
everyone covered by the duty to serve as a juror couldn’t get a religious 
exemption, etc.  The whole point of religious exemption regimes is to give 
religious exemptions even to (some) people covered by generally applicable laws.

   Now if the common carrier is a monopolist, then one could make a 
good argument that denying the exemption is necessary to serve a compelling 
interest in making sure that everyone gets access to this service (e.g., 
electricity

RE: Colorado Cakeshop decision

[Levinson, Sanford V]

What Eugene's argument does is simply reinforce my ever-stronger lament that 
Justice O'Connor's opinion in Smith, which I thought was analytically terrible 
insofar as she simply asserted without further argument that Oregon's law met 
the strict scrutiny required, had become the majority opinion and thus saved us 
from RFRA, a statute that I supported, but about which I now have severe 
doubts.  Much of this is because, as Eugene eloquently emphasizes, religious 
arguments are not subjected to any kind of rational analysis at all, since 
they rest, ultimately, on This is the way I feel about the world, and who are 
you to tell me otherwise?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:27 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   I still don't quite understand.  No hoasca means that the 
ordinary right of citizens to ingest what they please is eliminated - but RFRA 
says otherwise.  You must serve on a jury means that the ordinary right of 
citizens to decide where to go and what to do with their time is eliminated - 
but religious exemption regimes say otherwise.  What's magical about common 
carrier law that somehow immunizes it from religious exemption regimes, while 
other laws are deliberately covered by those regimes?  (I set aside the 
possibility that common carrier law, like drug law and other laws, would often 
be justifiable under strict scrutiny, since I take it that isn't Sandy's 
argument.)

   As people on this list know, I'm not a religious exemption 
maximalist.  Once upon a time, I was one of the very few First Amendment people 
who supported Employment Division v. Smith, though I notice that the tide has 
turned on that in recent years.  I support state RFRAs, but precisely because 
they are trumpable by legislatures (which could, if they choose, carve out drug 
laws or common carriers or antidiscrimination law from the state RFRAs); I also 
would have preferred it if RFRAs had used looser standards than strict scrutiny.

   But if we're talking about the actual religious exemption model 
under RFRAs and the state constitutional religious exemption regimes, I just 
don't see how assumptions about what common carrier just means resolve the 
religious exemption analysis.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 14, 2015 11:16 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

I suppose I'm like the naïve first-year student who begins with the assumption 
that common carrier just means that the ordinary right of the seller to pick 
and choose among customers is eliminated (at least so long as the purchaser can 
pay the regular price or, in the cases of innkeepers, is behaving properly).  
Would an English innkeeper at common law been able to say to a Catholic we 
don't like your kind here and turned him/her away (perhaps on Christmas Eve)?  
I thought the essence of common carrier law (about which I know extremely 
little, obviously) is that it refers to a category of businesses-inns, moving 
companies, telephone companies, etc.-and not to that subset of companies that 
can be described as monopolists.  The duties we impose on monopolists rest, 
presumably,  on a different analysis than the duties we impose on Ollie's 
Barbecue to stop being a bigot.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 14, 2015 10:06 AM
To: Law  Religion issues for Law Academics
Subject: RE: Colorado Cakeshop decision

   Sandy:  Why exactly should we all agree that anyone covered by 
common carrier law could not refuse to provide service to an abortion center 
- or a KKK delegation or what have you?  After all, we don't agree that 
everyone covered by drug laws couldn't get a religious exemption, or that 
everyone covered by the duty to serve as a juror couldn't get a religious 
exemption, etc.  The whole point of religious exemption regimes is to give 
religious exemptions even to (some) people covered by generally applicable laws.

   Now if the common carrier is a monopolist, then one could make a 
good argument that denying the exemption is necessary to serve a compelling 
interest in making sure that everyone gets access to this service (e.g., 
electricity).  But if the common carrier is not a monopolist - say, a taxicab 
driver who refuses to drive a Klansman in Klan regalia, in a situation where 
the Klansman can easily get a different cab - I don't see why common carrier 
status as such would categorically preclude application of religious exemption 
law

Re: Colorado Cakeshop decision

[Levinson, Sanford V]

A non-rhetorical question:  is there any model that would justify refusing to 
sell an in embellished product--say a cupcake--to someone whose potential 
use--at a same sex wedding, at a tryst with one's heterosexual lover, or 
whatever--you disapproved of on religious grounds?  An obvious question, of 
course, is how such information would be obtained. Could a sign indicate the 
exclusive list of cupcake-eligible customers and include, in addition to 
payment and appropriate demeanor, adherence to the baker's views of sexual 
propriety?

Sandy

Sent from my iPhone

On Aug 13, 2015, at 4:27 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   I should add that it also concludes that the Colorado 
Constitution's religious freedom guarantee follows the Smith model rather than 
the Sherbert/Yoder model, something that was less clear before.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 13, 2015 5:06 PM
To: Law  Religion issues for Law Academics
Subject: Colorado Cakeshop decision

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf

Fairly straightforward.  Rejects free speech and free exercise claims.  (The 
case does not involve a refusal to bake a cake displaying any particular 
content -- the bakery refused to bake any cake for a same-sex wedding.)
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Re: Colorado Cakeshop decision

[Levinson, Sanford V]

I note from reading the New York Times story that the baker apparently offered 
to sell other goods in lieu of baking a designated wedding cake.

Sandy

Sent from my iPhone

On Aug 13, 2015, at 6:24 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:

A non-rhetorical question:  is there any model that would justify refusing to 
sell an in embellished product--say a cupcake--to someone whose potential 
use--at a same sex wedding, at a tryst with one's heterosexual lover, or 
whatever--you disapproved of on religious grounds?  An obvious question, of 
course, is how such information would be obtained. Could a sign indicate the 
exclusive list of cupcake-eligible customers and include, in addition to 
payment and appropriate demeanor, adherence to the baker's views of sexual 
propriety?

Sandy

Sent from my iPhone

On Aug 13, 2015, at 4:27 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   I should add that it also concludes that the Colorado 
Constitution's religious freedom guarantee follows the Smith model rather than 
the Sherbert/Yoder model, something that was less clear before.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 13, 2015 5:06 PM
To: Law  Religion issues for Law Academics
Subject: Colorado Cakeshop decision

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf

Fairly straightforward.  Rejects free speech and free exercise claims.  (The 
case does not involve a refusal to bake a cake displaying any particular 
content -- the bakery refused to bake any cake for a same-sex wedding.)
___
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Re: Colorado Cakeshop decision

[Levinson, Sanford V]

This is an interesting example. (And I thank Eugene for his typically 
thoughtful answer.)  Can one distinguish between the illegitimate direct use of 
the product (to kill human beings) and the mere fact that the cupcake will be 
eaten at a wedding (or trust)?  Would we be comfortable if the single grocer in 
town refused to sell food to someone known to sympathize with the KKK?  I 
assume, though, that the civil rights laws was prohibits discriminating on 
grounds of race etc., and this should hold for sexual orientation as well.

Sandy

Sent from my iPhone

On Aug 13, 2015, at 7:25 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:

The various pharmaceutical companies refusing to sell certain drugs to death 
penalty states come to mind.

-Kevin Chen

On Thu, Aug 13, 2015 at 7:51 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   Sure, why not?  Say a grape grower refuses to sell to 
winemakers, or a pacifist widget maker refuses to sell to military contractors, 
or a restaurant refuses to deliver to abortion clinics?  See Rasmussen v. Glass 
(Minn. Ct. App. 1993), 
https://scholar.google.com/scholar_case?case=648897692635049631, which holds 
that, even if a city ordinance banning discrimination based on “creed” required 
restaurants to deliver to abortion clinics, there had to be a religious 
exemption from such an ordinance.  “Under the provisions of the Minneapolis 
ordinance, relator Glass [owner of the Beach Club Deli] has two choices. He can 
either associate with an entity that engages in conduct which he finds to be 
morally offensive [delivering to abortion clinics], thus compromising his 
conscience, or he can refuse and be found guilty of discrimination and fined.”

   Now these have to do with objections to sales to businesses, not 
sales to individuals – but I can’t see why they would be different for RFRA / 
state Free Exercise Clause purposes.  As to how the information would be 
obtained, I take it that many a business wouldn’t work very hard to investigate 
the matter, but when it learned that its products were used by a customer in 
ways it disapproved of, might stop selling them to that customer.

   Isn’t that how many of us would act if we were businesspeople, 
and we learned that some of our customers were using our products in ways we 
strongly disapproved of?  Want to buy our pillowcases?  Go right ahead.  Oh, 
wait, you’re the KKK and you want to use them for your hoods; sorry, your 
business isn’t welcome here.  Same if you learn your customers are using your 
products to kill animals (if you object to that), resell them to South Africa 
(if you objected to that back in the 1980s), and so on.  Some people take a 
“Hey, the product is out of our hands, none of our business” attitude, which I 
think is just fine.  But other people care more about the behavior of their 
customers (and for that matter of their suppliers) – indeed, many who praise 
“corporate social responsibility” support that general approach.  And when the 
business feels a religious objection in such a situation, any existing 
religious exemption regime would be implicated, wouldn’t it be?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Levinson, Sanford V
Sent: Thursday, August 13, 2015 7:20 PM
To: Law  Religion issues for Law Academics
Subject: Re: Colorado Cakeshop decision

A non-rhetorical question:  is there any model that would justify refusing to 
sell an in embellished product--say a cupcake--to someone whose potential 
use--at a same sex wedding, at a tryst with one's heterosexual lover, or 
whatever--you disapproved of on religious grounds?  An obvious question, of 
course, is how such information would be obtained. Could a sign indicate the 
exclusive list of cupcake-eligible customers and include, in addition to 
payment and appropriate demeanor, adherence to the baker's views of sexual 
propriety?

Sandy

Sent from my iPhone

On Aug 13, 2015, at 4:27 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
   I should add that it also concludes that the Colorado 
Constitution’s religious freedom guarantee follows the Smith model rather than 
the Sherbert/Yoder model, something that was less clear before.

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Thursday, August 13, 2015 5:06 PM
To: Law  Religion issues for Law Academics
Subject: Colorado Cakeshop decision

https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2015/14CA1351-PD.pdf

Fairly straightforward.  Rejects free speech and free exercise claims.  (The 
case does not involve a refusal to bake a cake displaying any particular 
content

Re: The Remarkable Disappearance of State Justifications in Obergefell

[Levinson, Sanford V]

Actually, what we label natural law is a figment in the West of Greek 
imagination, since the arguments can be found in Plato and Aristotle, even if 
they were most fully developed by Thomas Aquinas. And, alas, Jewish and, I 
presume Islamic, law is thoroughly homophobic. None of this affects my support 
for Obergefell, but we should recognize this as a truly important moment in 
works culture, signaled far more significantly by the Irish referendum than by 
the vote of five American justices.

Sandy

Sent from my iPhone

On Jul 3, 2015, at 4:03 PM, Malla Pollack 
mallapolla...@gmail.commailto:mallapolla...@gmail.com wrote:

Natural law is a figment of Christian imagination.  Do you really think that 
Muslims think western natural law is natural?

Malla

On Fri, Jul 3, 2015 at 3:52 PM, Richard Dougherty 
dou...@udallas.edumailto:dou...@udallas.edu wrote:
Largely agree with this point, except for one major caveat -- natural law 
arguments are not religious arguments.  That's what is natural about them.  The 
collapse of the distinction between natural and religious is precisely what 
allows for the dismissal of natural law arguments as not applicable to the 
public realm of a secular society (whatever that phrase may mean or entail, a 
great source of contestation).

Richard Dougherty

On Fri, Jul 3, 2015 at 2:44 PM, Marc R Poirier 
marc.poir...@shu.edumailto:marc.poir...@shu.edu wrote:


Judy and all:

You write: Sexual relations that can lead to procreation should occur only 
between a man and a woman...uh, this pertains to same-sex couples how?

I suspect the writer meant to write: Sexual relations, which can lead to 
procreation, should occur only between a man and a woman.  That would make it 
a natural law argument, one that does not refer to God.  It's part of a 
millennia-long (probably inevitably recurring) notion that sex is basically 
polluting and is redeemed by various kinds of restrictions.  One functional and 
redemptive justification for sexual activity is potential procreation.  Not 
pleasure, not fostering a bond of companionship, not the release of important 
desires.  As you well know, in the Judea-Christian tradition, non-procreative 
sex is problematic, and in one version of Christianity pleasure in sex is 
itself sinful.  (Not so in traditional Judaism!)

But of course to say all this openly brings religion and perhaps God back into 
the state's justification.  What happens instead is to make certain kinds of 
conclusions about sex statements of obvious fact and then claim rational basis.

Warmly,


Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8478tel:973-642-8478 (work)
973-642-8546tel:973-642-8546 (fax)
201-259-0896tel:201-259-0896 (mobile)
Selected articles and drafts available at http://ssrn.com/author=1268697

Somebody has to plant the seed so that sanity can happen on this earth. -- 
Chogyam Trungpa, Rinpoche



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--
Richard J. Dougherty, Ph.D.
Chairman, Politics Department
University of Dallas
1845 E. Northgate Drive
Irving, TX 75062
972-721-5043tel:972-721-5043

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Re: Ireland

[Levinson, Sanford V]

Will the Supreme Court follow the election returns?  A bit more seriously, this 
is a tribute to the beneficent possibilities inherent in direct democracy. 
(Prop. 8 is not so
Inspiring, but can there be any real doubt that there would be a different 
result today?  Or, for that matter, that a national referendum in the U.S. 
would come to the same conclusion even if, perhaps, by not so definitive a 
margin?)  Worth noting, incidentally, was the generosity of spirit displayed by 
the leader of Iona, the chief opponent (other than the institutional Roman 
Catholic Church) of the referendum, in conceding the remarkable defeat.

Sandy

Sent from my iPhone

On May 23, 2015, at 6:37 PM, Baer, Judith A 
j-b...@pols.tamu.edumailto:j-b...@pols.tamu.edu wrote:

We shall overcome!
Judy Baer

Sent from my iPhone

On May 23, 2015, at 5:02 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Ireland!, of all places.  62 percent to 38, and in 42 of 43 districts.

http://www.nytimes.com/2015/05/24/world/europe/ireland-gay-marriage-referendum.html


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

[Levinson, Sanford V]

Isn't it foolish in the extreme to assert that time and culture are not part 
and parcel of the history of all religious movements, even if one concedes, 
perhaps for reasons of tact, that they are not simply such products. (I 
frankly have no idea what secularists actually mean by that concession. Some 
may be agnostics, genuinely open to the unproven possibility of revealed 
religion.). For starters, though, look at the LDS renunciation of polygamy in 
1890 (not to mention the later renunciation of an all-white priesthood), the 
Protestant critique of selling indulgences (and the response of the Catholic 
Church), or the 11th century decision of Ashkenazik Jews to ban polygamy even 
as Sephardi Jews living in Islamic cultures stuck with it, some until the 20th 
century. I could obviously go on and on. I have no doubt whatsoever that some 
adamantly opposed to same sex marriage religious groups will change their 
collective minds in the next decades. Can anyone seriously doubt that?

This is much like debates between committed legal internalists who take 
everything the Supreme Court says with full seriousness (including Roberts's 
assertion on Tuesday that judges aren't politicians) and committed legal 
realists who see ONLY politicians in robes. The truth may be somewhere in 
between, both for law and religion as systems of practices always striving to 
maintain their legitimacy within the wider culture.

Sandy

Sent from my iPhone

On May 1, 2015, at 9:14 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Alan:  Thank you for that very thoughtful and candid reply.

I apologize if my wording in response to Eugene's post was infelicitous, or 
insensitive, in any way.  I was trying to be very careful not to suggest that 
all religious objectors would change their minds.  I agree with you that some 
will not.

And I certainly did not write, and did not mean to suggest in the slightest, 
any of the following:

-- that religious beliefs are simply a product of time and culture

-- that religious beliefs opposing same-sex sexual relationships are purely an 
irrational bias

-- that religious beliefs on this question are dependent upon, or necessarily 
reflect, bigotry (or animus, for that matter)

-- that anyone misunderstands their own religion

or

-- that conservative Christian teachings about sex have the same place in the 
church that former teachings about race did.

Indeed, I don't believe any of those things to be true, and so I surely would 
not argue for them or intend to suggest them in this thread.

Of course, as your response acknowledges, religious beliefs of many individuals 
(not all)--and of many religious institutions--do change as a result of shifts 
in social practices, which tend to be followed by shifts in understandings of 
human nature.  These shifts sometimes occur even with respect to theological 
commitments that have long been viewed as based in transcendent truth.  The 
examples are legion--within my faith, the Catholic Church, the LDS, etc.; I 
know I don't need to belabor the point.  The Notre Dame video, making great 
efforts to attract LGBT students, is merely the latest example.  But it's of a 
piece with many, many other, similar trends.  Even so, I agree with you that 
after a rapid change in the views of most people, some portion of the 
population is likely to maintain its religiously grounded views about 
homosexuality.  (Your 20% seems like a reasonable guess about that number.)

The point I was trying to make, however, was not about the cause, or the rate, 
of changes in individuals' religious beliefs.  What I wrote was that, if and 
when antidiscrimination laws are extended more broadly to sexual orientation, 
very few of today's religious organizations will be legally and socially 
marginalized because they will have voluntarily ended their discriminatory 
practices.  Indeed, as I emphasized in later posts, even today there are very 
few such organizations that openly engage in such discriminatory practices 
(other than as to ministerial positions).  And that number will only 
diminish--probably to a small handful--by the time Congress gets around to 
amending Title VII and Title IX to cover sexual orientation.

I hope that better explains what I was getting at.  I certainly did not mean to 
disparage or trivialize anyone's sincerely held religious beliefs.

Best,

Marty


On Thu, Apr 30, 2015 at 9:53 PM, Alan Hurst 
alan.hu...@aya.yale.edumailto:alan.hu...@aya.yale.edu wrote:
Thanks to Marty and everyone else for the discussion here. I'm finding it very 
informative.

I wanted to respond briefly, however, to Marty's wager below:

And Eugene, I'd be willing to wager that very few of today's conservative 
Christians' organizations will be legally and socially marginalized at that 
point, because by then they, too, will have voluntarily ended their 
discriminatory practices.

I have two quick thoughts about this. First, I think you 

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

[Levinson, Sanford V]

I confess I'm ignorant. I assumed that the Church modified the practice. I'll 
look into it.

Sandy

Sent from my iPhone

On May 1, 2015, at 11:21 AM, Doug Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:

Offlist:  Has it done away with selling them? If so, you might want to clarify.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett
Sent: Friday, May 01, 2015 12:14 PM
To: Law  Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage

Dear Michael,

This does not contradict your point but, as it happens, and for what it's 
worth, the Catholic Church has not done away with indulgences.  See, e.g.:

http://www.news.va/en/news/pope-francis-grants-indulgences-for-world-youth-da

That said, there was recently some confusion over the question whether Pope 
Francis had *really* told people that following him on Twitter was a way to 
obtain them:

http://www.forbes.com/sites/alexknapp/2013/07/18/no-the-pope-isnt-tweeting-indulgences-to-his-followers/

=-)

All the best,

Rick


Richard W. Garnett

Professor of Law and Concurrent Professor of Political Science

Director, Program on Church, State  Society

Notre Dame Law School

P.O. Box 780

Notre Dame, Indiana 46556-0780

574-631-6981 (w)

574-276-2252 (cell)

rgarn...@nd.edumailto:rgarn...@nd.edu



To download my scholarly papers, please visit my SSRN 
pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235



Blogs:



Prawfsblawghttp://prawfsblawg.blogs.com/

Mirror of Justicehttp://mirrorofjustice.blogs.com/



Twitter:  @RickGarnetthttps://twitter.com/RickGarnett

On Fri, May 1, 2015 at 11:44 AM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
To emphasize two policy changes in the LDS faith is legitimate; however the 
centrality of traditional sexual norms to the LDS faith is extremely more 
central than those changes.

It is like saying to a Catholic because you did away with indulgences, you'll 
eventually deny that Christ's blood is literally in the sacrament.  I think 
that would be offensive to all Catholics.  LDS teachings on marriage in this 
regard are just as central to our faith as the doctrine of Transubstantiation 
is to Catholics.

On Fri, May 1, 2015 at 9:06 AM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
Isn't it foolish in the extreme to assert that time and culture are not part 
and parcel of the history of all religious movements, even if one concedes, 
perhaps for reasons of tact, that they are not simply such products. (I 
frankly have no idea what secularists actually mean by that concession. Some 
may be agnostics, genuinely open to the unproven possibility of revealed 
religion.). For starters, though, look at the LDS renunciation of polygamy in 
1890 (not to mention the later renunciation of an all-white priesthood), the 
Protestant critique of selling indulgences (and the response of the Catholic 
Church), or the 11th century decision of Ashkenazik Jews to ban polygamy even 
as Sephardi Jews living in Islamic cultures stuck with it, some until the 20th 
century. I could obviously go on and on. I have no doubt whatsoever that some 
adamantly opposed to same sex marriage religious groups will change their 
collective minds in the next decades. Can anyone seriously doubt that?

This is much like debates between committed legal internalists who take 
everything the Supreme Court says with full seriousness (including Roberts's 
assertion on Tuesday that judges aren't politicians) and committed legal 
realists who see ONLY politicians in robes. The truth may be somewhere in 
between, both for law and religion as systems of practices always striving to 
maintain their legitimacy within the wider culture.

Sandy

Sent from my iPhone

On May 1, 2015, at 9:14 AM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
Alan:  Thank you for that very thoughtful and candid reply.

I apologize if my wording in response to Eugene's post was infelicitous, or 
insensitive, in any way.  I was trying to be very careful not to suggest that 
all religious objectors would change their minds.  I agree with you that some 
will not.

And I certainly did not write, and did not mean to suggest in the slightest, 
any of the following:

-- that religious beliefs are simply a product of time and culture

-- that religious beliefs opposing same-sex sexual relationships are purely an 
irrational bias

-- that religious beliefs on this question are dependent upon, or necessarily 
reflect, bigotry (or animus, for that matter)

-- that anyone misunderstands their own religion

or

-- that conservative Christian teachings about sex have the same

Businesses don't really want to be free

[Levinson, Sanford V]

Barney Frank was in Austin this evening talking about his new book. Not 
surprisingly, Indiana and Arkansas came up. Not only did he emphasize the 
crucial role played by business in pushing back against religious 
conservatives, but he also made the very shrewd point that businesses often 
actually prefer to be left without discretion. If they are free to 
discriminate, then they're guaranteed to make enemies whatever their decision. 
If, on the other hand, the state bans discrimination, then the decision is out 
of their hands and people can't really get angry at businesses that are simply 
obeying the law. What is also clear, of course, is that big businesses no 
longer think that discrimination is profitable; indeed, the opposite is true 
(especially, I suspect, for most wedding photographers and wedding cake 
bakers), but what maximizes profits is not having to pay any potential costs 
from objecting customers for doing what they (now) want to do anyway. 

Sandy

Sent from my iPhone
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Re: Businesses don't really want to be free

[Levinson, Sanford V]

The so what is that accommodating the occasional sincere discriminator 
(whatever exactly that means) by virtue of a law that could conceivably be 
cited by every business places great pressures on the latter. One if the 
reasons I am so sorry that Doug Laycock lost (or, more accurately, had his 
views rejected by an obtuse majority in Town of Greece) is that now every 
single city council in the land is vulnerable to pressures generated by 
militant religious groups who cannot simply be told we're so sorry, but the 
Supreme Court has ruled that we simply can't allow any sectarian prayers at 
all.  Instead the Court chose to facilitate the ever more acrimonious culture 
war.

Sandy

Sent from my iPhone

On Apr 8, 2015, at 10:26 PM, Arthur Spitzer 
artspit...@gmail.commailto:artspit...@gmail.com wrote:

I don't doubt that this may be true for many businesses.  So what?   A person 
might suggest that it is evidence of the religious sincerity of the lonely 
business-owner who does not want to be left without discretion.

Art Spitzer


Warning: this message is subject to monitoring by the NSA.


On Wed, Apr 8, 2015 at 10:53 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
Barney Frank was in Austin this evening talking about his new book. Not 
surprisingly, Indiana and Arkansas came up. Not only did he emphasize the 
crucial role played by business in pushing back against religious 
conservatives, but he also made the very shrewd point that businesses often 
actually prefer to be left without discretion. If they are free to 
discriminate, then they're guaranteed to make enemies whatever their decision. 
If, on the other hand, the state bans discrimination, then the decision is out 
of their hands and people can't really get angry at businesses that are simply 
obeying the law. What is also clear, of course, is that big businesses no 
longer think that discrimination is profitable; indeed, the opposite is true 
(especially, I suspect, for most wedding photographers and wedding cake 
bakers), but what maximizes profits is not having to pay any potential costs 
from objecting customers for doing what they (now) want to do anyway.

Sandy

Sent from my iPhone
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RE: Colorado bakery case - No violation of non-discimination laws for refusal to bake cake with anti-gay message

[Levinson, Sanford V]

Most of us no long bother to differentiate “freedom of speech” from “freedom of 
expression,” but I think this is an excellent occasion to do so.  I inclined to 
believe that customers should not have the right to force bakers to engage in 
what ordinary language would define as “speech” that offends them.  Thus I’d 
protect the baker who, while grudgingly conceding the duty to bake a cake for a 
reception after a same-sex wedding, refused to write the word “Congratulations” 
on top of it.  So for me it’s an easy case that the baker need not write out a 
repugnant message for the bigot in the Colorado case.  But if the bigot 
introduced himself as a member of one of the egregious Identity sects in Idaho 
who wanted a cake to consume at the monthly meeting, and did not request that 
the baker write out the offensive message, then I would have no difficulty 
saying that the Identity bigot is entitled to the cake and that the baker would 
be liable under a relevantly worded anti-discrimination law.  If, on the other 
hand, we (extravagantly) view the cake sans wordage as itself protected 
“expression,” the analysis might become more difficult and we have to start 
balancing, perhaps.  But I see no need to balance anything with regard to an 
otherwise valid Civil Rights Act that prevents businesses from engaging in 
discriminatory business practices.  As Freud might put, sometimes a cake is 
just a cake.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Wednesday, April 08, 2015 12:31 PM
To: religionlaw@lists.ucla.edu
Subject: Colorado bakery case - No violation of non-discimination laws for 
refusal to bake cake with anti-gay message




There was a reported story yesterday which begins:

The Colorado Civil Rights Division has ruled that a baker who refused to make 
cakes with anti-gay messages did not discriminate.

 
https://www.yahoo.com/politics/azucar-bakery-did-not-discriminate-by-refusing-to-115703680320.html

It goes on to discuss the following from the ACLU Colorado legal director:

Mark Silverstein, legal director of the ACLU in Colorado, says Jack cited the 
same legislation, which forbids discrimination based on race, sexual 
orientation, religion or sex, to rail against Azucar Bakery.
“This man tried to claim he also experienced a violation of the public 
accommodations statute but he was not discriminated against because he’s 
Christian,” he said in an interview with Yahoo News. “They had a policy that 
they apply across the board; they are not going to make a cake with such 
offensive, over-the-top language or images.”

Two points:

(1) Does anyone have a copy of the actual ruling (by letter or opinion) from 
the Colorado Civil Rights Division?  I did a quick search and could not locate.

(2) Part of the recent discussion about the Indiana RFRA has caused me to think 
hard about the way in which categories are being drawn, for instance what is 
included within the various categories of protected classes in 
non-discrimination statutes.  For instance, in the Elane Photography case, the 
court rejected the photographer's argument that she was not discriminating on 
the basis of sexual orientation but just on the basis of conduct (i.e. she was 
fine taking pictures of gay customers, but did not want to participate in a 
wedding ceremony).  The NM Supreme Court rejected that distinction and said 
that the category of discrimination based on sexual orientation included 
same-sex weddings.  In particular the court stated:

The difficulty in distinguishing between status and conduct in the context of 
sexual orientation discrimination is that people may base their judgment about 
an individual's sexual orientation on the individual's conduct.  To allow 
discrimination based on conduct so closely correlated with sexual orientation 
would severely undermine the purpose of the NMHRA.

How would that same reasoning apply to the Colorado bakery case?  The story 
describes the particular Colorado message as follows:

In March 2014, Jack asked Silva to make him a Bible-shaped cake with anti-gay 
messages, such as “Homosexuality is a detestable 
sinhttp://www.thedenverchannel.com/news/local-news/denvers-azucar-bakery-wins-right-to-refuse-to-make-anti-gay-cake.
 Leviticus 18:22.” He also wanted the cake to include two men holding hands 
with a large X over them.
She agreed to make the dessert in the shape of a book but declined to include 
the hateful content.

What result is reached if we substitute the word religion for sexual 
orientation and apply the same rationale from Elane Photography (i.e. The 
difficulty in distinguishing between status and conduct in the context of 
[religion] is that people may base their judgment about an individual's 
[religion] on the individual's conduct.)?  (Example: I don't discriminate 
against Jews, just against people who wear yarmulkes.  Or I don't discriminate 
against Catholics, just against 

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Levinson, Sanford V]

If one treats the issue as state mandated art (in the absence of conditional 
funding, at least), I agree with Mark S. Am I correct in assuming that Mark's 
caveat doesn't apply to the wedding cake, at least if we're talking about off 
the rack cakes?  I assume also this wouldn't apply to the caterers or tent 
rentals etc.  And do we have to decide who is a genuine artist?  Imagine a 
caricaturist who often draws pictures of wedding guests as amusing souvenirs. 
Would she be able to decline the offer of employment? 

If all of this intense and acrimonious discussion boils down to a few wedding 
photographers, I'm inclined to say that we who support same-sex marriage can 
afford to be magnanimous in what has clearly become our victory. But am I 
correct in this presumption?

Sandy

Sent from my iPhone

 On Apr 6, 2015, at 6:38 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu 
 wrote:
 
 In line with Mark's suggestion, let me apologize to Chip for using such 
 strong language to describe what I believe is an error in his analysis. I 
 think I adequately explained why reliance on O'Brien is, in my opinion, 
 clearly wrong in this case. List members can reach their own conclusions. 
 Again let me apologize for using such strong language.
 
 I continue to believe that requiring people to create art that sends a 
 state-mandated message is more than troubling. Such a power in the state, if 
 generalized, will eventually lead to a broader authoritarian result that few 
 of us on this list - probably none - will like. I specifically said that Chip 
 would not favor such an authoritarian result. 
 
 With regard to the letter, I will add only a few comments to Doug's.
 
 The Supreme Court did copy the non-profit accommodation in the relevant 
 sense, as did Justice Kennedy in his concurrence: [T]here is an existing, 
 recognized, workable, and already-implemented framework to provide coverage. 
 I think it was clear that the Court was requiring the administration to give 
 the same accommodation to Hobby Lobby and the Greens. It was also clear, I 
 think, that the administration had not yet implemented it, else there would 
 have been no need for the Court to rule against the administration. 
 
 I would have hoped that there might be more voices from those on the other 
 side of this issue to temper the overstatements made by politicians and 
 commentators with regard to the likely effect of a state RFRA. 
 
 Mark
 
 Mark S. Scarberry
 Professor of Law
 Pepperdine Univ. School of Law
 
 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu 
 [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
 Sent: Monday, April 06, 2015 3:48 PM
 To: Law  Religion issues for Law Academics
 Subject: RE: Eugene's Blog Post on Liberals and Exemption Rights
 
 May I suggest that we return to the decorum that has more often than not 
 characterized this list.  The best conclusion I can draw from the various 
 emails is that the issues are more difficult to many of us than they appear 
 to others and that RFRA is the classic example of a statue drawn with some 
 examples in mind that is now being applied to circumstances some people claim 
 is nearly identical to the original paradigm cases and some think is quite 
 different.
 
 MAG
 
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Re: Eugene's Blog Post on Liberals and Exemption Rights

[Levinson, Sanford V]

You may be right. I was using the term more metaphorically to refer to any 
business that is open to the public.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 6:48 PM, Richard Friedman 
rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote:

Hi, Sandy.  I hope all is well.  I'm writing to you off-list, because I haven't 
followed the entire conversation and may have missed something.  But my 
understanding is that florists and cake-makers (assuming the cakes are not 
meant to be eaten on premises) are not public accommodations within the meaning 
of the Civil Rights Act of 1964, though they're covered by many state civil 
rights acts.  Am I in fact missing something?

Best,

Rich

On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
I think Prof. Chen is substantially correct, but I believe, more than ever, 
that it's the kind of problem that can ( and should) be handled outside legal 
constraints. Why would I want to hire a wedding photographer who so clearly 
won't view the day as affirmatively special?  Ditto the band?  But I really 
can't work up much sympathy for the florist or baker. They should be treated 
under the general rubric of public accommodations and the Civil Rights Act of 
1964. I'm sure there were florists and bakers who objected to mixes-race 
marriages and could cite the purported curse on Ham. It really doesn't (and 
shouldn't) matter.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:

As someone putting a wedding together, I can't explain the lack of sympathy for 
the wedding photographer as anything but thinking that their work is 
essentially interchangeable. It is not, unfortunately, and it is priced 
accordingly. Every single photographer of them seems to take their business 
very, very personally. More to the point, it is a personal, professional 
service which is by its nature selective compared to the harm done by 
impersonal corporations excluding goods and services when they otherwise serve 
the public.

A principled difference can be drawn between accommodating personal, inherently 
selective commercial businesses and businesses that are open to the public at 
large. The vast majority of commercial transactions are from businesses who 
sell to the public, or their business community, on a non-discriminatory basis. 
When such a business denies goods or services to a class of person, that is an 
inherently political act. Such a businesses is not just refusing the do 
business with an individual or class, they are making an attempt to exclude 
them from the definition of the public itself. They are thus doing harm to both 
individual and society by imposing their will on what constitutes the political 
community. This harm grows geometrically with each exclusionary actor.

Individual consumers on the other hand, are inherently selective. If you need 
one loaf of bread this week, you will patronize precisely one baker this week. 
If you need a salary, you will work one, maybe two jobs. The harm of being 
denied service by a consumer (or laborer) because of their beliefs has a 
societal harm, if any, nearly indistinguishable to being denied for any other 
reason.

Some services should fall in between. I'm not convinced for the florist and the 
and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer 
(ethical obligations notwithstanding) , the political consultant, the ghost 
writer...

I don't know how far that gets liberals of course, but it is a difference 
beyond mere size and corporate form.

Kevin Chen

On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek 
dgaub...@imb.orgmailto:dgaub...@imb.org wrote:
“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including 
liberal organizations, professors, and politicians — largely continue to 
support religious exemptions for individuals, while opposing the extension of 
such exemptions to commercial businesses.

I’m not sure I’m seeing the principled distinction.   Do not many individuals 
depend for their livelihood on commercial businesses?   Why do liberals see the 
conscience of individuals like Sherbert or Thomas worthy of protection, but the 
conscience of an individual photographer, florist, baker, or bed and breakfast 
owner less worthy of protection?Justice Kagan, at least back in 1996 when 
she was in the Clinton White House, appeared to recognize that the consciences 
of individuals operating small commercial businesses was worthy of protection 
under a RFRA regime.   Commenting on the short shrift given to the claim of a 
Evelyn Smith who, for religious reasons, did not want to rent one of her units 
to a co-habitating couple, Kagan noted that the court’s reasoning was 
“outrageous.”   She wrote that it was “almost as if a court were to hold that a 
state law does not impose a substantial burden on religion because the 
complainant is free to move to another

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Levinson, Sanford V]

Although it may be awkward to put it this way, my point was not that of the 
careful lawyer (though I think I can be one when need be :) ), but, rather, 
appealing to the aspirations underlying the Act. If we were debating the 
meaning of the 14th Amendment, most (though not all) of us would pay almost no 
attention to the specific views of the Framers, beginning, of course, with 
their carefully delineated differentiation of civil, political, and social 
rights or the assumptions about the continuing validity of segregation, etc. 
Constitutive statutes like the Civil Rights Act take on a similar life if 
their own in shaping consciousness, even if there may be a specific exemption 
for Mrs. Murphy and her boardinghouse. There is a reason that state civil 
rights statutes are broader. The limitations of 1964 were raw compromises to 
pick up votes. They scarcely rested on deep principles that were generally 
accepted.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 8:47 PM, Richard Friedman 
rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote:

But given the way you wrote your post, I don't think you really can, because 
the decision was pretty deliberate to limit the 1964 Act to a carefully defined 
list of public accommodations that didn't involve intimate contact -- so no 
boarding houses, no barbershops, not even most types of retail stores.  
Somebody (can't remember who) wrote ap iece several years ago emphasizing this. 
 I don't know how universally state laws have filled the gap -- they certainly 
have to some extent, though I imagine not with respect to boarding houses -- 
and I suppose there's a national consensus that a barber can't decline to cut a 
person's hair on account of race, but I don't think you can cite the '64 Act in 
support of it.

On Wed, Apr 1, 2015 at 8:58 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
You may be right. I was using the term more metaphorically to refer to any 
business that is open to the public.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 6:48 PM, Richard Friedman 
rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote:

Hi, Sandy.  I hope all is well.  I'm writing to you off-list, because I haven't 
followed the entire conversation and may have missed something.  But my 
understanding is that florists and cake-makers (assuming the cakes are not 
meant to be eaten on premises) are not public accommodations within the meaning 
of the Civil Rights Act of 1964, though they're covered by many state civil 
rights acts.  Am I in fact missing something?

Best,

Rich

On Wed, Apr 1, 2015 at 6:18 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
I think Prof. Chen is substantially correct, but I believe, more than ever, 
that it's the kind of problem that can ( and should) be handled outside legal 
constraints. Why would I want to hire a wedding photographer who so clearly 
won't view the day as affirmatively special?  Ditto the band?  But I really 
can't work up much sympathy for the florist or baker. They should be treated 
under the general rubric of public accommodations and the Civil Rights Act of 
1964. I'm sure there were florists and bakers who objected to mixes-race 
marriages and could cite the purported curse on Ham. It really doesn't (and 
shouldn't) matter.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:

As someone putting a wedding together, I can't explain the lack of sympathy for 
the wedding photographer as anything but thinking that their work is 
essentially interchangeable. It is not, unfortunately, and it is priced 
accordingly. Every single photographer of them seems to take their business 
very, very personally. More to the point, it is a personal, professional 
service which is by its nature selective compared to the harm done by 
impersonal corporations excluding goods and services when they otherwise serve 
the public.

A principled difference can be drawn between accommodating personal, inherently 
selective commercial businesses and businesses that are open to the public at 
large. The vast majority of commercial transactions are from businesses who 
sell to the public, or their business community, on a non-discriminatory basis. 
When such a business denies goods or services to a class of person, that is an 
inherently political act. Such a businesses is not just refusing the do 
business with an individual or class, they are making an attempt to exclude 
them from the definition of the public itself. They are thus doing harm to both 
individual and society by imposing their will on what constitutes the political 
community. This harm grows geometrically with each exclusionary actor.

Individual consumers on the other hand, are inherently selective. If you need 
one loaf of bread this week, you will patronize precisely one baker this week. 
If you need a salary, you will work one, maybe two jobs

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Levinson, Sanford V]

I think Prof. Chen is substantially correct, but I believe, more than ever, 
that it's the kind of problem that can ( and should) be handled outside legal 
constraints. Why would I want to hire a wedding photographer who so clearly 
won't view the day as affirmatively special?  Ditto the band?  But I really 
can't work up much sympathy for the florist or baker. They should be treated 
under the general rubric of public accommodations and the Civil Rights Act of 
1964. I'm sure there were florists and bakers who objected to mixes-race 
marriages and could cite the purported curse on Ham. It really doesn't (and 
shouldn't) matter.

Sandy

Sent from my iPhone

On Apr 1, 2015, at 4:56 PM, K Chen tzn...@gmail.commailto:tzn...@gmail.com 
wrote:

As someone putting a wedding together, I can't explain the lack of sympathy for 
the wedding photographer as anything but thinking that their work is 
essentially interchangeable. It is not, unfortunately, and it is priced 
accordingly. Every single photographer of them seems to take their business 
very, very personally. More to the point, it is a personal, professional 
service which is by its nature selective compared to the harm done by 
impersonal corporations excluding goods and services when they otherwise serve 
the public.

A principled difference can be drawn between accommodating personal, inherently 
selective commercial businesses and businesses that are open to the public at 
large. The vast majority of commercial transactions are from businesses who 
sell to the public, or their business community, on a non-discriminatory basis. 
When such a business denies goods or services to a class of person, that is an 
inherently political act. Such a businesses is not just refusing the do 
business with an individual or class, they are making an attempt to exclude 
them from the definition of the public itself. They are thus doing harm to both 
individual and society by imposing their will on what constitutes the political 
community. This harm grows geometrically with each exclusionary actor.

Individual consumers on the other hand, are inherently selective. If you need 
one loaf of bread this week, you will patronize precisely one baker this week. 
If you need a salary, you will work one, maybe two jobs. The harm of being 
denied service by a consumer (or laborer) because of their beliefs has a 
societal harm, if any, nearly indistinguishable to being denied for any other 
reason.

Some services should fall in between. I'm not convinced for the florist and the 
and the baker, but I'm sympathetic to the photographer, the doctor, the lawyer 
(ethical obligations notwithstanding) , the political consultant, the ghost 
writer...

I don't know how far that gets liberals of course, but it is a difference 
beyond mere size and corporate form.

Kevin Chen

On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek 
dgaub...@imb.orgmailto:dgaub...@imb.org wrote:
“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including 
liberal organizations, professors, and politicians — largely continue to 
support religious exemptions for individuals, while opposing the extension of 
such exemptions to commercial businesses.

I’m not sure I’m seeing the principled distinction.   Do not many individuals 
depend for their livelihood on commercial businesses?   Why do liberals see the 
conscience of individuals like Sherbert or Thomas worthy of protection, but the 
conscience of an individual photographer, florist, baker, or bed and breakfast 
owner less worthy of protection?Justice Kagan, at least back in 1996 when 
she was in the Clinton White House, appeared to recognize that the consciences 
of individuals operating small commercial businesses was worthy of protection 
under a RFRA regime.   Commenting on the short shrift given to the claim of a 
Evelyn Smith who, for religious reasons, did not want to rent one of her units 
to a co-habitating couple, Kagan noted that the court’s reasoning was 
“outrageous.”   She wrote that it was “almost as if a court were to hold that a 
state law does not impose a substantial burden on religion because the 
complainant is free to move to another state.”   
http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of James Oleske
Sent: Wednesday, April 01, 2015 2:25 PM
To: Law  Religion issues for Law Academics
Subject: Eugene's Blog Post on Liberals and Exemption Rights

Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ 
(sensible) retreat from the old Justice Brennan/ACLU position on religious 
exemptions. The piece is lengthy, and I recommend folks read it in full, but I 
want to take issue with the following assertion at the heart of Eugene's 
analysis:
Yes, religious objectors can use these RFRAs to try to get exemptions from 

Re: Eugene's Blog Post on Liberals and Exemption Rights

[Levinson, Sanford V]

Non-Jews are under no obligation not to eat pork (or adhere to almost all of 
the other 612 mitzvot). So there is no stigma attached to any non-Jew who wants 
to buy a ham at a kosher butchery. That can't be said with regard to the 
florist who refuses to sell a bouquet for use at a same-sex marriage, who is 
necessarily condoning the presumptively sinful conduct. Ironically or not, the 
only person a Jewish butcher might be upset with is another Jew. This 
underscores the fact that very few Jewish laws are universal.  This is not 
true of most purported Christian precepts (beginning with the widely shared 
view among many a Evangelicals that I'm damned for failure to accept the 
teaching of John 3:16 (which I know by heart having memorized it some 65 years 
ago in order to earn a Bible certificate from the state of North Carolina).

Sandy

Sent from my iPhone

On Apr 1, 2015, at 3:44 PM, Will Esser 
willes...@yahoo.commailto:willes...@yahoo.com wrote:

Chip,

Can you expound on your argument that wedding vendor exemptions from public 
accommodations laws allow material and dignitary injury to potential 
customers and that liberals only oppose exemptions that impinge on the 
welfare of third parties?  It seems that both sides agree that the kosher 
butcher deserves a religious exemption, and yet granting that exemption imposes 
some cost on third parties (i.e. anyone who wishes to purchase pork must go 
elsewhere, which could involve multiple trips to different butchers, or may 
mean spending more time and money to go to a butcher further away).  So it's 
not really that there is no cost to third parties, but perhaps simply a cost 
which society is more ready to accept (i.e. Go buy your pork somewhere else.)

As I understood the third-party harm argument in Hobby Lobby, the argument 
was that without insurance coverage, female Hobby Lobby employees would be 
unable to afford coverage of the particular, objectionable contraceptives and 
therefore the third party harm was equivalent to total lack of access.

Given modern changes in societal perspectives, I have not heard the same 
argument about a total lack of access when it comes to wedding vendors for 
same-sex wedding ceremonies.  Under the assumption the goods and services are 
otherwise generally available in the marketplace (i.e. there are plenty of 
wedding photographers, bakers, etc. who would be happy for the business of 
same-sex weddings), what is the distinguishing factor which causes material 
and dignitary injury in the wedding vendor exemptions scenario but not in the 
kosher butcher example?  In both, the customers want a service which they can 
get in the marketplace (although perhaps not from the exact person or place 
they want it).  And in both, the reason for not providing the service is the 
same (i.e. violation of a sincerely held religious belief).

Thanks in advance for clarification.

Will

Will Esser
Charlotte, North Carolina



From: James Oleske jole...@lclark.edumailto:jole...@lclark.edu
To: Law  Religion issues for Law Academics 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Wednesday, April 1, 2015 3:22 PM
Subject: Re: Eugene's Blog Post on Liberals and Exemption Rights

The butcher example Chip gives is why I suggested last spring that the Court 
might want to read the Lee language not as an absolute rule, but rather, a 
strong presumption against exemptions in the commercial realm that can be 
overcome in the very rare case where the basis for the presumption (a 
third-party harm) does not exist. Alas, the Court instead simply discarded the 
Lee language wholesale by saying RFRA went further than the pre-Smith law.

- Jim




On Wed, Apr 1, 2015 at 12:09 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:
I do not think most liberals oppose exemptions for businesses per se -- imagine 
a law that compelled a butcher to carry products in conflict with religious 
dietary laws to which the butcher and his customers subscribe.  Liberals oppose 
exemptions that impinge on the welfare of third parties -- Hobby Lobby (those 
female employees still do not have contraceptive coverage) or wedding vendor 
exemptions from public accommodations laws (those exemptions allow material and 
dignitary injury to potential customers). U.S. v. Lee involved injury to other 
family members of Amish employees, as well as others in the social insurance 
pool.

On Wed, Apr 1, 2015 at 2:51 PM, Gaubatz, Derek 
dgaub...@imb.orgmailto:dgaub...@imb.org wrote:
“[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including 
liberal organizations, professors, and politicians — largely continue to 
support religious exemptions for individuals, while opposing the extension of 
such exemptions to commercial businesses.

I’m not sure I’m seeing the principled distinction.   Do not many individuals 
depend for their livelihood on commercial businesses?   Why do liberals see the 

RE: state RFRA's and local anti-discrimination laws

[Levinson, Sanford V]

Our ostensibly federalism-loving new governor, Greg Abbott, who is obsessed 
with suing the Obama Administration for overreach, began his administration by 
giving a speech denouncing local communities in Texas—it goes without saying 
that he hates Austin, though not only Austin—and demanding that the legislature 
put the kibosh on “un-Texan” versions of home rule.  (I’m not making this up.)  
Given that Texas is now six times the entire population of the US in 1790, I 
would assume that the arguments that some persons cite about the originalist 
virtues of federalism might extend to protecting local communities against 
state government overreach.  I’m not holding my breath.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, March 30, 2015 12:45 PM
To: Law  Religion issues for Law Academics
Subject: state RFRA's and local anti-discrimination laws

One very important question I have never seen discussed is the relationship 
between a state RFRA (say, Texas or Indiana) and a local anti-discrimination 
ordinance (say, San Antonio or Indianapolis) that covers public accommodations 
and protects the LGBT population.  This is a common configuration; most RFRA 
states do NOT have state-wide LGBT laws re: public accommodations, but many 
have cities or counties with such laws.  So, when the local wedding vendor 
refuses to sell to a same sex couple and is cited by the local Human Rights 
Commission for violating the public accommodations law, and the defense is 
state RFRA, how will the arguments play?  Can a local law ever present a 
compelling interest sufficient to defeat a state religious freedom law? If 
not, the outcome of these conflicts is pre-ordained; the vendor will win.  Or 
can the local interest be sufficiently compelling in that community to defeat 
the state RFRA defense? Does this depend on state-to-state generic principles 
of local government law?

All thoughts welcome.
--
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 ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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RE: Amazing what Hobby Lobby has wrought

[Levinson, Sanford V]

I'm afraid that what the state RFRA legislation is doing is encouraging, on the 
part of its supporters, an extravagant view of religious liberty (just read 
some of the material in the Austin, TX newspapers) that will then breed anger 
and frustration when liberal and secular judges interpret the legislation 
in the sensible manner that Doug would advocate (and that I assumed would be 
the case when I supported RFRA back in 1993).  But I now believe, as a 
practical matter, that legalization of such issuess serves primarily to 
increase general acrimony.  Either they are what Madison called parchment 
barriers, of little value in predicting actual legal outcomes (as Doug 
suggests) or licenses to engage in egregious discrimination (as several people 
on this list suggest).  We turn to law when the community can't work things out 
in sensible conventional compromises.  Sometimes that works, and sometimes it 
doesn't.  Tocqueville might have said (incorrectly, as an empirical matter, at 
least in 1835), that in America political issues become matters for the 
judiciary to adjudicate, but it is an open question whether those adjudications 
will in fact be accepted or simply serve as grist for additional political 
hostility and cleavages.  Hobby Lobby isn't going to lead to civil war, but I 
suspect that it is like Dred Scott (which also, incidentally, did not cause 
the War) inasmuch as almost new readers shifted from their priors because of 
anything contained in either the majority or dissenting opinions and, indeed, 
used those opinions as evidence that the other side just doesn't get what's 
at stake.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 28, 2015 1:11 PM
To: Law Religion  Law List
Subject: Re: Amazing what Hobby Lobby has wrought

I know there are those who think the Indiana RFRA only protects religious 
adherents through an exemption or exception-based regime.

But that is not how everyone will understand it. Some will think of it as a 
license to discriminate:

http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/

We can't know how many people use subterfuge like this or who (erroneously) 
think liberty is license to do whatever they want despite the common good as 
decided through majoritarian actions.  This person should say out loud who he 
is, what his restaurant is, where it is, and tell people the reason he is 
discriminating against them and not use subterfuge.  To do less is to lose all 
moral standing on the basis of some claim of liberty.

Steve


-
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

If you want to bake an apple pie from scratch, you must first invent the 
universe.
Carl Sagan



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Re: Amazing what Hobby Lobby has wrought

[Levinson, Sanford V]

Please substitute the words no readers for new readers in the missive 
below. My apologies for the error.

Sandy

Sent from my iPhone

On Mar 28, 2015, at 4:43 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:

I'm afraid that what the state RFRA legislation is doing is encouraging, on the 
part of its supporters, an extravagant view of religious liberty (just read 
some of the material in the Austin, TX newspapers) that will then breed anger 
and frustration when liberal and secular judges interpret the legislation 
in the sensible manner that Doug would advocate (and that I assumed would be 
the case when I supported RFRA back in 1993).  But I now believe, as a 
practical matter, that legalization of such issuess serves primarily to 
increase general acrimony.  Either they are what Madison called parchment 
barriers, of little value in predicting actual legal outcomes (as Doug 
suggests) or licenses to engage in egregious discrimination (as several people 
on this list suggest).  We turn to law when the community can't work things out 
in sensible conventional compromises.  Sometimes that works, and sometimes it 
doesn't.  Tocqueville might have said (incorrectly, as an empirical matter, at 
least in 1835), that in America political issues become matters for the 
judiciary to adjudicate, but it is an open question whether those adjudications 
will in fact be accepted or simply serve as grist for additional political 
hostility and cleavages.  Hobby Lobby isn't going to lead to civil war, but I 
suspect that it is like Dred Scott (which also, incidentally, did not cause 
the War) inasmuch as almost new readers shifted from their priors because of 
anything contained in either the majority or dissenting opinions and, indeed, 
used those opinions as evidence that the other side just doesn't get what's 
at stake.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Saturday, March 28, 2015 1:11 PM
To: Law Religion  Law List
Subject: Re: Amazing what Hobby Lobby has wrought

I know there are those who think the Indiana RFRA only protects religious 
adherents through an exemption or exception-based regime.

But that is not how everyone will understand it. Some will think of it as a 
license to discriminate:

http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/

We can't know how many people use subterfuge like this or who (erroneously) 
think liberty is license to do whatever they want despite the common good as 
decided through majoritarian actions.  This person should say out loud who he 
is, what his restaurant is, where it is, and tell people the reason he is 
discriminating against them and not use subterfuge.  To do less is to lose all 
moral standing on the basis of some claim of liberty.

Steve


-
Prof. Steven D. Jamar
Assoc. Dir. of International Programs
Institute for Intellectual Property and Social Justice
http://iipsj.org
http://sdjlaw.org

If you want to bake an apple pie from scratch, you must first invent the 
universe.
Carl Sagan



___
To post, send message to 
Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu
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messages to others.

Re: Oklahoma bill would protect clergy who won't perform gay marriages

[Levinson, Sanford V]

I'll believe this is a serious issue when the Court holds that limiting the 
priesthood or rabbinate to men violates Title VII, but not a day before. I 
detect some demagoguery in Oklahoma legislature--shocking I'm sure.

Sent from my iPhone

On Feb 13, 2015, at 3:53 PM, Brad Pardee 
bp51...@windstream.netmailto:bp51...@windstream.net wrote:

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.edumailto: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 
bp51...@windstream.netmailto:bp51...@windstream.net 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



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RE: The Myth of the Cultural Jew

[Levinson, Sanford V]

Congratulations.  I'd like to organize a mini-symposium about the book on 
Balkinization.  Do you think you could arrange with Oxford to send copies of 
the book to, say, 8-10 people who would in effect be reviewing it there?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kwall, Roberta
Sent: Monday, February 02, 2015 2:33 PM
To: Law  Religion issues for Law Academics
Subject: The Myth of the Cultural Jew

Dear colleagues-

I wanted to share with the members of this group that my new book--The Myth of 
the Cultural Jew: Culture and Law in Jewish Tradition--is now out and available 
on Amazon (http://amzn.to/15f7bLH), Barnes  Noble, and of course the Oxford 
University Press website.  I am deeply gratified by Dean Erwin Chemerinsky's 
cover comments

A brilliant exploration of the relationship between law and culture in the 
context of Judaism. Kwall offers a provocative thesis and impressively analyzes 
a myriad of contemporary topics. This book is a 'must read' not only for all 
interested in Judaism, but for all who are studying the relationship between 
law and culture.


Below is a brief summary of my book-

A myth exists that Jews can embrace the cultural components of Judaism without 
appreciating the legal aspects of the Jewish tradition. This myth suggests that 
law and culture are independent of one another.  In reality, however, much of 
Jewish culture has a basis in Jewish law. Similarly, Jewish law produces Jewish 
culture.  A cultural analysis paradigm provides a useful way of understanding 
the Jewish tradition as the product of both legal precepts and cultural 
elements. This paradigm sees law and culture as inextricably intertwined and 
historically specific. This perspective also emphasizes the human element of 
law's composition and the role of existing power dynamics in shaping Jewish law.


In light of this inevitable intersection between culture and law, The Myth of 
the Cultural Jew: Culture and Law in Jewish Tradition argues that Jewish 
culture is shallow unless it is grounded in Jewish law. The book develops and 
applies a cultural analysis paradigm to the Jewish tradition that departs from 
the understanding of Jewish law solely as the embodiment of Divine command. Her 
paradigm explains why both law and culture must matter to those interested in 
forging meaningful Jewish identity and transmitting the tradition.

Warmly,
Bobbi Kwall


Roberta Rosenthal Kwall
Raymond P. Niro Professor
Founding Director, DePaul University College of Law
Center for Intellectual Property Law  Information Technology

Author of The Myth of the Cultural Jew: Culture and Law in Jewish Tradition
http://amzn.to/15f7bLH

 You can view my papers on the Social Science Research Network (SSRN) at the 
following
URL:  http://ssrn.com/author=345249




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RE: Homeschooling, vaccinations, and Yoder

[Levinson, Sanford V]

But isn’t the central question protecting “free exercise” when there are 
arguably significant third-party consequences?  Inevitably, we return to the 
problem at the heart of Mill’s  On Liberty:  Can we really identify a category 
of acts that do not inflict harm on third parties.  What about suicide?  For 
many of us, that would be a quintessential example, so that the state has no 
interest in trying to prevent suicide by competent adults.  But for others, 
suicide is not only immoral, but also a grievous harm inflicted on survivors.  
Or that old standby, religious sacrifice.  Why not, at least if those being 
sacrificed, perhaps like suicide bombers, accept their demise in the name of a 
higher calling?  Ditto with regard to adult bigamy?  Marci, I know, believes 
that women are harmed by the practice.  What if one begs to disagree and wants 
more evidence of specifiable harms?

But re vaccinations, at least if we’re talking about contagious diseases, it’s 
altogether easy to figure out the potential harm.  So some take refuge in 
statistics—the harm isn’t that likely, even if it’s costs are great in the 
unlikely event that it is suffered—or in straight-out balancing:  the harm 
isn’t that great and should be willingly accepted as the relatively small price 
to pay for protecting religious freedom.  But how does this square, say, with 
the employment accommodation cases (is the right cite Thornton?), where, as I 
recall, people aren’t not allowed to generate costs to third parties if they 
refuse to work on religiously-freighted days (as against the duty of the 
employer, which I don’t object to, to try to work out accommodations by 
eliciting voluntary day shifting and the like).


sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, February 02, 2015 6:11 PM
To: Law  Religion issues for Law Academics
Subject: RE: Homeschooling, vaccinations, and Yoder

Legislators and others might also think that people have rights beyond those 
set out in the Constitution or provided for even on a fair reading of the 
Constitution – rights that ought to be respected by government even though the 
Constitution does not require that they be respected. Cf. the Ninth Amendment. 
To the extent that the state and federal constitutions permit legislators to 
recognize such rights, they can of course do so. (Of course states can 
recognize rights in their own constitutions beyond those provided for in the 
federal constitution, again, so long as such recognition doesn’t violate the 
federal constitution.) Consider, e.g., Eugene’s argument for permissibility of  
legislative accommodation of religious exercise, and consider both federal and 
state RFRAs.

I do have difficulty with the notion that religious exercise can’t to some 
degree be protected qua religious exercise, given the specific recognition in 
the 1st Am of the right to free exercise of religion. Even a legislator who 
thinks the Smith decision is right as an interpretation of the demands made by 
the Constitution might think that the policies behind the Free Exercise clause 
or the importance of religious liberty as part of what it means to be free 
justify special protection for exercise of religion, at least as broadly 
defined.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, February 02, 2015 3:49 PM
To: Law  Religion issues for Law Academics
Subject: Re: Homeschooling, vaccinations, and Yoder

I think I agree with everything Paul says here, and I didn't mean to suggest 
naivete or anything else; I just meant to disagree with the assertion that I 
understood Paul to be making.

In particular, I agree that if you asked many state legislators--and especially 
those who favor homeschooling for personal or political reasons--they will 
honestly tell you that they believe that the state cannot conscript their 
children into schools (public or otherwise) without giving parents some rights 
to homeschool. In my view, they are certainly wrong as a federal constitutional 
matter. But I do think they believe it, as do many parents who homeschool. 
(Indeed, this is part of my argument in the paper I linked to.)



On Mon, Feb 2, 2015 at 6:34 PM, Paul Horwitz 
phorw...@hotmail.commailto:phorw...@hotmail.com wrote:
I have no complaint about the way Hillel puts things below. I had no complaint, 
as such, about the way he put things the first time. And I could think of much 
worse things to be accused of than naiveté. But I should like to defend myself 
to a certain extent. Of course I understand that legislators are motivated by 
politics! I would have hoped it was obvious that I did. And of course I 
understand that one could think of more suitable parties than legislators when 
thinking 

Re: Vaccine objectors

[Levinson, Sanford V]

This is certainly thoughtful. But what about the Jehovah's Witnesses cases re 
transfusions?  Are we necessarily to prefer the interests of the religious 
parents over the health and safety of the child?  Or do we simply say that the 
risk of measles, polio, tetanus etc. isn't so serious as the consequences of no 
transfusion. But the Jehovah's Witness child threatens no one else, whereas, by 
stipulation, the unvaccinated child does threaten the herd.

Sandy

Sent from my iPhone

On Feb 1, 2015, at 3:41 PM, Perry Dane 
d...@crab.rutgers.edumailto:d...@crab.rutgers.edu wrote:


Hi all,

Without getting deeply mired myself (right now) in the normative implications 
here, it might still be worth noting that:

1. Exemptions from vaccination requirements only become a serious public health 
issue when they increase to the point of threatening herd immunity.  That is 
to say, we can -- from a public health perspective -- tolerate some exemptions, 
but not too many.

2. According to some studies, states that allow personal in addition to 
religious exemptions, and states that grant exemptions easily, have (not a 
surprise) a higher rate of non-vaccinators than states that limit exemptions to 
religious motives or put more hurdles (documentation, etc.) in the way of 
folks seeking exemptions.  See, e.g., 
http://www.ncbi.nlm.nih.gov/pubmed/17032989

3. It might even be possible, though I don't have any numbers to support this, 
that limiting exemptions to genuine religious objectors,  and defining 
religion in any of the standard ways, would produce a rate of non-vaccination 
low enough not to pose a major public health risk.  (That still leaves, of 
course, the question of risk to the individual unvaccinated child.  But even 
that risk might be considerably reduced if herd immunity is in place.)

That is to say, vaccination might be one of those contexts in which society has 
a solid compelling interest in enforcing a rule overall but not necessarily a 
compelling interest in enforcing that rule on genuinely religious objectors.  
(That was, for better or worse, Burger's argument in Yoder).

The obvious challenge here is to the religion is not special view.  If 
leveling up produces distinctly bad results (of a sort not produced by more 
limited religious exemptions), should that be a reason to level down and 
eliminate all exemptions?  That is to say, should religious objectors lose 
rights they might otherwise have if too many non-religious folks want to get on 
the bandwagon?

And even for the rest of us, who do think that religion is special, the 
intrusion of these sorts of facts creates a quandary.  What if, for example, 
one part of the country has a number of religious objectors below the herd 
immunity threshold and another part of the country has a number above the 
threshold?  How should law respond?

As I said, I'm just asking the question here, not trying to answer it.

Perry

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RE: Vaccine objectors

[Levinson, Sanford V]

I’m still not certain what Perry’s position is re the Jehovah’s Witness 
children, where the adverse consequences are “internalized” to the child.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane
Sent: Sunday, February 01, 2015 10:16 PM
To: Law  Religion issues for Law Academics
Subject: Re: Vaccine objectors


Marty,

I agree with # 1, except in states that might have a particularly robust state 
free exercise doctrine.

I also agree with # 2.

The issue with respect to # 3, though, is this:  What if it turns out that an 
exemption regime limited to actual religious objections (and not personal 
ones) did not produce serious third-party burdens because the number of kids 
left unvaccinated would not be enough to compromise herd immunity?

Such a regime would, I believe, be constitutional.  But it does raise at least 
a question for folks who (a) argue that religion is not special, (b) it is 
generally unfair to limit exemption regimes to folks with religious motives, 
and (c) the best remedy to such unfairness should generally be to level up to 
include deep non-religious beliefs rather than level down to eliminate 
exemptions entirely.

Perry

On 02/01/2015 10:38 pm, Marty Lederman wrote:
I'm a bit confused as to which question Perry and Sandy (and Doug?) are 
discussing.  To break it down a bit for clarification:
1.  It would be perfectly constitutional for the state to require everyone to 
be vaccinated; a fortiori, vaccination can be made a condition of attending 
school.  That's basically what the Second Circuit case is about; and of course 
it's correct.
2.  It would also be perfectly constitutional for the state to exempt any 
children whose parents have a personal objection to immunization, religious 
or otherwise. The only question as to those exemption laws is one of policy -- 
and I'd hope that recent events cause state legislatures to seriously consider 
repealing such exemptions.
3.  But if a state chooses to exempt people only for religious reasons, that 
raises not only a policy question (which is the one I intended to raise in 
starting this thread -- should other states follow MS and WV in refusing to 
grant even religious exemptions?), but also a serious Establishment Clause 
question, in light of the third-party burdens (those borne by the children who 
are not immunized as well as the children who are made more susceptible to 
disease).  I haven't checked in a while, but I believe no court has ever held 
such religious exemptions unconstitutional except where they discriminate among 
religions.  I am inclined to say that they are unconstitutional even where not 
discriminatory; but the case law does not, as far as I know, yet support that 
view.
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Re: I would not have enacted this statute - Justice Scalia on RLUIPA

[Levinson, Sanford V]

I don't share Chip's seeming consternation. Is this any different from 
references to an unusually stupid law (Stewart as I recall in Griswold, 
though it might have been Black, who also distanced himself) or Thomas in 
Lawrence or, for that matter, Holmes in Lochner, depending on whether one 
thinks that he found New York's law tyrannical?  How is this different from 
expressing great admiration for a given part of the Constitution instead of 
simply saying my job is to enforce its commands even if I consider them stupid 
or even pernicious?  Scalia should get a pass on this one.

Sandy

Sent from my iPhone

On Oct 19, 2014, at 7:37 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:


I'm a bit bewildered by Scalia's comment and the substantive reactions to it.  
Why in the world is a Justice telling us what he would have voted for as a 
Member of Congress, when that's not his role in the government?  Perhaps he 
would not have voted for the NLRA or the APA either; should that affect the way 
he decides labor law or ad law questions under those Acts?  There is a profound 
separation of powers problem screaming out from this comment.
Or am I just being a hopeless and quaint na?f, believing that judges interpret 
the statutes enacted by other branches (even when the statutes build on prior 
judge-made doctrines) without regard to the judge's view of their legislative 
merits?  Scalia (and all the rest) certainly have developed views of the 
compelling interest test, but that is quite irrelevant to whether they would 
vote to enact that test as legislation..  So what exactly is Scalia telling us 
to bear in mind?
On Sat, Oct 18, 2014 at 4:44 PM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:
I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was 
struck a moment ago by this comment from Justice Scalia while discussing 
compelling state interest standard with the Assistant SG:

We're talking here about a compelling State interest. Bear in mind I would not 
have enacted this statute, but there it is. It says there has to be a 
compelling State interest. And you're  you're asking, well, let's balance 
things; let's be reasonable. Compelling State interest is not a reasonableness 
test at all.

A quick Google search indicates that one of the only places this comment has 
gotten attention is over on Josh Blackmun's 
bloghttp://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/:

Is that not significant? He wouldn't have voted for RLUIPA. Recall that he did 
write Smith. If so, would he also not have voted for RFRA, as applied to the 
federal government (put aside the federalism problems)? That makes his [joining 
the Court's] opinion in Hobby Lobby so much more significant.

In answer to Josh's second question, I tend to think Justice Scalia would not 
have voted for RFRA. Recall, he rejected application of the compelling interest 
test in Smith in part because he viewed it as

horrible to contemplate that federal judges will regularly balance against the 
importance of general laws the significance of religious practice

- Jim
http://ssrn.com/author=357864

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--
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 ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Re: I would not have enacted this statute - Justice Scalia on RLUIPA

[Levinson, Sanford V]

I think that both Doug and Marty are right in their analyses. And, for the 
record, it was an uncommonly silly law.

Sandy

Sent from my iPhone

On Oct 19, 2014, at 8:46 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Recall Scalia's basic account in Smith, to wit:  We've been making noises since 
1964 about compelling interests and narrow tailoring, but come on . . . of 
course we didn't really mean it:  We've been hypocrites, using the language of 
strict scrutiny but in fact applying nothing of the sort.  And we'd be wrong to 
apply it, since that would allow religious believers to be laws unto 
themselves.  If we actually applied strict scrutiny, it would lead to results 
that everyone would agree are absurd and not compelled by the Constitution.

And Scalia is now saying -- as do at least four, perhaps five, Justices in 
Hobby Lobby -- that Congress has instructed us to do that which we had never 
done pre-Smith, i.e., actually apply strict scrutiny.  I warned you that that 
would be ridiculous and lead to convulsive, absurd results; but you ignored me, 
and the legislature was stupid enough to invoke the language we had used, not 
the doctrine we had been applying in fact.  If you really wanted to 
re-instantiate the jurisprudence as it existed pre-Smith, you should have 
chosen much different language.

On Sun, Oct 19, 2014 at 3:18 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
I don't share Chip's seeming consternation. Is this any different from 
references to an unusually stupid law (Stewart as I recall in Griswold, 
though it might have been Black, who also distanced himself) or Thomas in 
Lawrence or, for that matter, Holmes in Lochner, depending on whether one 
thinks that he found New York's law tyrannical?  How is this different from 
expressing great admiration for a given part of the Constitution instead of 
simply saying my job is to enforce its commands even if I consider them stupid 
or even pernicious?  Scalia should get a pass on this one.

Sandy

Sent from my iPhone

On Oct 19, 2014, at 7:37 PM, Ira Lupu 
icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote:


I'm a bit bewildered by Scalia's comment and the substantive reactions to it.  
Why in the world is a Justice telling us what he would have voted for as a 
Member of Congress, when that's not his role in the government?  Perhaps he 
would not have voted for the NLRA or the APA either; should that affect the way 
he decides labor law or ad law questions under those Acts?  There is a profound 
separation of powers problem screaming out from this comment.
Or am I just being a hopeless and quaint naïf, believing that judges interpret 
the statutes enacted by other branches (even when the statutes build on prior 
judge-made doctrines) without regard to the judge's view of their legislative 
merits?  Scalia (and all the rest) certainly have developed views of the 
compelling interest test, but that is quite irrelevant to whether they would 
vote to enact that test as legislation..  So what exactly is Scalia telling us 
to bear in mind?
On Sat, Oct 18, 2014 at 4:44 PM, James Oleske 
jole...@lclark.edumailto:jole...@lclark.edu wrote:
I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was 
struck a moment ago by this comment from Justice Scalia while discussing 
compelling state interest standard with the Assistant SG:

We’re talking here about a compelling State interest. Bear in mind I would not 
have enacted this statute, but there it is. It says there has to be a 
compelling State interest. And you’re ­­ you’re asking, well, let’s balance 
things; let’s be reasonable. Compelling State interest is not a reasonableness 
test at all.

A quick Google search indicates that one of the only places this comment has 
gotten attention is over on Josh Blackmun's 
bloghttp://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/:

Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did 
write Smith. If so, would he also not have voted for RFRA, as applied to the 
federal government (put aside the federalism problems)? That makes his [joining 
the Court's] opinion in Hobby Lobby so much more significant.

In answer to Josh's second question, I tend to think Justice Scalia would not 
have voted for RFRA. Recall, he rejected application of the compelling interest 
test in Smith in part because he viewed it as

horrible to contemplate that federal judges will regularly balance against the 
importance of general laws the significance of religious practice

- Jim
http://ssrn.com/author=357864

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Re: Is Discussion of Justices' Religion Off Limits?

[Levinson, Sanford V]

What follows is that if a nominee, perhaps while running for elective office, 
has put his/her religious identity front and center (I'm a committed Christian 
who always asks what would Jesus do) then it is legitimate to ask questions 
about that in a way that does not violate the No Test Oath clause.

My post was provoked, at least in part, by the habit of the NYTimes in 
emphasizing the gender split on the Wheaton College order but wholly failing to 
mention what strikes me, at least, as the elephant in the room.

Sandy

Sent from my iPhone

On Jul 11, 2014, at 1:35 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

Sandy's very provocative post is here:

http://balkin.blogspot.com/2014/07/the-elephant-in-room.html

As to which I would ask Sandy this:

As I read your post, the elephant in the middle of the room is that there is 
an elephant in the middle of the room, and that the elephant makes decisions on 
how to act, in part, based upon its history and perspective as an elephant.

OK, but what follows from that?  Surely not that Presidents should appoint 
fewer elephants.  If it's that Presidents should be indifferent as to nominees' 
religion, I wholly concur.  (Indeed, Article VI virtually requires such 
indifference.)  But that's not much of an issue these days, is it?  Bush 43 did 
not appoint Roberts and Alito, for instance, because they were Catholic.  He 
appointed them because he approved of their foreseeable legal views -- views 
that were in part shaped by their Catholicism, to be sure, but surely Bush was 
indifferent to the question of what the various sources of their jurisprudence 
might be.


On Fri, Jul 11, 2014 at 2:19 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
For what it is worth, I have an extended posting on this on Balkinization, 
balkin.blogspot.comhttp://balkin.blogspot.com

I strongly disagree with Larry Tribe on this issue.

Sandy

Sent from my iPhone

On Jul 11, 2014, at 1:10 PM, Patrick Wiseman 
pwise...@gsu.edumailto:pwise...@gsu.edu wrote:


It's my guess that it is exactly that kind of reductionism to which Prof. Tribe 
was originally objecting.

Cheers
Patrick

What might follow is a serious discussion of whether, given life tenure and no 
appellate review of their decisions, ever, the relationship between values and 
law at SCOTUS is and always has been so egregiously out of whack that we should 
recognize as Posner says the Court is a unique political court, or as I have 
written, it is not really a court at all.

Best,

Eric

Sent from my iPhone

On Jul 11, 2014, at 1:31 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be off limits, 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
bicker...@nku.edumailto:bicker...@nku.edu wrote:
When a Justice notes in oral argument (Salazar v. Buono) that the Cross is not 
limited to Christianity but is simply the default memorial because it is the 
most common symbol of the dead, how can it not be the case that the justices' 
life experiences--jobs, schools, politics, faith--are playing a role in how 
they decide cases?

John Bickers
Salmon P. Chase College of Law
Northern Kentucky University

From: 
conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu] 
on behalf of Myron Moskovitz [mmoskov...@ggu.edumailto:mmoskov...@ggu.edu]
Sent: Friday, July 11, 2014 1:04 PM
To: CONLAWPROF
Subject: Is Discussion of Justices' Religion Off Limits?



I replied that a judge's life experiences form at least part of his or her 
approach to resolving cases, and it is na?ve to ignore this.  Some Justices 
expressly pepper their opinions and speeches and books with this fact.  Thomas 
does, Sotomayer does, and so do many others.  A Justice of a minority religion 
(whether Judaism, Muslim, Hinduism, or any other) might have had life 
experiences that make him or her more likely to identify with citizens faced 
with government-sponsored explicitly-Christian prayers.

Tribe apparently believes that such a discussion is off limits.  I don't.  
Who

Re: Is Discussion of Justices' Religion Off Limits?

[Levinson, Sanford V]

Paul is correct on all counts. I'd be even stronger in emphasizing that none of 
the current justices has ever seen the inside of a courtroom while representing 
an  ordinary criminal defendant. Presidents disproportionately appoint 
prosecutors and disdain defense lawyers.  To engage in zealous representation 
of a non-white-collar defendant can put a serious crimp in one's hope to be 
appointed to the federal judiciary.

Sandy
Sent from my iPhone

On Jul 11, 2014, at 1:33 PM, Finkelman, Paul 
paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu wrote:

Religion is not the only aspect of the Justices that should be considered.  I 
would argue that this Court is dramatically odd in many ways.

Except for Thomas all of the Justices come from the northeast or California (or 
in Breyer's case both).  There is no one from the midwest (although Roberts 
lived there a bit); One southerner  (Thomas) even though the South has more 
than twice the population of the Northeast.  There no Protestants even though 
they are the plurality of the nation.

Moreover, I am pretty sure that no one on this court has ever run for office or 
held any elective office.  I do not believe any have actually been involved in 
electoral politics at all.  None (I believe) ever attended a public university 
of college; they are all graduates of private elite northeastern ivy league law 
schools.  There is nothing wrong with those schools, but it has created a court 
that is in-bred.

The justices are elite not only in education but in their distance from the 
average American (Ginsberg is the major exception, Sotomayor a bit) in their 
careers and professional backgrounds.  There is no one like Warren or Black who 
dealt with law and the individual level as a local prosecutor or judge.  No one 
like Powell or Blackmun who had local clients and were involved in business.  
No one like White who did something before law school.  None have even served 
on a state court or been involved in state law.

Historically the Court was representative body even if the justices were not 
elected.  Today that is no longer the case.  This is not ideological, but more 
about a culture that has separated the Court from the nation and its people in 
rather profound ways

The position of the Court in Town of Greece illustrates this disconnect. 
Clearly, no one in the majority has ever represented someone before a city 
council, town council, or local government board.






*
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.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com
*


From: 
conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu 
[conlawprof-boun...@lists.ucla.edumailto:conlawprof-boun...@lists.ucla.edu] 
on behalf of Richard Friedman [rdfrd...@umich.edumailto:rdfrd...@umich.edu]
Sent: Friday, July 11, 2014 1:52 PM
To: Law  Religion issues for Law Academics
Cc: CONLAWPROF
Subject: Re: Is Discussion of Justices' Religion Off Limits?

Well, one thing that might follow is a discussion of the extent to which we 
want the Supreme Court to be demographically representative of the nation.  In 
the early years of the Republic, there was a clear understanding that it would 
be geographically representative -- one member from each Circuit.  That 
eventually washed away, as geography became less salient.  There are clearly 
some other demographic expectations now, concerning gender and ethnicity.  I 
suppose the biggest group not represented on the Court now is Protestants.  I'm 
not advocating religion being a criterion for selection, but I do think that's 
an interesting issue.

Rich Friedman


On Fri, Jul 11, 2014 at 1:28 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
If I might be so presumptuous as to shift the question somewhat:

Of course Justices' religion, and their experiences and learnings as adherents 
of particular religions, affects their perspectives when they decide cases, 
especially (but not limited to) cases involving religion (e.g., Town of Greece; 
Hobby Lobby).  If a religion had no such effect on its adherents, it would 
hardly be worthy of the name, right?

So I don't think discussions of this question are or should be off limits, 
yet I wonder . . . to what end?  If we were all to agree that the Catholic and 
Jewish Justices on the Court have very different perspectives on these 
questions, in part (but not entirely) owing to their experiences and 
understandings as Catholics and Jews, what, exactly, follows from that?


On Fri, Jul 11, 2014 at 1:17 PM, John Bickers 
bicker...@nku.edumailto:bicker...@nku.edu wrote:
When a Justice notes in oral argument 

Re: Hobby Lobby Question

[Levinson, Sanford V]

I suppose that Jon's is the 64 billion dollar question. I think the answer 
would depend on the degree to which the single payer system was exclusive. If 
one could still purchase supplemental coverage (for heart transplants, say), 
then I assume the US could treat abortion as special. But if single-payer 
really did in all private insurance, then I assume that abortion would have to 
be covered. 

Sandy

Sent from my iPhone

 On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edu wrote:
 
 Why wouldn't the Congress ban coverage of abortions under a single-payer 
 system?
   Jon
 
 On 2014-07-01 22:22, Levinson, Sanford V wrote:
 I do not understand why the complicity with evil rationale doesn't
 apply to taxpayers ( like Thoreau). The argument against is either
 that it would unduly burden the state to set up a c.o. system for tax
 protesters or that it would invite strategic misrepresentation. Are
 these sufficiently compelling interests to overcome undoubtedly
 sincere (and correct) beliefs that one's taxes are supporting
 oppression at home and around the world (as well as a lot of good
 things). As Uwe Reindhart points out, the craziest American
 exceptionalism is that workers are dependent on their employers for
 medical insurance. Hobby Lobby is another good argument for
 tax-financed single-payer coverage.
 
 Sandy
 
 Sent from my iPhone
 
 On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.com
 [13] wrote:
 
 The court accepts without inquiry the assertion that the complicity
 with evil theory is the problem that leads to the substantial
 burden. It merely accepts the claim that the adherents cannot comply
 because of the complicity theory. It then bootstraps that there
 would be costs of non-compliance.
 At the core the court buys the argument that an attenuated
 complicity can be the basis of a substantial burden.
 
 Sent from Steve's iPhone
 
 On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com
 [10] wrote:
 
 I'm puzzled by Steve Jamar's statement that yesterday's decision
 arguably requires all courts to simply accept the religious
 adherent's claim that the burden is substantial. The majority
 analyzed whether the burden was substantial and found it was
 because the ACA would impose millions of dollars of financial
 penalties on the plaintiffs if they did not comply. Slip op. at
 32. I don't think the Court tells us whether a $100 fine would
 have been a substantial burden. I'm curious what in the opinion
 Steve points to in support of the proposition that courts may not
 evaluate the substantiality of a burden, especially considering
 that the Court did evaluate that question, as an empirical matter,
 in this case.
 
 Art Spitzer
 
 WARNING: this message is subject to monitoring by the NSA.
 
 On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
 stevenja...@gmail.com [7] wrote:
 
 Brown eliminated the constitutional doctrine of separate but
 equal -- in the Brown decision just for education, but it was
 applied to all racial classifications. The 1964 Civil Rights Act
 accomplished much more, of course, but the Brown decision
 matters a lot.
 
 So it is with numerous decisions. Hobby Lobby's acceptance of
 the complicity with evil theory in this attenuated context and
 its ruling that arguably requires all courts to simply accept
 the religious adherent's claim that the burden is substantial,
 could dramatically change the landscape of RFRA interpretation
 federally and by example at the state level. These underlying
 principles could also be restricted by later decisions or
 expanded. It is a very troubling expansion of RFRA beyond what
 was intended originally. But that is hardly unique to this bit
 of legislation.
 
 I think it is a very bad decision, but not even in the top ten.
 
 --
 Prof. Steven D. Jamar vox: 202-806-8017 [1]
 Director of International Programs, Institute for Intellectual
 Property and Social Justice http://iipsj.org [2]
 Howard University School of Law fax: 202-806-8567 [3]
 http://sdjlaw.org [4]
 
 For all men of good will May 17, 1954, came as a joyous
 daybreak to end the long night of enforced segregation. . . . It
 served to transform the fatigue of despair into the buoyancy of
 hope.
 
 Martin Luther King, Jr., in 1960 on Brown v. Board of Education
 
 ___
 To post, send message to Religionlaw@lists.ucla.edu [5]
 To subscribe, unsubscribe, change options, or get password, see
 http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6]
 
 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 [8]
 To subscribe, unsubscribe, change options, or get password, see
 http

Re: Hobby Lobby Question

[Levinson, Sanford V]

Mark may well be right, but why would a clearly constitutional single payer 
system elicit such disobedience (and arguments about complicity) but the 
funding of deeply immoral wars and complicity with a number of terrible regimes 
do not?  This is meant as a serious question. Abortion has become like the 
Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of 
the Seven Years War, but  (we now know) the trigger for the American 
Revolution.  Or is the better analogy to slavery, where compromise was 
ultimately impossible (for better or worse)?

Sandy

Sent from my iPhone

On Jul 6, 2014, at 4:14 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

And then we would have massive resistance that would make our largely voluntary 
tax system unworkable and create civil division at extreme levels.

Think, as mentioned at AALS, peasants with pitchforks.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: Levinson, Sanford V
Date:07/06/2014 11:13 AM (GMT-08:00)
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

I suppose that Jon's is the 64 billion dollar question. I think the answer 
would depend on the degree to which the single payer system was exclusive. If 
one could still purchase supplemental coverage (for heart transplants, say), 
then I assume the US could treat abortion as special. But if single-payer 
really did in all private insurance, then I assume that abortion would have to 
be covered.

Sandy

Sent from my iPhone

 On Jul 6, 2014, at 1:32 PM, mallamud 
 malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote:

 Why wouldn't the Congress ban coverage of abortions under a single-payer 
 system?
   Jon

 On 2014-07-01 22:22, Levinson, Sanford V wrote:
 I do not understand why the complicity with evil rationale doesn't
 apply to taxpayers ( like Thoreau). The argument against is either
 that it would unduly burden the state to set up a c.o. system for tax
 protesters or that it would invite strategic misrepresentation. Are
 these sufficiently compelling interests to overcome undoubtedly
 sincere (and correct) beliefs that one's taxes are supporting
 oppression at home and around the world (as well as a lot of good
 things). As Uwe Reindhart points out, the craziest American
 exceptionalism is that workers are dependent on their employers for
 medical insurance. Hobby Lobby is another good argument for
 tax-financed single-payer coverage.

 Sandy

 Sent from my iPhone

 On Jun 30, 2014, at 11:48 PM, Steven Jamar 
 stevenja...@gmail.commailto:stevenja...@gmail.com
 [13] wrote:

 The court accepts without inquiry the assertion that the complicity
 with evil theory is the problem that leads to the substantial
 burden. It merely accepts the claim that the adherents cannot comply
 because of the complicity theory. It then bootstraps that there
 would be costs of non-compliance.
 At the core the court buys the argument that an attenuated
 complicity can be the basis of a substantial burden.

 Sent from Steve's iPhone

 On Jul 1, 2014, at 12:20 AM, Arthur Spitzer 
 artspit...@gmail.commailto:artspit...@gmail.com
 [10] wrote:

 I'm puzzled by Steve Jamar's statement that yesterday's decision
 arguably requires all courts to simply accept the religious
 adherent's claim that the burden is substantial. The majority
 analyzed whether the burden was substantial and found it was
 because the ACA would impose millions of dollars of financial
 penalties on the plaintiffs if they did not comply. Slip op. at
 32. I don't think the Court tells us whether a $100 fine would
 have been a substantial burden. I'm curious what in the opinion
 Steve points to in support of the proposition that courts may not
 evaluate the substantiality of a burden, especially considering
 that the Court did evaluate that question, as an empirical matter,
 in this case.

 Art Spitzer

 WARNING: this message is subject to monitoring by the NSA.

 On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
 stevenja...@gmail.commailto:stevenja...@gmail.com [7] wrote:

 Brown eliminated the constitutional doctrine of separate but
 equal -- in the Brown decision just for education, but it was
 applied to all racial classifications. The 1964 Civil Rights Act
 accomplished much more, of course, but the Brown decision
 matters a lot.

 So it is with numerous decisions. Hobby Lobby's acceptance of
 the complicity with evil theory in this attenuated context and
 its ruling that arguably requires all courts to simply accept
 the religious adherent's claim that the burden is substantial,
 could dramatically change the landscape of RFRA interpretation
 federally and by example at the state level. These underlying
 principles could also be restricted by later decisions or
 expanded. It is a very troubling expansion of RFRA beyond what
 was intended

RE: Untangling the confusion of the Wheaton College order

[Levinson, Sanford V]

Marty writes that the “mess . . .  is a function of the increasingly 
implausible theories of complicity being offered by the plaintiffs' lawyers -- 
which the Court has invited with its capacious understanding of what 
constitutes a religious question beyond the ken of civil authorities to 
evaluate.”  I think he’s absolutely right.  Hasn’t the Court in effect made 
evaluation of religious argument, at last from an outsider’s perspective, 
nearly impossible, unless one goes down the rabbit hold of challenging 
“sincerity.”

sandy

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Re: Untangling the confusion of the Wheaton College order

[Levinson, Sanford V]

I will return Richard's compliment about hitting the nail on the head. The deep 
irony is that it the religious, at least in their legal rhetoric , who are 
making ultra-relativistic arguments that non- foundational liberals have no 
good reply to other than
prudentialism.

Sandy
Sent from my iPhone

On Jul 5, 2014, at 11:24 AM, Richard Dougherty 
dou...@udallas.edumailto:dou...@udallas.edu wrote:

I think Sandy has hit the nail on the head here, but I would add a twist to it. 
 Perhaps I am missing something, but what is the preferred alternative today to 
accommodation? Isn't it using the non-religious standard to judge the religious 
claim?  Or simply majority rule?  (Public opinion polls are all over the place, 
of course, but many suggest sympathy for the Hobby Lobby position.) But where 
does that leave the right to free exercise of religion?

The twist I would put on Sandy's question is this: the independent scrutiny 
can only be undertaken by someone who is a foreigner to the religious claim.  
But the success of one's claim doesn't mean it is an irrational claim, or that 
arguments can't be made for it, only that those arguments will not be 
persuasive to those who are not sympathetic with the first principles at work.  
Thus Locke's toleration, as he himself notes, cannot extend to Catholics or 
Muslims.

The triumph of post-modernism can in fact leave us without a basis for making 
assessments of reasonable claims.  The danger, though, is not only 
over-accommodation (a real danger, I readily admit) -- on the other side it can 
be under-accommodation, or simply the exercise of power.

Richard Dougherty
University of Dallas


On Sat, Jul 5, 2014 at 9:52 AM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
Let me tendentiously suggest that accommodationist is synonymous with 
irrationalist if in fact one can't subject the proffered arguments to some 
kind of independent scrutiny. Of course, this may represent the ironic 
triumph of post-modernism, inasmuch as it taught many of us that there is in 
fact no truly independent vantage point from which to police claims. But, also 
of course, one can be certain that Wheaton and other religious claimants have 
no sympathy for post-modernist anti-foundationalism.

Sandy

Sent from my iPhone


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Re: Hobby Lobby Question

[Levinson, Sanford V]

That is, of course, a deep problem. People can sincerely believe absolutely 
crazy things.

Sandy

Sent from my iPhone

On Jul 1, 2014, at 12:29 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

Maybe this is a constitutional fact, like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 1, 2014, at 8:30 AM, Vance R. Koven 
vrko...@gmail.commailto:vrko...@gmail.com wrote:

I have (perhaps incorrectly) assumed that when the Court says *it* should not 
get involved in judging the sincerity of a religious belief, it is expressing 
the proper division of labor between a court and the finder of fact. It should 
be up to the jury (or the court wearing a fact-finder hat) to decide whether 
the belief is sincerely held or not. A trial court can easily enough instruct a 
jury to disregard whether they think the religious belief is kooky; but it's 
perfectly acceptable based on the credibility of the witnesses and direct and 
circumstantial evidence for a jury to ascertain whether the claimed religious 
belief is real or bogus.

I have often suspected that doctrine in religious liberty cases has become 
quite twisted over time by courts' reluctance to let juries do what they're 
supposed to do.


On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer 
artspit...@gmail.commailto:artspit...@gmail.com wrote:
I appreciate Steve's response, which I think demonstrates that he is precisely 
rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' 
beliefs.  The plaintiffs say that their religious beliefs prohibit complicity 
with evil, and that signing a contract that makes available certain chemicals 
or devices to others amounts to complicity with evil, because of the use to 
which such chemicals or devices are most likely to be put (terminating what 
plaintiffs believe is a human life).

If a court should not accept that assertion without inquiry, then what 
inquiry is it supposed to make?

Can a court evaluate and reject the religious belief that complicity with evil 
is sinful?

Can a court evaluate and reject the religious belief that terminating a human 
life is evil?

Can a court evaluate and reject the religious belief that morning-after pills 
terminate a human life?

Can a court evaluate and reject the religious belief that providing the means 
for a person to obtain a chemical or device whose principal purpose is to 
terminate a human life, and that is likely to be used for that purpose, counts 
as complicity in terminating a human life?

Is there some other inquiry the court should be making that I'm missing?

Art Spitzer
PS - My questions should not be taken to imply that I necessarily agree with 
the majority opinion (not that anyone cares), and they certainly do not 
represent the views of my employer.



Warning: this message is subject to monitoring by the NSA.






--
Vance R. Koven
Boston, MA USA
vrko...@world.std.commailto:vrko...@world.std.com
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Re: Hobby Lobby Question

[Levinson, Sanford V]

I do not understand why the complicity with evil rationale doesn't apply to 
taxpayers ( like Thoreau). The argument against is either that it would unduly 
burden the state to set up a c.o. system for tax protesters or that it would 
invite strategic misrepresentation. Are these sufficiently compelling 
interests to overcome undoubtedly sincere (and correct) beliefs that one's 
taxes are supporting oppression at home and around the world (as well as a lot 
of good things). As Uwe Reindhart points out, the craziest American 
exceptionalism is that workers are dependent on their employers for medical 
insurance. Hobby Lobby is another good argument for tax-financed single-payer 
coverage.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 11:48 PM, Steven Jamar 
stevenja...@gmail.commailto:stevenja...@gmail.com wrote:

The court accepts without inquiry the assertion that the complicity with evil 
theory is the problem that leads to the substantial burden. It merely accepts 
the claim that the adherents cannot comply because of the complicity theory.  
It then bootstraps that there would be costs of non-compliance.
At the core the court buys the argument that an attenuated complicity can be 
the basis of a substantial burden.

Sent from Steve's iPhone


On Jul 1, 2014, at 12:20 AM, Arthur Spitzer 
artspit...@gmail.commailto:artspit...@gmail.com wrote:

I'm puzzled by Steve Jamar's statement that yesterday's decision arguably 
requires all courts to simply accept the religious adherent's claim that the 
burden is substantial.  The majority analyzed whether the burden was 
substantial and found it was because the ACA would impose millions of dollars 
of financial penalties on the plaintiffs if they did not comply.  Slip op. at 
32.  I don't think the Court tells us whether a $100 fine would have been a 
substantial burden.  I'm curious what in the opinion Steve points to in support 
of the proposition that courts may not evaluate the substantiality of a burden, 
especially considering that the Court did evaluate that question, as an 
empirical matter, in this case.

Art Spitzer


Warning: this message is subject to monitoring by the NSA.



On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
stevenja...@gmail.commailto:stevenja...@gmail.com wrote:
Brown eliminated the constitutional doctrine of separate but equal - in the 
Brown decision just for education, but it was applied to all racial 
classifications.  The 1964 Civil Rights Act accomplished much more, of course, 
but the Brown decision matters a lot.

So it is with numerous decisions.  Hobby Lobby's acceptance of the complicity 
with evil theory in this attenuated context and its ruling that arguably 
requires all courts to simply accept the religious adherent's claim that the 
burden is substantial, could dramatically change the landscape of RFRA 
interpretation federally and by example at the state level.These underlying 
principles could also be restricted by later decisions or expanded.  It is a 
very troubling expansion of RFRA beyond what was intended originally.  But that 
is hardly unique to this bit of legislation.

I think it is a very bad decision, but not even in the top ten.


--
Prof. Steven D. Jamar vox:  202-806-8017tel:202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567tel:202-806-8567
http://sdjlaw.org


For all men of good will May 17, 1954, came as a joyous daybreak to end the 
long night of enforced segregation. . . . It served to transform the fatigue of 
despair into the buoyancy of hope.


Martin Luther King, Jr., in 1960 on Brown v. Board of Education








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Re: Hobby Lobby Question

[Levinson, Sanford V]

I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:

With regard to Sandy's comment that there isn't a chance in hell of getting 
funding from Congress to cover these methods of contraception:

Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?

On the question whether govt funding may be a less restrictive means:

The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means - less 
restrictive of religious liberty - than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43:

The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers' religious objections. ... It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. ... If, as HHS tells us, providing all women with cost-free access to 
all FDA-approved methods of contraception is a Government interest of the 
highest order, it is hard to understand HHS's argument that it cannot be 
required under RFRA to pay anything in order to achieve this important goal.
 We do not doubt that cost may be an important factor in the 
least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, 
may in some circumstances require the Government to expend additional funds to 
accommodate citizens' religious beliefs. Cf. ?2000cc-3(c) (RLUIPA: '[T]his 
chapter may require a government to incur expenses in its own operations to 
avoid imposing a substantial burden on religious
exercise.'). HHS's view that RFRA can never require the Government to spend 
even a small amount reflects a judgment about the importance of religious 
liberty that was not shared by the Congress that enacted that law.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 12:28 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

This is a good question.  AS I read the opinion it tends to rely on the fact 
that the insurance providers will be required to provide the coverage for 
free (given that it will overall cost less to cover than would pregnancies), 
so that the government must allocate not a single new penny.  If, on the other 
hand, a new appropriation, even of a penny, would be necessary, then we all 
know that there isn't a chance in hell of that being voted by Congress.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law  Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edumailto:hle...@uga.edu
hillelle...@gmail.commailto:hillelle...@gmail.com
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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RE: Hobby Lobby/Ellen Katz

[Levinson, Sanford V]

Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I 
regret ever more every day that Rehnquist did not assign the opinion to 
O'Connor, whose opinion at the time at detested because of what I thought was 
her lassitude on what counted as a compelling interest, but that is small beer 
indeed compared to the fact that had she been writing for the Court, the 
(perhaps fiction of) the compelling interest test would have been maintained 
even as it became ever more clear that compelling was not to be interpreted 
with inordinate strictness.  Instead, it is possible that we will get, courtesy 
of Justice Scalia and four allies, a remarkably wooden and divisive 
interpretation of RFRA that will have at least some of the consequences that 
Jon predicts.  Perhaps they will split the baby, a la Bakker, and decide, as I 
think is Doug's position, that Hobby Lobby is entitled to be heard on its 
claim, but that it fails becauses there is in fact what they will accept a!
 s a compelling interest' in favor of the contraception aspect of the mandate. 
 

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
Sent: Sunday, June 08, 2014 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Hobby Lobby/Ellen Katz

Eugene,

 I agree that it would [not] be proper for him to take a different
 approach because he wants people to take a more nuanced view of him
 or because he wants to convic[e] people that the Supreme Court 
 deserves respect.

 Judges must make decisions based on their best judgment without regard to 
whether people would like them.  It is for law professors, lawyers and others 
to evaluate decisions.  I do think there is an obligation for legally trained 
people to defend as well as criticize the Supreme Court and I believe that 
given the partisanship that may tear our country apart, the time to do so is 
now. I also do not believe Justices must stick to the views they had before 
they were appointed. 
They need to reevaluate those views in the light of changed circumstances and 
the broader perspective from the view from the highest court.

 Thus, I just hope he sees the problem as he did in Smith and weighs that 
against a statute that, if interpreted broadly, would go against the policy of 
the free speech clauses: to let people of many different views to live together 
in harmony.  The application of strict scrutiny to protect all religious views 
would be extremely disruptive.

  I believe based on arguments Marci makes that RFRA is unconstitutional, 
but despite her brief, I do not think that that is at issue in Hobby Lobby.

Jon







On 2014-06-08 12:58, Volokh, Eugene wrote:
 I'm still not sure I understand.  Let's say Justice Scalia thinks -- 
 as seems quite plausible -- that the Free Exercise Clause is best 
 interpreted as not securing religious exemptions.  And let's say that 
 he also thinks, as is also quite possible, that (1) there's no 
 constitutional bar to Congress's providing by statute what the Free 
 Exercise Clause does not itself provide, (2) it's not for secular 
 courts to second-guess claimants' sincere claims that the law violates 
 their religious beliefs, based on a judgment that those beliefs are 
 based on too tenuous causal connections, and (3) the proposed 
 exemption doesn't interfere with the rights and freedoms of others.
 I
 can't really see how it would be proper for him to take a different 
 approach because he wants people to take a more nuanced view of him
 or because he wants to convic[e] people that the Supreme Court 
 deserves respect.

   Now of course if there's a sound substantive argument for why, for 
 instance, RFRA is unconstitutional, then by hypothesis Justice Scalia 
 should be persuaded by it.  But what would that argument be?

   Eugene

 -Original Message-
 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- 
 boun...@lists.ucla.edu] On Behalf Of mallamud
 Sent: Sunday, June 08, 2014 9:44 AM
 To: religionlaw@lists.ucla.edu
 Subject: RE: Hobby Lobby/Ellen Katz

 People with whom I speak view Justice Scalia as a staunch 
 conservative.
 They also associate deference to religion as a conservative position.
 If Scalia were to use what he obviously knows from his decision in 
 Smith to deny religious exemptions based on tenuous connections where 
 they interfere with the rights and freedoms of others, I think some 
 people might take a more nuanced view of him.  One small step in 
 convincing people that the Supreme Court deserves respect because the 
 Justices decide based on their best judgment of the good of the 
 country and not on preconceived liberal or conservative biases.  
 [Sub-point: Just as Scalia pointed to the wildly overwhelming 
 majority by which Sec. 5 of the VRA was extended for 25 years, I feel 
 that one reason for the enactment or RFRA, again, 

RE: Hobby Lobby/Ellen Katz

[Levinson, Sanford V]

The answer to Tom's question is not only that it creates an incentive for 
strategic misrepresentations (which I don't regard as dispositive, because that 
arises in all religious exemption claims, including conscientious objection), 
but also, and far more seriously, that it would be yet one more grant by this 
ultra conservative Court of power to management at the cost of their employees 
(who are increasingly viewed by this Court as having only such rights as 
management chooses to respect).  I'm quite willing to support the right of the 
isolated baker or florist to refuse to bake a wedding cake or supply flowers 
because that has very few externalities (other, of course, than the stigma 
visited on the same sex would-be customers, but I agree with Doug that that is 
the price we pay for recognizing the rights of people we might regard as 
personally unattractive--I speak as someone who defended the right of the Ku 
Klux Klan to march down Congress Avenue in Austin).  

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 4:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more 
divisive than an interpretation against?

And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's 
conflicting signals at oral argument, I suspect that if he has voted for Hobby 
Lobby--which I assume is necessary for Hobby Lobby to win--he might well be 
trying to craft his opinion narrowly. (Not that he always succeeds in making 
the confines of his opinions clear.)

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy University of St. Thomas 
School of Law MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 3:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I 
regret ever more every day that Rehnquist did not assign the opinion to 
O'Connor, whose opinion at the time at detested because of what I thought was 
her lassitude on what counted as a compelling interest, but that is small beer 
indeed compared to the fact that had she been writing for the Court, the 
(perhaps fiction of) the compelling interest test would have been maintained 
even as it became ever more clear that compelling was not to be interpreted 
with inordinate strictness.  Instead, it is possible that we will get, courtesy 
of Justice Scalia and four allies, a remarkably wooden and divisive 
interpretation of RFRA that will have at least some of the consequences that 
Jon predicts.  Perhaps they will split the baby, a la Bakker, and decide, as I 
think is Doug's position, that Hobby Lobby is entitled to be heard on its 
claim, but that it fails becauses there is in fact what they will accept a!
 s a compelling interest' in favor of the contraception aspect of the mandate.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
Sent: Sunday, June 08, 2014 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Hobby Lobby/Ellen Katz

Eugene,

 I agree that it would [not] be proper for him to take a different
 approach because he wants people to take a more nuanced view of him
 or because he wants to convic[e] people that the Supreme Court 
 deserves respect.

 Judges must make decisions based on their best judgment without regard to 
whether people would like them.  It is for law professors, lawyers and others 
to evaluate decisions.  I do think there is an obligation for legally trained 
people to defend as well as criticize the Supreme Court and I believe that 
given the partisanship that may tear our country apart, the time to do so is 
now. I also do not believe Justices must stick to the views they had before 
they were appointed.
They need to reevaluate those views in the light of changed circumstances and 
the broader perspective from the view from the highest court.

 Thus, I just hope he sees the problem as he did in Smith and weighs that 
against a statute that, if interpreted broadly, would go against the policy of 
the free speech clauses: to let people of many different views to live together 
in harmony.  The application of strict scrutiny to protect all religious views 
would be extremely disruptive

RE: Hobby Lobby/Ellen Katz

[Levinson, Sanford V]

I agree with Tom that divisiveness arguments are best shied away from.  This 
was a favorite of Brennan in the school funding cases, and I never understood 
why those who supported funding on the basis that they could not otherwise 
enjoy their presumptive constitutional right to send their children to 
religious schools (Pierce) weren't as upset with the Court as, presumably, 
secularists would have been by knowing that their tax dollars were going to 
religious schools.   

The insurer pays accommodation depends, does it not, on the brute fact that 
contraception, when all is said and done, is less costly than pregnancy.  What 
if it were more costly?

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 6:34 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

I get those arguments, but they don't really seem to rest on a ruling for Hobby 
Lobby being divisive--they rest on it being (assertedly) substantively wrong. 
One could just as easily charge the Obama administration with being divisive 
(undermining harmony, to use Jon's term) by adopting the mandate in the first 
place. (See Rick Garnett's piece on why arguments about divisiveness should do 
only very limited work in religion cases.) 

On the substance, I too am not a fan of some Roberts Court rulings for 
employers (e.g. Ledbetter). But it seems to me there are possible rulings for 
Hobby Lobby that would not affect employees greatly--for example, the 
possibility, explored at oral argument, of extending to for-profit employers 
the same insurer-pays accommodation that now covers religious nonprofits.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy University of St. Thomas 
School of Law MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 5:58 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

The answer to Tom's question is not only that it creates an incentive for 
strategic misrepresentations (which I don't regard as dispositive, because that 
arises in all religious exemption claims, including conscientious objection), 
but also, and far more seriously, that it would be yet one more grant by this 
ultra conservative Court of power to management at the cost of their employees 
(who are increasingly viewed by this Court as having only such rights as 
management chooses to respect).  I'm quite willing to support the right of the 
isolated baker or florist to refuse to bake a wedding cake or supply flowers 
because that has very few externalities (other, of course, than the stigma 
visited on the same sex would-be customers, but I agree with Doug that that is 
the price we pay for recognizing the rights of people we might regard as 
personally unattractive--I speak as someone who defended the right of the Ku 
Klux Klan to march down Congress Avenue in Austin).

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Sunday, June 08, 2014 4:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more 
divisive than an interpretation against?

And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's 
conflicting signals at oral argument, I suspect that if he has voted for Hobby 
Lobby--which I assume is necessary for Hobby Lobby to win--he might well be 
trying to craft his opinion narrowly. (Not that he always succeeds in making 
the confines of his opinions clear.)

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy University of St. Thomas 
School of Law MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Levinson, Sanford V [slevin...@law.utexas.edu]
Sent: Sunday, June 08, 2014 3:37 PM
To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby/Ellen Katz

Unlike Jon, I believe RFRA was constitutional, but, as I've posted

Re: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

[Levinson, Sanford V]

I would always want to know the rationale and why it didn't apply to the 
religious person as well. But if ever I'm disinclined to be sympathetic to the 
flat out equal treatment, it's in this instance, and I continue to wonder why 
there's a religious exemption. I presume that a religious person wouldn't be 
allowed to smoke on premises even if she belonged to a religious sect that 
commanded chain smoking. I see no difference with regard to the flu shot. But, 
by stipulation, if the rule had nothing to do with patients' health, then I'd 
be inclined to treat secular and religious alike.

Sandy

Sandy

Sent from my iPhone

On Jun 7, 2014, at 9:02 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:

   I agree entirely on the bottom line, but let me ask what would 
happen in the absence of concerns about harm to the sick.  Say an employer has 
a uniform policy that bars headgear, but exempts religious objectors; and say 
that a secular employee insists on wearing a hat to work, and is fired for it.  
Should the employee be seen as constitutionally entitled to unemployment 
compensation, on a rationale similar to that given by the New Jersey appellate 
court?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, June 06, 2014 9:00 PM
To: Law  Religion issues for Law Academics
Subject: RE: Religious Exemption From Vaccination Policy Requires Acceptance of 
Secular Reasons As Well

OK, I’ll bite;  Religious exemptions, at the end of the day,  honor beliefs 
that secularists by definition must regard as “irrational,” i.e., incapable of 
being defended by reference to “standard-model” scientific argument.  There may 
be good reasons for allowing such exemption in the name of preserving civil 
peace, etc., or it may simply boil down to the presence of the Free Exercise 
Clause and the collapse  of  the belief/conduct distinction.  But it is hard to 
think of “secular” reasons for a nurse to refuse to get a flu vaccination, 
given the risk not only to herself—which raises obvious questions about 
paternalism—but also potential risks to her patients should she in fact come 
down with the flu and infect others in the hospital, who are by definition more 
vulnerable than ordinary persons with whom she might also come into contact.  
So, unless there really is some good reason to refuse flu vaccines—perhaps she 
is unusually sensitive to egg-based vaccines or something similar—I am 
disinclined to be at all sympathetic to her argument and would regard her 
firing as fully for cause.  I think the “freedom of expression” argument in 
this case is wacky given her job and responsibility for doing no harm to the 
sick.  Were I to receive this as an answer to a final exam question, I would be 
inclined to give it a very bad grade.  I leave it to my colleagues on this 
list, including Eugene, to tell me if (and why) I am off-base in my response.

sandy
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, June 06, 2014 10:50 PM
To: Law  Religion issues for Law Academics 
(religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu)
Subject: FW: Religious Exemption From Vaccination Policy Requires Acceptance of 
Secular Reasons As Well

   Any thoughts on this New Jersey case?  (Note that the court’s 
rationale focused not on the Establishment Clause as such, but rather on the 
conclusion that “The Board's decision upholding appellant's termination 
unconstitutionally discriminated against appellant's freedom of expression by 
improperly endorsing the employer's religion-based exemption to the flu 
vaccination policy and rejecting the secular choice proffered by appellant.”)

   Eugene

Feed: Religion Clause
Posted on: Friday, June 06, 2014 4:05 AM
Author: Howard Friedman
Subject: Religious Exemption From Vaccination Policy Requires Acceptance of 
Secular Reasons As Well

In Valent v. Board of Review, Department of 
Laborhttp://www.judiciary.state.nj.us/opinions/a4980-11.pdf, (NJ App., June 
5, 2014), the New Jersey Superior Court Appellate Division held that a nurse 
employed by a hospital was entitled to unemployment compensation after she was 
fired for refusing to obtain a flu vaccination as required by the hospital's 
policy.  The hospital policy allowed exemptions for religious or medical 
reasons, however here the nurse's objections were based on secular non-medical 
concerns.  The court wrote in part:
By exempting employees who can produce religion-based documentation, the 
employer's flu vaccination policy is clearly not exclusively driven by 
health-related concerns. The Board cannot therefore accept the policy as a 
proper basis to find appellant committed an act of insubordination of 
sufficient

Re: Hobby Lobby transcript

[Levinson, Sanford V]

I'm much relieved that my memory was not entirely fermisht!

Sent from my iPhone

On Mar 25, 2014, at 5:37 PM, Marc Stern 
ste...@ajc.orgmailto:ste...@ajc.org wrote:

One of the blue law cases did involve a kosher butcher - I think it was named 
Crown Kosher

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.
From: Levinson, Sanford V
Sent: Tuesday, March 25, 2014 6:12 PM
To: 'Law  Religion issues for Law Academics'
Reply To: Law  Religion issues for Law Academics
Subject: RE: Hobby Lobby transcript


I stand thoroughly corrected!  And, of course, there is no general category 
called “kosher clothes.”  This is a good demonstration that it’s always a good 
idea to go back and read the cases before opining, because I also would have 
sworn that the case arose in Massachusetts.  I’m glad I’m taking an exam in 
Chip’s course :)

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 25, 2014 5:00 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

Braunfeld did not sell meat.  From the opinion: Appellants are merchants in 
Philadelphia who engage in the retail sale of clothing and home furnishings 
within the proscription of the statute in issue.

On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
With regard to Braunfield, given that the customers are a distinct subset of 
people who want Kosher meat, isn't the argument more that they are decidedly 
inconvenienced by being unable to shop on Sunday (which is just another day to 
them), but NOT that they will refrain from buying kosher meat from Braunfield.  
After all, no other kosher meat market will be open on Saturday, and they're 
not going to buy non-kosher meat on Sunday.  Or is (was) the argument that 
non-Sabbath observant Jews would no longer buy general grocery products from 
Braunfield that were easily available from Stop and Shop on Saturday?  In the 
former case, then Braunfield's overall income should be roughly the same even 
with the forced Sunday closing.  Is this even a relevant way of approaching the 
case, instead of being upset, as I was almost fifty years ago when I read it, 
at the simple inegalitarian aspects of Jewish butchers being forced to close 
two days a week (one day by the state, one day by their !
 religious duty) while (mainstream) Christians could remain open six days a 
week.  But, to repeat, this would be a competitive advantage only if Jewish 
shoppers really didn't care that much about where they brought their meat and 
other grocery products.  It would be a different case, presumably, if we were 
talking about, say, paint stores, where there's no category called kosher 
paint.

sandy

-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice Kagan 
invoked Braunfeld. I made a similar comparison on the listserv back in December:

 Braunfeld might support Marty's argument. The government provides an option 
 to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't 
 burden religion, and even if it's somewhat more expensive, Braunfeld seems to 
 contemplate that laws will sometimes work in this way. Provided a law doesn't 
 directly compel anyone to violate their religious beliefs, its imposition of 
 additional costs on religious practice is not sufficient to show a 
 substantial burden.

 Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And 
 maybe there are other problems with the analogy, but I wonder if the no 
 employer mandate argument turns on an empirical claim, at least if the cost 
 differentials are not so significant as to be tantamount to coercion -- as in 
 the 4980D tax for failing to comply with coverage requirements.

Here's Justice Kagan (transcript p. 24):

 15  JUSTICE KAGAN: Well, let's say that that's
 16  right. Let's say that they have to increase the wages a
 17  little bit. I mean, still we are talking about pretty
 18  equivalent numbers. Maybe it's a little bit less; maybe
 19  it's a little bit more. But this is not the kind of
 20  thing that's going to drive a person out of business.
 21  It's not prohibitive.
 22  It's like the thing that we talked about in
 23  Braunfeld where we said, you know, maybe if the store
 24  can't stay open 7 days a week, it makes a little bit
 25  less money. But so be it, is what we said.

If it works, I do think this argument raises factual questions that would have 
to be addressed on remand.

On Mar 25, 2014, at 4:19

RE: The importance of the assignment power

[Levinson, Sanford V]

What if, in 1990, Chief Justice Rehnquist had assigned the opinion in Smith to 
O'Connor instead of Scalia?   The result in the instant case, of course, would 
have been the same, but instead of junking the Free Exercise Clause, as Scalia 
basically did, the argument would have been that Oregon had met its compelling 
interest burden. So the doctrine of Sherbert etc. (whatever one thinks it 
actually was) stays in place-many of us would have castigated O'Connor for 
believing that Oregon had in fact demonstrated a compelling interest, but that 
would have gone to the application, not necessarily to the doctrine itself-and, 
I assume there would have been no RFRA.  I wonder if we wouldn't have been 
better off, as a society, with that outcome, since RFRA is entirely a response 
to Scalia's specific opinion (which, I concede, did garner five votes).

So one question is why did Rehnquist give the opinion to Scalia?  Is it 
simply that he was due for an assignment?  One can ask the same question, 
of course, about Roberts and Heller.  I have no problem with the outcome in 
Heller, but I think that Scalia's opinion is scandalously awful in the way he 
handles historical materials and leaves open many questions (beginning, of 
course, with the standard of review and why it is constitutional to deprive 
Martha Stewart of the fundamental right to defend herself merely because she 
lied to an FBI agent).


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RE: Hobby Lobby transcript

[Levinson, Sanford V]

With regard to Braunfield, given that the customers are a distinct subset of 
people who want Kosher meat, isn't the argument more that they are decidedly 
inconvenienced by being unable to shop on Sunday (which is just another day to 
them), but NOT that they will refrain from buying kosher meat from Braunfield.  
After all, no other kosher meat market will be open on Saturday, and they're 
not going to buy non-kosher meat on Sunday.  Or is (was) the argument that 
non-Sabbath observant Jews would no longer buy general grocery products from 
Braunfield that were easily available from Stop and Shop on Saturday?  In the 
former case, then Braunfield's overall income should be roughly the same even 
with the forced Sunday closing.  Is this even a relevant way of approaching the 
case, instead of being upset, as I was almost fifty years ago when I read it, 
at the simple inegalitarian aspects of Jewish butchers being forced to close 
two days a week (one day by the state, one day by their !
 religious duty) while (mainstream) Christians could remain open six days a 
week.  But, to repeat, this would be a competitive advantage only if Jewish 
shoppers really didn't care that much about where they brought their meat and 
other grocery products.  It would be a different case, presumably, if we were 
talking about, say, paint stores, where there's no category called kosher 
paint.

sandy 

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice Kagan 
invoked Braunfeld. I made a similar comparison on the listserv back in 
December: 

 Braunfeld might support Marty's argument. The government provides an option 
 to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't 
 burden religion, and even if it's somewhat more expensive, Braunfeld seems to 
 contemplate that laws will sometimes work in this way. Provided a law doesn't 
 directly compel anyone to violate their religious beliefs, its imposition of 
 additional costs on religious practice is not sufficient to show a 
 substantial burden. 
 
 Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And 
 maybe there are other problems with the analogy, but I wonder if the no 
 employer mandate argument turns on an empirical claim, at least if the cost 
 differentials are not so significant as to be tantamount to coercion -- as in 
 the 4980D tax for failing to comply with coverage requirements. 

Here's Justice Kagan (transcript p. 24): 

 15  JUSTICE KAGAN: Well, let's say that that's
 16  right. Let's say that they have to increase the wages a
 17  little bit. I mean, still we are talking about pretty
 18  equivalent numbers. Maybe it's a little bit less; maybe
 19  it's a little bit more. But this is not the kind of
 20  thing that's going to drive a person out of business.
 21  It's not prohibitive.
 22  It's like the thing that we talked about in
 23  Braunfeld where we said, you know, maybe if the store
 24  can't stay open 7 days a week, it makes a little bit
 25  less money. But so be it, is what we said. 

If it works, I do think this argument raises factual questions that would have 
to be addressed on remand.

On Mar 25, 2014, at 4:19 PM, Marty Lederman lederman.ma...@gmail.com wrote:

 is here:
 
 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354
 _5436.pdf
 
 Audio should be available later in the week.
 
 I'd be curious to hear what others who attended thought of the argument.
 
 I'll mention only three things of particular note:  
 
 First, several of the Justices, including Justice Kennedy, appeared to be at 
 least somewhat sympathetic to the argument I've been stressing that the 
 employers' religion might not be substantially burdened because they have the 
 option of not offering a plan (which might well save them money).
 
 Second, there appeared by the end of the argument to be a very real 
 possibility of a judgment that the government must advance its interests 
 through the less restrictive means of offering its secondary accommodation 
 (payment required of the issuer or the TPA) to for-profit corporations, as 
 well.  This idea seemed to have traction with Justices of varying 
 perspectives, and neither advocate resisted it much -- indeed, Paul Clement 
 appeared to go out of his way in rebuttal to encourage it, and to stress that 
 he had hinted at it on page 58 of the Hobby Lobby brief.
 
 Third, Justices Alito and Scalia tried to argue that RFRA goes much further 
 than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there 
 are five votes for that.
 ___
 To post, send message to Religionlaw@lists.ucla.edu To subscribe, 
 unsubscribe, change 

RE: Hobby Lobby transcript

[Levinson, Sanford V]

Is Hobby Lobby in the position of claiming a right to enlist in the armed 
forces, but, at the same time, to avoid being assigned duties that violate 
their religious views?  I assume the general answer to such a request is you 
don't have to enlist, but if you do, then you have to do it on the government's 
terms.  This is in no way similar to the claims made in the Medicaid 
litigation that Florida and other states simply couldn't afford to resist the 
government's blandishments.  Hobby Lobby can decide tomorrow to stop offering 
insurance and to pay the altogether reasonable tax.  Obviously, we'd have a 
different case if the tax were far in excess of what it would cost to provide 
acceptable health insurance.  They it really would be a penalty.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, March 25, 2014 4:34 PM
To: Law Religion  Law List
Subject: Re: Hobby Lobby transcript

Where is the complicity burden?  The financial burden can't be a burden.  If 
the alternative removes the complicity, and that alternative is available to 
them, then where is the substantial burden on religion?  It was plaintiff's 
complicity theory that was the driving force.  They had the burden of choosing 
their ground for showing substantial burden.  If they didn't carry that burden, 
they didn't carry it.

--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/



Never doubt that the work of a small group of thoughtful, committed citizens 
can change the world. Indeed, it's the only thing that ever has.



Margaret Meade




On Mar 25, 2014, at 4:53 PM, Conkle, Daniel O. 
con...@indiana.edumailto:con...@indiana.edu wrote:


Marty's argument did seem to get some traction.  But in addressing the 
alternative of not providing insurance and simply paying the $26 million ($2000 
per employee), Clement suggested that the overall cost to the employer - 
including the need to pay higher wages and the adverse impact on attracting 
employees, etc. - still would amount to a substantial burden.  He also argued 
that the government had not litigated the case on the theory that this 
alternative was a viable option, and he suggested that he would like a chance 
to demonstrate - presumably with financial calculations and expert testimony, 
etc. - that this alternative would not be economically viable and therefore 
would not eliminate the substantial burden.

Here's what he says at p. 28: I think there would still be a substantial 
burden on their exercise.  But again, this all turns on issues that the 
government hasn't put in issue.  This case hasn't been litigated on this 
particular theory, so I think -- I'd  love to have the opportunity to show how 
by not providing health insurance it would have a huge burden on my client and 
their ability to attract workers, and that in fact would cost them much more 
out of pocket. But that's not been the nature of the government's theory.

So, even if the Court were inclined to accept Marty's argument, wouldn't the 
challengers have to be given a chance to litigate this question on remand?

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 25, 2014 4:19 PM
To: Law  Religion issues for Law Academics
Subject: Hobby Lobby transcript

is here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf
Audio should be available later in the week.
I'd be curious to hear what others who attended thought of the argument.
I'll mention only three things of particular note:

First, several of the Justices, including Justice Kennedy, appeared to be at 
least somewhat sympathetic to the argument I've been stressing that the 
employers' religion might not be substantially burdened because they have the 
option of not offering a plan (which might well save them money).
Second, there appeared by the end of the argument to be a very real possibility 
of a judgment that the government must advance its interests through the less 
restrictive means of offering its secondary accommodation (payment required of 
the issuer or the TPA) to for-profit corporations, as well.  This idea seemed 
to have traction with Justices of varying perspectives, and neither advocate 
resisted it much -- indeed, Paul Clement appeared to go out of his way in 
rebuttal to encourage it, and to 

RE: Hobby Lobby transcript

[Levinson, Sanford V]

I stand thoroughly corrected!  And, of course, there is no general category 
called kosher clothes.  This is a good demonstration that it's always a good 
idea to go back and read the cases before opining, because I also would have 
sworn that the case arose in Massachusetts.  I'm glad I'm taking an exam in 
Chip's course :)

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, March 25, 2014 5:00 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

Braunfeld did not sell meat.  From the opinion: Appellants are merchants in 
Philadelphia who engage in the retail sale of clothing and home furnishings 
within the proscription of the statute in issue.

On Tue, Mar 25, 2014 at 5:53 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
With regard to Braunfield, given that the customers are a distinct subset of 
people who want Kosher meat, isn't the argument more that they are decidedly 
inconvenienced by being unable to shop on Sunday (which is just another day to 
them), but NOT that they will refrain from buying kosher meat from Braunfield.  
After all, no other kosher meat market will be open on Saturday, and they're 
not going to buy non-kosher meat on Sunday.  Or is (was) the argument that 
non-Sabbath observant Jews would no longer buy general grocery products from 
Braunfield that were easily available from Stop and Shop on Saturday?  In the 
former case, then Braunfield's overall income should be roughly the same even 
with the forced Sunday closing.  Is this even a relevant way of approaching the 
case, instead of being upset, as I was almost fifty years ago when I read it, 
at the simple inegalitarian aspects of Jewish butchers being forced to close 
two days a week (one day by the state, one day by their !
 religious duty) while (mainstream) Christians could remain open six days a 
week.  But, to repeat, this would be a competitive advantage only if Jewish 
shoppers really didn't care that much about where they brought their meat and 
other grocery products.  It would be a different case, presumably, if we were 
talking about, say, paint stores, where there's no category called kosher 
paint.

sandy

-Original Message-
From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Micah Schwartzman
Sent: Tuesday, March 25, 2014 4:30 PM
To: Law  Religion issues for Law Academics
Subject: Re: Hobby Lobby transcript

In the context of discussing Marty's substantial burden argument, Justice Kagan 
invoked Braunfeld. I made a similar comparison on the listserv back in December:

 Braunfeld might support Marty's argument. The government provides an option 
 to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't 
 burden religion, and even if it's somewhat more expensive, Braunfeld seems to 
 contemplate that laws will sometimes work in this way. Provided a law doesn't 
 directly compel anyone to violate their religious beliefs, its imposition of 
 additional costs on religious practice is not sufficient to show a 
 substantial burden.

 Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And 
 maybe there are other problems with the analogy, but I wonder if the no 
 employer mandate argument turns on an empirical claim, at least if the cost 
 differentials are not so significant as to be tantamount to coercion -- as in 
 the 4980D tax for failing to comply with coverage requirements.

Here's Justice Kagan (transcript p. 24):

 15  JUSTICE KAGAN: Well, let's say that that's
 16  right. Let's say that they have to increase the wages a
 17  little bit. I mean, still we are talking about pretty
 18  equivalent numbers. Maybe it's a little bit less; maybe
 19  it's a little bit more. But this is not the kind of
 20  thing that's going to drive a person out of business.
 21  It's not prohibitive.
 22  It's like the thing that we talked about in
 23  Braunfeld where we said, you know, maybe if the store
 24  can't stay open 7 days a week, it makes a little bit
 25  less money. But so be it, is what we said.

If it works, I do think this argument raises factual questions that would have 
to be addressed on remand.

On Mar 25, 2014, at 4:19 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

 is here:

 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354
 _5436.pdf

 Audio should be available later in the week.

 I'd be curious to hear what others who attended thought of the argument.

 I'll mention only three things of particular note:

 First, several of the Justices, including Justice Kennedy, appeared to be at 
 least somewhat sympathetic to the argument I've been stressing that the 
 employers' religion might not be substantially burdened because

RE: letter opposing Mississippi RFRA

[Levinson, Sanford V]

I almost apologize for bringing this up, but I think that a key phrase in 
Mark's post is they sincerely think the drugs they must provide will sometimes 
cause abortions.  It is not simply Marty's point that they are not being 
forced to provide them (any more than would be the case, of course, if they 
were provided through ordinary taxes), but, rather the sincerely think.  I am 
not at all clear why beliefs about empirical matters, albeit sincere, should be 
dispositive if there is genuine evidence one way or the other.  The drugs in 
question either will or will not sometimes cause abortion.  To be sure, there 
may be a conflict about this, but I fail to be convinced that we should 
necessarily defer to a small minority of outliers in the scientific community.  
If we're not talking about outliers, of course, that's a different matter.  I 
take it that the current trial in Michigan is very much about the deference to 
be paid outliers.  (I am fully aware, of course, that occasional outliers 
turn out to be correct, ahead of their time in battling conventional wisdom.  
But I suspect that such success stories are few and far between and that most 
outliers are more likely to be cranks or ideologues.  (Consider someone who 
believes we have a significantly defective Constitution, and that we need a new 
constitutional convention to correct the problems :))

Things get much more complicated when we leave the realm of empirics, as in the 
sincere belief that one will be condemned to hell if he/she violates certain 
tenets of a faith.  I have argued several times in earlier postings that I 
would personally restrict RFRA to that category of sincere belief and not 
simply a conscientious desire to adhere to given religious doctrines that 
don't carry sanctions for disobedience.  Or, to be more precise, I continue to 
find totally inexplicable the differentiation between religious views and 
those based on conscientious secular notions drawn from Kant or any similar 
source.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, March 11, 2014 1:44 PM
To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

We've been through this a million times before, so I won't belabor it, but no 
one is being required to provide any drugs to anyone.

On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I'm not sure what Greg means, but if the government can override such positions 
held by politically powerful groups, then what chance will minority religions 
have?

It's also important to see that the Protestants who object do so not because 
HHS is requiring them to provide contraception, but because they sincerely 
think the drugs they must provide will sometimes cause abortions. That is a red 
line for those Protestants and, I think, for many Catholics - a real red line, 
not like the ones sometimes drawn in international affairs.

If the government can force religious people to provide for the obtaining of 
abortions, then all bets are off. Whether or not you think the contraceptives 
cause abortion, the arguments that would permit the HHS contraceptive mandate 
are equally applicable to abortion.

I think it was Sandy who warned at AALS of peasants with pitchforks. Let's 
not go there.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Greg Lipper
Sent: Tuesday, March 11, 2014 11:05 AM

To: Law  Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

Yes, indeed. And whatever substantial burden means, it most certainly does 
not mean - and could not be applied by courts, with a straight face, to mean - 
burdens with respect to long held and clearly stated teaching of two of the 
largest religious groups in the country.




On Mar 11, 2014, at 1:42 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:

To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way 
back when, we thought they were worth fighting for because of all manner of 
cases that did not involve the commercial sector -- including, for example, 
Doug's prisoner case that the Court just granted.  Doug is right that no one, 
back then, thought commercial sector cases could prevail -- because they have 
virtually never received so much as a vote in the Supreme Court.
But that was then; this is now.  If Hobby Lobby prevails, and if these state 
laws are enacted against the backdrop of such a Supreme Court decision and a 
manifest legislative and popular intent to promote exemptions in the commercial 
sphere, well . . . that's a different landscape entirely, isn't it?

On Tue, Mar 11, 2014 at 

RE: letter opposing Mississippi RFRA

[Levinson, Sanford V]

Many thanks to Mark for this extremely interesting link. The article concludes 
with the following:

If you can't be absolutely sure the drugs don't block implantation, what 
probability of killing a human being would you accept? said Dr Jane Orient, an 
internist in Tucson, Arizona, and spokeswoman for the libertarian, 
anti-abortion Association of American Physicians and Surgeons, which joined the 
anti-emergency contraceptive brief.


I confess that I am left unpersuaded by such arguments.  The first thing one 
learns in first-year torts-and I have often said that the course I took from 
Marc Franklin some 44 years ago was the best course I've ever had anywhere on 
any subject-is that we, as a society, constantly assume the risk that 
untoward things will happen to statistical people when, eg., building bridges, 
transporting goods across country, etc., etc., etc.  No one who has even a 
modicum of sympathy with Calabresi's The Cost of Accidents, let alone the more 
hard-core versions of law and economics, would ever take seriously an argument 
that if you can't be absolutely sure that no one will die when building a 
tunnel or a skyscraper, then we should cancel the project?  We accept the 
probability of killing a human being all the time, every single day.  Would 
we allow, a la Thomas v Indiana, an employee for a trucking company to refuse 
to load truck (or fill the tanks with gas) because it is altogether predictable 
that some innocent lives will be lost as a result?  As always, of course, we 
have no patience with such moral fastidiousness when the payment of taxes is at 
issue.  We're all conscripted into the de facto sacrifice of innocent lives 
thanks to one or another state policy (including, most obviously, the use of 
force).   If, of course, one determined that a particular drug operated to 
kill human beings frequently, that would be another matter.  One would still 
like to see solid statistics instead of very bad philosoph-101 arguments like 
Dr. Orient's.

sandy



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark R. Killenbeck
Sent: Tuesday, March 11, 2014 2:27 PM
To: Law  Religion issues for Law Academics
Subject: RE: letter opposing Mississippi RFRA

On the science, see the Sharon Begley piece in Reuters, U.S. top court cases 
highlights unsettled science in contraception, noted by Howard Bashman in How 
Appealing:

http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Tuesday, March 11, 2014 2:02 PM
To: Law  Religion issues for Law Academics
Subject: RE: letter opposing Mississippi RFRA

I almost apologize for bringing this up, but I think that a key phrase in 
Mark's post is they sincerely think the drugs they must provide will sometimes 
cause abortions.  It is not simply Marty's point that they are not being 
forced to provide them (any more than would be the case, of course, if they 
were provided through ordinary taxes), but, rather the sincerely think.  I am 
not at all clear why beliefs about empirical matters, albeit sincere, should be 
dispositive if there is genuine evidence one way or the other.  The drugs in 
question either will or will not sometimes cause abortion.  To be sure, there 
may be a conflict about this, but I fail to be convinced that we should 
necessarily defer to a small minority of outliers in the scientific community.  
If we're not talking about outliers, of course, that's a different matter.  I 
take it that the current trial in Michigan is very much about the deference to 
be paid outliers.  (I am fully aware, of course, that occasional outliers 
turn out to be correct, ahead of their time in battling conventional wisdom.  
But I suspect that such success stories are few and far between and that most 
outliers are more likely to be cranks or ideologues.  (Consider someone who 
believes we have a significantly defective Constitution, and that we need a new 
constitutional convention to correct the problems :))

Things get much more complicated when we leave the realm of empirics, as in the 
sincere belief that one will be condemned to hell if he/she violates certain 
tenets of a faith.  I have argued several times in earlier postings that I 
would personally restrict RFRA to that category of sincere belief and not 
simply a conscientious desire to adhere to given religious doctrines that 
don't carry sanctions for disobedience.  Or, to be more precise, I continue to 
find totally inexplicable the differentiation between religious views and 
those based on conscientious secular notions drawn from Kant or any similar 
source.

sandy


___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get

RE: bigotry and sincere religious belief

[Levinson, Sanford V]

With regard to exclusions and sincere religious belief, dare I point out that 
Orthodox Judaism is full of such exclusions, especially based on gender and 
marital status.  The ultra-Orthodox in Israel are basically insisting on 
segregated buses lest males be corrupted by a female presence (part of the 
basis for the separation of the sexes in Orthodox services).  And a wine 
merchant's decision to carry only Kosher wine, because of customer 
insistence, means that all wine would have to be produced by Jews, since that 
is basically the test for wine's being Kosher.  I have no idea what these 
factoids add up to (other than that I am opposed to Israel accommodating the 
Haredi by adopting segregationist practices in public transportation), but they 
underscore the complexity of trying to figure out what to do with people with 
strange and, probably to most of us, objectionable, albeit entirely sincere, 
religious tenets.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kahn, Robert A.
Sent: Thursday, February 27, 2014 1:30 PM
To: Law  Religion issues for Law Academics
Subject: RE: bigotry and sincere religious belief

I also do not have any answers - especially on the underlying issue. But let me 
make two points about the bigotry vs. sincere religious belief question.


1)  Does it change the argument any if one operates from the assumption 
that racism, despite our best efforts, continues to be tolerated (witness the 
most recent voting rights case)? This might suggest a prioritization argument 
(lets deal with racism first) or an interconnectedness argument (fighting the 
underlying racism in the country requires fighting sexism, homophobia etc.). 
Personally, I would lean toward the latter.



2)  As a Jew, there is something about the sincere religious believer vs. 
phobic-hater distinction that doesn't make sense. Does it matter whether 
someone excludes me because I am subhuman or because my ancestors killed their 
savior. Both sound pretty bad. To me the motivation matters less than what I, 
as a Jew, are excluded from.


As noted, I leave these questions for others. What worries me a bit is the idea 
that America is somehow a post-racial country.

Sincerely,
Rob Kahn
Associate Professor
University of St. Thomas School of Law
Minneapolis, MN 55403

phone: (651) 962-4807
email: rak...@stthomas.edumailto:rak...@stthomas.edu



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Conkle, Daniel O.
Sent: Thursday, February 27, 2014 1:05 PM
To: Law  Religion issues for Law Academics
Subject: RE: bigotry and sincere religious belief

I don't pretend to have definitive answers to the questions that Chip Lupu and 
Kevin Chen are discussing.  But I think the proper resolution of this debate 
calls for sensitive judgments depending as much on history and prudence as on 
logic and prior precedent.  In my view, the history of the United States - 
including the institution of slavery, the Civil War, the post-Civil War 
Amendments, Jim Crow, etc. - suggests that racial discrimination is indeed a 
matter of special and distinctive concern.  Moreover, putting aside other forms 
of discrimination, opposition to same-sex marriage, including (as already 
noted) that of President Obama until very recently, cannot readily be equated 
with bigotry.  President Obama explained his 2012 change of heart as reflecting 
a new understanding of his Christian faith, suggesting that his prior position 
likewise was informed by his religion.  Religious perspectives change over 
time, and there is little doubt that they are changing quite rapidly - and will 
continue to change - in this context.

So, during a period of breathtakingly rapid shifts in societal opinion, is now 
the time to declare that this is like racial discrimination and simply should 
not be tolerated?  Or should religious objectors - at least for now, at least 
in the context of same-sex marriage - be given serious respect, as dissenting 
members of the community, including a presumption that their opposition is 
grounded in something other than bigotry?  I tend toward the latter view.

Dan Conkle

Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edumailto:con...@indiana.edu


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 27, 2014 12:15 PM
To: Law  Religion issues for Law Academics
Subject: Re: bigotry and sincere religious belief

I'm very pleased that my former (and highly able) student Kevin Chen is now 
participating in the list discussion.  He wasn't shy 

RE: Notre Dame-- where's the complicit participation? Sincerity

[Levinson, Sanford V]

I fail to see the point of this debate with regard to the constitutionality of 
the ACA and the contraceptive policy embedded in it.  Is the Supreme Court to 
serve as a super-legislature and decide what policies are optimal and 
suboptimal?  I suppose that the logic of compelling interests forces such 
balancing, which Scalia professes to detest, and then we have to ask if (and 
when) the Court has proved very good at it.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Monday, February 17, 2014 6:33 PM
To: Law  Religion issues for Law Academics
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

Professor Sisk's post epitomizes many of the inaccurate assumptions that led to 
the enactment of the women's health provisions in the first place. Let me try 
to address a few of the most important points:

1. The distinction between medically-indicated (non-contraceptive) uses of 
contraception and non-medical uses of contraception is spurious. Put aside 
for a moment the importance of allowing women to control their own bodies, stay 
in school, rise in the workplace, etc. Contraception qua contraception is still 
critical for women's health (planned pregnancies lead to better prenatal care, 
and some women have health conditions that make pregnancy dangerous) and for 
the health of the children (planned pregnancies lead to better prenatal care, 
and properly spaced pregnancies are better for the children).

2. Even if the medical/non-medical distinction were real, imagine having to go 
to your HR department for permission to receive coverage for 
medically-indicated uses of contraception. It's a trifle infantalizing.

3. There is also no such thing as ordinary contraception (which Professor 
Sisk posits can be purchased for $10 a month, leaving medical coverage 
unnecessary). I'm assuming that Professor Sisk uses that term to refer to the 
birth-control pill. Other forms of contraception (such as IUD) are far more 
effective and also much more expensive; their high upfront cost leads many 
women to choose cheaper and less effective methods. Even if IUD were somehow 
considered an aspirational luxury, oral contraception isn't appropriate for 
some women, for instance due to side effects. So we can't just send women to 
CVS sans insurance.

4. Even if oral contraception were the only game in town, $120 a year is 
nothing to sneeze at, especially for low-wage workers - the very people who 
already face significant financial barriers to obtaining contraception.

5. Many of the same people who have opposed the contraception-coverage 
regulations most strenuously would be among the loudest voices opposing a 
government program to fund/subsidize contraception for women whose employers 
refused to include it in their health policies. The ACA, which attempted to 
keep employer-based coverage largely in place, has already been derided as 
socialized medicine. Even if a separate program were politically viable, 
forcing women with objecting-employers to sign up for a separate, 
government-run program of contraception coverage is a needless extra burden, is 
stigmatizing, and makes insurance coverage less seamless for those women.

6. Let's put aside for a moment that the abortifacient label is almost 
entirely contradicted by modern science (even if you accept that interference 
with implantation constitutes an abortion). Since opponents of the 
contraception regs regularly describe the regs as the abortion pill mandate, 
are those opponents - the very organizations representing most of the 
plaintiffs in these cases - going to turn around and support a government 
program that uses taxpayer dollars to provide women with abortion pills? 
Don't bet on it.

Implicit in Professor Sisk's post is that contraception is junior-varsity 
healthcare, and that it's okay if there are gaps in contraception coverage or 
if women are left to fend for themselves to get contraception. That is a 
dubious policy position, and it was wisely rejected by the political branches. 
However one comes down on the religious objections that are now being asserted 
in court, Professor Sisk's view - that government officials are gleefully 
impose[ing] their views on opponents by needless overreach - makes sense only 
if you assume that certain people's religious views are the only views that 
matter, no matter how much that burden third parties.


On Feb 17, 2014, at 6:38 PM, Sisk, Gregory C. 
gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote:


Derek Gaubatz's post concludes with a point that is too often lost in the sound 
and fury about the imposition of the abortificient/contraception mandate on 
employers of faith - which is that the mandate is dubious public policy (even 
on its own terms) and this dispute could have been avoided but for political 
considerations.  This is another sad episode in modern politics in which those 
with power - of 

RE: Notre Dame-- where's the complicit participation? Sincerity

[Levinson, Sanford V]

I agree with Greg's last paragraph.  A legal system that relies only on 
legality is doomed.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Monday, February 17, 2014 7:25 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: Notre Dame-- where's the complicit participation? Sincerity

The question is not about access to health care or to contraception.  No one 
proposes to ban contraception or withdraw it from the market.  Access to 
contraception for those who cannot afford it is already widely available 
through both government and private efforts.  Government subsidizes 
contraception in this country to the tune of $2.37 billion each year (yes, 
that's billion with a b).  Chip Lupu offers us the amicus brief of the 
Guttmacher Institute in making make the medical case for the benefits of the 
mandate.  Others have suggested that the primary motivation behind the 
contraception mandate within the Obama Administration was not a medical need 
that was not otherwise being addressed, but an ideological agenda.  See Karen 
Jordan, The Contraceptive Mandate: Compelling Interest or Ideology? at 
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366466.  My reading of the 
materials suggests the latter is the more accurate description.  But I suspect 
that this is a matter on which people on this list will leave by the same door 
through which they entered.
I want to encourage us to look beyond this particular episode and beyond the 
Supreme Court's resolution of the case at hand to the broader implications for 
our polity.  Based on the reactions to my prior post, I may have as much 
difficulty as anyone in transcending ideological blinders.  If so I apologize 
for my clumsy expression but would offer my own error in that respect as an 
object lesson for more self-critical evaluation by all of us.  The broader 
issue I raised - in which I used diverse examples designed to prick the 
sensibilities of both sides of the political spectrum (with some success I 
gather) - is the increasing tendency of political winners to then wield the 
powers of government to impose that view directly on others, even to the point 
of conscripting others to serve that agenda.  It no longer is enough to get 
government to do something for us that we want (or stop government from 
preventing us from doing something that we want to do).  Now, when we win 
political power, we want government to use its powers of regulation and 
benefits and taxes to bring everyone else into line, grudging or not.  I think 
the health of our society is being undermined by this absolutist approach to 
political debates and to governance.
Now Sandy Levinson rightly asks whether this debate advances the ball on the 
constitutionality of the mandate before the Supreme Court.  Probably not.  But 
then I'm not contending that it does.  I'm suggesting that avoiding 
constitutional crises is a value in itself.  Looking for a new approach to 
politics that doesn't unnecessarily elevate winners and denigrate losers may be 
more important to the future health of our constitutional republic.

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edumailto:gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html
Publications:  http://ssrn.com/author=44545

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RE: Notre Dame-- where's the complicit participation? Sincerity

[Levinson, Sanford V]

I confess that I find sincerity relatively unimportant analytically, though 
it is obviously relevant, as a political matter, when there may be great 
incentives to game the system by proclaiming beliefs one does not in fact 
have, such as the recent spate of alleged conversions to Kashrut-observant 
Judaism in a number of prisons.  There one simply has to decide whether to let 
the number of false positives outweigh the costs to the presumably genuine 
interests of the sincerely claimants.  But even the sincere claimants always 
have to have their claims weighed against general social costs.  This, I take 
it, is the importance of allowing compelling interests to overcome even the 
most sincere (and, to the claimant, perhaps weighty) religious claims.  Justice 
O'Connor, in her opinion in Smith, clearly applied a minimalist compelling 
interest test.  Had she been assigned the majority opinion instead of Scalia, 
the result would have been the same and, for better or wors!
 e, we never would have had RFRA and the acrimonious debates we're now having 
about whether any and all religious claims take precedence over any  general 
laws that cannot survive a razor-sharp compelling interest test.  Although I 
dislike O'Connor's opinion intensely, since I think she was (typically) trying 
to have her cake and eat it too, I think the country would have been far better 
off had she written the majority opinion and that RFRA had never been passed.  
Scalia (or Rehnquist, who assigned the opinion to Scalia) have only themselves 
to blame for the rancor that has been created as a result of Smith and RFRA 
(whose passage I supported and whose constitutionality I still support, with 
increased reservations).

sandy  

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rienzi, Mark L
Sent: Saturday, February 15, 2014 12:41 PM
To: Law  Religion issues for Law Academics
Subject: RE: Notre Dame-- where's the complicit participation? Sincerity

The exchange between Marci and Marc about moral complicity for law professors 
reveals what might be a rare area of common ground for most folks on this list.

Their emails suggest that law professors may have differing views of what kind 
of actions by a law professor would render that professor morally culpable for 
someone else's wrongdoing.  I think (and I suspect most on this list would 
agree) that each law professor is entitled to his or her own view about whether 
publicly advocating particular legal views would render them morally complicit 
in someone else's wrongdoing.

In a liberal and tolerant society, I would also suggest that, absent some 
particularly compelling circumstances, the government should not burden either 
law professor by making them take the action they believe would render them 
morally culpable for someone else's wrongdoing.  That would seem to be a 
reasonable approach to the apparent diversity of religious and moral thought 
among the group.

Mark

Mark L. Rienzi
The Catholic University of America
Columbus School of Law
(202) 319-4970

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Marc DeGirolami [marc.degirol...@stjohns.edu]
Sent: Saturday, February 15, 2014 10:42 AM
To: Law  Religion issues for Law Academics
Cc: kurtla...@gmail.com
Subject: Re: Notre Dame-- where's the complicit participation? Sincerity

With respect, I do not understand the comment below about the complicity of 
legal academics in the legal wrongs perpetrated by religious institutions, or 
any institutions, that they study and think about. I am assuming that the 
institutions are engaged in legal wrongs in the cases we are now talking about 
(Notre Dame and Hobby Lobby), which is the assumption from which I'll proceed 
for purposes of this comment.

First, what is the meaning of complicity in this context? Is it a meaning 
like the meaning being pressed in the lawsuits-a religious meaning? Is it a 
meaning derived from criminal law-as in accomplice liability? I am not 
suggesting that anybody believes that law professors are criminally complicit; 
probably the statement refers to moral complicity. But that still leaves the 
problem of understanding the meaning of the word here. In criminal law, 
complicity generally requires sharing the purpose of the wrongdoer, or perhaps 
taking a view with the intention that it will enable or encourage the wrongdoer 
to continue doing wrong. If it is another meaning, what is it?

Second, assuming the meaning is something approaching shared purpose, I do not 
understand how legal academics, by discussing various issues on a listserv or 
elsewhere and thinking through them, and (so far as I can see) disagreeing with 
one another, are complicit in the wrongdoing of the subjects that they study. 
It would be very unusual (and certainly not reflective of the ethos on the 
criminal law listserv to 

RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case

[Levinson, Sanford V]

If one is obligated by law to do X, then it doesn't count as legal robbery, 
period, unless the law itself is unconstitutional.  That, after all, is the 
debate involving the NSA, how much of what is objectionable is illegal and how 
much is perfectly legal (albeit objectionable from one or another perspective).

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Friday, January 24, 2014 6:09 PM
To: Law  Religion issues for Law Academics
Subject: Re: Supreme Court Issues Compromise Injunction Pending Appeal In 
Contraceptive Mandate Case

If I say;  I oppose robbery but here are the keys to the car, and I give the 
keys to someone who is obligated by law (or may in the future be obligated) to 
rob my neighbor,  no matter how loudly I proclaim I oppose robbery, I'm still 
helping in the robbery.

On Fri, Jan 24, 2014 at 4:56 PM, Marty Lederman 
lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote:
It is an implied message of support for what?  What rational human being 
would construe:  We have a religious objection to providing contraceptive 
coverage to mean we support coverage of contraceptive coverage?  Seriously, 
we are so far down the rabbit hole here . . .

On Fri, Jan 24, 2014 at 6:48 PM, Michael Worley 
mwor...@byulaw.netmailto:mwor...@byulaw.net wrote:
Sending the form to the third-party insurer is the burden, because it is an 
implied message of support Insurer, you need to provide contraception because 
we don't

On Fri, Jan 24, 2014 at 4:31 PM, Marci Hamilton 
hamilto...@aol.commailto:hamilto...@aol.com wrote:
What exactly is the burden on the Little Sisters again?


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Jan 24, 2014, at 6:27 PM, Scarberry, Mark 
mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote:
I found the form. Here is a statement that is included on the back of the 
government form that the Little Sisters would have had to sign, absent the 
Court's order:

The organization or its plan must provide a copy of this certification to the 
plan's health insurance
issuer (for insured health plans) or a third party administrator (for 
self-insured health plans) in order
for the plan to be accommodated with respect to the contraceptive coverage 
requirement.

Notice to Third Party Administrators of Self-Insured Health Plans

In the case of a group health plan that provides benefits on a self-insured 
basis, the provision of
this certification to a third party administrator for the plan that will 
process claims for
contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 
2590.715-
2713(a)(1)(iv) constitutes notice to the third party administrator that the 
eligible organization:

(1) Will not act as the plan administrator or claims administrator with respect 
to claims for
contraceptive services, or contribute to the funding of contraceptive services; 
and

(2) The obligations of the third party administrator are set forth in 26 CFR 
54.9815-2713A, 29
CFR 2510.3-16, and 29 CFR 2590.715-2713A.

This certification is an instrument under which the plan is operated.



It seems to me that signing a form that says that the third party administrator 
has the obligations set out in the CFR is the equivalent of directing the third 
party administrator to comply with those regulations. They would be notifying 
the administrator that it has the obligations set out in the CFR. I suppose, in 
addition, that the Little Sisters dispute whether the government can require 
their third party administrator to comply with those regulations; the form 
would require the Little Sisters to make a statement that they do not believe 
to be true. The last sentence of the form suggests that the obligations of the 
plan administrator under the CFR are included as part of the health care plan.

In effect, the Little Sisters, if they signed the form, would be (1) notifying 
the administrator that it must comply with the regs, (2) stating that the 
administrator has the obligations set out in the CFR, (3) directing the third 
party administrator to provide the objectionable services, and (4) amending the 
plan documents to include a requirement that the third party administrator do 
so.

It seems, then, that the Court has given the Little Sisters substantial relief 
by not requiring them to sign the government form.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law





From: Scarberry, Mark
Sent: Friday, January 24, 2014 2:45 PM
To: Law  Religion issues for Law Academics
Subject: RE: Supreme Court Issues Compromise Injunction Pending Appeal In 
Contraceptive Mandate Case

Does anyone have a copy of the government-prescribed form that the Court said 
the Little Sisters didn't have to use?

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: 

RE: Two kinds of religious exemption arguments

[Levinson, Sanford V]

I cannot help but wonder what Alan's view is of the recent Utah polygamy case.  
It does seem to me that the arguments he so eloquently makes below should apply 
(easiest case) to adult old-Mormons who continue to believe that their 
religion encourages (compels?) multiple marriages.  In this instance, at least, 
I suspect there's be relatively little incentive to engage in strategic 
misrepresentation, though the obvious problem is the creation of a new sect, 
perhaps in Colorado, that preaches the virtues both of smoking marijuana and 
multiple marriage (polyandrous and well as polygamous).  I personally have no 
problem with this, though, to put it mildly, I would be surprised if Windsor 
were interpreted to require recognition of such marriages even if, by 
stipulation, Colorado did.

sandy

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Thursday, December 19, 2013 12:19 AM
To: Law  Religion issues for Law Academics
Subject: RE: Two kinds of religious exemption arguments

Sorry. My mistake. My post was focusing on statutory accommodations because 
RFRA has been the focus of most of the recent discussion on the list. Eugene is 
quite right that the case for an analogy to family relationships is stronger 
for statutory accommodations.

But there is some basis for analogizing the constitutional protection and 
accommodation of religious liberty to the protection and accommodation of 
family relationships. I don't want to overstate the point here, but the Court 
does discuss freedom of intimate association in Roberts and suggests that such 
associations might be exempt from anti-discrimination laws. Such cases rarely 
come up because statutes do not attempt to subject intimate associations such 
as families to anti-discrimination laws. But I assume that a family could 
assert a family/intimate association exemption should it be subject to 
anti-discrimination laws in various social settings.

Moore v. City of East Cleveland also requires in a sense a family exemption 
from zoning laws.

One might also argue that the right to marry protects the ability to form a 
family and marry the person one loves, even though doing so imposes costs on 
third parties. Cases like Zablocki are not necessarily cost free. A divorced 
father owing child support who starts a new family may have less resources 
available to support his earlier family.

Finally, some, but not all, of the debate about same-sex marriages could be 
characterized as a debate about providing constitutional protection to gay men 
(or lesbians) who love each other and want the state to recognize and protect 
their mutual commitments and the responsibilities they accept that arise from 
those commitments. Many argue that constitutional law requires states to 
accommodate the love, commitment and loyalty of same-sex partners who seek to 
be married notwithstanding state law that only permits marriages between one 
man and one woman. I must admit that I have never understood the argument that 
such marriages impose costs on third parties or the general public. But 
clearly, many people believe that such costs exist. Would proof of some such 
costs, however modest they might be, justify denying same-sex couples the right 
to marry? Or would we insist that it should require a showing of very, very, 
high costs before we would allow a state to refuse to acknowledge!
  and accommodate the right of two adults who love each other and are committed 
to caring for each other to marry.

Alan

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Wednesday, December 18, 2013 4:17 PM
To: Law  Religion issues for Law Academics
Subject: RE: Two kinds of religious exemption arguments

I appreciate Alan's point, but I wonder how far it goes.

First, I might not have been clear enough on this in my post, 
but I was speaking of what should be a matter of constitutional entitlement, or 
entitlement under a generally applicable exemption scheme.  And we generally do 
not provide any constitutional exemption for love- and loyalty-based interests. 
 Loyalty to a friend, a child, a parent, or a spouse won't give you a 
constitutionally mandated exemption from, say, a duty to testify.  (The spousal 
testimonial privileges, I think, is a matter of common law and statute, not a 
constitutional mandate.)  If you quit a job because of a desire to spend more 
time with your children, your spouse, or your aging parents, you will not get a 
constitutional entitlement to unemployment compensation.

Second, even if we focus on exemptions created as a matter of 
legislative discretion (or common law), there are likewise very few in which 
familial love and loyalty exempt one from what would otherwise be a generally 

RE: Two kinds of religious exemption arguments

[Levinson, Sanford V]

This is very helpful.  For Rick's argument, I still think the central question 
is why we would accommodate, even if the costs are relatively low, someone with 
religious objections, say, to working on an assembly line producing munitions, 
but not a secularist with a very tender conscience.  (As always, we return to 
Seeger and Welch, but are those cases really limited to the particularity of 
conscientious objection against service in the military.

Now one answer is that what's crucial about religious obligations, unlike 
merely conscientious ones, is that one is in fear of divine retribution for 
disobedience.  I.e., God doesn't simply say it would be nice if you'd honor 
your parents (you never call, you never write), but, instead if you don't 
call at least once a week, I will make things very difficult for you in the 
afterlife (and don't even ask about the consequences of adultery or murder).  
As I've written in other contexts, I do treat this as a troublesome conflict 
of law' (and not simply or conflicting moral duties), and it is understandable 
why anyone who takes Divine Sovereignty really seriously-and who believes that 
the Divine Sovereign has a system of rewards and punishments to back up mere 
moral injunctions-may believe that the state must always take second place in 
any such conflicts.

But, as Eugene well argues, it is not sensible to say that the state, even if 
understanding (and under a duty to engage in reasonable accommodation) must 
also suspend enforcement of its own laws whenever someone utters the magic 
words God is ordering me to do it, and I will pay a cost in the afterlife-or, 
depending on one's theology, even on earth-if I disobey.'  We're always going 
to balance.

Incidentally, if Hobby Lobby should win its ,case, will this not mean that 
Congress should know that it if it wants to be sure of achieving its purposes, 
it must tax and spend.'  But what if Hobby Lobby says that my God tells me 
that I ought to render unto Caesar if and only if Caesar will not be spending 
any of the revenues on patent violations of divine commands'?  I confess I've 
always found peculiar Randy Barnett's concession that Obamacare would have been 
perfectly constitutional, albeit unwise, a simple extension of Medicare, but 
that what doomed it was its reliance on various choice mechanisms, including 
the fabled  mandate to purchase insurance in the first place.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, December 18, 2013 2:25 PM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: Two kinds of religious exemption arguments

Rick Garnett's and (less directly) Michael Worley's posts 
highlight, I think, the fact that there are two kinds of religious exemption 
arguments that are often heard.

The first is Rick's argument, at least in this instance, which 
focuses on what might see as low-cost accommodations.  If there is a way of 
accommodating religious objectors that imposes very low costs on others, or on 
the government as a whole (which means others, albeit indirectly), why not do 
that?  Religious headgear in courtrooms where the normal rule is no hats is a 
classic example.

The second is an argument that exemptions should be given even 
when they are not low-cost -- when they do impose serious costs on third 
parties or the government, or at least can be credibly said to do so.  That's 
the implication of strict scrutiny.  And it's also the implication of most 
analogies to non-equality rights (though perhaps the time-place-and-manner 
analogy might be something of an exception, partly because it uses a test 
that's well below strict scrutiny).  After all, free speech is often protected 
even when it imposes serious costs on others (e.g., Hustler, Snyder, NAACP v. 
Claiborne Hardware, Florida Star v. BJF, New York Times v. Sullivan).  The 
Compulsory Process Clause is all about imposing serious costs on others.  Many 
of the criminal procedure amendments, such as the Fourth Amendment and the 
privilege against self-incrimination, doubtless impose serious costs on others, 
though less directly.  The same is true of most other non-equality 
constitutional rules.

Now it seems to me -- though of course others disagree -- that 
the normative case for a right to impose costs on others through conduct simply 
because you think God requires that conduct is not an appealing case.  Your God 
is your God, not mine; why should I lose some of my legal rights, or some of 
the benefits that various laws seek to confer on me, just because you want to 
do what your God tells you to do?

And indeed, as I've mentioned before, I don't think that we would accept 
religious exemption claims in some of the cases where we accept free speech 
claims.  The Free Speech Clause immunizes inflicting emotional distress 

RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

[Levinson, Sanford V]

Prediction:  They won't get it!!

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Joel Sogol
Sent: Sunday, December 08, 2013 9:22 PM
To: Religionlaw
Subject: Satanists want statue beside Ten Commandments monument at Oklahoma 
Legislature

Satanists want statue beside Ten Commandments monument at Oklahoma Legislature

http://usnews.nbcnews.com/_news/2013/12/08/21820518-satanists-want-statue-beside-ten-commandments-monument-at-oklahoma-legislature?lite


Joel L. Sogol
Attorney at Law
811 21st Ave.
Tuscaloosa, Alabama 35401
ph (205) 345-0966
fx (205) 345-0971
email: jlsa...@wwisp.commailto:jlsa...@wwisp.com
website: www.joelsogol.comhttp://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 
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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 
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messages to others.

RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

I am certainly drawn to  be protective of religious acts essential to their 
faith.  The problem, of course, comes with the radical pluralism of American 
religious life, and our (perhaps admirable) propensity to allow each individual 
more-or-less carte blanche (unless it involves smoking marijuana) as to what 
those essentials are.  And, of course, one still has to explain why claims of 
conscience that are essential to one's own notion living with integrity are 
not protected.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Saturday, December 07, 2013 10:53 AM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The clergy-penitent privilege and burdens on third parties

I think the history of the privilege is that it was first protected for 
Catholics, because of its sacramental nature and the very strong teaching, and 
then extended to other faiths by analogy and to avoid what looked to some like 
denominational discrimination. I'm pretty sure about that chronology; I'm 
inferring the causation without having done the historical work to verify it.

The peyote service is the central act of worship in the Native American Church; 
I don't know if they use the word sacrament. But Smith and Black (the other 
plaintiff) were not members of the church; they were exploring.

It is generally illusory to enact toleration, and say that religious minorities 
can live among you, if you then prosecute them for acts essential to their 
faith. The force of that point is weaker with respect to less important 
religious practices, although I think it never goes to zero.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, December 06, 2013 11:18 PM
To: Law  Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

As I've said earlier, I'm sympathetic to Richard's argument  inasmuch as 
confession is in fact part of a complex (required) sacramental process.  But 
the point is that (I think) that's relatively unusual, certainly not present, 
so far as I am aware, in Judaism, for example.  Am I correct in believing that 
the ingestion of peyote was in fact a sacramental aspect of the Native American 
church?

sandy

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RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

As I've said earlier, I'm sympathetic to Richard's argument  inasmuch as 
confession is in fact part of a complex (required) sacramental process.  But 
the point is that (I think) that's relatively unusual, certainly not present, 
so far as I am aware, in Judaism, for example.  Am I correct in believing that 
the ingestion of peyote was in fact a sacramental aspect of the Native American 
church?

sandy

From: religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu 
[mailto:religionlaw-bounces+slevinson=law.utexas@lists.ucla.edu] On Behalf 
Of Richard Dougherty
Sent: Friday, December 06, 2013 6:09 PM
To: Law  Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

I will confess to not having read the state cases, or at least not most of 
them.  But isn't the question whether the privilege is constitutionally 
required?  (Perhaps the fact that it is referred to as a privilege muddies the 
waters.)  If free exercise of religion includes receiving a sacrament, then why 
is compelling violation of the privilege not a constitutional issue?  Indeed, I 
wonder why a recent discussion suggested stronger free speech claims than free 
exercise claims; does the First Amendment make that distinction?  I have no 
doubt courts have read it that way, but that's partly why we get distortions of 
free exercise claims masquerading as free speech claims.

Richard Dougherty
University of Dallas

On Fri, Dec 6, 2013 at 1:17 PM, hamilto...@aol.commailto:hamilto...@aol.com 
wrote:
With all due respect to this entire thread, how many people have actually read 
the state cases involving the priest-penitent privilege?  There is a level of 
abstraction
to this discussion that indicates to me probably not.  As someone who has 
actively been involved in arguing the issue in court in the last year, I'd 
suggest that the law is
more reticulated and specific. state-by-state, than the speculation going on 
here.  It is state law, which means 50 states plus DC law, and it is a 
privilege that is not constitutionally required,
particularly when the issue is whether the religious confessor or confessee 
engaged in illegal behavior.


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.comhttp://sol-reform.com/
[http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts
   [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton
-Original Message-
From: Christopher Lund l...@wayne.edumailto:l...@wayne.edu
To: 'Law  Religion issues for Law Academics' 
religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Sent: Fri, Dec 6, 2013 10:06 am
Subject: RE: The clergy-penitent privilege and burdens on third parties
Again, I'm late-sorry about that.  But honestly people, it's shocking how many 
posts are written between the hours of 9 p.m. and 7 a.m.  Who can keep up?

So this may backtrack, but I've been thinking about the earlier posts in this 
thread.  Say there are no secular analogies to the priest-penitent privilege.  
Does that, in itself, justify the conclusion that it is favoritism for religion?

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RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

I have no doubt that Steve is accurately reporting his own experience, but I 
still don't see why it should add up to a confidentiality privilege.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, December 05, 2013 9:38 PM
To: Law Religion  Law List
Subject: Re: The clergy-penitent privilege and burdens on third parties

I disagree with Eugene on this - as a non-religious athiest, I have met many 
ministers and priests with whom I have had excellent conversations, some even 
confessional or at least very candid and have been given advice, even by 
priests, which was insightful and helpful and respectful of me.  They did not 
try to get me to do hail Marys or whatevers and did not speak to me in 
religious speech.  I have dealt with others whose only aim was indeed to 
convert me.

--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/


The aim of education must be the training of independently acting and thinking 
individuals who, however, see in the service to the community their highest 
life achievement.



Albert Einstein




On Dec 5, 2013, at 5:16 PM, Volokh, Eugene 
vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:


My sense is that I (as someone who is irreligious) would get 
relatively little solace or even wise counsel from speaking to an average 
Catholic priest about my troubles and misdeeds, at least unless I was at least 
contemplating converting to Catholicism.  Unsurprisingly, the priest would 
respond in a way that fits well the beliefs of Catholics, but not my own.  
(There might be some priests who are inclined to speak to the secular in 
secular philosophical terms, but I assume they aren't the norm.)

Religious people, then, have the ability to speak 
confidentially to those moral advisors whose belief systems they share.  
Secular people do not.

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz
Sent: Thursday, December 05, 2013 9:33 AM
To: Law  Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

Is that accurate? It may vary, but I thought the privilege could be claimed for 
any confidential communication made to a clergy member in his/her professional 
capacity as a spiritual advisor. The person seeking that counsel need not 
necessarily be a co-communicant. I don't think this is just hair-splitting. 
It's not analogous to a statement that men as well as women can seek medical 
care for pregnancy.

On Dec 4, 2013, at 10:56 PM, Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
Free speech doctrine, for better or worse, presumably protects (almost) 
everyone.  What is distinctive about the clergy-penitent privilege is that it 
protects only a particular subset of people, i.e., those who claim some 
religious identity, as against secularists who have the same desire to unburden 
themselves to sympathetic listeners but can't assume that it is protected in 
the same way.  Aren't we back to the conundra involving conscientious 
objection and the Seeger and Welch cases.  There the Court could adopt Paul 
Tillich and say that secularists, too, have ultimate concerns equivalent to 
religious commitments.  Can one imagine a similar move with regard to clergy 
privileges?  I support such cases as Rosenberger (assuming, at least, one 
version of the facts in that case, which may or may not be entirely correct) 
and Widmar v. Vincent on equality grounds, i.e., those who are religious 
should not be selected out for worse treatment than those who are secular.  If 
I can use a facility for meetings of my philosophy club, then I think that 
others should be free to use the facility for meetings of the Good News Club. 
 But it is telling that we're talking about a privilege that is denied to 
each and every secular person (unless they can afford a shrink, though even 
there the privilege is significantly more constrained than is the case with a 
priest), and equality arguments go by the boards.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Wednesday, December 04, 2013 11:35 PM
To: Law  Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties

Much of free speech law involves protecting speech that burdens third parties; 
for example, the victims of hate speech suffer emotional distress as do the 
mourners at funerals tormented by the Westboro Church, and speech that does not 
quite violate

RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

I’m genuinely curious:  Do we have any idea which denominations impose a duty 
on their clergy to preserve confidentiality?  Every Sunday I read in the Style 
section of the Times of couples who are married by someone who has been 
licensed by the Universal Church (I think it’s called) to perform weddings.   
Often, of course, the officiant is a close friend of one or both of the couple 
being married.  Would we/should we take seriously an internet declaration by 
the Universal Church that it requires its “clergy” to keep confidential 
whatever the bride(s), groom(s), members of the wedding party, etc., might have 
said in the run-up to tying the knot?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, December 05, 2013 10:15 PM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: The clergy-penitent privilege and burdens on third parties

I don’t know how it is in other states, but Cal. Evid Code 
1030-1034 absolutely covers any “communication made in confidence, in the 
presence of no third person so far as the penitent is aware, to a member of the 
clergy who, in the course of the discipline or practice of the clergy member's 
church, denomination, or organization, is authorized or accustomed to hear 
those communications and, under the discipline or tenets of his or her church, 
denomination, or organization, has a duty to keep those communications secret.” 
 So the question isn’t whether it’s “for salvation or other religious goal” as 
such; rather, it’s whether the clergy member “has a duty to keep those 
communications secret” under his religious denomination’s tenets.

Eugene

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.commailto:hamilto...@aol.com
Sent: Thursday, December 05, 2013 6:59 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Re: The clergy-penitent privilege and burdens on third parties

Steve-- That may be true in your experience, but it doesn't make those 
discussions confessional for purposes of the clergy-penitent privilege.  It 
typically requires a showing that the
discussion was not counseling, therapy, or simply an exchange of information.  
Rather, it must be for salvation or other religious goal.

Even discussions between co-religionists, however, may not qualify as 
confessions for purposes of the privilege.  For example, a conversation between 
a bishop
and a pedophile priest about his abuse of children and his next placement is 
not a confession, despite the elements of counseling involved.   No privilege 
attaches to such
conversations.

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
___
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RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

Greg’s argument is obviously quite eloquent.  But I think it is telling that it 
is really predicated on Catholic theology, including the “sacramental” nature 
of confession and the joint duty of the penitent/sinner to confess and of the 
priest to keep the confession confidential.  And, of course, there is rarely 
any difficulty in identifying who counts as a “priest.”  There is an almost 
2000-year-old institution one of whose main functions is ordaining a special 
group of people who can engage in certain sacramental roles.  I’ve already 
indicated that I’m inclined to be sympathetic to such claims because of the 
theology they’re connected with (whether or not, of course, I subscribe to it 
myself).  But I’m not clear why this just justify the broader privilege.  It’s 
telling as well, isn’t it, that we refer to it a privilege attaching to the 
“clergy” rather than simply to priests, and it’s not clear what it means to 
call non-Catholics “penitents.”  If there’s a) no religious duty to confess; b) 
no religious duty to preserve confidences; and c) a belief that breach of 
either duty will generate some kind of divine sanction (including in the 
afterlife), then I continue not to see the difference between, say, a rabbi and 
a truly empathetic hairdresser.  Indeed, as suggested earlier, I find it 
difficult to distinguish as well between a legally-recognized spouse and, say, 
a “work-spouse,” let alone, of course, in those states that don’t recognize 
same-sex marriage, a member of a “civil union.”  (I assume, for example, that 
Texas does not recognize a “spousal privilege” of a legally-married same-sex 
couple from Massachusetts who have been transferred to Texas to serve military 
duty.  Am I wrong?)

I share Greg’s fear of the totalitarian state that calls on us to inform on one 
another, but that is precisely the state we live in today, save for those very 
few people lucky enough to be able to claim a strong testimonial privilege.  
But, as in all “equal protection” cases, there are millions of others who are 
similarly situated.  Is the solution to give millions more people such 
privileges or to pare down the existing privileges to those that can survive 
intellectual challenge?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Wednesday, December 04, 2013 10:27 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The clergy-penitent privilege and burdens on third parties

Many reasons can be offered for the venerable privilege that originated as the 
priest-penitent privilege, including as Doug notes that the penitent having the 
confidence that confession is sacrosanct will be willing to share that which he 
or she withholds from all others and thereby be in a position to receive moral 
instruction and a direction for reconciliation from a priest that benefits all 
in society (much as does a lawyer for a client who confesses to past 
wrongdoing).

But another reason for this kind of religious accommodation of something so 
central to a faith is to consider what kind of a society we would be without 
it.  To tell someone that a basic sacrament or what is directly related to the 
sacramental nature of the church – whether it be use of an intoxicating 
substance in communion, confession to a priest to be reconciled to God, 
selection of ministers by apostolic succession – is forbidden or subject to the 
intrusive examination and regulation of the government should be most 
disturbing of all.  Without an accommodation to Catholic churches on use of 
wine during prohibition or in a dry county, without protection of the 
confidentiality of the confessional through a privilege, without selection of 
priests by apostolic succession free of the kind of government rules and 
judicial monitoring that are imposed by anti-discrimination statutes, the 
Catholic faith simply could not be observed in this country – other than by 
resort to underground groups and dissident activities.  (And, I recognize, 
other less mainstream faiths would be even more likely to suffer such 
governmental invasion, as witness the plight of Native American religions and 
others).

To be sure, there are and have been governments that require clergy to serve an 
informants on the people – not just to what they have witnessed as wrongdoing 
but what they hear through confession by the people.  And we have seen 
governments that demand a role in selecting or approving bishops and other 
ministers.  The China of today and the Poland of the communist era come most 
readily to mind.  That is not the kind of government that we Americans claim to 
have.

Those of us of faith appreciate that on many things we may be forced on a 
regular basis to balance that which is a demand of or influence from our faith 
against our civic duties and the strictures of the secular order.  I believe 
strongly that accommodation on many of these matters is 

RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

Free speech doctrine, for better or worse, presumably protects (almost) 
everyone.  What is distinctive about the clergy-penitent privilege is that it 
protects only a particular subset of people, i.e., those who claim some 
religious identity, as against secularists who have the same desire to unburden 
themselves to sympathetic listeners but can't assume that it is protected in 
the same way.  Aren't we back to the conundra involving conscientious 
objection and the Seeger and Welch cases.  There the Court could adopt Paul 
Tillich and say that secularists, too, have ultimate concerns equivalent to 
religious commitments.  Can one imagine a similar move with regard to clergy 
privileges?  I support such cases as Rosenberger (assuming, at least, one 
version of the facts in that case, which may or may not be entirely correct) 
and Widmar v. Vincent on equality grounds, i.e., those who are religious 
should not be selected out for worse treatment than those who are secular.  If 
I can use a facility for meetings of my philosophy club, then I think that 
others should be free to use the facility for meetings of the Good News Club. 
 But it is telling that we're talking about a privilege that is denied to 
each and every secular person (unless they can afford a shrink, though even 
there the privilege is significantly more constrained than is the case with a 
priest), and equality arguments go by the boards.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Wednesday, December 04, 2013 11:35 PM
To: Law  Religion issues for Law Academics
Subject: RE: The clergy-penitent privilege and burdens on third parties


Much of free speech law involves protecting speech that burdens third parties; 
for example, the victims of hate speech suffer emotional distress as do the 
mourners at funerals tormented by the Westboro Church, and speech that does not 
quite violate Brandenburg can incite violence. Further, the cost to the public 
in protecting speech can be extraordinarily high. cities incurred tens of 
thousands of dollars in police and other costs while trying to maintain order 
during Operation Rescue protests. Criminal procedure rights can make it more 
difficult to apprehend and punish people who commit crimes. Property rights can 
make it more difficult to protect the environment. Rights have always been 
expensive politcal goods.



It is true that the Establishment Clause imposes some constitutional 
constraints on the costs government may incur or impose on third parties in 
protecting religious liberty. Arguing that free exercise rights or statutory 
religious liberty rights should only be protected in situations in which doing 
so imposes virtually no costs on either the public or third parties, however, 
would treat religious liberty differently than almost all other rights and 
dramatically undermine their utility for people attempting to exercise such 
rights.


From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund 
[l...@wayne.edu]
Sent: Wednesday, December 04, 2013 5:53 PM
To: 'Law  Religion issues for Law Academics'
Subject: RE: The clergy-penitent privilege and burdens on third parties
I think Marc's point is solid and underappreciated.  Following up on it, does 
anyone know of any literature that tries to think about burdens on third 
parties across constitutional rights?  We accept such burdens as a matter of 
course with defamation law, as Marc notes.  Yet we also accept them in other 
contexts.  Guns would be one obvious example.  But also think of, for example, 
busing during the Civil Rights Era.  White suburban families had to accept 
busing of their kids to distant and sometimes difficult schools, because 
desegregation was that important.  Or think about abortion: I think the Court 
was right to hold spousal consent and notification laws unconstitutional, but 
there are real issues of third-party harms there too.

Best, Chris



___
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RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

This is an excellent hypothetical.  My own inclination is that the only 
justification for a clergy-penitent privilege is a) if there is a duty to 
confess to a member of the clergy; and b) if the clergy in question believes 
that God will punish disclosure of the confession.  (It shouldn't be enough 
that the doctrine of the religion prevents disclosure unless divine punishment 
is thought to attend it.)   I have argued for some years that the only defense 
of religious privileges is the belief on the part of the claimant that 
commission of the act in question will generate divine sanctions.  This is 
probably too strict, since I (still) support the critique of Smith, and I have 
no reason to believe that the ingestion of peyote was a divine command 
violation of which would generate some kind of punishment (including punishment 
in the world to come).  But Eugene's hypo makes very real the costs to innocent 
third parties of treating any and all members of the clergy differently from 
one's best friends, fellow family members, or even, in most courts, reporters.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 03, 2013 7:39 PM
To: Law  Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: The clergy-penitent privilege and burdens on third parties

One more question about the unconstitutional burdens on third 
parties theory:  The clergy-penitent privilege allows the clergy (and 
penitents) to refuse to testify about penitential communications, even when the 
result is that a litigant is deprived of potentially highly probative evidence.

What's more, this is a specifically identifiable litigant who is being denied 
the benefit of applying the normal duty to testify.  And, unlike with the 
conscientious objector exemption, the clergy-penitent exemption is indeed 
limited to religious communications, with no secular philosophical analog.  
(The psychotherapist-patient privilege, I think, is quite different, partly 
because it requires communications to someone who is licensed by the state, 
requires a state-prescribed course of training, and is usually quite expensive, 
and partly because it tends to have fewer exceptions.)

Say, then, there are two people.  Anita works for an employer who (by 
hypothesis) has been exempted from the usually applicable (with some secular 
exemptions) employer mandate as a result of a statutory religious objector 
exemption.  As a result, she doesn't get, say, $500/year worth of contraceptive 
benefits that she would have been legally entitled to but for the employer 
mandate.

Barbara is suing Don Defendant for $500,000.  She has reason to think that Don 
has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl to 
be ordered to testify about the communication.  But Carl has been exempted from 
the usually applicable (with some secular exemptions) duty to testify as a 
result of a statutory clergy-congregant privilege.  As a result, she doesn't 
win the $500,000 that she would have been legally entitled to but for the 
clergy-congregant privilege.

Is the application of the clergy-congregant exemption from the duty to testify 
in Barbara's case an Establishment Clause violation, on the grounds that it 
imposes an excessive burden on Barbara?  And if it isn't, then why would the 
application of the hypothetical exemption from the employer mandate an 
Establishment Clause violation in Anita's case?

Eugene
___
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RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

I strongly suspect that Doug is right.  Still, I do wonder how often cases do 
arise beyond the Catholic Church (which probably fulfills my conditions for the 
privilege).

sandy

-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Tuesday, December 03, 2013 10:06 PM
To: Law  Religion issues for Law Academics; Levinson, Sanford V
Subject: Re: The clergy-penitent privilege and burdens on third parties

Eugene's hypothetical presumably describes some of the cases, from the least 
sophisticated or most desperate penitents. But it probably doesn't describe 
very many; most penitents rely on the privilege, and few would confess to their 
priest if priests were routinely testifying against folks who confessed. The 
word would obviously get around to perps that this is what priests do when you 
confess.

So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege 
deprives her only of evidence that would not exist but for the privilege. 

Meanwhile, the priest does some good, in at least some of the cases, toward 
encouraging reform or even restitution. In the original American case on the 
privilege, the priest had recovered the stolen goods and returned them to the 
owner. 

On Wed, 4 Dec 2013 02:37:42 +
 Levinson, Sanford V slevin...@law.utexas.edu wrote:
This is an excellent hypothetical.  My own inclination is that the only 
justification for a clergy-penitent privilege is a) if there is a duty to 
confess to a member of the clergy; and b) if the clergy in question believes 
that God will punish disclosure of the confession.  (It shouldn't be enough 
that the doctrine of the religion prevents disclosure unless divine punishment 
is thought to attend it.)   I have argued for some years that the only defense 
of religious privileges is the belief on the part of the claimant that 
commission of the act in question will generate divine sanctions.  This is 
probably too strict, since I (still) support the critique of Smith, and I have 
no reason to believe that the ingestion of peyote was a divine command 
violation of which would generate some kind of punishment (including 
punishment in the world to come).  But Eugene's hypo makes very real the costs 
to innocent third parties of treating any and all members of the clergy 
differently from
  one's
best friends, fellow family members, or even, in most courts, reporters.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, December 03, 2013 7:39 PM
To: Law  Religion issues for Law Academics 
(religionlaw@lists.ucla.edu)
Subject: The clergy-penitent privilege and burdens on third parties

One more question about the unconstitutional burdens on third 
 parties theory:  The clergy-penitent privilege allows the clergy (and 
 penitents) to refuse to testify about penitential communications, even when 
 the result is that a litigant is deprived of potentially highly probative 
 evidence.

What's more, this is a specifically identifiable litigant who is being 
denied the benefit of applying the normal duty to testify.  And, unlike 
with the conscientious objector exemption, the clergy-penitent 
exemption is indeed limited to religious communications, with no 
secular philosophical analog.  (The psychotherapist-patient privilege, 
I think, is quite different, partly because it requires communications 
to someone who is licensed by the state, requires a state-prescribed 
course of training, and is usually quite expensive, and partly because 
it tends to have fewer exceptions.)

Say, then, there are two people.  Anita works for an employer who (by 
hypothesis) has been exempted from the usually applicable (with some secular 
exemptions) employer mandate as a result of a statutory religious objector 
exemption.  As a result, she doesn't get, say, $500/year worth of 
contraceptive benefits that she would have been legally entitled to but for 
the employer mandate.

Barbara is suing Don Defendant for $500,000.  She has reason to think that Don 
has confessed to Carl Clergyman that Don is indeed liable, so she wants Carl 
to be ordered to testify about the communication.  But Carl has been exempted 
from the usually applicable (with some secular exemptions) duty to testify as 
a result of a statutory clergy-congregant privilege.  As a result, she doesn't 
win the $500,000 that she would have been legally entitled to but for the 
clergy-congregant privilege.

Is the application of the clergy-congregant exemption from the duty to testify 
in Barbara's case an Establishment Clause violation, on the grounds that it 
imposes an excessive burden on Barbara?  And if it isn't, then why would the 
application of the hypothetical exemption from the employer mandate an 
Establishment Clause violation in Anita's case?

Eugene

Douglas Laycock
Robert E. Scott Distinguished Professor of Law University of Virginia Law School
580

RE: The clergy-penitent privilege and burdens on third parties

[Levinson, Sanford V]

I once wrote an article, Testimonial Privileges and the Preferences of 
Friendship, 1984 DUKE LAW JOURNAL 631-662 (1984), the general thesis of which 
is that there is no truly plausible general theory of such privileges. (The 
title, incidentally, comes from Rousseau, who wrote that the preferences of 
friendship are thefts committed against the fatherland.   All men are our 
brothers; all should be our friends.  No doubt there's something scary in that 
notion, but it also captures the often-arbitrary partiality in allowing a small 
subset of individuals to refuse to offer evidence of criminal (or even 
tortious) behavior.   But if one does defend such partialities and loyalties, 
then why must one be married, for example (especially in the modern world) to 
get an intimacy privilege, and why, exactly, do family members (other than 
spouses) have no privileges?  Well-off people can go to psychiatrists, while 
less well-off talk to their bartenders and hairdressers (or, simply, best 
friends or workmates, none of whom are covered.  Are nurse-practitioners (who 
will play an increasingly important role in the delivery of medical services) 
covered (a genuine, not a rhetorical, question, since I don't know what the 
answer is, and if it varies state by state, do we really expect ordinary people 
to realize whether they are protected or not)?   In that article, I offered the 
thought-experiment of privilege tickets, a limited number of which we would 
get when we turned 18 and could distribute throughout our lifetimes to those we 
wished to immunize from state inquiries.

Maybe the real question is what is contained within Chip's etc.  If there are 
literally dozens of privileges, then one can engage in a gestalt switch and say 
that it is discriminating against the clergy to deny them what
A-Y get.  But if we're really talking about a small subset of people (none of 
whom get the kind of absolute privilege that the clergy apparently get), then 
I must say it looks an awful lot like Establishment to me, and I find Eugene's 
reference to the Texas Monthly case very persuasive.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, December 03, 2013 10:39 PM
To: Law  Religion issues for Law Academics
Subject: Re: The clergy-penitent privilege and burdens on third parties

And the clergy-penitent privilege is one of many such privileges -- 
doctor-patient, lawyer-client, spousal privilege, etc.  They are designed to 
encourage communication within relationships the law values.  So this example 
is like Walz -- it does not involve special treatment for religion.  It is that 
kind of special treatment that triggers the concern for third party harms 
(Estate of Thornton v. Caldor).

On Tue, Dec 3, 2013 at 10:05 PM, Douglas Laycock 
dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote:
Eugene's hypothetical presumably describes some of the cases, from the least 
sophisticated or most desperate penitents. But it probably doesn't describe 
very many; most penitents rely on the privilege, and few would confess to their 
priest if priests were routinely testifying against folks who confessed. The 
word would obviously get around to perps that this is what priests do when you 
confess.

So the plaintiff in Eugene's lawsuit really hasn't lost anything; the privilege 
deprives her only of evidence that would not exist but for the privilege.

Meanwhile, the priest does some good, in at least some of the cases, toward 
encouraging reform or even restitution. In the original American case on the 
privilege, the priest had recovered the stolen goods and returned them to the 
owner.

On Wed, 4 Dec 2013 02:37:42 +
 Levinson, Sanford V 
slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote:
This is an excellent hypothetical.  My own inclination is that the only 
justification for a clergy-penitent privilege is a) if there is a duty to 
confess to a member of the clergy; and b) if the clergy in question believes 
that God will punish disclosure of the confession.  (It shouldn't be enough 
that the doctrine of the religion prevents disclosure unless divine punishment 
is thought to attend it.)   I have argued for some years that the only defense 
of religious privileges is the belief on the part of the claimant that 
commission of the act in question will generate divine sanctions.  This is 
probably too strict, since I (still) support the critique of Smith, and I have 
no reason to believe that the ingestion of peyote was a divine command 
violation of which would generate some kind of punishment (including 
punishment in the world to come).  But Eugene's hypo makes very real the costs 
to innocent third parties of treating any and all members of the clergy 
differently from
  one's
best friends, fellow family members, or even, in most courts, reporters.

sandy

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun

RE: Ministerial Housing Allowance Ruled Unconstitutional

[Levinson, Sanford V]

Doesn't one have to argue that it is in the general interest or serves the 
general welfare, at least as a formal matter, in order to justify these 
breaks.  The ministerial exemption serves the general welfare only if we 
regard religion itself as serving the general welfare and, more specifically, 
wish to encourage the flourishing of religious institutions by making it less 
expensive for them to operate.   Does anyone know how much actual tax revenue 
is at stake?

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Thursday, November 28, 2013 12:38 PM
To: mich...@californialaw.org; Law  Religion issues for Law Academics
Subject: RE: Ministerial Housing Allowance Ruled Unconstitutional

The IRS code has lots of breaks for special interests. Is this any different 
than tax breaks for wind turbines or middle class home owners who deduct their 
interest payments?  I bet Roberts and Scalia will find no difference.   And it 
is historical and Thomas and Scalia love old historical reasons for things that 
make no sense.  Alito loves religion.  So where does Kennedy stand?  Will 
Ginsberg be persuaded on IRS grounds?



*
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.edumailto:paul.finkel...@albanylaw.edu
www.paulfinkelman.comhttp://www.paulfinkelman.com
*



From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Michael Peabody 
[peabody...@gmail.com]
Sent: Thursday, November 28, 2013 12:30 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Ministerial Housing Allowance Ruled Unconstitutional
This week U. S. District Judge Barbara Crabb of the Western District of 
Wisconsin ruled that the ministerial tax-free housing allowance is 
unconstitutional in response to a challenge brought by the Freedom From 
Religion Foundation.  Essentially, the tax-free allowance permits churches to 
pay ministers a salary (taxable) and a separate housing allowance (not reported 
or taxed) up to the reasonable rental value of property.  If ministers are 
also mortgage holders, they can separately deduct interest from their salary.

This case will likely be appealed up to the U.S. Supreme Court and members of 
the clergy are extremely concerned and I can see why since it seems that 
there's no real constitutional basis to providing members of the clergy with an 
exemption but excluding all others.  So far proponents of the exemption have 
failed to articulate an argument supporting its constitutionality other than a 
mushy Marsh v. Chambers style historical argument.

I guess my first question is whether, assuming arguendo that the allowance is 
ultimately (somehow) found constitutional, whether the expanded definition of 
the ministerial exception under Hosanna-Tabor could entitle non-clergy 
religious employees to a non-taxable housing allowance. Could it then expand to 
non-profits? (It is noted that in Hosanna-Tabor, the teacher Cheryl Perich was 
actually getting the tax-free housing allowance, but this is not common 
practice among teachers in parochial schools.  This fact alone along with her 
extensive religious training and religious commissioning may serve to 
differentiate her from other parochial teachers but the Court doesn't seem to 
want to come up with criteria for determining who is a religious teacher and 
who isn't.)

Secondly, since I'm doing some writing on the subject, I'm wondering if you'd 
be willing to look into your crystal ball and predict the fate of the 
ministerial tax-free housing allowance.

Thanks!

Michael Peabody, Esq.
Editor - ReligiousLiberty.TV
http://www.religiousliberty.tv
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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Levinson, Sanford V]

I know this point has been made literally dozens of times before, but I 
continue to be unable to ascertain the difference between “government-mandated 
funding of contraception” and government-mandated funding of brutal weapons of 
mass destruction or the training by the United States of personnel who are 
enabled to engage in the regular violation of at least that part of the United 
Nations Treaty, which we have ratified, that prohibits the infliction of 
“Degrading and Inhumane Acts” as well as “torture.”  It is an (unfortunate) 
necessity of life in any government based on other than unanimous consents that 
losers will be upset by legislation endorsed by winners.  Unlike Marci, I 
remain sympathetic to RFRA because I can understand claims that, for example, 
one should not be forced to work on one’s Sabbath as a condition to receive 
state benefits and the like.

Jean Bethke Elshtain, a wonderful scholar and a good friend, has just died.  
She had an essay in a book that I edited, Torture:  A Collection, in which she 
cautioned against too quick to describe as  “torture” all methods of 
interrogation that we find problematic.  An obvious problem with such overreach 
is that it tends to discredit the general argument against “torture.”  The 
obvious analogue, for me at least, is that claims that the Constitution, 
correctly understood, should protect the claim against paying for insurance 
that is broader than one would like.  As a matter of fact, Marci speaks 
eloquently of the substantive issues that are raised, but that may simply be 
evidence that I agree with her.  As suggested by my initial example, there are 
lots of features of contemporary US military policy that appall me, but I still 
can’t summon up an argument that I should be free from paying taxes, even if 
I’d be open to overturning the Court’s decision many years ago against allowing 
“selective conscientious objection.”  That, after all, required quite literally 
conscripting the body.  But conscripting one’s money is precisely what any and 
all governments do, without exception.  Unless someone claims that it is 
unconstitutional for the state to require anyone to help finance 
contraception—in the way that I at least think it is unconstitutional to 
require anyone to pay religious ministers (save, of course, for chaplains, 
which illustrates how things get more complicated when we wrestle with the real 
world), then I remain (almost) totally unsympathetic.

I apologize for the total unoriginality of these arguments, but, alas, we seem 
to return to the same issues over and over, with, quite obviously, no one 
convincing anyone on the “other side.”

sandy




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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Levinson, Sanford V]

I appreciate Eugene’s referenced to Abood, which indeed is a trouble case.  Can 
it legitimately be restricted to its facts—i.e., the extraction of funds to pay 
for what everyone would recognize as taking “political” positions.  Would the 
Court have come out the same way if the funds were used, say, to provide for 
old-age homes for retired unionists?  I’m asking this as a genuine question, 
since it’s been years since I taught that set of cases.

sandy
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RE: Marriage -- the Alito dissent

[Levinson, Sanford V]

I realize that my following question gets into another hot-button area, but is 
Mark suggesting that there is a strong constitutional interest in procreation 
at any age?  Why can’t the state come to the altogether rational conclusion 
that it is really unwise for, say, a 55-year-old couple to have children unless 
the couple has enough resources to cover the costs of taking care of children 
even after their retirement (not to mention covering the costs of likely 
medical care)?   I agree that is probably not a compelling state interest, at 
least in a quasi-libertarian society, but I certainly think it is at least a 
rational, say, as the defenses being asserted for DOMA.  Of course it may be 
that medical advances in the future will make Sarah and Abraham models to 
emulate, though I tend to be skeptical.  In any event, Abraham was a dreadful 
father who proved willing to kill his child because of a totally arbitrary 
command to do so.  (It is irrelevant that, at least according to the Bible, God 
sent the innocent lamb to be sacrificed instead  There are Midrash, 
incidentally, that suggest that no lamb appeared, which explains why only 
Abraham climbed down the mountain and Isaac was not heard from again for three 
years, by which time Sarah was dead.  One can only imagine the conversation 
that ensued when Abraham came back to the tent without Isaac and had to explain 
why he was alone.  He’s lucky that she didn’t kill him then and there.  But I 
digress….)

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Wednesday, July 03, 2013 8:12 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Marriage -- the Alito dissent

The biological issues with regard to different sex couples mostly can be 
answered fairly easily, I think, including with these points:

With regard to medical or similar issues that prevent procreation, a state 
inquiry would intrude substantially on privacy, which would justify the state 
in not inquiring. (Also, some couples who have given up on conceiving, later 
are surprised to find that they have.)

With regard to age, no bright line can be set that accurately distinguishes 
those who can from those who cannot procreate.  Any line based on experience as 
to an age after which procreation cannot occur would either be impossible to 
set - men can procreate to a very old age - or would have to discriminate 
against women, who lose the ability to become pregnant by a particular upper 
bound (absent miracles as with Sarah and Abraham) that is much younger than any 
age that could possibly be set for men. Thus there are good reasons not to set 
an age limit.

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone
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Re: Liberty: A Vote or A Veto?

[Levinson, Sanford V]

I think the language of veto really applies to an employer's firing an employee 
for legal behavior (or opinions) the employer doesn't like. Otherwise, I think 
Arthur is right. The question then becomes if the employers in effect have a 
right to nullify otherwise valid laws that clearly apply to them, as with 
compulsory insurance plans etc., and I'm inclined to think the answer should be 
no save for very special circumstances (and, for me, impingement on a very 
tender conscience about what one is subsidizing isn't one of them, since I 
don't see the moral difference between compulsory taxes and a compulsory 
private insurance plan.

Sandy

From: Arthur Spitzer [mailto:artspit...@gmail.com]
Sent: Sunday, June 16, 2013 07:14 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: Re: Liberty: A Vote or A Veto?

Owners of for-profit companies have the freedom to vote their conscience, to 
speak their mind, to persuade and petition and parade in the public square. 
This free exercise of speech and religion does not give them the right to 
unilaterally veto the rights of their employees.

I find the argument hard to understand. Does my employer unilaterally veto my 
right to preventive health services (assuming I have such a right) by refusing 
to pay for my gym membership, which (as a middle aged man) is far more 
important to my health than contraception, and probably costs about as much per 
month?  Does the government unilaterally veto my First Amendment rights by 
refusing to pay for my website, or by refusing to give me a free subscription 
to the Congressional Record?

I understand that a person who is employed full-time, by an employer that has 
at least 50 employees, and that has a health-care plan that is not 
grandfathered, has a statutory right to employer-provided contraception.  If 
what you're saying is that such a person's statutory right to free 
contraception is vetoed by the employer refusing to provide it, that's just a 
dramatic way of saying that the employer is refusing to provide it.

Speaking for myself and emphatically not for my employer.

Art Spitzer


Warning: the National Security Agency may be monitoring this communication.


On Sun, Jun 16, 2013 at 2:51 PM, Friedman, Howard M. 
howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote:
Nate--

Very interesting piece.  I believe the vote, not a veto language originated 
in the writings of Rabbi Mordecai Kaplan who, departing from the Orthodox 
Jewish view that halacha [traditional Jewish law] was the sole standard for 
Jewish practice, said the past has a vote, not a veto.  The analogy in the 
health care mandate situation, it seems to me, would be religious conscience 
has a vote, not a veto.

Howard Friedman

From: 
religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] 
on behalf of Nathan C. Walker 
[n...@whosegodrules.commailto:n...@whosegodrules.com]
Sent: Saturday, June 15, 2013 3:22 PM
To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu
Subject: Liberty: A Vote or A Veto?

Dear Religion  Law Colleagues,

I'm interested in your feedback about my article regarding the contraception 
mandate, Liberty: A Vote or A Veto? published by Sightings of the Martin 
Marty Center for the Advanced Study of Religion at the University of Chicago 
Divinity School.

Here's an excerpt:

* * * * *

Liberty is a vote not a veto.  Owners of for-profit companies have the freedom 
to vote their conscience, to speak their mind, to persuade and petition and 
parade in the public square. This free exercise of speech and religion does not 
give them the right to unilaterally veto the rights of their employees. Doing 
so would establish a de facto state religion, where corporations become the 
nation’s congregations and its owners the high priests.


* * * * *

I look forward to your input.

Cheers,
Nate



Nathan C. Walker,  co-editor of Whose God Rules?http://www.whosegodrules.com/ 
(Palgrave Macmillan 2011)
Foreword by Tony Blair with contributions by Alan Dershowitz, Martha Nussbaum,
Robert George, and Kent Greenawalt. Cornel West calls it provocative and 
pioneering.

Resident Fellow, Harvard Divinity School, '13
Legal restrictions on religious expression

Doctoral Candidate, Columbia University, '14
Interdisciplinary study of law, education  religion
Unveiling Freedom: Bans on Religious Garb.

nathan_wal...@mail.harvard.edumailto:nathan_wal...@mail.harvard.edu
Cell: (215) 701-9071tel:%28215%29%20701-9071
www.NateWalker.comhttp://www.natewalker.com/

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Re: Liberty: A Vote or A Veto?

[Levinson, Sanford V]

Eugene is correct, as a formal matter, if the claim is a statute that 
recognizes the trump. The question remains, though, why being forced to pay 
taxes and thus finance immoral activities isn't covered.

Sandy

From: Volokh, Eugene [mailto:vol...@law.ucla.edu]
Sent: Sunday, June 16, 2013 11:41 PM
To: Law  Religion issues for Law Academics religionlaw@lists.ucla.edu
Subject: RE: Liberty: A Vote or A Veto?

Doesn’t this assume the conclusion?  A RFRA claim isn’t an 
attempt to “nullify otherwise valid laws that clearly apply to them”; rather, 
it’s a claim that one law in fact doesn’t apply to them, because another law 
(RFRA) precludes it from applying.  That’s no more a “nullification” than, say, 
a statutory self-defense defense is a “nullification” of the law of assault or 
homicide.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, June 16, 2013 9:37 PM
To: 'religionlaw@lists.ucla.edu'
Subject: Re: Liberty: A Vote or A Veto?

I think the language of veto really applies to an employer's firing an employee 
for legal behavior (or opinions) the employer doesn't like. Otherwise, I think 
Arthur is right. The question then becomes if the employers in effect have a 
right to nullify otherwise valid laws that clearly apply to them, as with 
compulsory insurance plans etc., and I'm inclined to think the answer should be 
no save for very special circumstances (and, for me, impingement on a very 
tender conscience about what one is subsidizing isn't one of them, since I 
don't see the moral difference between compulsory taxes and a compulsory 
private insurance plan.

Sandy


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